PLJ 2008 Karachi 1 (DB)
Present: Mushir Alam & Arshad Siraj, JJ.
RANA MUNEER AHMED--Petitioner
versus
KASB BANK LIMITED--Respondent
C.P. No. D-2095 of 2007, decided on 04-10-2007.
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 16--Constitution of Pakistan, 1973, Art. 199--Sale of buses--Observation sale of sixteen buses being ply under the supervision of the Official Assigned of High Court--Seating capacity of the sixteen (16) buses is 100 passengers as according to Counsel the buses are having seating capacity of 48 passengers only--Consolidated issued
Kar. National Logistic Cell Ministry of Defence PLJ Govt. of Pakistan v. National Insurance Corp. (Khalid Ali Z. Qazi, J.)
2008 National Logistic Cell Ministry of Defence Kar.
Govt. of Pakistan v. National Insurance Corp. (Khalid Ali Z. Qazi, J.)
have been framed and the matter is ripe for the evidence and it can be expeditively adjudicated after the evidence of the parties are recorded at Katcha Peshi Stage--Operation of the impugned order is suspended. [P. 2] A
Mr. Salim Salam Ansari with Rana Azeem, Advocates for Petitioner.
Date of hearing: 4.10.2007.
Order
Granted
Learned counsel undertakes to comply the office objections before the next date.
Granted subject to above and all just exception.
4/5. It is submitted by the learned counsel that through the impugned order the learned single judge in chamber has ordered for sale of 16 buses being ply under the supervision of the Official Assigned of this Court. It is urged that the learned single judge has eared in observing that the seating capacity of the said 16 buses is 100 passengers as according to the learned counsel the buses are having seating capacity of 48 passengers only. It is stated that consolidated issued have been framed and the matter is ripe for the evidence and it can be expeditively adjudicated after the evidence of the parties are recorded at Katcha Peshi Stage.
Notice be issued to respondents. In the meantime, operation of the impugned order is suspended.
To come up after four weeks.
(R.A.) Petition accepted.
PLJ 2008 Karachi 2
Present: Khalid Ali Z. Qazi, J.
NATIONAL LOGISTIC CELL MINISTRY OF DEFENCE GOVERNMENT OF PAKISTAN through its Commander--Plaintiff
versus
NATIONAL INSURANCE CORPORATION through its Managing Director--Defendant
Suit No. 694 of 2001, decided on 11.1.2008.
Qisas & Diyat Ordinance, 1991--
----Art. 323--Sindh Chief Court Rule, R. 176--In view of the provision of Art. 323 Qisas Diyat Ordinance, 1991 it is established that Para-7 of the Judgment dated 13-01-2003 passed by High Court has been treated as maximum liability to the extent of the amount so deposited at the rate of Rs. 1.76.000/- only per person being the value of Diyat--Decree is to be prepared accordingly. [P. 4] A
Mr. Abdur Rauf, Mr. Nasir Maqsood and Mr. Mukhtar Ahmed Kober, Advocates for Plaintiff.
Nemo for Defendant.
Date of hearing: 11.1.2008
Order
This is a office reference submitted by Assistant Registrar (OS-I) through Additional Registrar (OS-I) wherein it is solicited whether;
(a) Decree may be prepared in terms of Para 7 of the judgment dated 13.1.2003 to the extent of the maximum liability of the Insurance Company as disclosed in Para 6 of the judgment that since the amounts pertaining to the liability of the defendants under the policy has already been deposited or paid (Rs. 3,20,000/- + Rs. 6,24,000/- Rs. 9,44,000/-) deposited with the Nazir of this Hon'ble Court.
(b) Any other orders may be passed as deemed fit and proper.
Under the facts and circumstances of the case, to do the substantial justice I have issued notice to the parties M/s.. Abdur Rauf Nasir Maqsood and Mukhtair Ahmed Kober Advocates appeared but none appeared on behalf of the defendant/National Insurance Corporation. Notice was served on National Insurance Corporation on 19.12.2007 for 11.1.2008 at 8:15 a.m for rehearing of office reference dated 28.10.2004. The case was called thrice, thereafter, with the assistance of the learned advocates of the parties I have perused the record and the order passed by Mr. Justice Anwar Mansoor Khan (as he then was) dated 19.7.2001 and 7.8.2001 wherein his lordship (as he then was) held as under:
"Earlier Mr. Siddique had given a bank draft for a sum" of Rs. 320,000/- stating that this is the only liability that was to be paid by him. Subsequently, after the case was partly heard on 19.7.2001 Mr. Siddique stated that in other cases, where, the insurance policy was taken up after 21.3.1991 they would be liable to be extend Rs. 1,76,000/- and undertook to pay the said balance. Today he has given a pay order for Rs. 6,24,000/ making the total to Rs. 7,04,000/- in respect of four cases which, according to him fall under the category where the insurance agreement was entered into on or after 21.3.1991. The cheque be delivered to the Nazir upon his receipt."
On perusal of the order as reproduced hereinabove it is clear that the Insurance Policy taken up after 21.3.1991 the defendant would be liable to the extent of Rs. 1,76,000/- and undertook to pay the said balance.
I have also gone through the order passed by Mr. Justice Zahid Qurban Alvi (as he then was) dated 20.11.2002 wherein his lordship has been pleased to hold that he would like to rely on the detailed observations made by Mr. Justice Anwar Mansoor Khan (as he then was) in his order dated 19.7.2001.
I have also gone through the case Law cited at bar:
(i) AIR 1981 MADRAS 299;
(ii) AIR 1986 RAJASTHAN 2;
(iii) PLD 1993 SC 158;
(iv) PLD 1984 KARACHI 38;
(v) AIR 1977 SC 1158;
(vi) 2002 MLD 861;
(vii) 2002 SBLR 1010;
(viii) 2003 SBLR 43;
and Article 323 Qisas & Diyat Ordinance, 1991.
In view of the following law laid down by Hon'ble Superior Courts of Pakistan and India and keeping in view the provision of Art. 323 Qisas & Diyat Ordinance 1991 it is established that para 7 of the judgment dated 13.1.2003 passed by this Hon'ble Court may be treated as maximum liability to the extent of the amount so deposited at the rate of Rs. 1,76,000/- per person being the value of Diyat. Let the decree be prepared accordingly.
(R.A.) Order accordingly.
PLJ 2008 Karachi 5
Present: Nadeem Azhar Siddiqui, J.
MUHAMMAD ANWAR--Plaintiff
versus
PAK ARAB REFINERY LTD. through its Managing Director, Pumping Station No. 1, Karachi--Defendant
Civil Suit No. 1343 of 2004 and C.M. No. 1216 of 2005, decided on 29.8.2007.
Limitation Act, 1908 (IX of 1908)--
----Ss. 19, 22 & 23 of First Schedule--Civil Procedure Code, (V of 1908)--O. VII, R. 11--Condonation of delay--Rejection of plaint on the grounds of suit is barred by resjudicata and suit is hopelessly barred by time--Malicious prosecution--Illegal dismissal from service, mental torture and incapacitation--Claim of damages cannot be awarded under the law and that plaintiff was acquitted by Court on the basis of compromise--In Counter affidavit plaintiff submits that suit was filed within three years of the judgment--Validity--Plaintiff has claimed compensation on account of malicious prosecution, illegal dismissal from service, mental torture and incapacitation of son--Limitation for filing the suit is one year in terms of Arts. 19, 22 & 23 of First Schedule of Limitation Act--Suit was filed after one year of the limitation without filing application for condonation of delay--Held: Cause of action to plaintiff accrued when plaintiff was acquitted when the Service Tribunal has reinstated him--Suit can be filed within one year from specified dates.
[P. 8] A & E
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 11(d)--Barred by any law--Prima facie--Plaint can be rejected under clause (d) of Order VII, Rule 11 of CPC where the suit appears to be prima facie barred by any law from perusal of the statement in plaint and no enquiry is needed. [P. 8] B
Limitation--
----Question of law and facts--Plea of limitation--Question of limitation is not a mixed question of law and facts and where the question of limitation is apparent on the face of record the Court can proceed without any further enquiry. [P. 8] C
Duty of Court--
----Plea of limitation was raised or not--Matters of limitation cannot be left to pleadings of the parties, but a duty was imposed on Court to notice the point of limitation, whether the plea of limitation was raised or not. [P. 8] D
PLD 1970 Lah. 298 and PLD 1968 Kar. 376 rel.
Nemo for Plaintiff.
Mr. Shahid Anwar Bajwa, Advocate for Defendant.
Date of hearing: 13.8.2007.
Order
By filing of application under Order VII Rule 11 CPC the Defendant has prayed for rejection of plaint. The ground taken in the application are that the suit is bared by res judicata, the suit is hopelessly barred by time, the claim of damages cannot be awarded under the law and that the plaintiff was acquitted by the Court on the basis of compromise and payment of compensation to legal heirs of the deceased girl.
The Plaintiff has filed counter affidavit to the application. In the counter affidavit the Plaintiff submits that the suit is within time and the suit was filed within three years of the judgment dated 16-6-2001 of the accident case passed by 1st Additional Sessions Judge, Shikarpur. The Plaintiff further submits that, the Ist Additional Sessions Judge has decided the case on merits.
The facts of the case are that on 07.12.1995, when the Plaintiff was on duty driving the vehicle belongs to Defendant met with an accident and a girl namely Miss Shazia was killed. The Plaintiff was challaned in Case No. 66/96 and was acquitted by extending benefit of doubt by Ist Additional Sessions Judge, Shikarpur vide judgment dated 16-6-2001. Before his acquittal plaintiff was dismissed from service on 24-6-1996, which order was challenged before the Federal Services Tribunal, who reinstated the Plaintiff vide order dated 31-5-2003 without back benefits. The Plaintiff challenged the order of Service Tribunal before the Honourable Supreme Court by way of filing CPLA, in which the leave was refused.
The Plaintiff has prayed compensation on following accounts:--
(i) Advocate fees and related expenses
Rs. 50,000/-
(ii) Bail and Misc. police expenses
Rs.50,000/-
(iii) Conveyance expenses from Karachi to Shikarpur at last 120 hearing from 1996-2001 @ of Rs.2000/- per hearing
Rs.240,000/-
(iv) Compensation paid to legal heirs of deceased girl
Rs. 500,000/-
(v) Compensation due to injury caused to the Plaintiff
Rs.200,000/-
(vi) Damages for not arranging the bail of the Plaintiff
Rs. 500,000/-
(vii) Damages due to incapacitation of the son for want of proper care and treatment due to mental pressure and tension of the accident case
Rs.2500,000/-
(viii) Damages for mental torture, harassment, tension pains and agonies for 5 and half years
Rs.1500,000/-
(ix) Damages for loss of reputation
Rs.500,000/-
Total Rs.60,40.000/-
In Para-12 of the plaint the Plaintiff submits that the cause of action for filing of the suit accrued on 21.6.2001 when he was acquitted by the 1st Additional Sessions Judge, Shikarpur and thereafter when the Federal Services Tribunal held that the accident took place due to mechanical defects in the vehicle and is still continuing.
The learned Counsel for the Defendant submits that the suit is hopelessly time barred. He submits that under Article 19 of the Limitation Act the limitation for filing the suit for compensation for false imprisonment is one year from the day when imprisonment ends. He further submits that under Article 23 of Limitation Act the limitation for filing of the suit for compensation for malicious prosecution is one year from the date when the Plaintiff was acquitted or prosecuted was terminated. He submits that the Plaintiff was acquitted by extending benefit of doubt on 16.6.2001 on payment of compensation to the legal heirs of the deceased as such is not entitled to claim of compensation. He also referred Article 22 of the Limitation Act, which provides that suit for compensation for any other injury to the person can be filed within a period of one year from the date when the injury was committed. He submits that in this case the cause of action accrued when the Plaintiff was dismissed from his services on 24-6-1996, acquitted on the basis of benefit of doubt on 21-6-2001 and reinstated by the Services Tribunal on 31-5-2003 and the CPLA was refused on 25-11-2003.
The learned Counsel for the Defendant has relied upon the following reported cases:--
(i) Abdul Majid Butt v. United Chemicals Ltd. PLD 1970 Lahore 298
(ii) Kayumarz v. Messrs Mohammedi Tramway Company, Karachi, PLD 1966 Karachi 376
(iii) Abdulla Mahomed Jabli v. Abdulla Mahomed Zulaikhi, AIR 1964, Patna 372
The Plaintiff has claimed compensation on account of malicious prosecution, illegal dismissal from service, mental torture and incapacitation of son. For all above acts the limitation for filing the suit is one year in terms of Articles 19, 22 & 23 of the First Schedule of the Limitation Act. The suit was filed on 11-6-2004 after one year of the limitation without filing application for condonation of delay.
The plaint can be rejected under Clause (d) of Order VII Rule 11 CPC where the suit appears to be prima facie barred by any law from perusal of the statement in the plaint and no enquiry is needed. The question of limitation is always not a mixed question of law and facts and where the question of limitation is apparent on the face of record the Court can proceed without any further enquiry. Matters of limitation cannot be left to pleadings of the parties, but a duty was imposed on Court to notice the point of limitation, whether the plea of limitation was raised or not.
In this case admittedly the cause of action to the Plaintiff accrued on 21.6.2001 when the Plaintiff was acquitted and on 31.5.2003 when the Service Tribunal has reinstated him. The suit can be filed with in one year from the above mentioned dates. The Plaintiff has not filed any application for condonation of delay, but in his counter affidavit states that the suit was filed within three years of the judgment dated 16.6.2001 of the accident case passed by Ist Additional Sessions Judge, Shikarpur. From the statement of the Plaintiff in Para-12 of the plaint it is apparent that the suit is prima facie barred by limitation provided under Articles 19, 22 & 23 of the First Schedule of the Limitation Act.
The Plaint is therefore, rejected under Order VII Rule 11 CPC with no order as to cost.
(R.A.) Suit rejected.
PLJ 2008 Karachi 7
Present: Arshad Noor Khan, J.
Mst. YAQOOBI BEGUM and another--Appellants
versus
Syed AFSHEEN FATIMA and another--Respondents
M.A. No. 50, Misc. Nos. 2910 of 2005 and No. 866 of 2006, decided on 16.1.2008.
Islamic Law--
----Inheritance--Shia law--Deceased was employed--Entitlement of service benefits--Shares of widow, children and parents--Entitlement--Widow and children of deceased as per Shia law were not excluded from the estate left by deceased--Mother and father of deceased were also entitled to their shares in the property left by deceased--Appellant being mother of deceased was entitled to l/6th share of the estate left by deceased and remaining share was inherited by widow and children--Deceased was a police officer and was entitled to certain benefits including death compensation as well as monthly salary of deceased till the age of 60 years, if deceased would have been alive, as according to the scheme of police department, widow and children deceased must be benefited with recurring income of deceased in the shape of monthly salary--High Court declined to interfere with the order passed by trial Court as there was no illegality apparent on the face of it--Appeal was dismissed. [P. 9] A
Mr. Feroze Hussain Sheikh, Advocate for Appellants.
Mr. Muhammad Shoaib Abidi, Advocate for Respondents.
Date of hearing: 16.1.2008.
Order
By this appeal, the petitioner has questioned the legality and validity of the order passed by learned VI Additional District Judge, Karachi-South, dated 10-8-2005, passed in S.M.A. No. 216/2004 (Yaqoobi Begum v. Mst. Afsheen).
The facts leading rise to this appeal in brief are that the appellant is the mother of deceased Syed Hassan Asghar Taqvi and the Respondent No. 1 is the wife of the deceased. The deceased was employed in Police Department as SIP and unfortunately on 10-6-2004 he was martyred in an attack by the terrorists, as such his legal heirs were entitled to service benefits, gratuity, etc. as well as the monetary salary uptil the age of 60 years of the deceased in case if he would have been alive. The appellant, being the mother, filed Succession Miscellaneous Application before the learned lower Court wherein the respondent was shown as objector. The learned VI Additional District Judge, Karachi-South, after consideration of the material brought before him, was pleased to pass the following order:
"Therefore it is hereby ordered that the concerned Police Department where the deceased was serving are directed to pay arrears of monthly salary of Shaheed deceased to his widow/Ms. Afsheen within thirty (30) days hereof and also continue to pay her the monthly salary till she attains the age of sixty (60) years as per Police Rules. Further the Police Authorities/employers of deceased Shaheed are directed to deposit Death Compensation of Rs. 300,000 as well as Pension/Gratuity/G.P. Fund and other dues of the deceased with the Nazir of District South, Karachi within same time who shall distribute the shares of Petitioner/mother and widow/Afsheen according to their Personal Law after proper verification and invest the shares of minor babies namely (1) Baby Saba (2) Baby Abya and (3) Baby Erum in same profitable Banking Scheme, payable to them at the time of their marriages or attaining the ages of maturity whichever dates are earlier, after deducting and receiving a fee of Rs. 5,000 (Five Thousand) only of the Nazir. The petitioner is also directed to deposit the amount of Insurance Policy of deceased received by her amounting to Rs. 228,000 with the Nazir who after distributing the shares of mother and widow shall invest the shares of minor daughters in the above Banking Scheme."
The petitioner being aggrieved against the aforesaid order has filed this appeal.
I have heard Mr. Feroze Hussain Sheikh, learned counsel for the appellant, and Mr. Muhammad Shoaib Abidi, learned counsel for the respondent.
Mr. Feroze Hussain Sheikh, learned counsel for the appellant, vehemently contended that the Respondent No. 1 is the divorcee of the deceased, who was pronounced divorce on 10-2-2004 by the deceased, as such the divorce becomes effective on the date when the deceased was martyred on 10-6-2004, as such she was excluded from the right of inheritance as per Shia Personal Law and the learned lower Court was not justified in allowing her as shareholder in the estate left by the deceased.
Mr. Muhammad Shoaib Abidi, learned counsel for Respondent No. 1, has vehemently controverted the contentions advanced by the learned counsel for the appellant and stated that the contentions regarding pronouncement of divorce to the Respondent No. 1 by the deceased is an afterthought and is against the documentary evidence available on record and that the said point has been raised just to deprive off her from the legitimate right of her claim in the estate: left by the deceased.
I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.
As per Shia law the widow and the children of the deceased have not been excluded from the estate left by the deceased. The mother and father of the deceased are also entitled for their share in the property left by the deceased. This legal proposition has not been disputed by the learned counsel for the appellant. As per Shia law the appellant, being the mother of deceased Syed Hassan Asghar Taqvi was entitled to 1/6th share of the estate left by the deceased and the remaining share must be inherited by the widow and the children of the deceased. The deceased, who was a police officer, was entitled to certain benefits including the death compensation as well as the monthly salary of the deceased till the age of 60 years if the deceased would had been alive as according to the scheme of the Police Department the widow and the children of the deceased must be benefited with the recurring income of the deceased in the shape of monthly salary. The learned trial Court has, therefore, perfectly passed the order referred to above and no illegality is apparent on the face of the order passed by the learned lower Court.
A
The main emphasis of the learned counsel for the appellant is that the Respondent No. 1 was pronounced divorce by the deceased, therefore, she must be excluded from the inheritance left by the deceased. The said contention has been controverted by the learned counsel for Respondent No. 1 by pointing out the affidavits sworn by Faheemuddin son of Nawabuddam and Azhar Ali son of Ashgar Ali in S.M.A. No. 216/2004, filed before the learned lower Court in the present proceedings and they both have testified that the deceased had pronounced divorce to the Respondent No. 1 during his lifetime on 10.2.2004 and they are witnesses to that divorce. Surprisingly the said affidavits have been sworn by both of them on 10-2-2004, which is the alleged date of pronouncement of the alleged divorce to Respondent No. 1 by the deceased and on that date, viz. 10-2-2004, even the deceased was alive, who was martyred on 10-6-2004, as such the truth of the affidavits sworn by both these deponents is manifest which appears to be fake and
Kar. Mehmood-ul-Hassan Khan v. Dow University PLJ of Health Sciences (Sabihuddin Ahmed, C.J.)
2008 Mehmood-ul-Hassan Khan v. Dow University Kar. of Health Sciences (Sabihuddin Ahmed, C.J.)
afterthought just to provide wrongful gain to the present appellant. It is not believable that on the very same day, viz. 10-2-2004, they witnessed the divorce proceedings and on the very same day they filed their affidavits in a case which was not in existence in the eye of law. The contention advanced by the learned counsel for the appellant, therefore, seems to be devoid of any force.
For the foregoing reasons, I do not find any merit in the appeal, which is hereby dismissed.
(R.A.) Appeal dismissed
PLJ 2008 Karachi 10 (DB)
Present: Sabihuddin Ahmed, C.J. and Faisal Arab, J.
MEHMOOD UL HASSAN KHAN--Petitioner
versus
DOW UNIVERSITY OF HEALTH SCIENCES through Vice-Chancellor--Respondent
Const. P. No. D-1758 of 2007, heard on 4.9.2007.
Educational Institution--
----Constitution of Pakistan (1973), Arts. 15, 22(3)(b) & 37(3)--Constitutional petition--Admission, right of--Scope--Public Authority might confine such right to an educational institution located in a particular area to its residents, but ancestry of candidate ex facie would be an irrelevant consideration. [P. 13] A
Sindh Permanent Residence Certificate Rules, 1971--
----R. 6--Pakistan Citizenship Act, (II of 1951)--S. 17--Educational institution--Permanent residence certificate--Rules of admissions--Father's domicile--Admission in educational institutions on basis of such certificate--Scope--Basic objective of Rule 6 of Sindh Permanent Residence Certificate Rules, 1971 would be to determine permanent residence of a candidate in an area on basis of factual inquiry--Domicile of child must follow that of his father would have no application for purpose of Rule 6 of Sindh Permanent Residence Certificate Rules, which envisaged separate domicile for parents and children applying for admissions in educational institutions--Certificate of domicile issued under Citizenship Act, 1951 either to a candidate or his parents would altogether be irrelevant for such purpose--Principles. [P. 14] B
Domicile--
----Interpretation--Expressions "domicile" and "permanent residence"--Distinction--Expression "domicile" would reflect a person's status as a citizen of a particular State or country, whereas expression "permanent residence" might be a pure question of fact as to his residence in a particular area. [P. 15] C
PLD 1961 SC 616; PLD 1978 Kar. 214; 1980 SCMR 456 & 2000 CLC 406 rel.
Pakistan Citizenship Act, 1951 (II of 1951)--
----S. 17--Sindh Permanent Residence Certificate Rules, 1971--R. 6--Permanent residence--Educational institution--Question of--Factum of permanent residence of student could be only relevant consideration for a candidate's admission into institution through law made under authority of Provincial Citizenship Act, either to a candidate or his parents is altogether irrelevant. [P. 17] H
Constitution of Pakistan, 1973--
----Arts. 15, 22(3)(b) & 37(3)--Sindh Permanent Residence Certificate Rules, 1971, R. 6--Educational institution--Permanent residence certificate--Admission in State owned Medical College--Prospectus of College reserving seats on open merits for candidates, who and their parents both possessed such certificates from Karachi District--Validity--Provincial Government might have right to reserve seats in educational institutions for bona fide residents of such Province--Denial of such right to a resident on mere ground of his failure to get original domicile certificate cancelled would be violative of fundamental rights guaranteed under Art. 15 of the Constitution--Candidate for such purpose must possess his own independent domicile certificate of Karachi separate from that of his parents having certificate from another place. [P. 16] D
2001 CLC 2001 ref.
1980 SCMR 456; 2001 SCMR 1161 and 2001 SCMR 1729 rel.
Pakistan Citizenship Rules, 1952--
----R. 23--Sindh Permanent Residence Certificate Rules, 1971, R.6--Permanent resident having been born and having obtained certificate of domicile and permanent residence from appropriate authorities--Disqualify for admission into M.B.B.S. course on ground of father's domicile--Validity--Domicile certificate, cancellation or change of--Scope--Such certificate, if obtained through misrepresentation could be cancelled--Holder of such certificate issued in his favour by one District, if chose to settle down permanently in another District, would be entitled to retain such certificate. [P. 17] F
Constitution of Pakistan, 1973--
----Art. 15--Fundamental right violative--Domicile--Cancellation of--Educational institution--Validity--Provincial Government might have the right to reserve seates in educational institution for bona fide residents of that province but denial of such right to resident on mere ground that he has failed to get his original certificate cancelled would be violative of fundamental rights guaranteed under Art. 15 of Constitution. [P. 17] G
Mr. Khalid Javed Khan, Advocate for Petitioner.
Mr. Afaq A. Saeed, Advocate for Respondent No. 1.
Mr. Abdul Jabbar Lakho, A.A.-G.
Date of hearing: 4.9.2007.
Judgment
Sabihuddin Ahmed, C.J.--The petitioner who is admittedly a permanent resident of Sindh having been born in Karachi, have lived there throughout and having obtained his Certificates of Domicile and Permanent Residence from the appropriate Authorities appears to be aggrieved by stipulation in the Rules of admissions of the respondent purporting to disqualify him for admission into the M.B.B.S. courses on ground of his father's Domicile of the Punjab Province. The facts as asserted by the petitioner and not controverted by the respondents appears to be that the petitioner's father was serving in the Pakistan Air Force and had come over from Punjab and settled in Karachi and married his mother, who was a resident of Sindh in 1986. The petitioner was born in Karachi in 1989 and passed Mis matriculation as a student from Fazia Degree College Faisal Karachi, inducted by the Federal Board and took the Intermediate examination conducted by the Karachi Board of Intermediate Education as student of Government Delhi College Hussainabad Karachi.
However, unfortunately upon his retirement from the Air Force, the petitioner's father stated to have remarried abandoned his wife and children from first marriage and moved back to Punjab. Nevertheless, his mother is still reluctant to seek release from matrimonial ties. In the circumstances, the petitioner's prospects of seeking education for the purpose of following a career of his choice in an Institution of higher learning which being seriously imperiled by stipulation that to qualify for admission not merely the candidate should possess the Domicile and Permanent Residence Certificate of the District of Karachi but his father should also be shown to be domiciled in Sindh. Learned counsel argued that the aforesaid stipulation was not merely unreasonable but is also ultra vires the Constitution and the law declared by the Superior Courts.
Mr. Khalid Javed Khan learned counsel for the petitioner has placed reliance upon a Division Bench Judgment in Syed Muhammad Afaque v. Federal Public Service Commission 2001 CLC 2001. Under Rules 6(a)(iii) of the Federal Public Service Commission Rules of Competitive Examination 1997 candidates were offered appointments against quota of vacancies reserved for different Provinces/areas on the basis of their respective father's Domicile Certificates. Accordingly the petitioner who was born in and always lived in Sindh was being treated as a candidate from Punjab on account of his father Domicile Certificate in view of the relevant Rules. A Division Bench of this Court of which one of us (Sahibuddin Ahmed, C.J) happened to be a member found the Rules to be ultra vires Articles 15, 25 and 27 of the Constitution and allowed the petition directing the Public Service Commission to allocate seats to candidates on the basis of their own Permanent Residence in the areas in which they had lived and acquired the substantial part of their education irrespective of the areas to which their respective fathers belonged. We were informed that appeals against the above judgments being Civil Appeals No. 1318 and 1327 of 2002 were preferred before Honourable Supreme Court but were dismissed and the principle laid down by this Court was upheld. Learned counsel contended that upon analogy the stipulation in the admission policy of the respondent is also liable to be struck down.
Indeed while it may be possible for a Public Authority to confine the right of admission to an educational institution located in a particular area to residents of such area but the ancestry of a candidate seems to be ex-facie an irrelevant consideration. Nevertheless, Mr. Afaque Saeed learned counsel for the respondents argued that under the law the petitioner himself was neither entitled to the grant of a Domicile nor a Permanent Residence Certificate.
With regard to eligibility for grant of a permanent residence certificate, it may be mentioned that such certificates are granted for the purpose of admission to an Educational institution in Form "C" in terms of Rule 6 of the Sindh Permanent Residence Rules 1971. To be able to appreciate the contention, it may be pertinent to reproduce Rule 6, which reads as follows:--
A
"6. No person shall be eligible for grant of certificate in Form C unless--
(i) he was born in any area forming a part of Sindh, and further--
(a) in the case of a person of legitimate birth, at the time of his birth, his father was domiciled in Sindh, or if he was born after the death of his father, the later, at the time of his death, was domiciled.
(b) the case of a person of illegitimate birth, his mother, at the time of his birth, was domiciled in Sindh; or
(ii) in the case of a person who was not born in Sindh:
(a) his parents are domiciled in Sindh and have resided in Sindh for a period of not less than three years, except those employed by Central Government and autonomous/semi-autonomous Corporations in whose case three years residence may be waived; provided the official furnished adequate evidence to prove that due to exigencies of service he was unable to fulfil that condition.
(b) if his parents are not domiciled in Sindh, he is domiciled in Sindh, and further has either resided in Sindh or has been educated in Sindh for a period of not less than 3 years; or
(iii) His father or mother has been recruited to any specified service or post mentioned in clause (b) of sub-rule (2) of Rule 2."
With great respect, we find the contention patently untenable. Learned counsel indeed read out Rule 6(i), which relates to a situation where the father of a candidate is domiciled in Sindh (for whatever it means) but completely overlooked that Rule 6(ii)(b) also explicitly makes a candidate eligible for a Certificate if his parents are not domiciled in Sindh but he himself is domiciled in Sindh and is either resided or has been educated in Sindh for a period of not less than three years. Whatever confusion might have been created by die use of the expression "domicile" in these Rules it is at least evident that they envisage separate domiciles for parents and children applying for admissions in educational institutions and the Rule that the Domicile of a child must follow that of his father has no application whatsoever for the purpose of these Rules. A careful reading of the Rules clearly demonstrates that the basic objective is to determine the permanent residence of a candidate in an area on the basis of a factual inquiry.
As regards a domicile certificate it was contended that the same is to be granted under Section 17 of the Citizenship Act, 1951 and the petitioner had to be treated as a minor and granted a certificate for the same area as his father. In this context, we need to observe that the expression "domicile" with reference to a particular area appears to be misnomer which has given rise to a great deal of confusion. The distinction between "domicile" and "permanent residence" needs to be clearly kept in view. The former reflects a person's status as a citizen of a particular State or a country whereas the latter may be a pure question of fact as to his residence in a particular area. Way back in 1961, the Honourable Supreme Court observed in Joan Marg Carter versus Albert William Carter (PLD 1961 SC 616), "we are constrained to observe that the learned Judges of the Letters of Patent Bench have fallen into error in thinking that a person cannot be domiciled in a country unless his Domicile can be fixed at some particular place in that country ......" Clarifying the position a Division Bench of this Court in Mehr-un-Nisa Baloch versus Appellate Committee (PLD 1978 Karachi 214) held that "insofar as the Citizenship Act is concerned Domicile Certificate is granted when the concerned Authority is satisfied that the applicant has ordinarily resided in Pakistan for a period of not less than one year immediately before making of the application and has acquired domicile therein. Therefore, the Domicile of which Section 17 speaks of is not of a particular area in Pakistan but of Pakistan".
C
The distinction was further highlighted by the Honourable Supreme Court in the subsequent case of Muhammad Yar Khan versus Deputy Commissioner-cum-Political Agent Loralai (1980 SCMR 456). Their lordships observed, "in this view of the matter it would be obvious that the domicile certificate granted to the petitioner by the District Magistrate, Loralai, would only show that he was domicile of Pakistan and not the domicile of Balochistan or for that matter of the District of Loralai." Highlighting the distinction between the concepts of domicile and certificate of permanent residence and applying them to the facts of the case, their lordships held that the petitioner being a citizen of Pakistan by birth having his ancestral home in District Dera Ghazi Khan, there was no legal bar even to his applying to the District Magistrate Loralai for grant of a domicile certificate. Nevertheless, as to the certificate of permanent residence the position was altogether different and when he claimed admission in an institution of higher learning against seats reserved for residents of Balochistan or its districts he was required to prove such residence as a matter of fact to the satisfaction of the concerned authorities. The above precedents were followed by a Division Bench of this Court in Ziaullah versus District Magistrate Nawabshah (2000 CLC 406) of which one of us (Sabihuddin Ahmed C.J) was a member, and it was explained that domicile related to the status of person and was question of law, permanent residence was one of fact. It was held that the District Magistrate could not refuse to grant domicile certificate to the petitioner's children merely on the ground that he had taken up residence in another District. At the same time it was clarified that a permanent residence certificate could not be claimed merely on the strength of such domicile certificate. We are therefore, of the view that permanent residence of a candidate could be the only relevant consideration for his eligibility for admission in an institution of higher learning aided by public revenues.
The prospectus for admission to State owned medical colleges in Karachi required that 426 seats on open merit be reserved for candidates with Karachi domicile who had studied at Karachi. The eligibility criteria requires that apart from matric or intermediate examination Certificates from Karachi, a candidate's domicile certificate of District Karachi, his P.R.C. of the same District and his father's domicile of Sindh Province is to be filed. It obviously implies that a candidate must possess his own independent "domicile certificate" separate from that of his father who could have such a certificate from any other place. Indeed if the father has obtained a Certificate from any other District in the Province of Sindh, the candidate would fulfil the criteria on account of his own certificate from Karachi. However, there may be occasions where the father possesses a domicile certificate from another Province where the candidate himself has never resided or has no intentions of residing. A legitimate question could arise whether such a candidate would be eternally barred from seeking admission in any Institution of professional and higher education anywhere on account of application of similar Rules? Article 15 of the Constitution guarantees to every Citizen the right to reside and settle in any part of Pakistan. Article 22(3)(b) guarantees that no citizen will be denied admission to an educational institution receiving aid from public revenues on grounds of race, caste or place of birth etc. Article 37(c) requires State to make technical and professional education equally accessible to all on the basis of merit. However, as observed by the Honourable Supreme Court in Muhammad Yar Khan's case (1980 SCMR 456), it is possible for a Provincial Government to reserve seats for permanent residents of that Province in institutions of higher learning. The above principle was further highlighted in Atiya Bibi Khan versus Federation of Pakistan (2001 SCMR 1161) and Gul Rukh Sarfaraz versus Government of N.-W.F.P. (2001 SCMR 1729), wherein reservation of seats for candidates for less developed areas in medical colleges was upheld, but it was observed that the benefit should only go to those who had lived and studied in those areas and not to those who had merely acquired domicile certificates in respect of such areas.
For the foregoing reasons, we have arrived at the following conclusions:--
(i) That the domicile and permanent residence Certificate are two entire distinct concepts.
(ii) That the Citizenship Act 1951 only speaks of the concept of Pakistan domicile and has nothing to do with any particular Province, District or area. The District Magistrate is only a functionary authorized to issue a certificate of domicile to a person who has resided in Pakistan for a certain period and chosen to make Pakistan his permanent home.
E
(iii) Rule 23 of the Pakistan Citizenship Rules only contemplates cancellation of Domicile Certificate if it has been obtained through misrepresentation and a person is entitled to retain his certificate of domicile issued by one District Magistrate even if he chooses to permanently settle down in another District.
F
(iv) A Provincial Government may have the right to reserve seats in educational institutions for bona fide residents of that Province but denial of such right to a resident on a mere ground that he has failed to get his original domicile certificate cancelled would be violative of his fundamental rights guaranteed under Article 15 of the Constitution.
F
(v) That in any event the question of permanent residence in a Province or a District is to be determined on the basis of a factual inquiry under the Sindh Permanent Residence Rules 1971 and the factum of such permanent residence of student could be only relevant consideration for a candidate's admission into an institution of higher learning imposed through law made under the authority of a Provincial legislature and a certificate of domicile issued under the Citizenship Act either to a candidate or his parents is altogether irrelevant.
H
We, allowed this petition by our short order dated 4-9-2007.
(R.A.) Petition accepted
PLJ 2008 Karachi 18 (DB)
Present: Nadeem Azhar Siddiqi and Dr. Rana Muhammad Shamim, JJ.
GHULAM MUSTAFA WASSAN--Appellant
versus
ABDUL SALAM TAHEEM and 13 others--Respondents.
E.A. No. 23 of 2007, decided on 12.12.2007.
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 14(5)--Nomination Papers were accepted--Assailed--Right of appeal--Scope--Right of appeal was given to a candidate only against the acceptance or rejection of nomination papers, but if the Election Tribunal, on the basis of information or material brought to its knowledge, was of the opinion that candidate was a defaulter or had got any loan written off or suffered from any disqualification, it could reject the nomination papers--Election Tribunal had the power to treat the appeal as information or material brought to its knowledge for rejecting the nomination papers. [P. 20] A
Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 14(5) & 99--Nomination papers were accepted--Challenge to--Defaulter and involved in criminal activities--Respondent was defaulter of government dues and was involved in criminal activities; that he had been declared absconder and he was not a man of good character; and that he made false declaration while submitting the nomination papers--Validity--Respondent was not proved to be a defaulter as he had produced the documents which had shown that he was not exclusive owner of the property, but was only a co-sharer and if the amount due was divided between the co-owners share of respondent was less than the amount prescribed by S. 99(1A)(t) of the Representation of the Peoples Act, 1976--Mere involvement of respondent in a criminal case was not sufficient to disqualify him to contest election, unless he was convicted and sentenced by competent Court--Respondent had remained absconder and fugitive from law and his properties were attached, it could not be said that he was a man of good character--Respondent had secretly appeared before the court and obtained bail after filing of his nomination papers--Respondent was not qualified to be elected or chosen as a member of the Assembly. [Pp. 20 & 21] B & C
2002 CLC 281; 1994 MLD 447 and PLD 1995 SC 423 rel.
Mr. S. Shahenshah Hussain, Advocate for Appellant.
Mr. S. Ahsan Ali, Advocate for Respondent No. 1.
Agha Zafir Ali, Asstt.A.-G. Sindh for Respondent No. 14.
Mr. Atta-ur-Rehmah, Asstt. Election Commissioner, Sindh.
Date of hearing: 11.12.2007.
Judgment
Nadeem Azhar Siddiqui, J.--The appellant has challenged the order dated 28-11-2007 by which the nomination paper submitted by the Respondent No. 1 from Police Station 83, Sanghar-VI was accepted.
The learned counsel for the appellant submits that the Respondent No. 1 is defaulter of Government dues and is involved in criminal activities and has been declared absconder and is not a man of good character and that has made false declaration while submitting the nomination paper. The learned counsel relied upon the reported case of Hussain Bux v. District and Sessions Judge/District Returning Officer and Appellate Authority, Sanghar 2002 CLC 281.
The learned counsel for the Respondent No. 1 filed objections to the main appeal and submits that the appellant has no locus standi to file the above appeal, as neither he has filed written objections nor orally objected the acceptance of nomination paper. The Respondent No. 1 does not mainly own properties and is not a defaulter and absconder and is on bail and that there is no evidence that the Respondent No. 1 is not a man of good character. He relied upon the case of Shabbir Ahmad v. Syed Akhtar Hussain Rizvi 1994 MLD 447.
The learned A.A.-G. for the State and Assistant Election Commissioner Sindh has supported the order of Returning Officer.
We first deal with the legal objection regarding locus standi of the appellant to file appeal. Sub-section (5) of Section 14 provides for filing of appeal by a candidate against the decision of Returning Officer rejecting or accepting the nomination paper. However, sub-section (5-A) of Section 14 provides that if on the basis of any information or material brought to its knowledge by any source, a Tribunal constituted under sub-section (5) is of the opinion that a candidate whose nomination papers have been accepted is a defaulter of loan, taxes Government dues or utility charges or has had any loan written off or suffers from any other disqualification from being elected as a member of an Assembly, it may, on its own motion, call upon such candidate to show-cause why his nomination papers may not be rejected, and if the Tribunal is satisfied that the candidate is actually a defaulter as aforesaid or has had any loan written off or suffers from any disqualification, it may reject the nomination papers.
Technically speaking the right of appeal was given to a candidate only against the acceptance or rejection of nomination paper, but the Tribunal on the basis of information or material brought to its knowledge is of the opinion that the candidate is a defaulter or has had any loan written off or suffers from any disqualification, may reject the nomination paper. This Tribunal has the power to treat the appeal as information or material brought to its knowledge for rejecting the nomination paper. The objection is therefore overruled.
As far as the submissions of the learned counsel for the appellant that the Respondent No. 1, who is a defaulter, has no force as he has produced the documents which shows that he is not the exclusive owner of the property and is only a co-sharer and if the amount due is divided between the co-owners his share is less than the amount prescribed by clause (t) to sub-section (1A) of Section 99 of the Representation of the Peoples Act, 1976. The other contention of the learned counsel for the appellant is that the appellant is an absconder in a criminal case and is disqualified from contesting the election. Clause (h) to sub-section (1A) of Section 99 of the Representation of the Peoples Act, 1976 disqualified a person from being elected as and from being a member of an Assembly if has been convicted by a Court of competent jurisdiction on a charge of corrupt practice moral turpitude or misuse of power or authority under any law for the time being in force. From the above provision it is clear that mere involvement in a criminal case is not sufficient to disqualify the candidate. However, we find force in the submissions of the learned counsel for the appellant that due to remain absconder and fugitive from law and attachment of properties, it cannot be said that the Respondent No. 1 is a man of good character.
From the documents produced by the Respondent No. 1 it appears that he has secretly appeared before the Court and obtained bail on 27-11-2007 after filing of nomination paper on 26-11-2007.
In the reported case of Hussain Bux v. District and Sessions Judge/District Returning Officer and Appellate Authority, Sanghar 2002 CLC 281 a learned Division Bench of this Court has held as under:--
"The conduct and behaviour of Petitioner No. 1 demonstrates that the Petitioner No. 1 has thwarted the process of the Court and is fugitive from law. Merely because the Petitioner No. 1 had sought protective bail, therefore, it cannot be said that the absconsion order and proclamation orders have been undone by the grant of protective bail which was granted for a very limited period. Consequently it cannot be said or declared that the Petitioner No. 1 was enjoying good character or possessing good reputation. The case of the Petitioner No. 1 was rightly held to
Kar. Syed Sarfraz Hussain Shah v. Additional PLJ District & Sessions Judge (Nadeem Azhar Siddiqi, J.)
2008 Syed Sarfraz Hussain Shah v. Additional Kar. District & Sessions Judge (Nadeem Azhar Siddiqi, J.)
have been hit by the provisions of Section 14 of the Sindh Local Government Elections Ordinance and Rules, 2000."
The facts of this case as well as the reported case are similar. The judgment of the learned Division Bench of this Court is binding upon us as held by the Hon'ble Supreme Court of Pakistan in the case of Multiline Associates v. Ardeshir Cowasjee PLD 1995 SCJ 423.
After considering the material available and relying upon the above reported judgment, we are of the considered view that the Respondent No. 1 is not qualified to be elected or chosen as a member of an Assembly, hence we allow this appeal and reject the nomination paper of Respondent No. 1 from PS-83, Sanghar-VI.
A
The Returning Officer and the Election Commissioner may be informed accordingly.
(R.A.) Appeal allowed.
PLJ 2008 Karachi 21 (DB)
Present: Nadeem Azhar Siddiqi and Dr. Rana Muhammad Shamim, JJ.
Syed SARFRAZ HUSSAIN SHAH--Appellant
versus
ADDITIONAL DISTRICT AND SESSIONS JUDGE/RETURNING OFFICER and 16 others--Respondents.
E.As. Nos. 11 to 13 of 2007, decided on 10.12.2007.
Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 14 & 99--Sindh Local Government Ordinance (XXVII of 2001), S. 158--Constitution of Pakistan (1973), Art. 63--Rejection of nomination papers were rejected on ground of disqualification--Assailed--Appellant, who was holding office of Taluka Nazim at the time of filing of nomination papers, filed three nomination papers to contest general election but all nomination papers were rejected on the ground that Art. 63(c) of the Constitution, disqualified the candidate/appellant and Section 158 of Sindh Local Government Ordinance, 2001 also barred his nomination papers--Taluka Nazim could contest election for any other political post after resigning from existing post of Nazim--Section 158 of the Ordinance, had imposed a bar upon the sitting Nazim to contest election without first resigning from the post of Nazim--Election was a very wide term and was a continuous process consisting of series of steps starting from filing of nomination papers to the announcement of result--Appellant, who was sitting Taluka Nazim, did not tender his resignation before submitting his nomination papers--Section 158 of Sindh Local Government Ordinance, 2001, which had imposed a bar upon sitting Nazim to contest election without first resigning from the post of Nazim, was saved under Art. 63(l)(s) of the Constitution--Returning Officer, had rightly rejected the nomination papers of appellant--In absence of any illegality and infirmity in impugned orders, appeal against said orders was dismissed. [Pp. 23, 24 & 25] A, B & C
PLD 1989 SC 396; AIR 1952 SC 64; PLD 1962 Lah. 421 and PLD 1967 Lah. 689 ref.
Mr. Fareed Ahmed A. Dayo, Advocate for Appellant.
Agha Zafir, Asstt. A.G., Sindh for Respondent.
Raja Kumar, Representative of Returning Officer.
Date of hearing: 8.12.2007.
Judgment
Nadeem Azhar Siddiqi, J.--By this common judgment we intend to dispose of the Election Appeals Bearing Nos. 11, 12 and 13 of 2007 filed by the appellant challenging the order dated 1-12-2007 passed by the learned Additional District and Sessions Judge/Returning Officer, NA-212, Naushero Feroze-II and PS-21 Naushero Feroz-III at Serial No. 25 and PS-21, Naushero Feroz-III at Serial No. 25/A by which the nomination papers of the appellant for contesting the Election were rejected on the ground that Article 63(c) of the Constitution of Islamic Republic of Pakistan disqualifies the candidate and Section 158 of Sindh Local Government Ordinance, 2001 also bar the nomination papers.
The learned counsel for the appellant submits that the nomination papers were erroneously rejected without considering the undertaking given by the appellant to resign from the office of Taluka Nazim if decided to contest election. He further submits that Article 63 of the Constitution of Pakistan and Section 99 of the Representation of the People Act, 1976 do not debar the appellant from contesting the Election and since the Sindh Local Government Ordinance, 2001 is a provincial statute the same is not applicable to the Election of National Assembly. He further submits that the appellant has to tender his resignation on the day when the final list of candidates will be finalized and not before filing the nomination papers.
The learned A.A.G. has supported the impugned order passed by the Returning Officer and submits that at the time of filing of the nomination paper the appellant has to fulfil all the requirements for contesting election and since at the time of filing of the nomination papers the appellant has not resigned from the office of the Taluka Nazim his nomination paper was rightly rejected.
We have heard the learned counsel for the appellant, learned A.A.G. for the State and perused the record made available before us.
The appellant has submitted three nomination papers, one from NA-212 Naushero Feroz-II and two from PS-21, Naushero Feroz-III at Serial No. 25 and PS-21, Naushero Feroz-III at Serial No. 25/A and all the three nomination papers were rejected on the ground that the appellant is disqualified to contest election under Article 63(c) of the Constitution of Pakistan and under Section 158 of the Sindh Local Government Ordinance, 2001. It is an admitted position that the appellant is holding the office of Taluka Nazim, Kandiaro. Section 158 of the Sindh Local Government Ordinance, 2001 provides that a Taluka Nazim may contest election for any other political post after resigning from the existing post of Nazim. This section imposed a bar upon the sitting Nazim to contest election without first resigning from the post of Nazim. The question is whether a sitting Nazim can submit his nomination without first resigning from the office of Nazim and can tender his resignation after acceptance of his nomination. Section 158 provides that Nazim may contest election for any other political post after resigning from the existing post of Nazim. This means that on the day when the appellant has filed his nomination he should not hold any other political office and a candidate at the time of filing of the nomination should possess the qualification contained in Article 62 and do not suffer from disqualification laid down under Article 63 of the Constitution of Pakistan.
A
Election is a very wide term and is a continuous process consisting of series of steps starting from filing of nomination to the announcement of result. In the reported case of Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396 it has been held as under:
"While considering the meaning of the word "election" the expression "conduct the election" in sub-Article (3) of Article 218 should also be taken into consideration as that expression is of a wide import and should be read into other provisions which occur in the same Chapter to give a purposeful meaning to the word "election".
In order to reach the above conclusion, the Hon'ble Supreme Court of Pakistan has relied upon a case from Indian jurisdiction reported as N.P. Ponnuswami v. Returning Officer, Namakkal AIR 1952 SC 64 in which the word "election" has been defined to have been used in the wide sense, that is, "to connote the entire procedure to be gone through to return candidate to the Legislature." The Hon'ble Supreme Court has also relied upon an earlier judgment of Lahore High Court reported as Muhammad Nazir Hakim v. Said Muhammad PLD 1962 Lah. 421 in which it was held as under:
"But while we agree that the term "election" stands for the entire process which leads step by step to a certain result, we find it difficult to hold that the age of a candidate should be determined with reference to the final stage in the process. If election is a single process from the date of publication of the electoral roll to the date on which the result of the election is declared, like a chain with a number of links, then a date "preceding the election", will be a date preceding the first link in the chain and not a date preceding the last link; for a date preceding the last link would be a date preceding the declaration of the results, and all other links in the chain of election would "precede" such date. In that case we would be defining the term "election" as the publication of the result of the election."
The Hon'ble Supreme Court of Pakistan has also relied upon the case of Muhammad Afzal v. Miraj Din PLD 1967 Lah. 689 in which the word "election" was defined as under:
"It is well-settled that election is a continuous process consisting of a series of facts required to be done in different stages in accordance with the schedule contained in the notification to be published in the Official Gazette fixing dates for filing of nomination papers, scrutiny of nomination papers, withdrawal and retirement of candidates, actual poll, counting of votes and declaration of result, etc."
The crucial date is the date on which the nomination papers has been filed for the reasons that Section 158 of Sindh Local Government Ordinance permits the sitting Nazim to contest election after resigning the existing post of Nazim. Admittedly, the appellant has not tendered his resignation before submitting his nomination. Section 158 of Sindh Local Government Ordinance, 2001 is saved under Article 63(1)(s) of the Constitution of Pakistan.
Article 63(1)(s) of the Constitution of Pakistan provides that a person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament) if he is for the time being disqualified from being elected or chosen as a member of the Majlis-e-Shoora (Parliament) or of a Provincial Assembly under any law for the time being in forced.
Kar. Shaikh Muhammad Sadiq v. Mst. Sain Islam PLJ (Zia Perwez, J.)
2008 Shaikh Muhammad Sadiq v. Mst. Sain Islam Kar. (Zia Perwez, J.)
From the perusal of the above Article, it appears that due to bar imposed by Section 158 of the Sindh Local Government Ordinance, 2001 the appellant, who is a sitting Nazim, is debarred from contesting election of National Assembly as well as of Provincial Assembly unless he first resigns from the office of Nazim. No doubt, Sindh Local Government Ordinance is a provincial statute, but the bar contained in Section 158 is in consonance of Article 63(1)(s) of the Constitution of Pakistan and fully applicable to the election of Provincial Assembly. The purpose for scrutiny of nomination papers as provided under Section 14 of the Representation of Peoples Act, 1976, apart from other to see whether the candidate is not qualified to be elected as a member. In view of the provisions of Section 158 of the Sindh Local Government Ordinance, 2001 read with Article 63(1)(s) of the Constitution of Pakistan the appellant is debarred from contesting election for any other political office without first resigning from the post of Nazim.
C
After considering the material available on the record, we are of the view that the Returning Officer has rightly rejected the nomination papers of the appellant and the learned counsel for the appellant has failed to point out any illegality and infirmity in the impugned orders, hence the appeals have no merits and are accordingly dismissed with no order as to cost.
These are the reasons for our said short order dated 8-12-2007.
(R.A.) Appeals dismissed.
PLJ 2008 Karachi 25
Present: Zia Perwez, J.
Shaikh MUHAMMAD SADIQ--Appellant
versus
Mst. SAIN ISLAM--Respondent
F.R. A. No. 22 of 2006, decided on 25.9.2007.
Cantonments Rent Restriction Act, 1963 (XI of 1963)--
----S. 17(2)(iii)--Ejectment petition on ground of default and effecting unauthorized alteration--Installation of air-conditioner and iron gate at premises by tenant--Landlord was vigilant in all matters--Validity--No protest was made by landlord in this regard till expiry of lease period--Security amount was available with landlord--Such changes effected might be restored at the costs of tenant at the time of handing over possession of premises--No ground for ejectment was made out--Petition was dismissed. [P. 29] A
1971 SCMR 725 and 1987 CLC 76 ref. 1989 CLC 599 rel.
Cantonments Rent Restriction Act, 1963 (XI of 1963)--
----S. 10--Contract Act, (IX of 1872), S.10--Payment of rent--Enhancement of rent after expiry of the agreement--Successive period of--Question of--Rent agreement for a period of eleven months--Agreement containing clause regarding increase in monthly rent at 10% after expiry of every eleven months--Effect--Such clause would not operate within initial period of tenancy, but would come into operation on expiry of term of period of eleven months--Incorporation of such clause in agreement in order to protect future rights of landlord would not be illegal, if same was entered into with free consent of parties. [P. 29] B
1991 MLD 1338; 1993 MLD 1447 and PLD 1993 Kar. 137 ref. PLD 1991 Kar. 309 rel.
Mr. Fasih-uz-Zaman, Advocate for Appellant.
Mr. Qamar-ul-Islam, Advocate for Respondent.
Date of hearing: 25.9.2007.
Judgment
This first rent appeal is directed against the impugned order of the Additional Controller of Rents Clifton Cantonment Karachi in Rent Case No. 15/2001 dated 9-9-2006, directing the appellant to handover the vacant and peaceful possession of the demised premises within 30 days while allowing the ejectment application.
Appellant is the tenant of respondent with respect to premises bearing Flat No. 2, 21-C, 27th Commercial Street, Tauheed Commercial Area, Phase-V, Defence Housing Authority, Karachi (hereinafter referred to as the "demised premises").
Rent of said premises was initially fixed under an agreement dated 11-3-2000 at Rs. 6,500 per month exclusive of water, conservancy, electricity, gas maintenance & telephone charges, initially for a period of 11 months. The agreement specifically provided that after expiry of 11 months, it may be renewed with mutual consent by both the parties with 10% increase in rent. On expiry of the period of 11 months, rent for three months at the rate of Rs. 6,500 per month was tendered through pay order but was not encashed by the landlord.
Application for ejectment under Section 17 of the Cantonments Rent Restriction Act, 1963, seeking ejectment of the tenant on ground of default and effecting unauthorized alterations therein was contested by the appellant. Tentative rent order was passed by the learned Additional Controller of Rents dated 7-6-2001, directing the appellant to deposit arrears of rent with effect from February. 2001 to May, 2001 @ Rs. 7,150 per month within fifteen days and to deposit the rent for the month of June, 2001 @ Rs. 7,150 and the rent for subsequent months at the same rate before 5th day of each succeeding month. As the rent case continued thereafter, the respondent moved an application under Section 17(9) of the Cantonments Rent Restriction Act, 1963, seeking orders for striking off defence of appellant on failure to deposit rent from 24-4-2004 at the enhanced rate of 10%. The application was allowed on 7-8-2004. Aggrieved by the said order, appellant approached this Court by way of F.R.A. No. 18/2004 which was allowed by this Court vide judgment dated 17-1-2005 after arriving at a finding that the Rent Controller did not possess the jurisdiction to revise the tentative order and to pass a second tentative order. Accordingly, the appellant was allowed to deposit rent at the rate of Rs. 7,115 per month, which the appellant deposited till the final disposal of the rent case.
In the rent proceedings, following issues were framed:--
(i) Whether on the facts and circumstances of the case opponent is in default of rent if so to what effect?
(ii) Whether the opponent has violated the agreed terms of agreement dated 20-3-2000 if so to what effect?
(iii) Whether on the facts and circumstances of the case opponent damaged the property and carried out unauthorized alterations, if so to what effect?
(iv) Whether Rs. 7.100 is fair rent of the said premises?
(v) What should the order be?
Learned Rent Controller after recording his findings on commission of default in payment of rent and of causing damage to the property dismissed the prayer for fixation of fair rent under Section 7 of the Cantonments Rent Restriction Act, 1963 made by way of interlocutory application during the pendency of the rent proceedings. On the basis of above findings, appellant was directed to vacate the premises while allowing the ejectment application.
Heard learned counsel and perused the record. Contention of Mr. Fasih-uz-Zaman, learned counsel for the appellant, is that the rent of the premises was Rs. 6,500. The parties agreed to the rent under a written agreement and learned Rent Controller acted beyond his powers in modifying the terms and order for payment of rent at a rent with 10% enhancement after every 11 months. As such the order is liable to be set-aside. In support of his contention learned counsel referred to the provisions of Section 17 of the Cantonments Rent Restriction Act, 1963. He further proceeded to argue that the jurisdiction of the learned Rent Controller do not empower him to fix fair rent under the provisions of Section 17(A) of the said Act, however, such powers can be exercised under separate proceedings and not in the present case. Alternately, learned counsel argued that in view of provisions of Section 17(A) of the Said Act, the powers of enhancement vested in the exclusive domain and jurisdiction of the Rent Controller and the landlord had no power to increase the rent unilaterally without first seeking fixation of fair rent under Section 17(A) of the said Ordinance. His next contention with respect to the ground of impairing of value of the building by fixing a steel door at the entrance of the premises. Mr. Fasih-uz-Zaman further contended that the premises was a commercial and in order to secure the same, the appellant affixed the steel door and locks right at the inception of the tenancy. These facts were well within the knowledge of the landlord. Likewise, the air condition was also installed at the same time but no objection was raised. He further contended that these minor alterations were necessary for enjoyment of the demised premises by the appellant which in fact enhanced the utility of the premises. Even otherwise, the landlord holds security deposit to effect minor repairs necessary at the time of handing over the possession of the premises by the landlord. He placed reliance on the cases of Syed Qudrat Ali v. Mst. Maqbool Fatima & 3 others (1989 CLC 599), Samiullah v. Mian Muhammad Saleem (1971 SCMR 725), Muhammad Yusuf v. Muhammad Saghiruddin Qureshi (1987 CLC 76).
Mr. Qamar-ul-Islam Advocate, attorney and father of the landlord while opposing the appeal contended that the terms of tenancy agreement are enforceable even after expiry of the initial period of an agreement. Mere fact that the tenancy agreement expired did not amount to discontinuation of the said terms under which the premises was initially let out by the landlord to the tenant. He stressed that although the period of tenancy under an agreement was only for 11 months. Learned counsel has relied upon the cases of Muhammad Akbar v. Shaikh Nasiruddin (1991 MLD 1338), Abdul Aziz v. Yahya and 4 others (1993 MLD 1447), Mst. Nasima Begum v. Ali Dost (PLD 1993 Karachi 137), Laus Deo Enterprises v. Mrs. Suraya Jameel & another (PLD 1991 Karachi 309).
Regarding the first question as to the installation of any air-conditioner and fixation of iron gate in the commercial premises would amount to impair the value of the premises. The meaning of word "impair" according to the Chambers 20th Century Dictionary, New Edition 1983 is that:
Impair means "to diminish in quantity, value, or strength, to injure, to weaken, to become worse, to decay, to make worse, unsuitable, unfit, inferior".
In the instant case the air-conditioner was installed at the time of commencement of the tenancy so was the iron gate. While the landlord has been vigilant in all matters as no protest was made in this regard till the expiry of the period of rent agreement. Mr. Qamar-ul-Islam could not explain or satisfactory reply that the changes effected may be restored at the costs of the tenant at the time of handing over the possession of the premises even security amount is available with the landlord. Under the circumstances, principles laid down in the case of Syed Qudrat Ali (supra) are attracted and no ground for grant of ejectment is made out and the finding is accordingly reversed.
A
9-A. As to the second question of the enhancement of rent at the rate of 10% after the expiry of every 11 months, the same has been clearly spelt out in the agreement between the parties although the aforesaid agreement was only for a period of 11 months yet the intention of the parties is manifest after expiry of every successive period of 11 months, the rate of rent is to be increased at the rate of 10%. This clause does not operate within the initial period of tenancy. It comes into operation only on expiry of the terms of period of 11 months. There is no illegality in entry into contract so as to protect the future rights by the landlord with respect to his property when the agreement is entered into with free consent of the contracting parties. In the case of Laus Deo Enterprises (supra), it has been observed that:--
B
"What is contended by Mr. Rizvi is that the agreed rent is Rs. 3,000 and it is increased after 31-8-1987 by 20% per year, it is hit by the provisions of Section 10. I am unable to agree with his contention. Section 10 is not applicable to a case of increase in rent under an agreement on two grounds. Firstly the word "rent" may mean the rent fixed by a single indivisible contract covering two different periods by two different contracts entered into one after the original period (1-10-1986 to 31-8-1987) was over. Secondly, Section 10 relates only to the stipulation of a fine, premium or other like sum and does not concern itself with the payment of an increased rent. It would therefore, be not correct to apply the provisions of Section 10 to the facts of the case.
As there is no prohibition for the increase of rent by a contract between the parties in case where fair rent is not fixed, it cannot be said that the contract incorporated in tenancy agreement
Kar. Abdul Aleem Butt v. M/s. Behria Foundation PLJ (Nadeem Azhar Siddiqi, J.)
2008 Abdul Aleem Butt v. M/s. Behria Foundation Kar. (Nadeem Azhar Siddiqi, J.)
violated in any manner the provisions of Section 10. The contract therefore is not illegal and void. The Controller, in my opinion, was correct in directing the appellant to deposit rent at the rate of Rs. 3,600."
For the foregoing reasons. I do not find force in the contention of Mr. Fasih-uz-Zaman Advocate. The appeal is dismissed, however, with the consent of parties request for twelve months period to vacate the demised premises is allowed subject to deposit of the arrears of rent as determined by the rent controller within 60 days and payment of future monthly rent at the rate inclusive of 10% enhancement after every 11 months along with the other charges recoverable as per terms of agreement and those paid for water by the other tenants as may become due and payable till the date of handing over the possession of the premises within a period of 12 months.
(R.A.) Appeal dismissed.
PLJ 2008 Karachi 30
Present: Nadeem Azhar Siddiqi, J.
ABDUL ALEEM BUTT--Plaintiff
versus
Messrs BEHRIA FOUNDATION through Managing Director and another--Defendants
Civil Suit No. 202 of 2001, decided on 19.10.2007.
Limitation Act, 1908 (IX of 1908)--
----S. 12(1) & Art. 23--Malicious prosecution--Suit for recovery of damages--Limitation--Exclusion of time in legal proceedings--Time consumed in obtaining of copies--Plaintiff was acquitted from criminal case, which was got registered against him by defendant--Suit was filed by plaintiff for damages for malicious prosecution but defendant raised objection that suit was barred by limitation--Validity--Exclusion of time consumed in obtaining certified copy of orders for the purpose of filing of suit was not provided in Section 12 of Limitation Act--Benefit of S.12 of Limitation Act, 1908, was not available to plaintiff for the purpose of filing the suit and it was barred by Art. 23 of Limitation Act--Suit was dismissed.
[P. 33] A & C
Limitation Act, 1908 (IX of 1908)--
----Art. 120--Applicability--Provisions of Art. 120 of Limitation Act, are applicable to the cases/suits which do not fall under any specific category--Where another specific Article applies provisions of Art. 120 of Limitation Act, do not apply. [P. 33] B
1993 SCMR 1185 ref.
Ch. A. Rasheed, Advocate for Plaintiff.
Nemo for Defendants.
Dates of hearing: 23, 31.8.2007.
Judgment
The plaintiff has filed this suit for recovery of damages amounting to Rs. 50 million against the defendants on account of his malicious prosecution.
The facts necessary for disposal of the case are that Defendant No. 2 lodged F.I.R. No. 342 of 1998 with P.S. TPX Karachi on 17-12-1998, which was disposed of in "C" Class and vide order dated 11-9-1999 the plaintiff was discharge. The plaintiff filed Suit No. 363 of 2000 for recovery of salary benefits as well as recovery of damages amounting to Rs. 20 million. Another F.I.R. No. 8 of 1999 was lodged against the plaintiff at P.S. South Cantt. Lahore on 6-1-1999. The plaintiff got protective bail and appeared before the Court at Lahore on a number of occasions. Finally, the plaintiff was acquitted vide order dated 15-2-2000 and got the copy, of same on 4-5-2000 through application No. 1411 dated 9-3-2000. The plaintiff served legal notice dated 7-3-2000 upon the defendants which was replied on 15-3-2000. The cause of action as pleaded by the plaintiff in para 16 of the plaint is registration of F.I.R. No. 8 of 1999 dated 6-1-1999 and his acquittal against which no appeal has been filed.
The Defendant No. 1 filed written-statement on 1-6-2001. The suit against Defendant No. 2 was dismissed on 30-5-2005 for non-compliance. In the written-statement the Defendant No. 1 challenges the maintainability of the suit and submits that no malicious prosecution has been filed against the plaintiff.
The following issues were framed from the pleadings of the . parties :--
(1) Whether the plaintiff is involved in F.I.R. 8/99 by the defendant maliciously?
(2) Whether the plaintiff is entitled to damages? If so, what amount?
(3) Whether the plaintiff is entitled to any relief?
(4) What should the decree be?
The plaintiff examined one witness and closed his side. The Defendant No. 1 in spite of repeated chances failed to examine any witness and the side was stand closed vide order dated 26-3-2007.
The case was fixed for arguments on 23-8-2007 when a question was raised by the Court with regard to limitation of filing of the suit in terms of Article 23 of the First Schedule of the Limitation Act. The learned counsel for the plaintiff submits that the time consumed for obtaining certified copy of the order is to be excluded and request for some time to produce case law and the case was adjourned to 31-8-2007.
The learned counsel for the plaintiff has filed written synopsis and has submitted that the F.I.R. was lodged on 6-1-1999 and the plaintiff was acquitted vide order dated 15-2-2000 and the copy of the order was supplied to him on 4-5-2000 through Application No. 1411 dated 9-3-2000 and the time for filing of the suit started running from 4.5.2000 and the suit was filed within time. In his written synopsis the learned counsel for the plaintiff submits that Article 120 of the Limitation Act will be applicable which provides a period of six years from the date of accrual of cause of action and relied upon the case of Muhammad Yousuf v. Syed Ghayyur Hussain Shah and others (1993 SCMR 1185). The learned counsel further submits that the limitation prescribed under Article 23 of the Limitation Act starts running from the date of order of acquittal, or date of discharge or from the date of final order passed by superior Courts.
In this case the F.I.R. was lodged on 6-1-1999 and the plaintiff was acquitted vide order dated 15-2-2000. It is admitted in para 16 of the plaint that no appeal has been preferred against the acquittal order which attained finality.
Article 23 of the First Schedule of Limitation Act provides a period of one year for filing suit for compensation for malicious prosecution. The said Article reads as under:--
Description of suit Period of limitation Time from which period begin to run
In this case admittedly the plaintiff was acquitted on 15-2-2000 and no appeal against the acquittal order was passed and the order of acquittal attained finality. The period of one year starts from 15-2-2000. The suit was filed on 17-2-2000 after two days of the period prescribed in the above Article. The contention of the learned counsel is that if the time consumed in obtaining certified copy is excluded the suit is within, time. His other contention is that in terms of order of Honourable Supreme Court in the reported case of M. Yousuf v. Ghyyur Hussain Shah Article 120 of the Limitation Act is applicable and the limitation will be six years.
Part III of the Limitation Act, deals with computation of period of limitation and Section 12 of the Limitation Act deals with the exclusion of time in legal proceedings. Sub-section (1) of Section 12 of the Limitation Act provides that in computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned should be excluded. The section does not provide for exclusion of time consumed in obtaining certified copy of orders for the purpose of filing of a suit. The other sub-sections of Section 12 of the Limitation Act deals with computation of period of limitation prescribed for an appeal, application for leave to defend and application for a review of judgment, and application to set aside an award. The benefit of Section 12 is not available to the plaintiff for the purpose of filing the suit. Regarding the contention of the learned counsel for the plaintiff that Article 120 of the Limitation Act will apply, it is suffice to say that from bare reading of Article 120 it is clear that the Article will be applicable to the cases/suits which do not fall under any specific category and where another specific Article applies this Article will not apply. As far as the order of Honourable Supreme Court in the case of Muhammad Yousuf v. Syed Ghayyur Hussain Shah is concerned, with due respect to the Hon'ble Court, it is observed that from the order it is clear that Article 23 which is a specific Article dealing with the suits for compensation of malicious prosecution was not brought to the notice of the Hon'ble Supreme Court. Except the above explanation which is not tenable under law the learned counsel for the petitioner has failed to explain the delay.
A
B
In view of the above discussion it is held that the suit is barred by Article 23 of the First Schedule of the Limitation Act, 1908, and the suit is liable to be dismissed on this count alone.
C
Since the suit is time barred the discussion on the other issues are not necessary and will be a futile exercise.
The suit is, therefore, dismissed with no order as to costs.
Before parting with this judgment I deem necessary to deprecate the conduct of the officials of the Defendant No. 1 who failed to protect the interest of it and allowed the case to go in default. I, therefore, direct the Managing Director of Defendant No. 1 to hold proper enquiry to ascertain who were the persons/officers responsible in not properly handling with this case and after fixing the responsibility appropriate
Kar. Tanya Knitwear (Pvt.) Ltd. v. First PLJ Women Bank Ltd. (Zia Perwez, J.)
2008 Tanya Knitwear (Pvt.) Ltd. v. First Kar. Women Bank Ltd. (Zia Perwez, J.)
disciplinary action may be initiated against the delinquent officers. The Managing Director will submit his report for the perusal of the Court within one month from the date of receipt of this judgment. The case may be fixed in the month of December 2007 for perusal of report.
Office is directed to sent a copy of this judgment to the Managing Director of Defendant No. 1 for compliance and report.
(R.A.) Suit dismissed.
PLJ 2008 Karachi 34
Present: Zia Perwez, J.
TANYA KNITWEAR (PVT.) LTD. and others--Appellants
versus
FIRST WOMEN BANK LTD.--Respondent
F.A. No. 24 of 2003, decided on 23.10.2007.
Banking Companies (Recovery of Loans, Advances, Credit & Finances) Act, 1997 (XV of 1997)--
----S. 27--Special statute--Power to review--Scope--Exercise of powers under special enactment does not imply a power to review earlier orders in exercise of inherent powers unless power of review is specifically conferred by such statute--Held: Section 27 of Banking Companies (Recovery of Loans, Advances, Credit & Finances) Act, has to be given its full effect proceeded to examine and distinguished the power to review as distinct from the power in light of the question whether recalling of an earlier order not passed on merits but only on account of non-appearance of a party would really amount to a review of the earlier order. [P. 41] A
2001 CLC 1363 rel.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXIII, R. 3 & S. 151--Financial Institutions (Recovery of Finances) Ordinance, (LXVI of 2001), S. 17--Consent decree, setting aside of--Decision on merits--Scope--Suit filed by bank was decreed in favour of bank on the basis of joint statement submitted by the parties--After over two years of passing of consent decree, respondent filed application for either changing material dates in the compromise or for setting aside of decree and decision of case on merits on the ground that statement filed by their counsel was without authority--Bank did not institute any action against counsel who had allegedly filed compromise--Effect--Such consent order which was based on record, where change of dates might seriously prejudice the right of opposite party could not be reviewed or interfered with by High Court, after a long delay of more than two years--No violation of any Stats Bank Circular was pointed out by the bank--Such was beyond the scope of S. 151, C.P.C. to review such case on merits--High Court did not find any ground or error in the consent order passed earlier which could call for correction as compromise was based on the statement of both the parties--Neither any ground for recall or order of compromise decree was made out nor powers of review were available--Application was dismissed. [Pp. 42 & 43] B & C
2001 YLR 1818; 2001 CLC 1363; PLD 1997 SC 315; 2001 YLR 1244; 2002 CLD 93; 2002 AC 104; 2002 CLD 276; 2003 CLD 1352; 2004 CLD 110; 2005 SLJ 35; 1998 CLC 816; PLD 2001 Kar. 264; 2001 MLD 1351; 2001 YLR 1549; 2003 CLD 751; 2003 CLD 905; 2003 CLD 1007; PLD 1998 Kar. 302; PLD 1998 Kar. 316; 1999 CLC 1374; 2001 MLD 1137; 2001 MLD 1332; 2001 YLR 81; 1998 MLD 529; 2002 CLD 1270; PLD 1983 Pesh. 31; 1988 CLC 969; PLD 1989 Pesh. 191; 2003 CLD 931; 2003 CLD 1464; 2003 CLD 1406; 1999 CLC 971; PLD 1966 SC 684; 2000 CLC 847; 2000 CLC 2017; 2003 CLD 606; PLD 1999 Kar. 196; PLD 2000 Kar. 246; 2001 CLC 1551 and PLD 1981 SC 94 ref.
Raja Qasit Nawaz Khan, Advocate for Appellants.
Khawaja Naveed Ahmed, Advocate for Respondent.
Date of hearing: 23.10.2007.
Order
The respondent has moved listed application under Section 151 CPC on 23-1-2006. The appellant opposed the application by filing the counter-affidavit. In the application the respondent has prayed for the following relief:--
"It is, therefore, most humbly prayed that this Hon'ble Court in the joint statement may be pleased to allow the respondent bank to convert the date, or in alternate may be pleased to set aside the judgment dated 24-12-2003 and decide the matter on merits after hearing both the parties."
Appellant challenged the impugned judgment and decree passed in Suit No. 29/2002 by filing this appeal. On 24-12-2003 a joint statement duly signed by learned counsel for the parties was filed in which it was stated that the parties have mutually agreed on the following terms:--
(1) Undisputed outstanding amount as on 15-1-1994 would be taken as Rs. 3,601,788.31.
(2) Markup from 1-1-1994 to 19-3-1994 would be changed at the rate of 51 paisa per thousand per day.
(3) Cost of funds to be charged from 20-3-1994 at the rate of 8% p.a. on daily product basis till the entire amount stands repaid.
On the basis of above statement learned counsel for both the parties made a joint request that the appeal may be disposed of and as such vide order dated 24-12-2003 the appeal was disposed of.
Contention of Mr. Kh. Naveed Ahmed, learned counsel for the respondent, is that in clause 3 of joint statement due to oversight the date for cost of funds has been wrongly mentioned as 20-3-1994 instead of date of default that is 31-3-2000 and in clause II mark up from 1.1.1994 to 19-3-1994 is mentioned instead of 1.1.1999 to 13-3-2000. He contended that due to this oversight the bank has suffered loss of Rs. 3.6 million. He further contended that the learned counsel for the respondent at the relevant time signed the statement without consulting the respondent bank or any of its officers. That the application under Section 151, C.P.C. is maintainable as the respondent has not sought review but correction of date in the consent order. However, at the same time Mr. Khawaja Naveed Advocate further contended that in the alternative the application may be treated as one for review and granted. Reliance is placed upon the cases of Metal Containers Employees Union v. Ali Anwar Changhro (2001 YLR 1818) and Messrs Baghpatee Service (Pvt.) Ltd. and 6 others v. M/s. Allied Bank of Pakistan Ltd. (2001 CLC 1363).
On the other hand Mr. Raja Qasit Nawaz Khan, learned counsel for the appellant, while opposing the application has advanced his detailed arguments to show that initially the bank had charged excess mark up and mark up on mark up and the joint statement filed by the learned counsel was based on the amount recoverable in pursuance of the relevant circulars issued by the State Bank of Pakistan. He further contended that the joint statement was prepared in the light of the orders and policy direction issued by the State Bank of Pakistan and reflected in the respective circulars. The dates were entered deliberately and consciously without any error or mistake on the part of either party. He has also placed copies of such circulars on record. Powers of review are not available in the cases under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001. He further relied on the following:--
(a) BCD Circular No. 13
(b) BCD Circular No. 31
(c) BCD Circular No. 32
(d) BCD Circular No.33
(e) Hashwani Hotels Limited v. Federation of Pakistan & others (PLD 1997 SC 315)
(f) M/s. Habib Bank Limited v. M/s. Schon Textiles Ltd. (2001 YLR 1244)
(g) Agricultural Development Bank of Pakistan v. Jasarat Hussain (2002 CLC 93)
(h) Allied Bank of Pakistan Ltd. Faisalabad v. M/s. Aisha Garments, etc. (2002 AC 104)
(i) Textile Management (Pvt.) Ltd. v. N.I.T. (2002 CLD 276)
(j) Allied Bank of Pakistan Ltd. v. Messrs Modern Metallic Services (2003 CLD 1352)
(k) Allied Bank of Pakistan Ltd. v. Mrs. Fahmida and others (2004 CLD 110).
(l) Nasir Mushtaq Vohra v. Crescent Investment Bank Ltd. (2005 SLJ 35).
(a) United Bank Ltd. v. Ch. Ghulam Hussain (1998 CLC 816) (Lahore).
(b) Habib Bank Ltd. v. A.B.M. Graner (Pvt.) Ltd. (PLD 2001 Kar. 264).
(c) 2001 MLD 1351 (Karachi)
(d) 2001 YLR 1549
(e) Adul Basit v. Bank of Punjab (2003 CLD 751)
(f) Yussra Textile Coorporation v. PICIC Commercial Bank Ltd. (2003 CLD 905)
(g) Habib Bank Ltd. v. Al-Jalal Textile Mills Ltd. (2003 CLD 1007).
(a) National Bank of Pakistan v. Punjab Building Products Ltd. (PLD 1998 Karachi 302).
(b) I.C.P. v. Messrs Chiniot Textile Mills Ltd. (PLD 1998 Karachi 316)
(c) United Bank Ltd. v Central Cotton Mills Ltd. (1999 CLC 1374)
(d) Habib Bank Ltd. v. Pakistan National Textile Mills (2001 MLD 1137)
(e) United Bank Ltd. v. Mian Aftab Ahmed (2001 MLD 1332)
(f) Habib Bank Ltd. v. Balochsitan Gum Industries (Pvt.) Ltd. (2001 YLR 81)
(a) Muslim Commercial Bank Ltd. v. Razwan Textile Mills Ltd. (1998 MLD 529)
(b) Muhammad Yusaf v. A.D.B.P. (2002 CLD 1270)
(c) Gul Habib v. Habib Bank Ltd. (PLD 1983 Pesh. 31)
(d) Muhammad Sulleman v. Habib Bank Ltd. (1988 CLC 969)
(e) Industrial Development Bank of Pakistan v. Al-Mansoor Ltd. (PLD 1989 Pesh. 191)
(f) Bakers Equity Ltd. v. Bentonite Pakistan Ltd. (2003 CLD 931)
(g) International Traders v. Union Bank Ltd. (2003 CLD 1464)
(h) Bank of Khyber v. Spencer Distribution Ltd. (2003 CLD 1406)
(i) Central Bank of India v. S. Muhammad Abdul Jalil Shan (1999 CLC 671)
(j) Muhammad Siddiq Muhammad Umar v. Australasia Bank Ltd. (PLD 1966 SC 684)
(k) Citibank N.A., A Banking Company v. Riaz Ahmed (2000 CLC 847)
(a) First Grindlays Modaraba v. Pakland Cement Ltd. (2000 CLC 2017).
(b) Sh. Muhammad Naeem v. Habib Bank Ltd. (2003 CLD 606)
(a) City Bank v. Tariq Mohsin Siddiqui (PLD 1999 Kar. 196)
(b) Askari Commercial Bank Ltd. v. Pakland Cement (PLD 2000 Kar. 246)
(c) Pakistan Industrial Credit and Investment Corporation Ltd. (2001 CLC 1551)
Heard the learned counsel for the parties and perused the material available on record.
From the perusal of record it is evident that the consent order was passed on 24-12-2003 while the instant application is moved on 23.1.2006 i.e. after more than two years.
The respondents challenged the same at the time of execution and in subsequent Appeal No. 96/2004 where a Division Bench of this Court after examining the record was pleased to observe as under:--
"We are in agreement with the view taken by the learned Executing Court that it could not travel beyond the decree passed by this Court, in First Appeal No. 24 of 2003. Even if we ignore the commissioner's report as in our view, there was no justification for any such appointment or seeking any report, the liability of the judgment debtor shall remain the same. Even otherwise, it is well settled that an Executing Court is not competent to modify or amend the decree/order passed by a trial Court or the appellate Court. In fact, if the appellant had any grievance it should have been agitated before the Court which passed the consent order and not before the Executing Court. Resultantly, we do not find any substance in this appeal which is dismissed in limine, however, with no order as to costs."
Contention of Mr. Kh. Naveed Ahmed is that it was under the direction, of the Division Bench that present application has been filed, the perusal of the above reproduced order do not show any direction, rather in my humble view it goes to show that the compromise was based on the figures as available on record and produced before the Court which does not leave any doubt that the parties acted on the basis of the record and the dates correspond to the statement based on the State Bank Circulars and prepared by the respondent Bank itself. This position hardly leaves room for any doubt that there was any mistake at the time of preparing the same. The Court is in no way concerned with the signing and submitting the joint statement. It is an independent act of the parties and not an act of the Court.
Consent order was passed on the basis of the joint statement duly signed by learned counsel for the appellants as well as that of the respondent namely Mr. Muhammad Rashid Khan. The Vakalatnama filed by Mr. Muhammad Rashid Khan Advocate bears the signature of Manager of respondent bank and it gives specific power to withdraw or compromise the above matter. All this goes to show that the respondents are now trying to back out to its commitment by taking fresh pleas. The plea of the learned counsel that earlier counsel appearing for the respondent signed the statement without consent of the respondent was not followed by any action to set aside the same for over two years in spite of the fact that the respondents were fully aware of the compromise before this Court. Mr. Khawaja Naveed could not point out any action initiated by the Bank against the learned advocate for the respondent for acting without authority. Even otherwise it has been very clearly laid down by the Hon'ble Supreme Court that case mismanaged by a counsel is no ground for review.
As such question of correction of any error or mistake does not arise. It is apparent on record that the compromise signed and submitted before the Court, based on the acknowledgement of the bank by way of statement placed on record, would not lead to an inference as to error committed by the parties or subsequent orders passed by this Court on the basis of compromise showing the same date. The same would not call for exercise of discretionary power under Section 151 CPC.
Mr. Khawaja Naveed Advocate, in the alternative, contended that even if the application under Section 151 CPC is not maintainable this Court may exercise its powers to review the case. In this regard the Hon'ble Supreme Court has already laid down the principles for exercise of power of review by Courts acting under special law. The Financial Institutions (Recovery of Finances) Ordinance, 2001 like West Pakistan Urban Rent Restriction Ordinance, is a special enactment and the principles laid down by the Apex Court for exercise of powers for review under special enactments are attracted to this case as laid down in the case of Muzaffar Ali v. Muhammad Shafi (PLD 1981 SC 94) as follows:--
"Taking up the first reasoning, it states that as a petition for review, according to the High Court procedure and practice, is to be heard in that Court by the same judge, therefore, this incident or circumstance was sufficient by itself to hold that a power of review as such could be considered to vest in the said Judge under the Ordinance. This argument, respectfully speaking, deals more with the procedure as to how a review petition, if competent, is to be heard or disposed of, but cannot be a basis for holding that by itself it amounts to a conferment of jurisdiction of review qua the types of cases involved herein. The jurisdiction to review must flow from some express provision of a statute, and as there is no such provision which confers jurisdiction on High Court to review orders passed by it in Second Appeals under the Ordinance, the fact that how the High Court otherwise disposes of various reviews in general cannot be a deciding factor in the overall contest of this case."
The exercise of powers under a special enactment does not imply a power to review earlier orders in exercise of inherent powers unless the power of review is specifically conferred by such statute. In the case of Messrs Baghpatee Services (Supra) the Division Bench of this Court after observing in paragraph 4 of the judgment that indeed there could be no cavil that the power of review must be conferred by statute and that Section 27 of the Banking Companies (Recovery of Loans, Advances, Credit & Finances) Act 1997 has to be given its full effect proceeded to examine and distinguish the power to review as distinct from the power in the light of the question whether recalling of an earlier order not passed on merits but only on account of non-appearance of a party would really amount to a review of the earlier order? And after examining of the case law on the subject this Court held that:--
A
"In view of the above discussion, we are of the considered opinion that there is a clear distinction between review of an earlier order and recalling one passed on account of non-appearance of a party. In the former the merits of an earlier order are considered but in the latter only the cause of non-appearance is to be taken into consideration. In the former case the power must be conferred by statute but in the latter it stems from the principles of natural justice required to be read into every law. The former is excluded by Section 27 but the latter continues to remain available."
In case of Metal Containers Employees Union (Supra) when an objection as to the maintainability of the petition filed before this Court was raised after examining the provisions of Establishment of the Office of Ombudsman for the Province of Sindh Ordinance, 1991, the Division Bench of this Court was pleased to hold as under:--
"Section 32 of the Establishment of the Office of Ombudsman for the Province of Sindh Ordinance, 1991 provides for filing of an appeal/representation before the Governor of Sindh by a party aggrieved by an order passed by the learned Provincial Ombudsman and in view of the above provision resort could not be had to the Constitutional jurisdiction of this Court in view of settled principle that when an adequate, alternate and efficacious remedy is available to an aggrieved party against an order passed by a government functionary in exercise of powers under a Statute then resort to Constitutional jurisdiction cannot be allowed. It was submitted on behalf of the petitioner that the order, which has been challenged in this Constitutional Petition was an absolutely illegal and void order in as much as the Provincial Mohtasib Establishment Ordinance did not confer power on the Provincial Ombudsman to review his orders and in the circumstances a Constitutional Petition was maintainable as it amounted to challenging an illegal, unlawful and void order. This contention is without any force and requires no consideration. The order dated 28-7-1998 is not in the nature of a review order but an order recalling an illegal/unlawful order passed earlier on the basis of wrong information and concealment of facts by the petitioner. In view of the wrong information and concealment of facts the earlier order had become illegal, unlawful and void and the learned Ombudsman by his order dated 28-7-1998 had merely recalled the illegal and void order, which in no way could be considered to be a review of the earlier order. Even, if a review order, the fact remains that the same should and ought to have been challenged before the Governor and the petitioner would not be able to claim the right to invoke the Constitutional jurisdiction of this Court on the ground that the impugned order was an illegal, unlawful and void order, therefore, it would not require to be challenged before the authority nominated under the aforesaid Ordinance and a Constitutional Petition would be maintainable. This presumption was not at all called for and was absolutely contrary to the law."
Arguments advanced by Mr. Khawaja Naveed, learned Advocate for the applicants/respondent, do not find support from the above cases relied upon by him at all.
Learned counsel for the respondent has not been able to produce any law or precedent to substantiate his plea that such consent order which is based on record where the change of the dates may seriously prejudice the right of the opposite party can be reviewed or interfered with by this Court after a long delay as mentioned above. Mere prayer for converting the date on the ground of an oversight does not find support from record. No violation of any State Bank Circular was pointed out. However, as it is beyond the scope of the present application a detailed and elaborate examination of the circulars amounting to review of the case on merits is not called for.
The case law relied upon by learned counsel for the respondent Bank are distinguishable and not attracted to the facts of the present case.
For the foregoing reasons as there is no ground of error in the consent order by Court which may call for correction, the compromise being based on statement cited. No ground for recall of order dated 24.12.2003 is made out nor the powers of review are available. The application is misconceived and accordingly dismissed.
(R.A) Application dismissed.
PLJ 2008 Karachi 43
Present: Nadeem Azhar Siddiqi, J.
MUHAMMAD YAQOOB and 2 others--Plaintiffs
versus
MUHAMMAD AHMED and another--Defendants
Suit No. 999 of 2005 and CM.As. Nos. 9881 and 9993 of 2007, decided on 7.1.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 151--Limitation--Inherent power of Court--Scope--No specific period of limitation is provided for filing application under Section 151, C.P.C.--Court is empowered to make such orders as may be necessary to meet the ends of justice or to prevent abuse of process of Court. [P. 44] A
Act of Court--
----Act of Court should not prejudice anyone. [P. 44] B
Administration of Justice--
----Opportunity of hearing--Court before passing order did not afford any opportunity to defendant to submit his case before it--Effect--Court possessed inherent power to rectify such mistake as act of Court should not prejudice anyone. [P. 45] C
Civil Procedure Code, 1908 (V of 1908)--
----O. XIV, R. 5--Additional issues, framing of--Plaintiffs filed the suit for administration and partition of the property--Issues and additional issues were framed on different dates--No issue qua to the controversy in suit--Validity--Issues could be amended at any stage of trial--No evidence having yet been recorded additional issues if framed, would cause no prejudice to anyone and both parties would get full opportunity to prove their respective cases--No issues with regard to main controversy in the suit having been framed, High Court framed additional issues--Application was allowed.
[P. 45] D & E
Mr. S. M. Gharib Nawaz Dakawala, Advocate for Plaintiffs.
Mr. Yousuf Molvi, Advocate for Defendant No. 1.
Date of hearing: 7.1.2008.
Order
By this application (C.M. A. No. 9881 of 2007) the Defendant No. 1 has prayed for recalling of order dated 23.10.2007 by which the Defendant No. 1 was directed to produce his evidence.
The learned counsel for Defendant No. 1 submits that the order was passed without hearing him and that since the plaintiffs have filed the suit the burden is upon them to prove that at the time of death the deceased Zahida Begum has left any property inherited by the parties to the suit. The learned counsel has referred to Order XVIII, Rule 1, C.P.C. and submits that plaintiffs have right to begun. He relied upon the reported case of Fasihur Rehman Alvi v. Inamur Rehman Alvi PLD 1993 Kar. 33.
On the other hand the learned counsel for the plaintiffs submits that the application is in the nature of review and not maintainable being time barred and that the burden to prove the issues is upon Defendant No. 1 therefore he has the right to begun. The learned counsel also referred to Order XVIII, Rule 1, C.P.C.
The issues in this case were framed on 10-4-2007 and thereafter the case was fixed for evidence on several occasion and only on 23.10.2007 in absence of the learned counsel for Defendant No. 1 the order was passed. Before 23-10-2007 this controversy was never raised. The Defendant No. 1 has invoked Section 151, C.P.C. No specific period of limitation is provided for filing an application under Section 151, C.P.C. Under Section 151, C.P.C. Court is empowered to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court. It is an accepted principle of law that an act of Court should not prejudice any one. The order has been passed in the absence of learned counsel for Defendant No. 1 and his explanation in the affidavit has gone unrebutted. The Court before passing the order has not afforded any opportunity to the Defendant No. 1 to submit his case before it. The Court possesses inherent power to rectify such mistake, as an act of Court should not prejudice anyone.
In views of the above the order dated 23-10-2007 is recalled. However, this controversy will be decided after hearing the learned counsel for the parties.
By this application (C.M.A. No. 9993 of 2007) the Defendant No. 1 has prayed for framing of additional issues.
The learned counsel for Defendant No. 1 submits that the plaintiff has filed suit for administration and partition of the property of the deceased and no such issues has been framed. He submits that the issues sought to be framed are very material for the proper adjudication of the case on merits.
The learned counsel for the plaintiffs has opposed the said application and submits that issues were framed on 10-4-2007 and thereafter at the request of the learned counsel for Defendant No. 1 additional issues were framed on 28-8-2007. He submits that the only object of Defendant No. 1 is to delay the proceedings and to deprive the other legal heirs of the deceased from their share in the property.
The plaintiffs have filed the suit for administration and partition of the property allegedly left by deceased Mst. Zahida Begum. The issues were framed on 10-4-2007 and additional issues were framed on 28.8.2007. No issue with regard to the controversy in the suit has been framed. In absence of issues it appears that the claim of the plaintiffs that the deceased has left the property has been admitted. The learned counsel for the plaintiffs has referred to Para.2 of the plaint and submits that in Para.2.2 of the written statement the Defendant No. 1 has admitted the claim of the plaintiffs and framing of issues are not necessary. I have gone through the averments of the paras referred by the learned counsel for the plaintiffs. The Defendant No. 1 in Para. 2.2 of his written statement submit as under:
2.2. The initial ownership of the suit property by answering defendant's deceased mother is not denied. It is vehemently denied that at the time of answering defendant's mother death she left behind the suit property as her estate.
From the above it is clear that the Defendant No. 1 has not admitted that at the time of death the deceased has left any property.
The issues can be amended at any stage of the suit. In this matter till to date no evidence has been recorded and if at this stage additional issues are framed no prejudice will be caused to anyone and both the parties will get full opportunity to prove their respective case. The learned counsel for the Defendant No. 1 is correct that no issues with regard to the main controversy in the suit has been framed. The main controversy between the parties is whether at the time of death deceased Mst. Zahida Begum has left any property or not.
In view of the above this application is allowed as prayed and the following additional issues have been framed:--
(1) Whether at the time of her death deceased Mst. Zahida Begum has left any property capable of administration and partition?
(2) Whether the plaintiffs and Defendant No. 2 are entitled to any share in the property in question? If yes to what extent?
(3) Whether Muhammad Farhad is the lawful general attorney of Defendant No. 2?
After framing of the above issues the issues in the suit are as under:--
(1) Whether at the time of her death deceased Mst. Zahida Begum has left any property capable of administration and partition?
(2) Whether the plaintiffs and Defendant No. 2 are entitled to any share in the property in question? If yes to what extent?
(3) Whether the suit property was ever gifted by the deceased Mst. Zahida Begum to defendant?
(4) Whether the alleged gift deed dated 14-3-1983 is forged/manipulated and is liable to be cancelled?
(5) Whether the plaintiff has received a sum of Rs. 25,000 from the Defendant No. 1 in consideration of his share and of the other plaintiffs. If yes what is its effect?
(6) Whether the plaintiffs were restrained from entering into the suit property by the defendant?
(7) Whether Muhammad Farhad is the lawful general attorney of Defendant No. 2?
(8) To what relief the plaintiffs are entitled?
The application is disposed of as above.
Office is directed to fix this case for evidence according to roster.
(R.A.) Order accordingly.
PLJ 2008 Karachi 47
Present: Muhammad Afzal Soomro, C.J.
GHULAM MUHAMMAD GHOUSI through Legal Heirs--Petitioners
versus
GHULAM GHOUS and 2 others--Respondents
W.P. No. S-941 of 2002, decided on 23.1.2008.
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 15--Civil Procedure Code, (V of 1908) O.XXXIX, Rr. 1 & 2--Ejectment petition--Pendency of civil suit--Factum of--Question of title--Relationship of landlord and tenant between parties, denial of--Sale-deed in favour of landlord was subject of a civil suit already pending between parties, wherein landlord was restrained to use sale-deed as title document till decision of suit--Effect--Sale-deed in favour of landlord was sub-judice before Court of competent jurisdiction and a stay order was operating against him--Tenant had shown a genuine and bona fide doubt over title of landlord--Rent Controller had no jurisdiction to go into disputed question of title--Landlord could not maintain ejectment proceedings, unless his title was established before civil Court--Ejectment petition was dismissed for being premature. [P. 48, 51, 53, 54 & 56] A, B, D, E, F & G
1983 SCMR 1064; 1990 SCMR 647; PLD 1985 SC 1 and Muhammad 1992 MLD 323 99 ref.
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R.33--Sindh Rented Premises Ordinance, (XVII of 1979), S. 15--Finding of trial Court--Powers of Appellate Court--Appellate Court while disturbing the finding of trial Court is under legal duty to meet the reasoning of the trial Court in the judgment and to consider the controversy entirely afresh both as regards facts and law and to substitute its own judgment for that of subordinate Court.
[P. 51] C
PLD 1969 SC 617; 2003 MLD 1280 & 2003 CLC 1342 rel.
Mr. Ismail Kassim, Advocate for Petitioner.
Mr. Ghulam Ghous, Advocate for Respondents.
Date of hearing: 11.1.2008.
Judgment
The petitioner has challenged the legality and propriety of the judgment dated 21-8-2002 passed by the learned IInd Additional District Judge (South) Karachi in F.R.A. No. 1162/2001 (HC FRA 756/00) whereby she allowed the appeal of the landlord filed against the Order dated 25-4-2000 passed by the learned VIIIth Senior Civil Judge and Rent Controller (South) Karachi dismissing the ejectment application for ejectment of the Petitioner from Flats Nos. 5 and 6 on the first floor of the building known as Rooman Building, Robson Road, Karachi.
Respondent No. 1 Ghulam Ghous, on 15-2-2000 filed ejectment Case No. 374 of 2000 against the petitioner for his eviction from Flats Nos.5 and 6 situated in Rooman Building Robson Road, Karachi in the VIIIth Court of Rent Controller (South) Karachi on the ground of default in the payment of rent from January, 1997.
The petitioner filed his written statement and pleaded that he is residing at Flats Nos.5 and 6 on the first floor of the building known as Rooman Building which, at relevant time, was jointly owned by Zohra Bi, Zaib-un-Nisa, Amna Khatoon and Fatima Khatoon and all the shops/flats in the building were occupied by the tenants. The petitioner was also tenant of the said owners/landladies in respect of Flats Nos. 5 and 6 and Shops Nos. 12 and 13. The rent of two flats was Rs. 250.00 per month. Sometime in 1996 the said ladies wanted to sell the said building and meetings of the occupants/tenants of the said building took place wherein it was ultimately decided that the said building be purchased for the benefit of the tenants/occupants out of the money collected from them wherefore three persons amongst the occupants/tenants namely Mr. Mehtab son of Iqbal Ahmed, Advocate, Muhammad Raees son of Haji Muhammad Taqui, shop-keeper and Jamil Ahmed son of Noor Muhammad having printing press were authorized by the tenants/occupants to deal with the said owners through their attorney. In pursuance thereof negotiations started and deal was effected for a sum of Rs. 25,00,000.00. Out of the money collected from the occupants/tenants a sum of Rs. 2,50,000.00 towards the part sale consideration was paid to the landladies/owners and it was agreed that on payment of the balance sale consideration a sale agreement will be executed by the owners/landladies for sale of the said building in the name of those three persons and simultaneously a power of attorney shall also be executed and got registered by them in favour of those three persons who shall act as nominee/agents of the occupants/tenants of the building and discharge the trust. A joint current Bank Account No. 4777 was also opened by all the three viz. Agents/Attorneys in the United Bank Limited. Moulvi Musafirkhana Branch Karachi, "wherein out of the three any two jointly could operate the said account. The aim of opening the account was that the amount received from the tenants/occupants of the building will be deposited therein. Upon payment of balance sale consideration the landladies/owners executed a sale agreement and a general power of attorney in favour of the three nominated persons named above.
It was further the case of the petitioner that consideration of each tenement (floor-wise) was determined and the full consideration/ price of the shops in possession of the petitioner was Rs. 2,00,000 Rs. 1,00,000.00) for each shop) and Rs. 50,000.00 for two flats (Rs. 25,000.00 for each flat). Towards the purchase of the tenement in possession of the deceased petitioner he had already paid a sum of Rs. 2,00,000.00 to Jameel Ahmed and Rs. 50,000,00 to Raees Ahmad. It was the case of the petitioner that after the execution of the sale agreement and the power of Attorney Mehtab Ahmad and Raees Ahmad committed acts of malfeasance and misfeasance. The occupants/tenants made number of complaints to the third Attorney about misconduct and misbehavior of the other two Attorneys and efforts were made by him to talk to the other two attorneys but they avoided to meet him and under the circumstances the third Attorney filed Suit No. 789 of 1997 in this Court for declaration, injunction and for rendition of accounts against the two Attorneys and vide Order dated 9-8-1999 this Court directed the parties to maintain status quo and not to create any third party interest.
The petitioner further pleaded that he received letter dated 4.9.1998 from the Respondent No. 1 purporting to be a notice under Section 18 of the Sindh Rented Premises Ordinance, 1979 intimating that he had purchased the two flats in possession of the petitioner in the month of April 1997. The petitioner replied the said notice through his Advocate on 30-9-1998 explaining the true facts and disputing the ownership of the Respondent No. 1 in respect of the flats in his occupation and intimating that, without prejudice to his rights in the matter, he would deposit the rent in Court subject to final decision of the Court.
The petitioner on 2-10-1998 filed Suit No. 969 of 1998 against the, three attorneys and the Respondent No. 1 for specific performance, injunction and cancellation of sale-deed executed in favour of the Respondent No. 1 in the Court of VIIIth Senior Civil Judge (South) at Karachi. Along with the suit the plaintiff filed an application under Order XXXIX, Rules 1 and 2, C.P.C. which was on contest finally allowed and the Defendant No. 4 therein (Respondent No. 1) was restrained to use the sale deed in respect of the suit flats as the title document and take any action on that count against the plaintiff therein (the petitioner). Pending disposal of the said suit the Respondent No. 1 filed an ejectment Case No. 374 of 2000 wherein the petitioner filed his written statement taking the defence as explained above.
The learned Rent Controller settled the following points for determination:--
(1) Whether there is a relationship of landlord and tenant in between the application and the opponent?
(2) Whether the Opponent committed default in payment of rent since January, 1997 onwards?
(3) What should the Order be?
In the said ejectment case the Respondent No. 1 examined himself. In rebuttal the petitioner besides himself examined Jameel Ahmed the third Attorney in his defence. The said ejectment case was dismissed on 25-4-2000. The Respondent No. 1 preferred a First Rent Appeal No. 756 of 2000 before this Court on 31-5-2000. Pending hearing of appeal the rent Ordinance was amended and the appeal was transferred to the Court of learned District Judge (South) Karachi where it was renumbered as FRA 1162/01 and transferred to the Court of the learned IInd Additional District Judge, (South) Karachi who vide her impugned judgment dated 21-8-2002 allowed the said appeal and directed the petitioner to vacate the flats in his possession within sixty days of the Order.
The petitioner has challenged the impugned Order through this petition on the grounds that:--
(a) The impugned judgment is not sustainable and is contrary to the applicable law on the subject as the learned Rent Controller had given negative finding on the issue of relationship of landlord and tenant between the parties and held that the ejectment application filed by the Respondent No. 1 was premature on account of pendency of litigation before the Civil Court which was in accordance with the dictum laid down by the superior Courts and therefore no finding was given by him on the point of default whereas the learned First Appellate Court had acted without jurisdiction in upsetting in appeal the finding of facts arrived by the Rent Controller without giving any reason for differing with the learned Rent Controller and straightaway ordered ejectment of the petitioner on the ground of default without giving any finding on the point of default.
(b) There was a stay operating against the Respondent No. 1 for using the sale-deed which was sub judice before the Civil Court and he was not entitled to maintain the ejectment application on the basis of the sale-deed;
(c) The petitioner/tenant had shown a genuine and bona fide doubt over the title of the Respondent No. 1 and had brought on record evidence making the claim of the landlord doubtful and the learned Rent Controller had rightly held that the ejectment application was premature.
The contentions raised by Mr. M. Ismail Kassim, counsel for the petitioner have force. A perusal of the Order passed by the learned Controller shows that the same has been passed after taking into consideration the respective contentions of the parties and after analyzing the evidence produced in support thereof and the conclusion reached that the ejectment application was premature is well founded The relevant portion of the order of the learned Rent Controller is reproduced hereunder:--
"There are certain facts in this case which are admitted by the applicant in his cross-examination i.e. the sale agreement, power of attornies i.e. Mehtab, Raees and Jameel Ahmad. One of the attorneys Jameel Ahmad also a tenant of in question building has filed the above suit, the whole building admittedly consists number of tenants. Apparently the suit was filed in the year 1997 whereas this rent case filed on 15-2-2000, it means that after few years of the suit this rent case was filed. Applicant also filed a sale-deed dated 10th March, 1997 and registered on 10-4-1997. I have also gone through the other correspondence of the counsel of the respective parties. Considering these annexures I am of the view that already Civil Suit Bearing No. 789 of 1997 is pending in the High Court of Sindh for further adjudication and as being the Hon'ble superior Court has to decide the fate of the above said suit. Therefore applicant has waited for sometime and filed the rent case against the opponent. The material on record shows that the present rent application is premature and filed before taking the orders from the Hon'ble High Court of Sindh in respect of the title of the building in question."
The above discussion shows that the learned Rent Controller after careful analysis of the evidence and material produced before him came to the conclusion that the relationship between the parties cannot be decided due to pendency of the civil suit and the ejectment application filed by the Respondent No. 1 was premature and no finding can be given on the ground of default. Perusal of the impugned judgment of the Appellate Court Karachi indicates that neither any reasons have been given while disturbing the finding of the learned Rent Controller on the issue of relationship nor any evidence has been discussed while deciding the issue of the default and directing ejectment of the petitioner. Furthermore perusal of the impugned judgment reveals that the learned First Appellate Court without applying her mind or appreciating the defence of the petitioner of the evidence produced straightaway allowed the appeal and admittedly did not advert to the reasoning of the learned Rent Controller in impugned judgment. There are plethora of case law on the point that an Appellate Court while disturbing the finding of the trial Court is under legal duty to meet the reasoning of the trial Court in the judgment and to consider the controversy entirely afresh, both as regards facts and law and to substitute its own judgment for that of subordinate Court. Reliance in this behalf can be placed on the case of Madan Gopal v. Maran Bepari PLD 1969 SC 617 at page 620 in which the following principle has been laid down:
"If the finding of the First Appellate Court cannot be supported on the evidence on record or it has failed to take into account a material piece of evidence or if it does not reveal a logical basis for differing from the finding of the trial Court, or is otherwise found to be arbitrary or capricious it will have to be rejected in second appeal."
The above case was followed by the Lahore High Court in the case of Mst. Iqbal Begum and two others v. Muhammad Bashir and others 2003 MLD 1280 Lahore and it was observed as under:
"It is also settled principle of law that the First Appellate Court has to reverse the findings of the trial Court after meeting the reasoning of the trial Court, as per principle laid down by the Honourable Supreme Court in Madan Gopal's case PLD 1969 SC 617. The First Appellate Court did not advert to the reasoning of the trial Court impugned judgment. The judgment of the First Appellate Court is in violation of the law laid down by the superior Courts in the aforesaid judgments. This concept of jurisdiction and illegality had been considered by the Honourable Supreme Court in Kanwal Nain's case PLD 1983 SC 53 to cover cases, where decision on facts is based on no evidence, inadmissible evidence or so perverse as to cause grave injustice would result there from."
Reliance can also be placed on the case of Ali Raziq v. Sabar Khan 2003 CLC at page 1342 wherein the learned Judge has held:
"....It is necessary for the Appellate Court to record the points for determination, so that it can be determined whether the Court has dealt with all the points. The Appellate Court is required to give its decision with regard to each point, which should be self-explanatory, illuminative and in. the nature of a speaking order. Where the provisions of Order XLI, Rule 31, C.P.C. are not complied with the judgment is not in accordance with law. It should be evident from the judgment that the Judge was conscious of the matter involved and that the decision has been pronounced on the basis of the record. Where a judgment does not substantially comply with the requirements of this rule, it is a bad judgment in the eye of law. The perusal of the judgment of the learned Appellate Court shows that the appeal was dealt with in a very cursory manner. Neither issue-wise findings were given by the learned Appellate Court nor points for determination as envisaged under Order XLI, Rule 31, C.P.C. were set out and decision given thereon. The trial Court and the Appellate Court are duty bound to consider and discuss the evidence of both the parties satisfactorily so that it may be visible that the Courts below have applied their mind and that they have based their findings on proper appraisal of such evidence. The Courts are required under the law to give issue-wise findings in order to ensure that substantial justice has been done and no material prejudice has been caused to the parties...."
A perusal of the impugned judgment in the light of the principle laid down in the above cases would clearly reveals that the material facts have escaped notice of the learned Appellate Judge and the judgment has been recorded in a mechanical manner without discussing the material on record in detail.
The second contention of Mr. Ismail Kassim, the learned counsel for the petitioner that the learned Appellate Judge has not considered the civil litigation being Suit No. 789 of 1997 pending between the attorneys where in the authority of the two attorneys has been challenged by the third attorney and is pending sub judice and the title to the entire building including the flats in question is in dispute. The factum of pendency of the suit has been admitted by the Respondent No. 1 in his cross-examination as he being an Advocate appeared in that suit for and on behalf of one of the defendants i.e. Defendant No. 2 namely Mehtab Ahmad. This aspect has been considered by the learned Rent Controller and has delivered the finding that Being a Rent Controller he had no jurisdiction to go into the disputed question of title and that the Respondent No. 1 should wait till such time the litigation is decided between the attorneys. The Respondent No. 1 in his ejectment application has claimed ownership to the flats in question through a sale-deed executed in his favour by the two attorneys on 10-4-1997. This very sale-deed is pending sub judice in Civil Suit No. 969 of 1998 filed by the petitioner against the three attorneys and the Respondent No. 1. this fact has been admitted by the Respondent No. 1 in the cross-examination. One of the issues in the said suit is "Whether the Defendants Nos. 1 and 2 sold out Flats 12-G and 13-G in favour of Defendant No. 4 by virtue of registered sale-deed strictly in accordance with the terms of powers of attorney?". Along with the suit the petitioner filed an application under Order XXXIX, Rules 1 and 2, C.P.C. (page 255 of the file) praying the Court, amongst other to restrain the Defendant No. 4 (herein the Respondent No. 1) from using illegal sale-deed executed by the two attorneys in respect of suit flats as the title documents of the suit flats and take any action on that count against the plaintiff (petitioner hereinabove) pending disposal of the suit. The said application on contest was finally allowed vide orders dated 28-11-2000 and dated 7-1-2002 and the Defendant No. 4 therein (Respondent No. 1) was restrained to use the sale-deed in respect of the suit flats as the title document and take any action on that count against the plaintiff therein (the petitioner) till disposal of the suit. (pages 451 and 465 of the file).
From the above facts, it is evident that the Respondent No. 1 was not entitled to use the sale-deed as title documents in respect of the suit flats in presence of the interim stay operating against him and therefore he was not entitled to maintain the very ejectment application. The learned Rent Controller had rightly held that the ejectment application was premature and the Respondent No. 1 should wait for the result of the civil litigation which aspect has not been considered by the learned Appellate Judge while upsetting the findings of the learned Rent Controller and this has rendered the impugned judgment unsustainable. This also covers the last contention of Mr. Kassim, the learned counsel for the petitioner, that the petitioner/tenant had shown a genuine and bona fide doubt over the title of the Respondent No. 1 and had brought on record evidence showing the pendency of civil litigation between the parties thereby making the claim of the landlord doubtful and the learned Rent Controller had rightly held that the ejectment application was premature and this finding has been disturbed by the learned Appellate Court without giving any cogent reasons.
Admittedly the civil litigation is pending between the parties where the very sale-deed is pending sub judice and an issue has been framed by the Civil Judge in that behalf. There is a cloud on the title of the Respondent No. 1/Landlord and unless the same is established before the Civil Court ejectment proceedings cannot be maintained by him and the learned Rent Controller has rightly held so in his well-reasoned Order. Reliance in this behalf is placed on the judgment in the case of Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 wherein it has been observed that:--
"What is permissible for Court of general jurisdiction in the field of fairplay, justice and equity when there is no statutory bar, is also permissible for the Controller. He can, in a given case even when the landlord has discharged the initial burden in the title involving case, on the tenant creating genuine and reasonable doubt about the same, refuse to eject the tenant and can leave the landlord to a remedy in a Civil Court, first and then again approach to the Controller. Even when the tenant has not succeeded before the Controller to create the required "reasonable" doubt but has convinced him that his plea is not frivolous and/or vexatious but due to constraint of summary/speedy procedure, has failed to create the required satisfaction or doubt, while ejecting him, the Controller can • leave scope for civil suit by observing so and where he fails to do so, higher Court can do the same."
The dictum laid down in the above case apply with full force to the facts of the present case and the Petition merits acceptance.
Mr. Ghulam Ghaus, Advocate/Respondent No. 1, appearing in person supported the impugned Judgment and has contended that he had produced registered sale-deed in respect of the tenements in question and the petitioner/tenant was estopped from challenging the same or dispute his title as landlord of the premises. He has further contended that the petitioner in response to the Notice issued to him under Section 18 of the Sindh Rented Premises Ordinance, 1979 deposited the rent with the learned Rent Controller in the name of a fake landlady and after a month realizing the mistake corrected the title of the application by substituting his name without obtaining permission from the learned Rent Controller. Lastly he contended that there may be defects/short comings in the Appellate judgment but this Court has ample powers to correct the same and decide the case on merits. On the point of registered sale-deed he has placed reliance on the judgment in the case of Iqbal v. S. Rahim Shah 1990 SCMR 647. This case is of no assistance to the Respondent No. 1 as in that case the tenant pleaded agreement of sale in his favour and pendency of suit for specific performance as against the registered sale-deed in favour of the landlord. The Hon'ble Supreme Court held that "even if the agreement of sale was executed by the previous owner on a prior date before the registered sale-deed, by virtue of Section 50 the registered sale-deed, nonetheless has precedence cover the prior unregistered deed of agreement". In the present case the very sale-deed is sub judcie before the Court of competent jurisdiction and a stay is operating against the Respondent No. 1 and facts of the said case are completely different then the present case and hence are distinguishable. The another case relied upon by him is the case of Province of Punjab through Education Secretary v. Mufti Abdul Ghani PLD 1985 SC 1. This case rather supports the contention of the learned counsel for the petitioner that the person claiming to be the landlord of a property has to first satisfy the Rent Controller about his title. This case is of no help to the Respondent No. 1. The third case relied upon by him is reported in Muhammad Shabbir v. Mst. Hamida Begum 1992 MLD 323. This case is also of no help to the Respondent No. 1 as in this case the tenant pleaded sale agreement in their favour as against the registered sale-deed and the learned Rent Controller as well as this Court held that the sale-deed executed and registered in favour of the landlady clearly establishes her title over the property in question. Till such time as the appellants succeed in having the sale-deed cancelled and in obtaining a decree for specific performance of the agreements in their favour, the respondent shall continue to be the owner of the property in dispute. The position in the above case, as explained earlier, is completely different. The very sale-deed is pending sub judice before the Court of competent jurisdiction and an interim order is operating against the Respondent No. 1 not to use the sale-deed as title document in respect of the disputed tenement. The facts of the case are distinguishable.
The upshot of the above discussion is that this is a fit case for exercise of constitutional jurisdiction as the judgment passed by the learned First Appellate Court is not sustainable being opposed to law and settled principles for administration of justice.
Accordingly this constitutional petition is allowed and the judgment dated 21-8-2002 passed by the learned IInd Addl. District Judge (South) Karachi in FRA No. 1162/01 (HC FRA 756/00) is set aside and the Order dated 25-4-2000 passed by the learned VIIIth Senior Civil Judge and Rent Controller (South) at Karachi in Rent Case No. 374 of 2000 dismissing the ejectment application of the Respondent No. 1/Landlord for ejectment of the petitioner is restored.
(R.A.) Petition accepted.
PLJ 2008 Karachi 56
Present: Dr. Rana Muhammad Shamim, J.
Messrs QURESHI GARMENTS--Petitioner
versus
SHAISTA ZAFAR and others--Respondents
C.P. No. 333 of 2007, decided on 14.1.2008.
Constitution of Pakistan, 1973--
----Art. 199--Sindh Rented Premises Ordinance, (XVII of 1979), Ss. 15(2)(ii)(iii)(c), 18 & 21--Constitutional petition--Ejectment of tenant on ground of default in payment of rent--Statutory notice to tenant--Object--Both the Rent Controller and Appellate Court decided issue as to impairing the value of the premises against the landlord, but decided issue of default in his favour and ordered ejectment of tenant--Tenant had asserted that landlord had not issued statutory notice of transfer of premises under Section 18 of Sindh Rented Premises Ordinance, 1979 to him, whereas landlord had submitted that said notice was duly served upon the tenant--Provisions of Section 18 of Sindh Rented Premises Ordinance, 1979 were not to be strictly construed, but same were relevant only for the purpose of filing ejectment application by the new landlord--Object of said notice was to intimate the tenant about the transfer of property in the name of new landlord, so that the rent was to be paid to him--Tenancy in no way was dependant on the service of notice under Section 18 of Sindh Rented Premises Ordinance, 1979 and in case ejectment application was instituted by the landlord in default of rent and receipt of copy of the said application by which tenant would come to know about the transfer of property, would constitute due notice and could be treated as substantial compliance with the provisions of Section 18 of the Ordinance--Impugned order did not suffer from any illegality or irregularity--Petition was dismissed.
[Pp. 58 & 59] A, B & C
1972 SCMR 251 & 1992 SCMR 871 rel.
Mr. Nasrullah Awan, Advocate for Petitioner.
Mr. S. Azizul Hassan, Advocate for Respondent No. 1.
Date of hearing: 14.1.2008.
Order
The petitioner has filed this petition against the judgment dated 28-5-2007 passed by learned IV-Additional District Judge Karachi East in F.R.A. No. 100 of 2006 whereby he dismissed the same and maintained the order dated 24-4-2006 passed by learned V-Senior Civil Judge and Rent Controller Karachi East in Rent Case No. 228 of 2003.
Succinctly the facts of the matter are that the respondent has filed ejectment application against the appellant stating therein that she has purchased the demised premises i.e. Shop No. 2, Plot No. 15-C, Central Commercial, Tariq Road, Block-2, PECHS, Karachi, from Hassan Ara Begum, however, the appellant failed to pay rent to her and only paid the rent up to May, 2002 to the previous owner at the rate of Rs. 3,025. She further alleged that the appellant has impaired the value of the demised premises by removing a wall thereby making away to an adjacent property. Hence she filed ejectment application.
The appellant in his written statement refuted the claim of the respondent as to the default as well as removing the wall. He took the plea that the respondent is not the owner of the demised premises and he paid the monthly rent to Mst. Hassan Ara up to May, 2002 thereafter she refused to accept the same and asked the appellant to either enhance the rent or purchase the demised premises and as such the appellant started depositing rent in M.R.C. No. 168 of 2002. The appellant has also denied to have received the notice under Section 18 of Sindh Rented Premises Ordinance, 1979.
Both the parties led their evidence and the learned trial Court after hearing learned counsel for both the parties, decided the issue as to impairing the value of the property against the respondent, however, decided the issue of default in favour of the respondent and thus ordered for ejectment. Appeal against the same was dismissed vide impugned judgment, hence this petition.
I have heard the learned counsel for both the parties and with their assistance have gone through the material placed on record. Since both the learned counsel have argued the matter at length, I propose to decide this petition at Katcha Peshi stage.
Learned counsel for the petitioner during the course of his arguments has reiterated the grounds taken in the petition which pertain to the service of notice under Section 18 of Sindh Rented Premises Ordinance, 1979 and as to the relationship of landlord and tenant. However, from the perusal of the impugned order passed by the Appellate Court, the learned Appellate Court has in fact accepted all the pleas taken by the petitioner except non-payment of the rent after knowledge of the change of ownership. The relevant portion of which is reproduced as under:
".....In case the tenant come to know about the change of ownership he is bound to offer rent to new owner without fail. In this case, the respondent landlady through her affidavit-in-evidence produced sale-deed dated 22-5-2002 (Exh.A-2) The said affidavit-in-evidence was filed on 18-7-2003 but the copy whereof was received by the appellant's counsel on 18-12-2003. Even if the date of knowledge be considered from 18-12-2003, the appellant was bound to offer rent within thirty days but at the first instance, the appellant kept him indulged in useless exercise by moving an application under Order I, Rule 10, C.P.C. in M.R.C. No. 168/2002 and after dismissal of that application remitted the rent through money order on 21-9-2004 (Exh.O/57), and upon refusal he deposited the rent in MRC No. 236/2004. The appellant did not have any valid reason to remit/deposit the rent belatedly to new owner when the due time for same had already gone past..."
He relied on a case of Gulzar Begum v. Mst. Sairah Bibi 1972 SCMR 251 and submits that serving of notice under Section 18 Sindh Rented Premises Ordinance, 1979 is mandatory and violation of it is condonable.
The learned advocate for the respondent submits that the notice under Section 18 of Sindh Rented Premises Ordinance, 1979 was duly served upon the tenant. No doubt the service of notice upon the tenant/appellant was denied by him and even after instituting the ejectment application and on receipt of its notice the appellant has neither started paying rent to the respondent nor deposited in her name. In support of it the relied upon a case of Pakistan National Shipping Corporation v. Messrs General Services Corporation 1992 SCMR 871.
He further submitted that in view of the above the only controversy remains to be that the petitioner as per his own admission came to know about the change of ownership on 18-12-2003 while the rent tendered to the respondent is on 21-9-2004 and thus committed default. The contention of the learned counsel for the petitioner that such default is technical in nature and not the willful or intentional is not supported by any case-law.
I have heard both the counsel of the parties, perused material on record and gone through the case laws referred by both the learned advocates for the parties. The case of Gulzar Begum (supra) on which reliance is made by the petitioner's counsel is not relevant and supports him whereas the case of Pakistan Shipping Corporation (supra) relied by the learned counsel for the respondent is applicable and supports her case. He submits that the provisions of Section 18 of Sindh Rented Premises Ordinance, 1979 are not to be strictly construed. It is relevant only for the purposes of filing ejectment application by the new landlord. The object is to intimate the tenant about the transfer of property in the name of new landlord, so that the rent is to be paid to him. The tenancy in no way dependent upon the service of notice under Section 18 and in case ejectment application is instituted by the landlord on default of rent and receipt of copy of the said application by which the tenant came to know about the transfer of property constitutes due notice and can be treated as substantial compliance with the provisions of Section 18 of Sindh Rented Premises Ordinance, 1979.
In view of the above, I am of the opinion that the impugned order does not suffer from any illegality or irregularity and so also no case of misreading or non-reading of evidence is made out. Consequently, this petition has no merit, hence dismissed in limine along with listed application. The petitioner, however, is allowed to vacate the demised premises within 60 days subject to payment of monthly rent and utility bills.
(R.A.) Petition dismissed.
PLJ 2008 Karachi 59
Present: Muhammad Afzal Soomro, C.J.
MUHAMMAD SALEEM--Applicant
versus
MEHMOOD and 2 others--Respondents
Crl. Misc. Appln. No. 262 of 2006, decided on 23.1.2008.
Criminal Procedure Code, 1908 (V of 1898)--
----S. 497(5)--Pakistan Penal Code, (XLV of 1860), Ss. 324 & 34-Bail, cancellation of--Specific role was attributed--Role assigned to accused was of causing danda blow to complaint's father--Co-accused had caused injuries to complainant's father-Case against accused would not come within ambit of grounds set forth for cancellation of bail--Trial Court had rightly granted bail to accused-Cancellation of bail was dismissed. [P. 61] A
Mirza Sarfraz Ahmed, Advocate for Applicant.
Mr. Ghulam Mustafa Memon, Advocate for Respondents.
Mr. Fazl-ur-Rehman Awan, Advocate for State.
Date of hearing: 23.1.2008.
Order
This is an application for cancellation of bail granted to the respondents by the learned IIIrd Additional Sessions Judge, Karachi (West) in Crime No. 320/05 under Section 324/34, P.P.C. registered at P.S. Saeedabad.
The facts of the prosecution succinctly stated are that there was a dispute on a plot with Yousuf Vichani which was later on settled. On 16-11-2005 when father of the complainant Qadir Bukhsh was coming out from his buffaloes pond, at about 10-00 a.m. four persons including Yousuf Vichani, Saleem son of Lal Muhammad and sons of Saleem namely Pappu and Mehmood came there. Yousuf was having TT pistol whereas Saleem had axe and Pappu and Mehmood were holding dandas in their hands. They attacked on his father with intention to kill. Yousuf fired two shots on his father which were missed. Saleem and his sons attacked. Saleem hit butt of axe on head of complainant's father while Yousuf also gave pistol butt blows on head of his father due to which his father received injuries on his head and other parts of body and he became unconscious. Mohalla people gathered there and witnessed the scene. Culprits escaped from the scene.
It is contended by the learned counsel for the applicant/complainant that the learned trial Court has wrongly granted bail to the respondents without considering material available on record; that the learned trial Court has misapplied the rule of consistency in the case of Respondents Nos. 1 and 2 by comparing the role of accused Yousuf; that the respondents have been nominated in the F.I.R; that the learned trial Court has not considered the case law cited by him; that the injuries caused to the father of the complainant have not been considered by the lower Court; that the respondents/accused are threatening to the complainant for dire consequences and lastly that in these circumstances the accused are not entitled to the concession of bail and such concession may be recalled by this Court.
Learned counsel for the respondents vehemently opposed the arguments of the learned counsel for the applicant by contending that the respondents have not misused the concession of bail; that the role assigned to the respondents in the F.I.R. is of causing dandas while other injuries were alleged to have been caused by co-accused. It is also contended that it is the case of the prosecution that co-accused Saleem hit butt of axe on the head of the complainant's father while accused Yousuf fired two shots and gave pistol butt blows on the head of the father of complainant and in such circumstances where the injures alleged against the present respondents went, which means the present respondents/accused have not caused injuries and they were involved in this case due to mala fide intention of the complainant. Therefore, the case is of further inquiry and the learned trial Court has rightly granted bail to the accused/respondents. He also contended that Section 324, P.P.C. does not apply as the injuries sustained by the complainant's side are not dangerous to life. Therefore, this case is of further inquiry and the learned trial Court has rightly granted bail to the accused/respondents. He also contended that Section 324, P.P.C. does not apply as the injuries sustained by the complainant's side are not dangerous to life.
Learned counsel for the State while supporting the contentions of the learned counsel for the respondents has argued that since the respondents have not misused the concession of bail, therefore, they are entitled to concession of bail.
I have heard the learned counsel for the parties and scanned the material available on the record.
The prosecution has assigned the role of causing danda blows to the father of the complainant and the record shows that the injuries were caused by the co-accused, therefore, the case of the respondents does not come within the ambit of grounds set forth for cancellation of bail. The trial Court has rightly granted bail to the respondents.
In view of the above discussion. I find no merit in this Criminal Miscellaneous Application and dismiss the same.
(R.A.) Application dismissed.
PLJ 2008 Karachi 62
Present: Dr. Rana Muhammad Shamim, J.
ASIF ALI--Petitioner
versus
Mst. TEHMINA NASEEM SHAD and 2 others--Respondents
Const. P. No. S-410 of 2004, decided on 15.1.2008.
Guardians and Wards Act, 1890 (VIII of 1890)--
----S. 25--West Pakistan Family Courts Act, 1964--S. 14--Constitution of Pakistan (1973), Art. 199--Constitutional petition--Custody of minor--Welfare of minor--Courts below concurrently gave custody of minor to mother and the father who had divorced her had challenged the concurrent judgments of the Courts below--Validity--Minor was patient of imperforated disease and had been operated thrice, in such circumstances when minor had attachment with his mother, in case he was given in the custody of his father who was stranger for him, it would deteriorate his health--Father, who had contracted second marriage, when he would leave for his job, child would be at the mercy of step mother--In presence of real mother, who was living in a combined family having sisters and mother, it would not be proper to deprive the child from the natural love and affection of the mother particularly when nothing substantial had come on record to prove that the mother had failed to properly look after her son--Scope of powers of High Court while dealing with the concurrent findings of Courts below, in exercise of constitutional jurisdiction, was very limited--Burden of proving that findings recorded by Courts below were vitiated by evidence on record or suffered from non-reading of material evidence or there was jurisdictional defect, lay on the petitioner, which the petitioner in the present case had failed to point out--Both Courts below had very carefully examined all the aspects of the matter in regard to the welfare of the minor--Concurrent judgments of the Courts below could not be interfered with by the High Court in exercise of its Constitutional jurisdiction.
[P. 64] A & B
1993 CLC 2468; PLD 1978 SC 220; PLD 1962 Lah. 142; 2000 SCMR 838; 1999 MLD 1754 & 1978 SCMR 299 rel.
Mr. Kadir Bukhsh Bhutto, Advocate for Petitioner.
Mr. Aman Khattak, Advocate for Respondent No. 1.
Date of hearing: 15.1.2008.
Order
The petitioner has challenged the concurrent findings recorded vide judgments dated 29-9-2003 and 31-5-2004 by learned IX-Civil and Family Judge Karachi Central in G&W No. 974 of 2001 and the learned District Judge Karachi Central in Family Appeal No. 108 of 2003 whereby the application under Section 14 of West Pakistan Family Courts Act, 1964 filed by the petitioner was dismissed and so also the appeal against the same.
Brief facts of the case are that the petitioner and respondent married on 15-9-1997 but due to some differences the petitioner divorced the respondent in August 2000. From the wedlock a boy namely Zeerak Asif Ali was also born on 27-10-1998, who is patient of imperforated and was operated thrice. According to the petitioner, at the time of Tallaq it was agreed that the respondent will give custody of the minor child to the petitioner, which the respondent failed to abide and consequently the Guardian and Ward Application was filed. The respondent in his written statement refuted the claim of the petitioner that she has ever agreed for handing over the custody to the child to the minor and further pleaded that the petitioner neither properly maintained her nor her child. The learned Family Judge dismissed the application and appeal against the same also met with same fate.
Learned counsel for the petitioner has contended that the learned Courts below have not properly considered the evidence placed on record and without applying judicial mind, passed the impugned judgments. He contended that the petitioner is an educated person and is working as lecturer in Government Degree College, Buffer Zone, Karachi, and as such he can very well look after the minor. He further contended that the paramount consideration is the welfare of the minor and there are no hard and fast rule and each and every case has to be decided on its own merits. He contended that the right of Hizanat lies with the father to have the custody of the minor. He further contended that the visits/meeting of father was not regulated by the learned trial Court. In support of his contentions he has placed reliance on the cases reported in 1993 CLC 2468, PLD 1978 SC 220 and PLD 1962 Lahore 142.
On the other hand learned counsel for the Respondent No. 1 has supported the impugned judgments. He contended that there is nothing on record to substantiate any misreading or non-reading of the evidence. He contended that the judgments are well-reasoned and the petition is not maintainable as the concurrent findings of the Courts below cannot be challenged while exercising the constitutional jurisdiction. In support of his contentions he has placed, reliance on the cases of Mst. Firdous Iqbal v. Shifaat Ali (2000 SCMR 838), M. Farrukh Iqbal v. Additional District Judge, Islamabad 1999 MLD 1754 and Mst. Feroze Begum v. Lt.-Col. Muhammad Hussain 1978 SCMR 299.
I have heard the learned counsel for the parties and have gone through the material available on record and so also the case-law.
Indeed the admitted fact in the light of the law cited by both the learned counsel is the welfare of the minor. The child is a patient of imperforated and has been operated thrice and in such circumstance when he has attachment with his mother, and in case he is given in the custody of his father, who is stranger for him, it may deteriorate his health. The petitioner has contracted second marriage and when he will leave for his job, the child will be at the mercy of step mother. In my humble view in presence of real mother, who is living in a combined family having sisters and mother, it will not be proper to deprive the child from the natural love and affection of the mother particularly when nothing substantial has come on record to prove that the respondent has failed to properly look after her son.
It is also settled principle of law that the scope of this Court while dealing with the concurrent findings of the two Courts below in exercise of constitutional jurisdiction is very limited. In such like situation the burden of proving that the findings recorded by Courts below were vitiated by evidence on record or suffered from non-reading of material evidence or there was jurisdictional defect lie on the petitioner, which in the instant case the petitioner has failed to point out. Both the Courts below have very carefully examined all the aspects of the matter in regard to the welfare of the minor. The case-law relied upon by the learned counsel for the petitioner in the light of the above discussion are not relevant to the present case.
In view of the above, I do not find any substance in the present petition calling for interference in the impugned judgments. Accordingly, this petition is dismissed in limine along with listed application.
(R.A.) Petition dismissed.
PLJ 2008 Karachi 64
Present: Muhammad Afzal Soomro, C.J.
AZIZUR REHMAN RAJPUT--Appellant
versus
ASIF IQBAL SIDDIQUI and another--Respondents
F.R.A. No. 15 and C.M.A. No. 2134 of 2007, decided on 29.1.2008.
Cantonments Rent Restriction Act, 1963 (XI of 1963)--
----Ss. 17(4)(a)(i) & 24--Personal bona fide need of landlord and his family--Ejectment petition had been allowed by the Rent Controller--Several chances were given to file written statement--Tenant failed to file written statement--Landlords had fully proved that demised premises was required by them for their personal bona fide use as well as for use of their families--Tenant had himself admitted that he had purchased a house--Landlords having fully proved that they needed premises in-question for their personal bona fide use and use of their families, Rent Controller rightly ordered ejectment of tenant on ground of personal bona fide need. [Pp. 67 & 68] A & B
2003 SCMR 1398; 1996 SCMR 1178; 2005 CLC 633; PLD 2005 SC 27 and 2005 YLR 349 rel.
Mr. Moin Azhar Siddiqui, Advocate for Appellant.
Mr. Mehmood-ul-Hassan, Advocate for Respondents.
Date of hearing: 29.1.2008.
Order
By this order I intend to dispose the above First Rent Appeal. Through the instant appeal the appellant challenged the order dated 23.6.2007 passed by the Court of Additional Controller of Rents, Clifton Cantonment Karachi whereby he allowed Rent Case No. 4 of 2007 (Re. Asif Iqbal Siddiqui and another v. Azizur Rehman Rajput) directing the appellant to vacate the demised premises i.e. Bungalow No. 114/2, Khayaban-e-Ghazi Phase VI, Defence Housing Authority, Karachi and hand over its vacant possession to the respondents within 30 days.
Brief facts of the case as per ejectment petition are that petitioners/respondents rented out the demised premises to the appellant at the monthly rent of Rs. 35,000 as per Rent Agreement dated 12-4-2002. The rate of rent was subsequently enhanced to Rs. 42,350 per month, which is the present rate of the rent. In the ejectment petition, the petitioners claimed that they required the demised premises for their personal bona fide use and the use of their families. The petitioners/appellants alleged that the respondent/tenant is defaulter in payment of the monthly rent since April, 2006 onwards. On the basis of such grounds the respondents filed the ejectment rent case before the Court of Additional Controller of Rents Clifton Cantonment, Karachi with the prayer that the appellants be directed to vacate the demised premises and hand over the vacant and peaceful possession to the respondent/landlords and deposit the arrears of rent in trial Court from April, 2006 till date.
Upon service of notice in respect of the rent petition, appellant/tenant filed his affidavit in evidence, denied the personal need of respondents/landlords as well as default in payment of rent.
On the basis of the pleadings of the parties following issues were framed by the trial Court:--
(1) Whether the petitioners required the demised premises for bona fide personal use and use of their families?
(2) Whether the respondent committed wilful default in the payment of rent from March, 2006 onwards?
(3) What should the order be?
The petitioner/Respondent No. 1 Asif Iqbal Siddiqui filed affidavit-in-evidence of himself and attorney Syed Tahir Hussain Zaidi and the appellant's counsel cross-examined them and thereafter the counsel for petitioners/respondents closed the side. Similarly appellant/tenant Aziz-ur-Rehman Rajput filed his affidavit-in-evidence and he was cross-examined by the respondents/landlords' counsel and closed the side of appellant/tenant.
The trial Court after hearing the learned counsel for the respective parties allowed the ejectment petition vide impugned order mentioned above on the ground of personal bona fide use. Whereas the ground of default in payment of rent was not proved. Hence the appellant filed the present first rent appeal before this Court.
It has been contended by the learned counsel for the appellant that impugned order passed by the learned trial Court is erroneous and based on conjecture and surmises and has been passed in haste. It has further been contended that the learned trial Court while passing the impugned order has not applied its mind and has passed the impugned order without considering the contents of the application without realizing the facts of the case and without going through the evidence led by the parties. It has also been contended that the learned trial Court has also not allowed the appellant to file his written statement. Learned counsel for the appellant argued that the learned trial Court while passing the impugned order has failed to incorporate the arguments and citations given by him but only has written the facts of the case without applying its mind and has failed to give the findings on the issue of personal bona fide need. It has also been argued that the learned trial Court while shifting the burden of proof on the appellant has failed to consider that the respondents who has not come with clean hands has filed ejectment application on a ground of personal use which prima facie is not genuine and seems to be illogical. Learned counsel for the appellant stressed upon his arguments that the learned trial Court has failed to consider that the cross-examination of the Respondent No. 1 and his witness are contrary to each other and have no consistency with each other. Learned counsel for the appellant has averred that the learned trial Court has also ignored that the cross-examination of respondent which is quite in consistence with that of his attorney/witness. He has again said that the learned trial Court has also failed to consider the evidence of the appellant and cross-examination wherein the appellant stated that the demised premises is not required for the personal need of family of respondents as no material question regarding personal bona fide need and paucity of accommodation was put to appellant.
On the other hand Mr. Mehmood-ul-Hassan Advocate for the respondents argued that appellant has himself failed to file the written statement though several chances were given to the appellant by the trial Court. Learned counsel argued that the demised premises is required by the respondents for their personal bona fide use as well as use of their families. He has filed statement wherein it has been stated that the tenant/appellant has admitted that he has purchased a House No. 122/11, admeasuring 1000 square yards (Ground + 1) which is situated at Khayaban-e-Mohafiz Phase-VI, Defence Housing Authority, Karachi. He has enclosed with the statement a photo copy of Sale Deed in respect of the subject property which is in the name of Aziz-ur-Rehman (appellant/tenant). Learned counsel further argued that the tenant has also admitted in his cross-examination that he is a landlord of this property which is evident from page No. 4 of the order passed by learned trial Court. Learned counsel for the respondents has relied upon the cases reported as Zarina Ayaz v. Khadim Ali Shah 2003 SCMR 1398, Messrs F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178, Asghar Hussain v. Mst. Tausheed Begum and 2 others 2005 CLC 633, Mrs. Yasmeen Malik and others v. Mrs. Safia Begum and others PLD 2005 SC 27 and Fakhruddin Khan Syed and others v. Mst. Surryia Sultana and others 2005 YLR 349 in support of his contentions.
I have heard the learned counsel for the respective parties, examined the record made available before me and perused the case-law.
From perusal of record it reveals that the cross-examination of Respondent No. 1/landlord before the trial Court remained unshaken as during cross-examination the Petitioner No. 1/landlord deposed that "it is incorrect to say that after March, 2006 the term of tenancy was extended and it will expire in March, 2008. Voluntarily says that we are requesting since 2005 to vacate the demised premises on expiry of two years period in March, 2006". The Petitioner No. 1/landlord further said that "it is incorrect to say that I came to Pakistan just to sell the demised premises. In the case of Messrs F.K. Irani and Co. (supra) the Hon'ble apex Court has observed as under:
"Bona fide personal need of landlord, statement of landlord on oath, if consistent with the application for ejectment and not shaken in cross-examination or disproved in rebuttal is sufficient to prove that requirement of landlord is bona fide".
The contention of learned counsel for appellant that the demised premises is not required for the personal need of family of respondents as no material question regarding personal bona fide need and paucity of accommodation was put to appellant. This contention of the appellant has no force. In this regard reliance may be placed to the case of Zarina Ayaz (supra) wherein the Hon'ble Supreme Court has observed as follows:
"Bona fide personal need of landlord. Landlord having many premises in the vicinity. Landlord's own subjective approach, choice and decision as to which of them in particular he wanted to occupy. No one else had a right to interpret circumstances from his own point of view by making allusion to different attending circumstances of the case."
It is pertinent to mention here that the appellant has admitted that he has purchased a House No. 122/11, admeasuring 1000 Square Yards (Ground + 1) situated at Khayaban-e-Mohafiz, Phase-VI, Defence Housing Authority Karachi and the learned counsel for respondents has also produced the copy of such sale-deed in respect of purchasing of property by the appellant, which reveals the appellant has his own property. The respondents require the demised premises for personal bona fide use. Sub-section (g) of Section 2 of Sindh Rented Premises Ordinance define the personal use as under:
(g) "Personal use" means the use of premises by the owner thereof or his wife (or husband) son or daughter."
The upshot what has been discussed above is that the present First Rent Appeal having no force is dismissed. The impugned order dated 23-4-2007 of the trial Court is maintained. The appellant is directed to vacate the demised premises within a period of thirty days, failing which writ of possession be issued without any further notice.
F.R.A. No. 15 of 2007 stands disposed of along with the listed application.
(R.A.) Appeal dismissed.
-
PLJ 2008 Karachi 69
Present: Nadeem Azhar Siddiqi, J.
BASHOO MAI--Plaintiff
versus
NASEER AHMAD--Defendant
Civil Suit No. 562 of 2005 and C.M.A. No. 4282 of 2007, decided on 20.2.2008.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 10 & 151--Object and purpose of--Application for stay of proceedings--Consolidation of suits--Scope--Concurrent jurisdiction--Plaintiff filed suit for recovery of money, whereas defendant filed suit for rendition of account, perpetual injunction, appointment of receiver and recovery of damages--Validity--Object of Section 10, of C.P.C. was to prevent Courts of concurrent jurisdiction from simultaneously adjudicating and proceeding with trial of two suits in which matter in issue was directly and substantially the same between the parties in respect of same cause of action for the same subject-matter and for the same relief--Other object of Section 10 of C.P.C. was to avoid conflict of opinion of the two Courts--One test of applicability of Section 10 of C.P.C. was whether, on final decision being reached in previous suit, such decision would operate as res judicata in subsequent suit--Subject--matter of both the suits, in the present case, was same and parties were also the same--Cause of action was different as well as relief claimed in both the suits was also different--Issues in both the suits were also different--If suit filed by defendant was decreed, there would be no need to proceed with the subsequent suit but if for any reason, suit of defendant was dismissed, the suit of plaintiff had to proceed on merits--No purpose would be served in staying proceedings of suit filed by plaintiff--As requirements of staying the proceedings being not available both the suits could be consolidated and disposed of by common judgment--High Court instead of staying the suit, consolidated both the suits and decided to proceed the same together to avoid conflict of opinion--Application was dismissed. [Pp. 70, 71 & 72] A & B
PLD 1999 Kar. 81; 2006 SCMR 1262; 2006 YLR 460 and 1996 CLC 1657 ref.
Mr. Naveed Ahmed Khan, Advocate for Plaintiff.
Mr. S. Ali Ahmed Tariq, Advocate for Defendant.
Date of hearing: 20.2.2008.
Order
By this application the defendant has prayed for stay of proceedings of this suit on the ground that the matter in issue in this suit is also directly and Abstantially in issue in a previously instituted Suit No. 531 of 2004 between the same parties.
Mr. Ali Ahmad Tariq, the learned counsel for the defendant submits that earlier suit filed by the defendant for accounts and other prayers is on the same cause of action, parties are the same, subject matter is the same and the issues are substantially same. He further submits that the provisions of Section 10 are mandatory in nature and in presence of pendency of earlier suit the subsequent suit cannot be proceeded. He has relied upon reported case of Dr. Haider Ali Mithani v. Ishrat Swaleh (PLD 1999 Karachi 81).
Mr. Naveed Ahmed Khan, the learned counsel for the plaintiff submits that both the suits have been filed on different cause of action and the issues are different. He submits that merely that the parties are the same is not sufficient to stay the proceedings. He further submits that the purpose of staying the suit is to avoid multiplicity of proceedings and conflict of opinion and the purpose can be achieved by consolidating the suits. He has relied upon the following reported cases:--
Muhammad Yaqoob v. Behram Khan (2006 SCMR 1262);
Muhammad Hafeez Khan v. Muhammad Azeem (2006 YLR 460).
I have heard the learned counsel for the parties and perused the record of this case.
The Suit No. 531/2004 was filed by the defendant for accounts, perpetual injunction, appointment of receiver and recovery of Rs. Fourteen million as compensation for damages. This suit was filed against the defendant, who is plaintiff in earlier Suit No. 531/2004 for recovery of Rs. 64,82,461. The parties in both the suits are same. The subject matter of both the suits is supply of raw material of poultry feed. The dispute is with regard to the supply of raw material and the quantum of payment.
The object of the provision appears to prevent the Courts of concurrent jurisdiction for simultaneously adjudicating and proceeding with trial of two suits in which the matter in issue is directly and substantially the same between the parties in respect of same cause of action for the same subject matter and for the same relief. The other object of the section is to avoid conflict of opinion of two Courts. One test of applicability of Section 10 is whether, on the final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. The subject matter of both the suits is same and the parties are also the same. The causes of action are different as well as the relief claimed in both the suits are also different. It appears that the issues in both the suits are also different. If the suit filed by the defendant bearing Suit No. 531/2004 is decreed there will be no need to proceed with the subsequent suit, but if for any reason, the suit of the defendant is dismissed the instant suit has to be proceeded on merits and no purpose will be served in staying the proceedings of this suit.
In the reported case of Dr. Haider Ali Mithani v. Ishrat Swaleh (PLD 1999 Karachi 81) it was held that five essential ingredients must be fulfilled before directing the stay of subsequently instituted suit. The ingredients as mentioned in the judgment are as under:--
(1) The matter in issue in both the suits must be directly and substantially the same.
(2) The previously instituted suit must be competent in a Court of competent jurisdiction.
(3) The Court before which the previous suit is pending must be competent to grant the relief in the subsequent suit.
(4) Both the suits must be between the same parties or their representatives, and
(5) The parties must be litigating in both the suits under the same title.
In the said judgment it was further held that if all conditions for exercise of jurisdiction under Section 10, C.P.C. were not strictly fulfilled in order to achieve ends of justice, suit could be stayed under Section 151, C.P.C. or trial of two suits must be consolidated.
In the judgment reported as Muhammad Yaqoob v. Behram Khan (2006 SCMR 1262) it was held as under:--
"The purpose of consolidation is to avoid multiplicity of litigation to eliminate award of contradictory judgments and to prevent the abuse of the process of the Court. These purposes are merely illustrative and not exhaustive of the powers of the Court. There may be other variety of ground that in the interest of justice the Court may be persuaded to consolidate the cases."
In the reported case of Attock Oil Company v. Ghaith Rashad Pharaon (1996 CLC 1657) it has been held as under:--
"As far as question of applicability of this section is concerned, it can conveniently be determined by comparing the respective pleadings in different suits, and if the Court is able to form a tentative view that the decision in one suit would, operate as res judicata or amount to non-suiting a party, resort can be had to provisions of Section 10, C.P.C."
From the perusal of the above judgments it appears that where the requirements of staying the proceedings are not available both the suits can be consolidated and disposed of by common judgment.
In view of the above discussion, instead of staying the suit it will be appropriate to consolidate both the suits and to proceed the same together to avoid conflict of opinion. Suit No. 531 of 2004 will be leading suit and evidence will be recorded in that suit. The learned counsel for the parties are directed to file consolidated issues before the next date.
The application filed by the defendant is dismissed with no order as to cost.
(R.A.) Application dismissed.
PLJ 2008 Karachi 72 (DB)
Present: Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ.
GUL HASSAN SAAND--Petitioner
versus
STATE through NAB--Respondent
Const. P. No. D-284 of 2007, decided on 20.2.2008.
Bail--
----Constitutional jurisdiction--Grant or refusal of bail--Discertion--Principle of justice--For grant or refusal of bail in constitutional jurisdiction enjoyed by High Court is entirely discretionary but there can be no deviation from the rule that discretion should not be exercised in violation and recognized principles of justice and if it is exercised only on the basis of presumption inference suspicion bare allegation it would defeat the purpose of discretion. [P. 76] A
Bail--
----Non-bailable offences--Not be withheld as punishment on basis of presumption and suspicion of criminal acts--Held: Law does not permit to tender the people in jail only on the basis of presumption and suspicion of criminal acts, it is duty of Court to administer the justice, prevent an abuse of law and protect the liberty of people--Further held: Bail cannot be claimed as a matter of right but there can also be departure from the rule that bail in non-bailable offences should not be withheld as punishment. [P. 76] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--National Accountability Ordinance, (XVIII of 1999)--S. 9--Bail before arrest, dismissal of--Additional incriminating material was collected--Source of income on prima facie--Allegation--Accused was possessing the property having acquired from the owner at low price thereby gaining huge profit by disposing of the same--Prize bonds owned by himself as well as his wife amounting to huge amount which cause shadow on the petitioner known source of income on prima facie that assets and property acquired by him are disproportionate to the known source of income of the petitioner--No case is made out warranting grant of bail in his favour--Bail dismissed. [P. 77] C
2005 SCMR 1539; PLD 2002 SC 572; The State PLD 2004 Lah. 155 and PLD 2003 SC 668 rel.
Mr. Aamir Raza Naqvi, Advocate for Petitioner.
Mr. Ainuddin Khan, ADPG for NAB.
Date of hearing: 20.2.2008.
Order
Petitioner Gul Hassan Saand has applied for pre-arrest bail in the investigation conducted by National Accountability Bureau Sindh, for accumulating wealth beyond known source of income acquired in his name.
Precisely, facts disclosed in the reference are that the petitioner is a government servant, currently working as Director Administration and Accounts Agricultural Department, Government of Sindh, Hyderabad, has acquired immovable properties in his name and in the names of his dependents and relatives. The petitioner had acquired/purchased the property showing less value, less construction cost detailed herein below:--
S. Year Detail of Property Value of Value at the Present Market
No. Purchase Purcahsed/ time of value
construction purchase
cost declared
by the
accused
No. B-564, Matiari
District Hyderabad
Qasimabad, Hyderabad
plot No. 827 City
Matiari
Plot No. 1-A, Qasimabad, Hyd.
15-23 acres in
Matiari
Sana/Villas Housing
Scheme Jamshoro, Hyderabad
No. 566, 567 in
Matiari
51-02 acres Deh
Sattar Matiari
18-33 acres Deh
Sattar Matiari
plot Nos. 566,567 in
Matiari
of 1st floor on plot
No. 571 Matiari
00 acres Deh Sattar
Matiari
construction cost on
Plot Nos. 566, 567
in Matiari
It is averred from the statement regarding income/expenditure produced by the petitioner inflow/out flow charge was prepared no minus figure was reflected because the petitioner had shown less value of purchase as well as less construction cost.
Learned counsel for the petitioner has contended that though during the investigation conducted by an authorized officer, the explanations were furnished by the petitioner in respect to income and expenditure year-wise from 1997 as per inflow and outflow chart yet with the mala fide intention the respondents have assessed the average value of the land purchased by the petitioner between Rs. 40,000 to Rs. 50,000 per acre, the matter was referred to Revenue Authority, who informed the respondent that the value of the land at the time of purchase was approximately between Rs. 25,000 to Rs. 30,000 per acre. It is urged that the seller of the immovable property has been examined by the Investigating Officer, matches to the value declared by the petitioner. It is urged that in the presence of registered documents and statements of the seller corroborated of such registered documents it would be unjust and illegal for the respondent to consider any other value for making out case against the petitioner. In support of the above contention reliance has been placed on the following case-law:-
(i) Abdul Haleem Lakho v. Abdul Karim alias Karim Bux and others 2005 SCMR 1539;
(ii) Ch. Tanveer Khan v. Chairman, National Accountability Bureau PLD 2002 SC 572;
(iii) Farukh Javed Ghumman v. The State PLD 2004 Lah. 155
It is urged that the conveyance deed executed in connection with the disputed properties bear the same price as contained in flow chart, the complaint has been filed by one Muhammad Alam having criminal rivalry as a case is pending before the competent criminal Court against the complainant and his family for abduction of the petitioner's son for ransom, who was killed. Mala fides on the part of the complainant suggest that the petitioner is entitled to the relief claimed.
Mr. Ainuddin Khan, learned counsel for NAB has contended that the petitioner could not count for excess amount utilized and acquiring immovable properties and the explanation furnished by him is not sustainable in law. The petitioner joined the services in PBS-V, as a clerk in the year 1977 and had acquired properties generated from the funds acquired through corruption and corrupt practices and had also moved for voluntary return of the benefits through application dated 10-10-2005 to the respondent, which was declined by competent forum. It is next urged, that the cost of the price bond amounting to Rs. 40 lacs on different occasions does not connote establish that the petitioner's income commensurate with his known source of income. Leading to the inference that assets and properties owned in the name of the petitioner and in the names of his dependents are not in conflict.
We have heard Mr. Aamir Raza Naqvi, learned counsel for the petitioner and Mr. Ainuddin Khan, ADPG for NAB at length.
We have gone through the documents appended with the petitioner. It is primarily contended by the learned counsel for the petitioner that the Government has fixed the rate of Government land lying in barrage area of Hyderabad from Rs. 12,000 per acre while report of the concerned Mukhtiarkar shows that the property was in vogue was purchased at Rs. 25,000 to Rs. 30,000 per acre. It is urged that NAB authorities were required to take into consideration the marked price at the time of the purchase of the property while they have assessed the properties at present price. In case of Abdul Aziz Khan Niazi v. The State PLD 2003 SC 668 per elucidated for grant or refusal of bail in constitutional jurisdiction enjoyed by High Court is entirely discretionary but there can be no deviation from the rule that discretion should not be exercised in violation and recognized principles of justice and if it is exercised only on the basis of presumption inference suspicion bare allegation it would defeat the very purpose of the discretion.
It is further held that law does not permit to tender the people in jail only on the basis of presumption and suspicion of criminal acts, it is duty of the Court to administer the justice, prevent an abuse of law and protect the liberty of people. It is further held that bail cannot be claimed as a matter of right but there can also be departure from the rule that bail in non-bailable offences should not be withheld as punishment.
In case of Ch. Tanveer Khan v. Chairman, National Accountability Bureau PLD 2002 SC 572, the dictum laid down is from practice and procedure, prosecution in order to make out a case for refusal or to a case is primarily placed on record material on basis of which the people to be involved in a non-bailable offence but in absence of such material the Court for purpose of realizing the case on bail instead of dilating upon the facts of the case details can dispose of the matter by holding that his detention is unjustified unreasonable under such time when no such order either by investigating agencies the Court ceased of the matter, some additional incriminating material is collected against him to justify rejection of his bail. Turning to the merits of the case, the allegations against the petitioner are possessing the property having acquired the same from the actual owners at low thereby earned huge profits for disposing of the same. On tentative sifting of evidence collected by the prosecution it transpires that the petitioner has earned Rs. 2,74,500 in the year 2000, Rs. 9,00,000 in the year 2001, Rs. 9,00,000 in the year 2002 Rs. 18,00,000 in the year 2003 and Rs. 9,00,000 in the year 2004 towards the prize bonds owned by himself as well as his wife amounting to Rs. 47,74,500 which cause shadow on the petitioner's known source of income on prima facie that assets and property acquired by him are disproportionate to the known source of income of the petitioner therefore, no case is made out warranting grant of bail in his favour. Accordingly petition is hereby dismissed. Interim pre arrest bail order hereby stands recalled.
Mr. Aamir Raza Naqvi, learned counsel for the petitioner has requested that the petitioner may be allowed to remain on bail for three weeks from today enabling him to approach the Hon'ble Supreme Court, accordingly he may be taken into custody after expiry of the time granted viz. 7-3-2008 unless otherwise ordered by Hon'ble Supreme Court.
(R.A.) Bail refused.
PLJ 2008 Karachi 77 (DB)
Present: Syed Mehmood Alam Rizvi and Farrukh Zia G. Shaikh, JJ.
KHAWAJA FEROZ--Appellant
versus
MUHAMMAD DAWOOD and others--Respondents
High Court Appeals No. 204, 205, 206 and 207 of 2007, decided on 6.2.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXVI, R. 1--Consolidation on ground of same parties and issue involved--Local Commission--Recording of evidence--Scope--Objection raised by defendant was that evidence could not be recorded through Local Commission just for saving time--Validity--Taking steps for early decision in the matter and recording evidence on commission to save time of the parties could not be termed to be erroneous or an act against principles of natural justice--High Court rightly held that it would be in the interest of both the parties if they came out of litigation as early as possible--Order of appointment of Local Commission was not likely to cause any prejudice to defendant in any way, as both the parties would have the opportunity to adduce their evidence and cross-examine the witnesses--Appeal was dismissed. [Pp. 78 & 80] A & B
PLD 4978 SC 96; PLD 1998 SC 161; 2006 CLC 1736 ref.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXVI, R.I--Local Commission--Recording of evidence--Document of witness--Scope--Recording of evidence was assailed--Court might check demeanor and stop irrelevant questions likely to be put to witness--Validity--Such conditions were available in all the suits where recording of evidence on Commission had been ordered--If such had been a valid reasons, then appointment of Local Commissioner for evidence would have been discouraged in all cases.
[P. 80] C
Civil Procedure Code, 1908 (V of 1908)--
----O. XXVI, R.I--Local Commission--Recording of evidence--Consent of parties--Effect--Order for recording of evidence by Local Commission can be passed through consent of parties but there is no bar on the Court passing the order without consent--Even in cases where parties give consent, the Court is not bound to act accordingly. [P. 81] D
Mr. Mansoor-ul-Arfin, Advocate for Appellant.
Mr. Rasheed A. Rizvi, Advocate for Respondents No. 1, 2 and 3.
Date of hearing: 6.2.2008.
Order
Farrukh Zia G. Shaikh, J.--All these four High Court Appeals arise out of a common order dated 13-8-2007, passed in Suits Nos. 1141 and 1145 as well as in Suits Nos. 1142 and 1177 of 2004, between the same parties, hence the same are disposed by this one and common order.
The facts leading to these appeals are that originally the four suits were filed separately, but later Suits Nos. 1141 of 2004 and 1145 of 2004 were consolidated and one set of issues was framed. Thereafter Suits Nos. 1142 of 2004 and 1177 of 2004 were also consolidated and another set of issues was framed vide order dated 18-4-2005. Then, vide order dated 12-12-2005, all the four suits were consolidated on the ground of similarity of parties and issues involved. The respondent/plaintiff filed application for recording evidence on Commission, in Suit No. 1141 of 2004 which was opposed by the appellant. Ultimately, the learned single Judge, passed the impugned order, relevant potion whereof is reproduced hereunder for sake of convenience:--
"After hearing the learned counsel I have observed that all the four suits have been filed in 2004 and issues have been framed, while, huge amount has been transacted between the parties, while defendant/vendor has also challenged the sale agreements and in such a situation both the properties are in hang on position. In all the four matters normal orders for framing of issues and their consolidation as well as joint trial have already been passed, hence there will be no harm for the defendant if the request of Commissioner and recording of evidence through him, is granted. It will be in the interest of both the parties, if they come out of litigation as early as possible, hence the objection of learned counsel for the defendant that other suits are pending in this Court since long has no force. The difficulty of Mr. S. M. Mehmood, learned counsel for the defendant that the defendant is out of country can be accommodated by granting more time to the Commissioner than normal.
In the circumstances, Mr. Tahseen Bhatti, learned retired District & Sessions Judge, is appointed as Commissioner for recording evidence in the matter.......which may be requested by the parties from the list of witnesses, and also have power to close the side of the defaulting party; if the witness does not appear without any reasonable excuse........."
The appellant being aggrieved by such appointment of Commissioner and mode of recording evidence, has filed these appeals and assailed the order on the grounds namely, the Commissioner cannot be appointed for recording evidence without consent of the parties; the respondent/ plaintiff did not mention as to which of the witnesses were required to be examined on commission and why they were not able to come to Court for that purpose; the application did not speak about examination of plaintiffs themselves on commission. According to learned counsel, only in Suit No. 1141 of 2004 the respondent/plaintiff moved application for recording of evidence on commission, but the trial Court passed the impugned order in all the four cases. He further submitted that the ground of earnest money having been deposited by the plaintiff, taken for recording evidence on commission, by the plaintiff/respondent was not valid for passing the impugned order in as much as the evidence by way of filing affidavits could only be recorded by consent and not otherwise. He also stressed recording of evidence in open Court to check the demeanor of the witnesses and stopping the irrelevant questions being asked from the witness, which is not expected from a Commissioner etc.
The counsel appearing for the respondent/plaintiff has opposed the appeal and has placed reliance on the cases (i) Khatiza Bai v. Muslim Commercial Bank (PLD 1978 SC 96), (ii) Malik Asad and others v. Federation of Pakistan and others (PLD 1998 SC 161), (iii) Mrs. Shahnaz and others v. Hamid Ali Mirza (2006 CLC 1736) and unreported case of Allied Bank of Pakistan v. Imdad A. Shaikh (HCA No. 216 of 2007) wherein a learned Division Bench of this Court observed as follows:
".... Although under Order X, Rule 1(A)(ii), C.P.C. Court can issue commission to examine witnesses by consent of the parties, however, Court, in appropriate matter to achieve the ends of justice and to prevent an abuse of process of Court, can refer matter for recording the evidence on commission by a speaking order, even without the consent of the parties in exercise of its inherent powers."
We have considered the submissions advanced by the learned counsel for the parties and gone through the impugned order and find that the learned single Judge had passed the impugned order, keeping in mind amongst others the transaction of huge amount, allegedly paid to the appellants by the plaintiffs/respondents as earnest money towards the price of the properties and the trend of the vendors prolonging the process of finalizing the transaction or avoiding the same for any reason, thereby making the purchasers to suffer for indefinite period knowing that the purchasers could not take any action against them except approaching the Civil Courts, which in the normal course take time over years together for its decision. When looked from that angle, it appears that perhaps the appellants had also been under the impression that the instant suits would also take time which situation would be favouring to them. It was for that reason that, by passing the impugned order, he found himself in an embarrassing position and therefore felt aggrieved. Otherwise, there was nothing adverse to the appellants in the impugned order. Taking steps for an early decision in the matter and recording evidence on commission to save time of the parties, cannot be termed to be erroneous or an act against principles of natural justice. The learned single Judge rightly held that it would be in the interest of both the parties if they come out of litigation as early as possible. The impugned order, therefore is not likely to cause any prejudice to the appellant in any way, as both the parties will have the opportunity to adduce their evidence and cross-examine the witnesses vis-a-vis.
As far as the contention of learned counsel that the application for commission was moved only in one case, while the trial Court passed the order in all the four cages, suffice it to say that admittedly all the four suits were consolidated, issues were framed, therefore passing of the impugned order only in one case would not have only been awkward but also have not served the purpose inasmuch as it would create an anomalous situation. Naturally, filing of similar applications in other suits would have also been necessitated thereby wasting further time in passing similar orders in other suits. Therefore, passing of impugned order in all the cases was just and proper and in the fitness of circumstances.
The learned counsel stressed for recording of evidence in Court to check the demeanor of witness and stopping irrelevant questions likely to be put to him, it may be observed that such conditions are available in all the suits where the recording of evidence on commission has been ordered. Had this been a valid reason, then appointment of Commissioner for evidence would have been discouraged in all the cases.
The other contention of the learned counsel for the appellants that the Court could not have passed the order for recording evidence on commission without consent of the appellant is without substance. No doubt such an order can be passed by consent of the parties, but there is no bar on the Court in passing the order without consent. Even in the cases where the parties give consent, the Court is not bound to act accordingly. It will be pertinent to reproduce here Order XVIII, Rule 4 and Order XXVI, Rules 1 and 2 which deal with commission, evidence and witnesses:
Order XVIII
Order XXVI
Cases in which Court may issue commission to examine witness.--Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the local limits of its jurisdiction who is exempted under this Code from, attending the Court or who is from sickness or infirmity unable to attend it.
Order for commission.--An order for the issue of a commission for the examination of a witness may be made by the Court either of its own motion or on the application, supported by affidavit or otherwise, of any party to the suit or of the witness to be examined.
Main grievance of the appellant is that the impugned order dated 13-8-2007 gives power to the Commissioner to close the side of the defaulting party if witness does not appear without any reasonable excuse. Learned counsel during the course of arguments has stressed that can a Commissioner be appointed without consent of both the parties? It is pertinent to mentioned here that impugned order clearly states that there will be no harm for the defendant if the request of the plaintiff for appointment of Commissioner and recording of evidence is granted. It will be in the interest of both the parties if they come out of litigation as early as possible, hence the objection of learned counsel for defendant that other suits are pending in this Court since long has no force. It may not be out of place to bring on record that in counter affidavit to application under Order XXVI, Rule 2, C.P.C. filed on 25-4-2007 learned counsel for attorney of appellant has on his own stated that wife of defendant is unwell and therefore if this statement is taken on record it will be in the interest of justice that Commissioner may be appointed to dispose of matter as early as possible since the matter is pending since 2004.
It may also be noted that during the course of arguments the Court made a suggestion to Mr. Arfin that this Court was prepared to modify the impugned order to the extent that Commissioner of choice of parties can be appointed and that bone of contentions raised by appellant that the Commissioner has been given power to close the side of defaulting party if witness does not appear without any reasonable excuse so that appellant may not have any grievance. However this suggestion was rejected by learned counsel for applicant. What the Court has to see is the proper dispensation and interest of justice. From the contentions raised on behalf of the appellant what we could gather is that the appellants have insisted for recording of evidence in the ordinary manner before the Court so that the case may take as long time as possible to the benefit of the appellants.
This reflects upon the bona fide and fairness of the appellants' grievance.
In view of the above, we do not find any substance in the appeals. By a short order dated 6-2-2008 all the four appeals were dismissed and above are the reasons for the same.
(R.A.) Appeals dismissed.
PLJ 2008 Karachi 82
Present: Nadeem Azhar Siddiqi, J.
MINOO HOSHANG KAPADIA, KARACHI--Petitioner
versus
ARNAZ MINOO KAPADIA, KARACHI--Respondent
Divorce Petition No. 1 of 2007, decided on 24.3.2008.
Parsi Marriage and Divorce Act, 1936 (III of 1936)--
----S. 34--Judicial separation, grant of--Grounds--Judicial separation can be granted on any of the grounds for which a divorce can be granted and additionally on the ground of cruelty or personal violence.
[P. 86] A & B
Parsi Marriage and Divorce Act, 1936 (III of 1936)--
----S. 2(4)--Words & Phrases--Grievous hurt--Emasculation, permanent privation of right of either eye, permanent privation of the hearing of either ear, privation of any member or joint, destruction or permanent impairing of the powers of any joint permanent disfiguration of the head of fact or any hurt which endangers life.
[P. 87] C
Parsi Marriage and Divorce Act, 1936 (III of 1936)--
----Ss. 32(e), 32(g) & 34--Judicial separation and divorce--Scope--Husband sought judicial separation on the ground of desertion of wife but instead of separation, wife sought divorce on the ground of cruelty and personal violence--Validity--Allegation by wife against husband that he forcefully pulled her by right wrist, aggravating an old injury was not covered under the definition of `grievous hurt' and marriage could not be dissolved on such ground--Cruelty and personal violence, under S. 34 of Parsi Marriage and Divorce Act, was an additional ground for judicial separation and not divorce--Petition was allowed accordingly. [P. 87] D
PLD 1968 Kar. 541; (2006) 3 Supreme Cases 778; AIR 1938 Bombay 81; AIR 2007 All. 211 and SBLR 2001 SC 700 ref.
Parsi Marriage and Divorce Act, 1936 (III of 1936)--
----S. 32(g)--Divorce on the ground of description--Pre-condition--For applying divorce on such ground defendant has to desert plaintiff for three years. [P. 88] E
Parsi Marriage and Divorce Act, 1936 (III of 1936)--
----S. 32(g)--Divorce--Power to any Court to condone any deficiencies--Period of three years, condoning of--Powers of Court--Scope--Court has no power to condone period of three years provided in Section 32(g) of Parsi Marriage and Divorce Act, 1937--Before expiry of period of three years marriage cannot be dissolved. [P. 90] F
R.F. Virjee, Advocate for Petitioner.
Ms. Farida Moten, Advocate for Respondent.
Delegates, namely, M/s. Farokh Wania, Kati R. Sethna, Zarin H. Shroff, Zarin Jehangir Kakalia, Savak Ardeshir Mistry, Nergish Sam Jamasjee and Roy D. Minwala present in persons.
Dates of hearing: 17, 25.1.2008.
Judgment
By this petition under Section 34 of the Parsi Marriage and Divorce Act (III of 1936) (hereinafter referred to as "the said Act"), the petitioner has prayed for judicial separation between the parties.
The facts necessary for disposal of the above petition are that the petitioner married with the respondent on 17-1-2005 under the said Act. According to the contents of the petition, the parties could not live happily since the inception of marriage and the respondent has left the house on 22-2-2006 along with her personal effects and on 6th March, 2006 the respondent's father telephoned and told petitioner's mother that they have decided for a separation and on 18-3-2006 took away bedroom furniture. It was further stated in the petition that the respondent hardly spent any time with the petitioner and most of the time she spent with her parents and left on 22-2-2006 and has not returned to stay with the petitioner. It was further stated that the petitioner has suffered considerable humiliation, mental torture and anguish and it is comprehensively apparent that the marriage has irretrievably and irreversibly collapsed and there are no chances whatsoever of reconciliation and that respondent has deserted the petitioner against his will and has abandoned the marital home without adequate justification and reasons.
After service of notice the respondent has filed her reply. In the preliminary legal objection she states that no ground of judicial separation has been made out, hence the petition is liable to be dismissed. Counter-allegations have been levelled against the petitioner that the petitioner has physically abused the respondent, forcefully pulled her by right wrist, aggravating an old injury of which the petitioner is aware of. It was further stated that the petitioner used to abuse the respondent every evening with accusations specially that she is not a proper wife and does not look-after the house. The petitioner did not spend time with the respondent and neglected the respondent. It was further stated that the marriage had broken down completely on 22-2-2006 and that the marital relationship has stopped between the parties by the petitioner's conduct and lack of interest in the respondent and the petitioner by his conduct deserted the respondent.
The respondent has also filed counter-claim in which she states that the petitioner has acted with cruelty towards the respondent and caused her injury and mental anguish, physical and mental torture, causing grievous hurt. The respondent is entitled for dissolution of marriage under the grounds for divorce under the said Act.
The matter came up for hearing on 4-12-2007 on which date the notice was issued to the delegates, who were present on the subsequent date of hearings and have appointed Mrs. Zarin H. Shroff as their Foreman.
On 25-1-2008 the learned counsel for the petitioner has stated that the petition under Section 34 of the said Act may be treated as petition under Section 32(g) of the said Act and instead of allowing judicial separation the marriage may be dissolved. The learned counsel for the respondent has no objection for dissolution of marriage. She, however, submits that the marriage be dissolved on the ground of causing grievous hurt by the petitioner to the respondent as provided under Section 32(e) of the said Act. The learned counsel for the petitioner has submitted that the petitioner has not caused any hurt to the respondent and that the alleged hurt claim by the respondent is not covered by the definition of grievous hurt provided in the said Act.
Mr. R.F. Virjee, the learned counsel for the petitioner submits that the differences were arose between the parties and their families even before marriage and since inception of marriage the parties could not live happily as husband and wife due to interference of the parents of the respondent. He further submits that in spite of efforts of the elders of the community, the dispute cannot be resolved and the marriage is not workable and no purpose will be served in compelling the parties to live as husband and wife in a hateful union and submits that equity deemed that instead of allowing judicial separation the marriage may be dissolved. He then submits that equity demands that parties may be released from marital ties so that the parties, who are young people, may start their new life. He has relied upon the following reported cases:-
(1) Nawzer Dhunjishaw Kheswalla v. Mst. Kholshed PLD 1968 Kar. 541;
(2) Vinita Saxena v. Pankaj Pandit (2006) 3 Supreme Court Cases 778;
(3) Cowasji Nusserwanji v. Shehra Cowasji Patuck AIR 1938 Bombay 81; and
(4) Manish Sirohi v. Smt. Meenakshi AIR 2007 Allahabad 211.
hand, Ms. Farida Moten, the learned counsel for the respondent claims dissolution of marriage on the ground of causing grievous hurt and submits that in fact the petitioner has deserted the respondent and to avoid payment of maintenance is levelling allegation of desertion against the respondent. She submits that there is no possibility of compromise between the parties and they may be set at liberty by way of dissolving their marriage.
The Foreman Mrs. Zarin H. Shroff on behalf of the delegates submits that they personally know the parties to the petition and the dispute amongst them and is of the view that the parties to the petition cannot live as husband and wife and it is improper to force them to live as such. They also expressed that they are satisfied that the marriage between the parties is not workable and no purpose will be served in keeping the parties to the petition in marital bond and to force them to live in hateful union. The Delegates are also of the view that instead of granting judicial separation the marriage between the parties be dissolved forthwith.
I have heard the learned counsel for the parties, foreman of the delegates and perused the record of this case and the case laws cited by the learned counsel for the petitioner.
The petition has been filed under Section 34 of the said Act for a judicial separation.
Section 34 of the said Act provides that any married person may sue for judicial separation on any of the grounds for which such person could have filed a suit for divorce, or on the ground that the defendant has been guilty of such cruelty to him or her or their children or has used such personal violence, has behaved in such a way as to render it in the judgment of the Court improper to compel him or her to live with the defendant.
From the above provision it appears that the judicial separation can be granted on any of the grounds for which a divorce can be granted and additionally on the ground of cruelty or personal violence. Both the parties have levelled allegation of desertion against each other and in this way agreed to a judicial separation and have prayed that the relief may be moulded and this petition may be treated as petition under Section 32 of the said Act and marriage may be dissolved.
The learned counsel for the petitioner submits that the petition may be treated as petition under Section 32(g) of the said Act, whereas the learned counsel for the respondent submits that the marriage between the parties be dissolved under Section 32(e) of the said Act.
Section 32 of the said Act provides grounds for divorce and provides that any person may sue for divorce on any one or more of the grounds mentioned in the section.
Section 32(e) of the said Act provides as under:--
"(e) that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease or where the defendant is the husband, has compelled the wife to submit herself to prostitution:
Provided that divorce shall not be granted on this ground if the suit has been filed more than two years--
(i) after the infliction of the grievous hurt; or
(ii) after the plaintiff came to know of the infection; or
(iii) after the last act of compulsory prostitution."
Sub-section (4) of Section 2 of the said Act defines "grievous hurt", which reads as under:--
"`Grievous hurt' means--
(a) emasculation;
(b) permanent privation of the sight of either eye;
(c) permanent privation of the hearing of either ear;
(d) privation of any member or joint;
(e) destruction or permanent impairing of the powers of any joint;
(f) permanent disfiguration of the head or facet; or
(g) any hurt which endangers life."
From the perusal of the above clause it appears that the allegation of grievous hurt levelled by the respondent against the petitioner that the petitioner has forcefully pulled the respondent by her right wrist, aggravating an old injury is not covered under the above definition and the marriage cannot be dissolved on this ground. Ms. Farida Moten additionally argued that the marriage can be dissolved on the ground of cruelty and personal violence and the allegations levelled by the respondent against the petitioner is covered by cruelty and personal violence. From the perusal of Section 34 of the said Act it is clear that the cruelty and personal violence is an additional ground for judicial separation and not divorce. The marriage can only be dissolved if come within ambit of Section 32 of the said Act. In the reported case of Haji Haroon Mandra v. Abdul Rahim and others SBLR 2001 SC 700 a learned single Bench of this Court has held that the Courts cannot ignore statutory law and judgments of superior Courts in the administration of justice and pass order on compassionate grounds in favour of a party who may have suffered financially by the acts of another person on account of his/her own negligent conduct.
Mr. R.F. Virjee submits that the marriage may be dissolved under Section 32(g) of the said Act. Section 32(g) of the said Act reads as under :--
"(g) that the defendant has deserted the plaintiff for at least three years."
From perusal of the above provision it appears that the marriage on this ground can only be dissolved if the defendant has deserted the plaintiff for at least three years. The marriage was solemnized on 17-12-2005 and according to the plaintiff, the respondent has deserted him on 22-2-2006. The pre-condition for applying divorce is that the defendant has deserted the plaintiff for three years and the period provided in the statute has not lapsed and the marriage on this ground cannot be dissolved.
Mr. R.F. Virjee then submits that equity demands that the marriage be dissolved ignoring the period provided in the statute. Section 32(g) of the said Act provides that the marriage can be dissolved if the respondent has deserted the petitioner for three years.
In the instant case the marriage was solemnized on 17-12-2005 and according to the petitioner, the respondent has deserted the petitioner on 22-2-2006. The period provided in the section is not expired and the divorce cannot be pronounced on the ground of desertion ignoring the period provided in the statute itself. Mr.R.F. Virjee has relied upon an Indian judgment under the Hindu Marriage Act reported as Monesh Sirohi v. Smt. Theenakshi AIR 2007 Allahabad 211 in support of his contentions that the period mentioned in the statute can be ignored. In the above reported case the divorce petition was filed before the expiry of the period of one year provided in Section 14 of the Hindu Marriage Act, 1955. The trial Court has not passed decree for divorce on the ground that at the date of presentation of the petition one year has not elapsed from the date of marriage. However, the High Court in appeal allowed presentation of the petition before lapse of one year.
In this reported case, the matter was procedural and it appears that the statutory period matured during the pendency of appeal before the High Court.
In another reported case of Cowasji Nusserwanji Patuck v. Shehra Cowasji Patuck AIR 1938 Bombay 81 judicial separation was granted on the ground of cruelty and it was held as under:--
"The cruelty in the legal sense need not necessarily be physical violence either to the husband or the wife. It may even consist in a course of harsh conduct pursued by the husband towards his wife and/or their children, and also vice verse by the wife. Even a single act of gross cruelty may be enough to constitute legal cruelty, if it is such as to lead to a reasonable apprehension of further acts of cruelty towards the aggrieved party. It is not merely improper behaviour that constitutes the ground for judicial separation; it must be a behaviour of such a nature as to make it improper for husband and wife to live together in future."
The above case relates to judicial separation and not of divorce.
The question is whether the period for doing any act provided in the statute can be ignored on the touchstone of equity and that it will be improper to force the parties to live in hateful union which will otherwise cause marital and physical torture and harassment to them. The Court in absence of any specific provision cannot bypass the provision of statute on the touchstone of equity. The statutory provisions have to be given effect by the Courts in letter and spirit. I could not lay my hand on any judgment directly on the point. The learned counsel for the petitioner has also frankly conceded that in spite of his efforts he could not lay his hand on any judgment. However, our Supreme Court in a recent case relating to Punjab Pre-emption Act (IX of 1991) reported as Muhammad Akram v. Mst. Zainab Bibi 2007 SCMR 1086 has held as under:--
"The provisions of Section 13(1) thereof are, however, emphatic in declaring that the said right "shall be extinguished" unless a person possessed of the same makes demands of pre-emption i.e. Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khusumat in the prescribed order; the prescribed manner and within the stipulated time. The making of these Talbs is thus, not a mere procedural formality prescribing a mode for the enforcement of the right of pre-emption but on the same depends the very life and the continued existence of the said right. It may be added that the law has not granted any power to any Court to condone any deficiencies or deviations in the matter because the consequences of failure to perform the said talbs in the prescribed manner, stand determined by the law itself i.e. "Extinction of the said right". Hence the vital importance of these demands and making of the same strictly in accordance with the requirements of the said Section 13."
In another reported case of Land Acquisition Officer v. Gul Muhammad PLD 2005 SC 311 it has been held that the Court cannot do what the statute expressly forbids. In the same judgment it was further held that neither by consent nor by waiver the mandatory provision of the statute can be either modified or waived. It is a statutory duty which is cast on the Court and effect must be given to it.
In other reported case of Dr. Haq Nawaz v. Balochistan Public Service Commission 1996 PLC (C.S.) 872 the learned Divisional Bench of Balochistan High Court has held that where time is essence to do a particular thing and on basis whereof, any right has been claimed, the provisions would be mandatory in nature and if no right is claimed, provisions would be no mandatory.
From the reading of the above judgment, it is clear that the law has not granted any power to any Court to condone any deficiencies or deviations in the matter of making the said demands or to show laxity in the said matter. The position is similar in this case. The Court has no power to condone the period of three years provided in Section 32(g) of the said Act and before expiry of the period of three years the marriage cannot be dissolved.
Additionally, Mr. R.F. Virjee has produced a photocopy of Gazette of Pakistan dated 1st July, 1999 and submits that the Secretary of the National Assembly as well as the Secretary, Ministry of Law, Justice and Parliamentary Affairs may be directed to expedite the amendment in the Parsi Marriage and Divorce Act, 1936. He submits that in spite of lapse of considerable time and the fact that the standing Committee on Religious Affairs, Zakat, Ushr and Minorities has submitted the report on the Bill to amend the said Act no action has been initiated by the National Assembly to effect the amendment in the said Act due to which the Parsi community is suffering.
The bill is pending with the National Assembly since 1997 and the request made by Mr. R.F. Virjee appears to be reasonable. However, direction to legislature cannot be issued in view of reported case of Sharaf Faridi v. The Federation of Pakistan PLD 1989 Karachi 404 in which it has been held that there is a marked distinction between direction to the legislature to legislate and a direction to the executive to initiate the legislative measures to bring the existing laws in conformity to the provisions of the Constitution. It will be appropriate that the Secretary, National Assembly may look into the matter of consider to place the bill before the National Assembly as early as possible to cure sufferings of the Parsi community.
Office is directed to send copy of this judgment along with the copy of Gazette Notification to the Secretary, National Assembly as well as to the Secretary, Ministry of Law, Justice and Human Rights for doing the needful as early as possible.
In view of what has been discussed hereinabove, the petition is allowed as prayed for judicial separation with no order as to cost.
(R.A.) Petition allowed.
PLJ 2008 Karachi 91
Present: Khalid Ali Z. Qazi, J.
PAKISTAN TELEVISION CORPORATION--Plaintiff
versus
Messrs BOND ADVERTISING (PVT.) LTD--Defendant
Suit No. 102 of 2000, decided on 10.4.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXIX, R.I--Suit for recovery filed by corporation--Maintainability--Plaint was verified by manager who was attorney and had been authorized through general power of attorney for the purpose as required under O.XXIX, R. 1 of C.P.C--Power of attorney was produced in Court and the fact was confirmed by plaintiff's representative in his evidence which had not been denied or rebutted by defendant in cross-examination--Suit held, was filed by authorized person in circumstances. [P. 97] A
1988 CLC 1381 rel.
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Specific performance of contract--Recovery of money--In compliance of contracts between the parties, plaintiff telecast advertisement spots for defendant's clients but defendant did not make full contractual payments--Validity--Plaintiff's version was supported through evidence while defendant failed to appear to defend the suit filed by plaintiff and to support his counter claim made by him in his written statement--Effect--When signatory to written statement failed to appear, then even written statement could not be exhibited and there was no rebuttal to plaintiff's version--Written statement/counter claim filed by defendant could not be considered in his favour and no reliance could be placed on such written statement and presumption would be that the defendant had not pressed the issues--High Court decreed the suit in favour of plaintiff to the extent of the amount claimed along with markup till realization of decretal amount--Suit was decreed. [Pp. 100 & 101] B
1988 CLC 1381; 2008 YLR 464; PLD 2004 SC 633; PLD 2004 SC 415; 2000 SCMR 1391; PLD 1972 SC 25 and PLD 2003 SC 594 ref.
Mr. Munawar Ghani, Advocate for Plaintiff.
Nemo for Defendant.
Date of hearing: 12.2.2008.
Judgment
This is a suit for recovery of Rs. 50,72,996.74 filed by the plaintiff on 14-12-1999 and summonses were issued to the defendant. Mr. Khalid Latif Advocate on 17-2-2000 filed vakalatnama on behalf of the defendant. On 29-5-2001 written statement and counter-claim by the defendant was filed. Mr. Khalid Latif on 25-2-2000 appeared for the defendant at the time of settlement of issues and since then matter was listed several times but no one was appeared on behalf of the defendant.
Brief facts of the case requisite for disposal of this suit are that the plaintiff is a corporation incorporated under the Companies Ordinance, 1984 for establishment of Television Station in Pakistan and for organizing and telecasting programs for the viewers and the defendant is a company incorporated under the Companies Ordinance, 1984 and is engaged in the advertising business. In memo, of plaint it is stated that through March 1995 and February, 1999 the plaintiff at the request of the defendant through following contracts, telecast advertisement spot for the defendant's clients/customers from its T.V. Stations.
Invoice No. Contract No. Date Amount
(i) 06156/03/05 2188/94-95 1-3-1995 Rs. 14,39,809.71
(ii) 06157/04/95 2188/94-95 1-3-1995 Rs. 466,549.32
(iii) 06158/04/95 2495/94-95 14-3-1995 Rs. 279,014.79
(iv) 06200/05/95 2495/94-95 14-3-1995 Rs. 1,105,064.24
(v) 06904/06/95 2651/94-95 15-6-1995 Rs. 266,745/75
(vi) 01026/09/95 0316/95-96 23-8-1995 Rs. 210,054.47
(vii) D-0011/00/95 K-2495/94-95 31-8-1995 Rs. 48,135.82
(viii) 01108/09/95 0547/95-96 25-9-1995 Rs. 364,452.54
(ix) 01435/10/95 0547/95-96 25-9-1995 Rs. 48-879.87
(x) 02457/12-95 1128/95-96 6-12-1995 Rs. 148,608.05
(xi) 00017/07/98 K-66/97-98 9-7-1998 Rs. 159,705.15
(xii) 00455/08/98 K-360/98-99 19-8-1998 Rs. 624,970.11
(xiii) 01048/09/98 K-491/98-99 8-9-1998 Rs. 535,688,65
It is contended that under the above contracts the defendant agreed to pay late surcharge @ 15% per annum to plaintiff on the over due invoices. It is further stated that under the above mentioned contracts; the plaintiff telecast advertising sports for defendant's clients/customers on TV from its TV Stations network. It is stated that out of the sum of Rs. 54,40,618.34 receivable from defendant, the defendant through various cheques made total payment of Rs. 624,940.60 against Rs. 54,40,618.34, thus a sum of Rs. 50,72,996.74 including late payment surcharge remains outstanding against the defendant, the details of part payment made by the defendant is as under:--
Receipt No. Date Cheque No. Amount
(a) K-0197/99 27-8-1999 232493 Rs. 536,601.60
(b) K-0198/99 27-8-1999 232494 Rs. 80,529.00
(c) JV-0055/99 30-9-1999 Income Tax
Sep. 1999 Rs. 7,810,00
Rs. 624,940.60
It is further stated that the defendants by letters dated 6-2-1997 and 30.6.1998, acknowledged the liability and promised to pay the plaintiff's dues, but the defendant failed/neglected to pay.
Hence plaintiff claims a sum of Rs. 5,072,996. 74 with interest @ 18% per annum from the date of suit till payment from the defendant.
(a) It is stated that the suit is barred under Order XXIX, rule 1, C.P.C in so far as neither a resolution authorizing the institution of the suit has been filed or even mentioned in the body of the plaint nor the alleged power of attorney has been produced nor the Memorandum & Articles of Association of the plaintiff have been filed. It is further stated there is no resolution granting the power of attorney of Mr. A. Hussaini who is neither the Secretary of the plaintiff nor its Director nor Principal Officer and therefore the very institution of the suit is un-authorized, defective and illegal.
(b) It is further stated that the claim of the plaintiff is untenable in the absence of the alleged contracts which are repeatedly referred to in the body of the plaint and no copies of contracts have been filed with the plaint. Only invoices have been filed and there were no contracts as such although their alleged numbers are mentioned in the invoices.
(c) It is contended that the suit is barred by limitation insofar as the claim of the plaintiff in para. 3 (i) to (x) is concerned. As regards the invoices at para. 3 (xi) and (xii) the same have been paid by the defendant to the plaintiff against receipts No. K-0171 dated 19-8-1998 and No. K-0442 dated 16-10-1998 respectively. Out of the amount of the invoice mentioned in para. 3 (XIII) a sum of Rs. 4,92,715 was paid by the defendant to the plaintiff in advance vide Bank Draft No. 088134 dated 3-7-1996 drawn on Bank Al-Habib Karachi, the balance of Rs. 42,923.65 was adjusted in other credits of the defendant.
It is stated that without prejudice to the above preliminary objections there were no contracts as alleged. The particulars of the alleged contracts given therein are merely numbers of invoices as would be obvious from a cursory glance on annexure. It is further stated that there were no concluded contracts between the parties nor was there any agreement as such for payment of any late surcharge at the rate of 15% per annum or at any other rate.
It is further stated that the defendant repudiates that there were any contracts. However, the defendant did place orders on the plaintiff for telecasting the advertisement and the plaintiff did so. It is further submitted that the total of the amount claimed in para. 3 of the plaint comes to Rs. 56,97,678,47 which is at variance with the figure mentioned in para 6 of the plaint. The plaintiff has not clarified as to how the sum of Rs. 54,40,618.34 has been worked out. The payment of the sum of Rs. 6,24,940.60 is admitted but it was not against the alleged amount of Rs. 54,40,618.34. It is absolutely false that there is any outstanding amount against the defendant or the defendant is liable to pay any amount to the plaintiff.
It is stated that the defendant is not liable to pay anything to the plaintiff. On the contrary the plaintiff is liable to the defendant as will be shown hereunder. The contents of Annexure-D to the plaint are misconstrued and misconceived and are denied. Similarly the alleged statement of account dated 31-10-1999 and the statement of unpaid invoices dated 3-12-1999 are incorrect and are denied. The defendant has paid to or on behalf of the plaintiff the sum of Rs. 15,06,856.82. Accordingly the defendant claims this amount from the plaintiff. It is stated that the defendant is not liable to pay the sum of Rs. 50,72,996/74 to the plaintiff on the other hand the plaintiff is liable to pay Rs. 15,06,856/02 to the defendant.
It is stated that the suit of the plaintiff is a frivolous and vexations one and deserves dismissal. On the other hand the claim of the defendant against the plaintiff is well founded and substantial and is otherwise un-exceptionable and defendant, therefore prays that this Hon'ble Court be pleased to dismiss the suit of the plaintiff with special compensatory costs under Section 35-A, C.P.C. and decree the counter claim of the defendant with costs.
Learned counsel denied the preliminary objection raised under para.(B), learned counsel stated that there is a contract between the plaintiff and the defendant. Learned counsel reiterated what has been submitted in para. (3) of the plaint.
Learned counsel for the plaintiff stated that the preliminary objections raised under para. (C) are also not admitted. It is emphatically denied that the suit is barred by limitation. The claim in suit is very much alive against the defendant on the basis of acknowledgment of liability by the defendant made ly letters dated 6-2-1997 and 30th June, 1998 as well as part payments made by the defendant. It is also denied that the defendant paid a sum of Rs. 492,715.00 to the plaintiff in advance. In fact the said sum of Rs. 492,715.00 was paid by the defendant to the plaintiff as part payment on 3rd July, 1996 against Invoice No. 6156/03/95 dated 1-3-1995 for Rs. 1,439,809.71. It is further denied that the balance of Rs. 42,923.65 was adjusted in other credits of the defendant.
Learned counsel stated that there were contracts between the plaintiff and the defendant. It is admitted that the plaintiff at the request of the defendant telecast advertising spots for the clients/customers of the defendant from its T.V. stations. The present suit is based on unpaid invoices which the defendant has failed/neglected to pay. It is denied that there was no agreement between the parties nor was there any agreement as such for payment of any late surcharge @ 15% per annum or at any other rate. It is, however, admitted that the defendant did place orders on the plaintiff for telecasting the advertisement and the plaintiff did so, but the defendant failed to pay the amounts against the invoices. It is stated that it is absolutely false that there is no amounts outstanding against the defendant and/or the defendant is not liable to pay any amount to the plaintiff. The plaintiff however, encloses herewith certified copy of statement of account giving details/breakup of amount appearing outstanding against the defendant. It is further denied that there are any glaring discrepancies in the documents of the plaintiff and many of them contradicts the contents of each other as would appear from the statements given by the defendant in para.(6) of the written statement are incorrect. The correct statements are as under:--
(i) 06156/03/95 1439809.71 1,364,382.35 75427.36
(ii) 06157/04/95 466549.32 218,293.12 248256.00
(iii) 06158/04/95 279014.79 29,369,98 249644.81
(v) 06904/04/95 266745.75 238,762.21 27983.50
(xi) 00017/07/98 159705.15 159705.15 0.15
(xii) 00455/08/98 624970.11 593,721.00 31249.11
It is stated that from the perusal of the statement of account filed by the plaintiff it is crystal clear that the defendant owes a sum of Rs. 5,072,996.74 to the plaintiff which amount or any part thereof the defendant has failed/neglected to pay. The accounts shown by the defendant in its written statement are incorrect and misconceived. In fact the statement of account filed with the plaint as well as the details breakup submitted reflects the true position of accounts and outstanding against the defendant.
Learned counsel stated that it is denied the defendant is not liable to pay anything to the plaintiff and or on the contrary the plaintiff is liable to pay to the defendant. The defendant has malafidely denied the Annexure `D' to the plaint as well as the statement of unpaid invoices and statement of account in order to avoid payment which the defendant legally owes to the plaintiff.
That the contents of para. (11) are mischievous and absolutely false and unfounded that the defendant has paid to or on behalf of plaintiff a sum of Rs. 1,056,856.82 as per annexures filed with the written statement. It is submitted that the defendant has not paid any amount over and above the claim of the plaintiff which could entitle the defendant to claim of the plaintiff which would entitle the defendant to claim from the plaintiff. It is reiterated that the defendant has failed to pay the suit amount against the unpaid invoices, the details of which are set out in para.(3) of plaint as well as copies whereof are filed as Annexures A/1 to A/13. The defendant by letters dated 6-2-1997 and 30.6.1998 acknowledged the liability and promised to pay the plaintiff's dues, but failed to pay as such the suit is liable to be decreed against the defendant for suit amount and the counter claim of the defendant be dismissed against the plaintiff.
Learned counsel stated that the defendant is liable to pay Rs. 5,072,996.74 to the plaintiff. It is also denied that on contrary the plaintiff is liable to pay Rs. 1,506,856.02 or any part thereof to the defendant. The defendant has malafidely set up a false and imaginary claim against the plaintiff which has no basis whatsoever and thereof it is liable to be dismissed with special costs.
Learned counsel for the plaintiff vehemently denied that the claim of the defendant against the plaintiff is well sounded and substantive and is otherwise un-exceptional. He reiterated that the defendant has set up a false and imaginary counter claim against the defendant with ulterior motives to avoid its liability which it owes to the plaintiff and which it has not discharged. The claim in suit of the plaintiff is well founded and based on documents which the defendant has not disputed and, therefore, the suit of the plaintiff is liable to be decreed against the defendant as prayed and the counter-claim of the defendant be dismissed against the plaintiff with special costs under Section 35-A, Cr.P.C.
Out of the pleading of the parties on 25-2-2002 following issues were framed:--
(i) Whether the suit has been filed by an unauthorized person? If so, to what effect?
(ii) Whether there was no contract between the plaintiff and the defendant to telecast commercial spots for the defendant's clients from plaintiff's Television Station?
(iii) Whether the suit is time barred?
(iv) Whether there was no agreement with the defendant for payment of late surcharge fee @ 15% per annum on the outstanding amounts?
(v) Whether the defendant owes a sum of Rs. 50,72,966.74 to the plaintiff as claimed in suit? If not, what amount of is payable by the defendant to the plaintiff?
(vi) Whether the sum of Rs. 1,506,856.02 is payable to defendant by the plaintiff as alleged by the defendant?
(vii) Whether the alleged counter claim of the defendant is unfounded and has been malafidely raised to thwart the legitimate claim of the plaintiff in suit?
(viii) What should the decreed be?
In order to prove the case plaintiff produced his witness namely Saleem Ilyas Exh.5 who produced documents from Exhs.5/1 to 5/6 defendant chooses to remain absent and did not cross examine the witness. The defendant has been not led any evidence. On 15-12-2006 side of plaintiff was closed and case was listed on 23-1-2007 for evidence of defendant but defendant and his advocate were called absent and side of defendant was closed case was listed on 17-4-2007, 22-8-2007, 19.9.2007, 17-10-2007, 22-1-2008 and 12-2-2008 for final arguments but none appeared on behalf of the defendant.
I have heard the learned counsel for the plaintiff at some lengths, perused the record and the relevant case laws. I will deal the issue one by one. My findings are as under:--
ISSUE No. 1
After presentation of the plaint in the Court, it was thoroughly checked and then same was admitted as required under the laws. According to the material available on record. The instant suit has been filed by a duly authorized person of the plaintiff corporation. The plaint has been signed and verified by Mr. Mazhar A. Hussaini Executive Manager Finance and Attorney who has been authorized for the purpose as required Order XXIX Rule 1 C.P.C. through General Power of Attorney executed by the Managing Director in favour of Mr. Mazhar A. Hussaini on 16-8-1992. The same has been produced in evidence as Exh.5/1. The facts submitted above have been confirmed by the plaintiff's representative Mr. Saleem Ilyas P.W. No. 1 in his evidence Exh.5 and which lave not been denied or rebutted by the defendant in cross-examination. Reliance may be placed on 1988 CLC 1381, this issue is answered in negative.
ISSUE No. 2
The burden in respect of this issue is on the defendant who have not led any evidence in this behalf. Under the circumstances the presumption would be that the defendant have not pressed this issue. However, the plaintiff have submitted the facts in para. 3 of the plaint as mentioned in earlier part of judgment and in para 5,6,7 & 8 of affidavit-in-evidence of P.W. as Exh.5. The facts submitted in memo, of plaint have been confirmed by the plaintiff's accounts officer P.W.I who has produced in evidence photocopies of 13 unpaid invoices as Exhs.5/2/1 to 5/2/13 and have produce two fax letters dated 6-2-1992 and 30-6-1998 as Exhs.5/3 and 5/4 respectively. He has also produced copies of 11 release orders issued by the defendant as Exhs.5/5/1 to 5/5/11. He has also produced complete list of account mentioning a sum of Rs. 5,072,996.74 as outstanding against the defendant as Exh. 5/6 which bears the signature of P.W. 1. The defendant chooses to remain absent therefore no denial or rebuttal from the defendant's side. Since the plaintiff at the request of defendant through Exh.5/2/1 to Exh.5/2/13 had admittedly telecast advertisement spot for the defendant's Exh.5/2/1 to Exh.5/2/13 be treated as valid contract, which have been acted upon as vide. This issue is answered accordingly.
ISSUE No. 3
The burden of proof in respect of this issue is on the defendant who have not led any evidence in this behalf. Under the circumstances the presumption would be that they have not pressed this issue. However, prima facie the suit as filed in quite well in time as much as that the defendant by letters dated 6-2-1997 and 30-6-1998, vide Exh.5/3 and Exh.5/4 respectively, have acknowledged the liability and promised to pay the plaintiff's dues and the suit has been filed on 4-12-1999, therefore this issue answered accordingly that the suit is not time barred.
ISSUE No. 4
In view of my findings on Issue No. 2 that Exh.5/2/1 to Exh.5/2/13 be treated as valid contracts, which also contained the condition in respect of payment 15% late payment surcharge in case of non-payment of amount within stipulated period. Therefore, this issue is also answered accordingly.
ISSUE No. 5
The burden of proof in respect of this issue is on the plaintiff. In order to prove the case, the plaintiff produced his witness namely Saleem Ilyas accounts officer Exh.5. The facts submitted in memo, of plaint and in his affidavit-in-evidence along with document have been confirmed by him and which have not been denied or rebutted by the defendant in cross-examination. In his evidence he produced photocopies of 13 unpaid invoices as Exhs.5/2/1 to 5/2/13, two copies of fax letters dated 6-2-1997 & 30-6-1998 written by defendant admitting his liability and promise to pay the plaintiff dues Exhs.5/3 & 5/4, copies of 11 release order issued by defendant as Exhs.5/5/1 to 5/5/11, complete statement of account showing outstanding against defendant a sum of Rs. 5,072,996.74 as Exh. 5/6. He has stated on oath in evidence that no amount has been paid to the plaintiff by the defendant after filing of suit. The plaintiff have proved the case against the defendant for the recovery of Rs. 5,072,996.74. This issue is answered accordingly.
ISSUE No. 6
The burden of proof in respect of this issue is on the defendant who is absent since 25-2-2002 after filing of written statement/counter claim and framing of issues by this Court. The matter came up for evidence and after some adjournments, representative of plaintiff filed affidavit-in-evidence and produced certain documents, which were exhibited as Exhs.5/1 to 5/6 on 15-12-2006 while none was present for defendant, therefore no cross-examination of the plaintiff was conducted. On subsequent dates, the defendant and his counsel failed to appear, therefore, their side was closed and case came up for arguments but despite intimation notice as ordered by this Court on 17-10-2007 and 12.12.2007, none from defendant's side appeared, thereof, arguments of Mr. Munawar Ghani learned counsel for the plaintiff were heard on 12.2.2008, who argued that in the given circumstances, the suit as filed by the plaintiff be decreed. He has relied upon 2008 YLR 464.
From the perusal of record, it has been observed that P.W. has been examined in evidence, who produced Exhs.5/1 to 5/6. He repeated contents of plaint in affidavit-in-evidence. The defendant failed to appear, therefore, there was no cross-examination, as such, there was no rebuttal to the statement of P.W. The matter came on subsequent dates but the defendant neither filed an affidavit-in-evidence nor appeared, therefore, on 23-1-2007 side of the defendant was closed and matter was fixed for arguments. On 17-10-2007 and 12-12-2007 when the case was fixed for final arguments, intimation notices were again ordered to the defendant but none. appeared and finally on 12-2-2008 arguments were heard. Under these circumstances the plaintiff's version is supported through evidence while the defendant failed to appear to defend the suit filed by the plaintiff and to support his counter claim and written statement as filed by him on 29-5-2001. It is well settled principle of law that when signatory to written statement failed to appear then even written statement cannot be exhibited and there is no rebuttal to the Kar. Naseer Muhammad v. Province of Sindh PLJ (Arshad Noor Khan, J.)
2008 Naseer Muhammad v. Province of Sindh Kar.
(Arshad Noor Khan, J.)
plaintiff's version. Reliance may be placed on PLD 2004 SC 633, PLD 2004 SC 415, 2000 SCMR 1391 and PLD 1972 SC 25. In these circumstances the written statement/counter claim filed by the defendant can not be considered in his favour and much reliance cannot be placed on such a written statement. Reliance may be placed on PLD 2003 SC 594. Under the circumstances the presumption would be that the defendant have not pressed this issue. Answered accordingly.
ISSUE No. 7
In view of my finding on Issue No. 6 the Issue No. 7 has become redundant and is answered accordingly.
ISSUE No. 8
The up-short of the discussion is that the plaintiff is entitled for the relief claimed against the defendant for recovery of Rs. 5,072,996.74 with mark up at 18% per annum from the date of filing of suit till realization of decretal amount. The Suit No. 102/2000 titled as Pakistan Television Corporation v. M/s. Bond Advertising (Pvt) Ltd., stands decreed with costs.
(R.A.) Suit decreed.
PLJ 2008 Karachi 101 (DB)
Present: Arshad Noor Khan and Ghulam Dastagir Shahani, JJ.
NASEER MUHAMMAD and 5 others--Petitioners
versus
PROVINCE OF SINDH through Secretary Live Stock and Fisheries Department and 2 others--Respondents
Const. P. No. D-584 of 2007, decided on 21.4.2008.
Sindh Fisheries Ordinance, 1980 (III of 1980)--
----Ss. 2(k) & 3(i)--Sindh Fisheries Rules, 1983, R. 2 (c)--Constitution of Pakistan, 1973, Art. 199--Issuance of licence for fishing by authorities--Constitutional petition--Vires of framing scheme and policy--Provisions of--Applicable to the authorities, fully empowered them to frame any scheme or policy which was better suited in the interest of public and to accommodate more and more persons for fishing to provide them bread earning opportunities--Act of authorities to such extent, could not be declared as illegal, inoperative, ultra vires or against the spirit of Fisheries Ordinance, 1980 and Sindh Fisheries Rules, 1983--Petition was dismissed.
[Pp. 103 & 104] A
Mr. Inayatullah Morio, Advocate for Petitioners.
Mr. Muhammad Bachal Tonyo, Addl. A.-G.
Date of hearing: 21.4.2008.
Order
Arshad Noor Khan, J.--This petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been filed by the petitioner with the following prayer:--
(a) To declare that the executive Order No. SO(Fish) 19(23) L&F/2007 dated 27-9-2007 issued by Respondent No. 1 in respect of abolition of contract/lease system and introduction of licence system in public water for fishing is against the Sindh Fisheries Ordinance and the Fisheries Rules and also against the provisions of Articles 4, 18, 24 and 25 of the Constitution, thus is void, illegal, discriminatory, unconstitutional and of no legal effect.
(b) To direct the respondents to restore the contract/lease system in public water area for fishing in Sindh, and to allow the petitioner to participate in open auction.
(c) To award costs of this petition to the petitioners.
(d) Any other relief which this Honourable Court deems fit and proper under the circumstances, may also be granted to the petitioners.
The facts, giving rise to the present petition, in brief are, that the respondents had invited offers vide advertisement published in a newspaper for auction of fishing in view of Fisheries Ordinance, 1980 and the petitioner was awarded lease as well as fishing licence from public water namely B.S. Feeder Head to 168 Rd "Zoorgarh" from 1.1.2007 to 31-12-2007 against bid of Rs. 3,50,000.00 and such lease deed was reduced in writing. It is further stated in the petition that he was also granted leasing rights of fishing from 1-8-2005 to 31-7-2006 from public water area Pat Feeder Head to 119 RD Taluka Kashmore by the Respondent No. 4. It is further stated in the petition that for the purpose of disposal of public water, respondents are bound to act in accordance with the Sindh Fisheries Ordinance, 1980 and Sindh Fisheries Rules, 1983. It is further stated in the petition that in violation of the Fisheries Ordinance, 1980 and its Rules 1983 they have introduced in a new scheme and policy of licence system vide their letter dated 27-9-2007. The petitioner, therefore, being aggrieved against the said policy introduced by the respondents, has preferred this petition.
The comments were also called from the respondents. They stated that in view of Sindh Fisheries Ordinance, 1980 and Rules, 1983 the respondents have been empowered to grant licence of the public water and from 27-9-2007 order for abolition of contract/lease system and introduction of licence system is not for personal politics of the respondents but to the benefit of poor fisherman as per directives of the government vide letter dated 12-6-2007 as such, the policy could be framed and introduced by the Government, for which the petitioner has no locus standi to question.
We have heard the learned counsel for the parties. Learned counsel for the petitioner has contended that no such policy could be framed by the respondents thereby overriding year to year scheme of leasing out of the public water as such, the respondents have acted against the law and rules of Fisheries Ordinance, 1980 and Rules 1983.
Mr. Muhammad Bachal Tonyo, learned Additional A.-G has contended that the Government has all authorities and powers to frame a scheme or policy within the four corners of existing law and such policy of the Government could not be challenged before the Court and that the lease period granted to the petitioner has also come to an end and the petitioner may approach to the respondents for issuance of licence, if so advised.
We have considered the arguments advanced on behalf of the parties and have gone through the relevant law on the subject.
As per Section 2(k) of Fisheries Ordinance, 1980 the term licence has been defined as licence granted under this Ordinance or Rule made thereunder whereas under Section 3(i), ibid, the Government may by general or special order grant licence or lease for fishing in any public waters on such terms and conditions and on payment of such fees as may be prescribed and by Rules 2(c) of Sindh Fisheries Rules, 1983 the Licensing Authority has been defined as civil servant of Fisheries Department not below the rank of Assistant Warden Fisheries authorized by the Government to act as such and Rule 3(1 to 8), Rule 4 and Rule-5 of Sindh Fisheries Rules, 1983 also prescribe and empower the Fisheries Department to issue licence for fishing and order dated 15.6.2007 is within the framework of the Fisheries Ordinance, 1980 and its Rules, 1983 and empowered under the law to the respondents to frame scheme or policy within the four corners of the law and rules applicable to them. As such, framing of scheme and policy for issuance of licence for fishing in the public water could not be termed to be arbitrary exercise of powers by the respondents. All the said provisions of the Ordinance and Rules applicable to the respondents, fully empowers them to frame any scheme or policy which is better in the interest of public and to accommodate more and more persons for fishing to provide
A
them bread earning. The act of the respondents to such extent, therefore, could not be declared as illegal, inoperative, ultra vires or against the spirit of Fisheries Ordinance, 1980 and its Rules 1983.
Admittedly the lease as well as fishing permits were granted to the petitioner by the respondents and the petitioner has produced such photo copy of the lease deed vide annexure-B and fishing permit vide annexure-B/1 and both these documents clearly show that the petitioner was granted lease from 1-1-2007 to 31-12-2007 and his lease period has also expired long back in the month of December, 2007 and still under the garb of prohibitory order he is enjoying the possession of the public water. In view of such circumstances it appears that the lease as well as fishing permit in favour of petitioner has also come to an end and is not in existence.
In view of the aforesaid circumstances we are of the opinion that neither the respondents are acting illegally against the provisions of Fisheries Ordinance, 1980 and its Rules 1983 nor the petitioner is being hit in any manner with the policy of the issuing licence by the respondents. By the policy framed by the respondents, the petitioner is not being affected in any manner for the simple reason that his lease annexure-B and fishing licence annexure-B/1 had already expired on 31.12.2007 as such no prejudice is being caused to the petitioner and in the impugned action of the Investigating Officer the complainant may be directed to file a private complaint. If the impugned action of the Investigating Officer was not perverse, arbitrary and capricious, this plea could have force. But in the prevailing circumstances it would amount to unlawfully depriving the complainant of his legitimate right to avail state sponsored prosecution.
I am therefore, constrained to accept this petition and in exercise of powers under Section 561-A, Cr.P.C. set aside the impugned action of the Investigating Officer. The accused/respondent Muhammad Jabbar is present in Court. His personal bail bond submitted to the Investigating Officer is cancelled. He is directed to be taken in custody for further necessary action according to law. However, this order shall not intervene in any manner if he applies for bail under Section 497, Cr.P.C. and his such applications shall be decided on merits, in accordance with law.
(R.A.) Petition accepted.
PLJ 2008 Cr.C. (Karachi) 105
Present: Azizullah M. Memon, J.
KAMRAN ALI SIKANDAR & 2 others--Applicants
versus
STATE through III-Addl. Distt. & Sessions Judge, Karachi
& 2 others--Respondents
Crl. Rev. Appli. No. 92 of 2006, decided 8.3.2007.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 476, 195 & 435--Criminal revision--Cognizance--Discretion of Court--Procedure of--Allegation of--Respondents committed any forgery during the judicial proceedings of a case before III Additional Sessions Judge was not apparent on the record--Held: It was discretionary with the Additional Sessions Judge to proceed against the respondents either u/S. 195 or u/S. 476 of Cr.P.C.--Revision dismissed. [P. 109] F
Constitution of Pakistan, 1973--
----Art. 199--Jurisdiction--High Court has no jurisdiction to substitute its own finding in place of the finding of tribunal below while exercising power under Art. 199 of the Constitution. [P. 108] A
PLD 1973 Lah. 600 rel.
Cognizance--
----It is discretion of the Court to take cognizance of the offence or not coupled with the fact that provision of law is directory in nature and not mandatory in nature. [P. 108] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 476--Pakistan Penal Code, (XLV of 1860), S. 209--Criminal trial--Initiate proceedings strict proof--Provisions of--Held: Strict proof is required to initiate proceedings against respondent under provisions of S. 476 of Cr.P.C. r/w S. 209, PPC. [P. 108] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 476--Pakistan Penal Code, (XLV of 1860), S. 209--Criminal trial--Proceedings--Wrong claim--Held: Any claim is by made mistake then proceedings u/S. 476 cannot be initiated against respondent. [P. 109] D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 476--Criminal trial--Initiate proceedings--Statement withdrawn--Held: In a case the statement is withdrawn by a witness then proceedings u/S. 476 of Cr.P.C. cannot be initiated. [P. 109] E
Mr. Abbadul Hassnain, Advocate for the Applicants.
Mr. Arshad Lodhi, Assistant Advocate General for State.
Mr. Mahmood A. Qureshi, Advocate for Respondent No. 2.
Nemo for Respondent No. 3.
Date of hearing: 8.3.2007.
Order
Heard the learned counsel appearing for the parties.
It appears from the contents of the memo of this Criminal Revision Application that the applicants feel aggrieved and dissatisfied with the orders passed by learned Ill-Additional Sessions Judge Malir Karachi dated 21st February, 2006, dated 20th February, 2006 and further order dated 8th March, 2006, respectively, whereby their prayers have not been entertained to take legal action against the Respondents No. 2 and 3 for allegedly having committed the forgery during the proceedings of the case falling under the provisions of Illegal Dispossession Act, 2005.
The relevant document is an affidavit dated 28th December, 2005 which was meant to be sworn by one Mst. Shama wife of Sher Ali whereon the signature of Sher Ali is said to have been made, as contended by learned counsel for the Respondents and not of Mst. Shama herself; from such aspect of the case the applicants herein have gathered an impression that the purpose of filing of such an affidavit was to get undue benefit by misguiding the Court of learned III-Additional Sessions Judge. Learned counsel for the respondents has contended that due to a bonafide mistake Sher Ali put his signature on the said affidavit, otherwise Page No. 2 of the said affidavit is clearly indicative of the fact that Mst. Shama appeared herself before the competent officer of the Court to verify the contents of the said affidavit, who recorded his satisfaction that it was actually meant to be sworn by Mst. Shama; had the commissioner for taking affidavits not been satisfied with such aspect of the case, he would not have certified the same to have been sworn by Mst. Shama.
There is no indication on the record that the commissioner for taking affidavits acted in connivance with either Mst. Shama or her husband Sher Ali for the purpose of certifying false affirmation of the contents of the said affidavit.
The citations relied upon by learned counsel for the Applicants viz. AIR 1923 Nagpur 258, 1991 P.Cr. LJ 1879 (Lahore), 1994 SCMR 1103, 1984 P.Cr. L.J. 1340 (Peshawar) and 1997 P.Cr. L.J. 59 are bearing the facts and circumstances which are distinguishable from those of the case in hand.
In Naila Junaid v. Additional District Judge and 2 others (2005 MLD 834 (Lahore)) following observations were recorded:-
"It is better and appropriate to reproduce Section 476(1), Cr.P.C. to resolve the controversy between the parties.
... 476. Procedure in cases mentioned in Section 195.--(1) When any offence referred to in Section 195, sub-section (1), clause (b) or clause (c), has been committed in or in relation to a proceeding in any civil. Revenue or Criminal Court, the Court may take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trials in Chapter XXII. .....
The legislature in its wisdom used the word `may' which indicates that it is the discretion of the Court to proceed against the person who has made wrong claim before the Court in the contents of the plaint. It is pertinent to mention here that both the Courts below refused to exercise discretion in favour of the petitioner keeping in view the circumstances of the present case. It is admitted fact that both the Courts below have concurrently refused to exercise discretion in favour of the petitioner. Therefore, constitutional petition is not maintainable as the law laid down by the Honourable Supreme Court in the following judgments:
Khuda Bakhsh v. Muhammad Sharif (1974 SCMR 279).
Muhammad Sharif v. Muhammad Afzal Sohail and others (PLD 1981 SC 246).
Abdul Rehman Bajwa v. Sultan and others (PLD 1981 SC 522).
It is settled principle of law that this Court has no jurisdiction to substitute its own finding in place of the finding of the tribunal below while exercising power under Article 199 of the Constitution as the law laid down by the Division Bench of this Court in Mussadaq's case (PLD 1973 Lah. 600). Mere reading of aforesaid section reveals that it is discretion of the Court to take cognizance of the offence or not. Coupled with the fact that provision of law is directory in nature and not mandatory in nature. In arriving to this conclusion I am fortified by the law laid down by the superior Courts in the following judgments:--
Arif Manzoor Qureshi's case (2003 YLR 249).
Nazar Ahmed Chaudhry's case (PLD 1987 Lah. 214).
Hira Lal Sarda's case (AIR 1932 Patna 243).
It is settled proposition of law that the Court has to be extra cautious that the prosecution is undertaken in the interest of justice and not to satisfy the private grudge of a litigant as the law laid down by this Court in the following judgments:-
Arif Manzoor Qureshi's case (2003 YLR 249).
Mian Fazal Ellahi's case (PLD 1970 Lahore 383).
It is also settled principle of law that it is essential for the Court to consider whether there is a reasonable probability/certainty for the conviction of the respondent. In case this element is not borne out from the record then proceedings cannot be initiated as the law laid down by the superior Courts in the following judgments:--
Abdul Rehman's case (PLD 1951 Baghdad-ul-Jadid 85).
Arif Manzoor Qureshi's case (2005 YLR 249).
Lalanand Lal's case (AIR 1937 Lahore 867).
Ramnandan Prasad Narayan Singh's case (Criminal Law Journal Reporter 1921 page 467) equivalent 61 Indian Cases 955.
It is also settled principal of law that strict proof is required to initiate proceedings against the respondent under provisions of Section 476 read with Section 209, P.P.C. as the law laid down by the superior Courts in the following judgments:-
Hira Lal Sarda's case (AIR 1932 Patna 243).
Mst. Zohra's case (1992 MLD 1827).
It is also settled principle of law that in case any claim is by made mistake then proceedings under Section 476 cannot be initiated against the respondent under Section 209 P.P.C. in terms of the law laid down in Moti Lal's case AIR 1936 Allahabad 164). It is also settled principle of law that it is undesirable that the people should be hampered in their access to the Courts and in getting justice by the fear that if they are unsuccessful they may be prosecuted for defamation as the law laid down by the superior Courts in the following judgments:-
Gangoo Mal's case (AIR 1925 Sindh 263).
Ghanshamdas Gianchand's case (AIR 1934 Sindh 114).
Kalumal Gelomal's case (AIR 1935 Sindh 81).
It is also settled principle of law that in case the statement is withdrawn by a witness then proceedings under Section 476 Cr.P.C. cannot be initiated as the law laid down in the following judgments:--
M. Liaqat Hussain's case (AIR 1946 Allahabad 156).
Jairam Singh's case (AIR 1032 Lahore 307).
It is also settled principle of law that Constitutional jurisdiction is discretionary in character. Keeping in view the circumstances of this case coupled with the facts that civil suit is still pending adjudication, therefore, I am not inclined to exercise discretion in favour of the petitioner as the law laid down by the Honourable Supreme Court in Nawab Syed Ronaq Ali's case (PLD 1973 SC 236).
In view of what has been discussed above, this petition has no merit and the same is dismissed.
Under the circumstances, the allegation that the Respondents No. 2 and 3 committed any forgery during the judicial proceedings of a case before learned III-Additional Sessions Judge is not apparent on the face of the record and on the other hand it was discretionary with the learned Additional Sessions Judge to proceed against the said Respondents either under Section 195 Cr.P.C. or under Section 476 Cr.P.C.
Relying on the above quoted case of learned Lahore High Court, this Criminal Revision Application is dismissed in limine.
(A.S.) Application dismissed
PLJ 2008 Karachi 110
Present: Khawaja Naveed Ahmed, J.
ISLAMUDDIN--Petitioner
versus
IV-ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI EAST and others--Respondents
Const. P. No. S-141 of 2007, heard on 8.2.2008.
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 15(2)(vii)--Constitution of Pakistan, 1973--Art. 199--Constitutional Petition--Ejectment petition--Bona fide personal need of landlord--Evidence of landlord regarding number of shop not in conformity with that mentioned in the ejectment petition--Effect--Shop sought to be vacated was part of a small house constructed over 120 square yards land--Only one person in the name of as tenant was in possession of shop for last 26 years--Ejectment petition was accepted.
[P. 114] A & B
Mr. Muhammad Afaq Khan Shahid, Advocate for Petitioner.
Mr. Sami Ahsan, Advocate for Respondent No. 3.
Date of hearing: 8.2.2008.
Order
This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
Petitioner Islamuddin filed this petition in capacity of owner of shop situated at House No. 10/1, Area 36-D, Landhi No. 5-1/2, near Gosht Market. Karachi being No. 1, which his father had given on rent to Respondent No. 3 Khrushid Ahmed Khan about 26 years back.
The petitioner has filed the case in the Court of Rent Controller on the bona fide ground of personal requirement and the learned Rent Controller, Karachi East after going through the pleadings was pleased to frame the following points for determination:--
(1) Whether the Opponent committed wilful default in payment of monthly rent? If yes, for what period?
(2) Whether the applicant need the demised, shop for his bona fide use?
(3) Whether the opponent minimized the value of demised premises by alteration?
(4) What should the order be?
The learned Rent Controller after perusal of the evidence and arguments of the parties was pleased to answer Point No. 1 in negative, while Points Nos.2 and 3 replied in affirmative. While deciding Point No. 2 in affirmative the learned Rent Controller has observed as under:--
"I have examined the evidence brought on record by the respective parties. I am of the humble view that in all there are six shops on the plot whereas two shops are with the opponent and one shop each is with Sajjad in Shop No. 6, applicant's brother Aashiq is in Shop No. 5, applicant brother Muhammad Ali in Shop No. 4 and applicant brother Muhammad Suleman is in Shop No. 1. The applicant in his application, affidavit and evidence and his supporting witnesses categorically stated that the applicant is jobless and a patient of Asthma and wants to carry out business of general store as the only source of income of applicant is rent of Rs.3,000 which is insufficient.
Such evidence on record is sufficient for the applicant side to show his personal need. The apprehension of the opponent that the applicant will re-let the shops on higher rent is pre-mature even otherwise the opponent has remedy if the applicant will be-let the shop on higher rent. The thin line which separate the owner/landlord from the occupant/tenant is no right to possession on the basis of ownership such right cannot be taken any from the landlord on apprehension that he will re-let the demised premises after taking possession.
It is not within the power of tenant to question the intention of the applicant unless there is strong prima facie evidence in support of the apprehension of the opponent. It is the right of the applicant to decide the cause of his growth and increase the income such desire should not be defeated by a mere apprehension that the premises be re-let on higher rent. The ground reality is that other brothers of the applicant are also carrying on business on the shops situated on the plot where the demised shops are situated; therefore, it will be a natural advantage for the applicant to start his business of General Store on the demised premises. In such circumstances, I am of the humble view that the intentions of applicant cannot be questioned as such it is clear that the applicant need the demised premises for his personal use I, therefore, decide in affirmative."
Being aggrieved from this order appeal was filed by the Respondent No. 3 Khrushid Ahmed Khan in the District Court, which came up for hearing before the learned IV-ADJ, Karachi East vide FRA No. 72 of 2006. The learned Appellate Court had reversed the findings of the learned Rent Controller mainly on the ground that there is contradiction and confusion in respect of the rented property as to what is the actual number of the shop given on rent, whether it is Shop No. 1 or Shop No. 2 or 3. On the basis of this controversy and confusion the learned Appellate Court had observed as under:
"It may be pertinent to note that the appellant has accepted himself tenant in respect of the Shop No. 1. The controversy would have been perhaps solved if the landlord had be made efforts to bring evidence in conformity of his rent application in respect of the Shop No. 1. The respondent's deficient evidence in the matter, dislodges the alleged grounds, taken in the rent application, with this observation the appeal is accepted. Consequent thereof, the order passed by the learned Rent Controller, is set aside."
Against this order the landlord had preferred this constitutional petition in this Court.
I have heard the learned counsel Mr. Muhammad Afaq Khan Shahid for the petitioner and Mr. Sami Ahsan, Advocate for the Respondent No. 3.
Mr. Afaq Shahid Khan, Advocate states that the number of the shop is not material. It was a typographical error in the ejectment application. Fact remains that it is a small house and the tenant is Khurshid Ahmed for last 26 years and the present petitioner is seeking ejectment of Khurshid Ahmed from the shop, which is in his occupation for last 26 years. The number of shop is not material.
Mr. Sami Ahsan, Advocate for the Respondent No. 3 states that the landlord himself does not know as to which shop he actually needs for his personal bona fide need and as such this fact alone is sufficient to prove his contention that the plea of personal bona fide need is a bogus plea and the petitioner wants this shop because rate of rent in the area has gone higher and he wants to give this shop on rent to somebody else on higher rent or. this pressure technique landlord has applied only to pressurize the present tenant, who is Respondent No. 3 to enhance the rent to the desire of the landlord. Mr. Sami Ahsan, Advocate states that the ejectment applications contains number of shop as No. 1, while in the legal notice given by the Advocate it has been shown as Shop No. 3. In evidence he has changed version and stated a different shop number.
Mr. Sami Ahsan, Advocate's plea basically revolves around the number of the shop and from this confusion he develops the arguments that the need is not bona fide. He further states that when the Rent Controller had passed an ejectment order in respect of a wrong number of shops the landlord should have gone in appeal to get the number corrected. He says that the landlord has not applied for correction of the number of the shop and only the tenant had gone in appeal where the order of the Rent Controller was reversed. The learned Advocate says that since the landlord had not filed any appeal for correction of the number of the shop in the District Court therefore, it has become res judicata for him and he cannot invoke the constitutional jurisdiction of this Court for any relief. He further states that this Court has very limited povers in the constitutional jurisdiction and as such cannot go through the facts and should only confine itself to the legal point raised
Kar. M. Afzal v. IV-Addl. Distt. & Sessions Judge PLJ (Arshad Noor Khan, J.)
2008 M. Afzal v. IV-Addl. Distt. & Sessions Judge Kar.
(Arshad Noor Khan, J.)
before the Court and confine the relief given to the party in respect of legal remedy only and not to enter into factual controversies.
I have considered the arguments of both the learned counsel and have gone through the record of the lower Courts placed before me.
As has been observed earlier in this order while mentioning the arguments of Mr. Afaq Shahid Khan, Advocate I have observed that the number of the shop is not material as the premises on which this shop is located is a small house in Landhi Bearing No. 10/1. The whole house has been constructed on 120 Sq. yards and there is only one tenant by name of Khurshid Ahmed Khan. The petitioner has sought ejectment of Khurshid Ahmed Khan and he needs shop of Khurshid Ahmed Khan for his personal bona fide use. Shop is in occupation of tenant for last 26 years now. One generation of landlord has already died. Second generation is in its advance age. I am of the considered view that in the light of the law recently developed by the Honourable Supreme Court of Pakistan in respect of personal bona fide need of the landlord it will be in the interest of justice to allow this petition and uphold the order of the learned Rent Controller for ejectment.
However, since it is a business place and it will be very difficult for tenant Khurshid Ahmed Khan (Respondent No. 3) to develop a new business in a short time therefore, I grant two years time to the tenant Khurshid Ahmed Khan (Respondent No. 3) to vacate the shop in question. On expiry of two years period from today the learned Rent Controller will issue writ of possession without notice with police aid with order of breaking open the lock of the shop occupied by tenant Khrushid Ahmed Khan regardless of number of the shop.
Petition No. S-141 of 2007 stands disposed of.
(R.A.) Petition accepted.
PLJ 2008 Karachi 114
Present: Arshad Noor Khan, J.
MUHAMMAD AFZAL--Petitioner
versus
IInd ADDITIONAL DISTRICT AND SESSIONS JUDGE and 2 others--Respondents
Const. P. No. S-433 of 2005, decided on 4.2.2008.
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----S. 15(2)(ii)--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Default in payment of rent--After payment of pagree amount under rent agreement, landlord could not seek his ejectment--Validity--Term "pagree" was foreign to provisions of Sindh Rented Premises Ordinance, 1979, which could not be enforced through process of Court--Terms and conditions settled between parties, if contrary to law, could not be treated as lawful and enforceable under law--Court could not grant relief on basis of such illegal terms and conditions--If such agreement between parties was given effect to even then wilful default in payment of rent could not be condoned--Plea of tenant was repelled. [Pp. 118 & 119] A & C
PLD 2001 SC 415; 1980 SCMR 834; PLD 1981 SC 246; PLD 1982 SC 465; 1996 SCMR 813 and 1990 SCMR 28 ref.
1993 CLC 528 disting.
Agreement--
----Terms and conditions of agreement contrary to law--Validity--Agreement could not be treated as lawful and enforceable under law--Court could not grant relief on basis of such illegal terms and conditions. [P. 119] B
Sindh Rented Premises Ordinance, 1979 (XVII of 1979)--
----Ss. 2(i) & 15(2)(vii)--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Default in payment of rent--Non-payment of bills by tenant--Effect--Electricity charges were included in rent as per provisions of S.2(i) of Sindh Rented Premises Ordinance, 1979--Non-payment of electricity charges would tantamount to default in payment of monthly rent by tenant. [P. 120] D & E
1992 SCMR 2400 fol.
Constitution of Pakistan (1973)--
----Art. 199--Sindh Rented Premises Ordinance, 1979--S. 15(2)(vii)--Constitutional jurisdiction--Scope--Concurrent findings of Courts below neither capricious nor arbitrary nor result of misreading or non-reading of evidence on record--High Court in exercise of constitutional jurisdiction neither could disturb such findings nor reappraise evidence. [P. 120] F
Mr. Muhammad Rafi, Advocate for Petitioner.
Mr. S.M. Akhtar Rizvi, Advocate for Respondent No. 3.
Nemo for Respondents Nos. 1 and 2.
Date of hearing: 4.2.2008.
Judgment
This Constitutional petition under Article 199 of Constitution of the Islamic Republic of Pakistan, 1973, has been filed by the petitioner against the judgment dated 30-4-2005 passed by the learned II-Additional District Judge, Karachi-East in FRA No. 46 of 2003 Muhammad Afzal v. Muhammad Saeedullah whereby the appeal was dismissed and the order passed by the VI-Rent Controller, Karachi-East dated 19-3-2003 in Rent Case No. 358 of 2001 whereby the ejectment petition was allowed and the petitioner was directed to handover the vacant possession of the demised premises to the Respondent No. 3 has been upheld.
The facts leading rise to the present petition in brief are that Respondent No. 3 filed eviction application under Section 15 of the Sindh Rented Premises Ordinance, 1979, hereinafter shall be referred to as the "Ordinance 1979" against the petitioner stating therein that he is the owner of Shop No. 5, Saeed Market constructed on Plot No. 1/697 situated in Shah Faisal Colony No. 1 Karachi, and the said shop was rented out to the petitioner at the rate of Rs.225 per month in addition to other charges. It is further stated in the ejectment petition that the petitioner paid rent up to July, 2000 on 7-8-2000 which was acknowledged by issuance of receipt. The petitioner thereafter failed to tender the rent since August, 2000 as such he committed wilful default in payment of monthly rent. It is further stated in the ejectment petition that the petitioner failed to pay the electricity charges which accumulated to the tune of Rs.5,572. It is further stated in the petition that the premises required bonafidely by the landlord for his personal use as well as for use of his son and that the petitioner is running boucher shop, which is causing inconvenience to the adjoining shopkeepers. The petitioner did not pay the monthly rent as well as electricity charges as such Respondent No. 3 filed application for eviction of the petitioner as stated above. The petitioner was served with the notice of the petition, who filed his written statement inter alia, denying the allegations contained therein and stated that the shop was rented out to him on pagree basis, for which he paid Rs.40,000 to Respondent No. 3 and since it was rented out on pagree basis as such meagre amount of Rs.225 was fixed as rent with the condition that the respondent will not enhance the rent forever and that he will be responsible for change of the receipt in the name of any other person to whom the petitioner will induct as tenant. It is further stated that in the first week of July, 2000, Respondent No. 3 obtained a friendly loan of Rs.5,000 from him which was adjustable towards future monthly rent as such the said loan of Rs.5,000 was not fully adjusted towards the future monthly rent and still a substantial part of the loan remained unpaid as such no wilful default in payment of rent was committed. He also denied to have committed any default in payment of electricity charges and personal requirement of the shop in question was also refuted.
After filing the written statement, Respondent No. 3 filed his affidavit-in-evidence and produced unpaid electricity bills and also led evidence of P.W. Bin Yamin son of Muhammad Amin as well as evidence of P.W. Muhammad Waqarullah son of Saeedullah by filing their affidavits-in evidence. The all were also cross-examined by the learned counsel for the petitioner at great length. The petitioner filed his affidavit-in-evidence as well as affidavits of his witnesses namely: Saleem Akhtar son of Muhammad Aqil and Muhammad Khalid son of Abdul Hafeez, who were also cross-examined by the learned counsel for Respondent No. 3. The learned Rent Controller at the time of recording judgment was pleased to frame the following points for determination:--
(1) Whether the opponent has committed wilful default in payment of monthly rent, water conservancy charges and electricity charges?
(2) Whether the opponent has created inconvenience and nuisance to the applicant, other shopkeepers of the market and the residents of the near houses?
(3) Whether the applicant requires the demised shop for personal need for himself and for his sons bonafidely and in good faith ?
(4) What should the decree be?
The learned Rent Controller after considering the whole evidence available on record decided point No. 1 in affirmative and point Nos.2 and 3 in negative and allowed the ejectment of the petitioner on the ground of wilful default in payment of monthly rent as well as electricity charges.
The petitioner being aggrieved against the order of his eviction preferred an appeal which was entrusted to the learned II-Additional District Judge, Karachi-East who confirmed the finding on point No. 1 recorded by the learned Rent Controller and dismissed the appeal, hence the present petition.
I have heard Mr. Muhammad Rafi, Advocate for the petitioner and Mr. S.M. Akhtar Rizvi, Advocate for Respondent No. 3.
Mr. Muhammad Rafi learned counsel for the petitioner vehemently contended that the respondent could not ask for eviction of the petitioner from the shop in dispute on any ground for the reason that the shop was rented out on the basis of "pagree" amounting to Rs.40,000 as such the respondent was stopped to file ejectment application on any ground. He further contended that respondent obtained a friendly loan of Rs. 5,000 from the petitioner, adjustable towards future monthly rent and the petitioner has not committed any default in payment of monthly rent because of adjustment of friendly loan and even at the time of filing of rent application a substantial balance from the said loan remained unpaid, as such there was no default in payment of rent. He further contended that the payment of friendly loan by the petitioner to the Respondent No. 3 has been fully substantiated by D.W. Khalid and D.W. Saleem Akhtar and their evidence remained unshaken in their cross-examination as such the petitioner has discharged the burden of advancement of loan to the Respondent No. 3, who has not led any convincing evidence to controvert the stance of the petitioner. He further contended that respondent himself was using electric connection by using kunda tactics for which exorbitant bill was issued by the KESC which was subsequently reduced to the tune of Rs.4,500, which was subsequently paid by the petitioner as such there was no wilful default in payment of electricity charges as such the learned lower Courts completely failed to appreciate the evidence available on record, therefore the orders passed by them, suffer from legal defect and liable to be set-aside. In support of his contention he has relied upon the case of Mrs. Shirazee. v. Abdul Qadir reported in 1993 CLC 528.
Mr. S.M. Akhtar Rizvi, learned counsel for the Respondent No. 3 while refuting the contentions advanced by the petitioner's counsel has contended that the default in payment of rent from October, 2000 till March 2002 has not been disputed by the petitioner and as per assertion of the petitioner he deposited the rent in miscellaneous rent application which was not a valid tender of rent and both the learned Courts below rightly came to the conclusion that the petitioner committed wilful default in payment of rent and the concurrent findings of fact recorded by both the lower Courts, could not be disturbed in constitutional jurisdiction of this Court. He further contended that non-payment of electricity charges to KESC has also been admitted by the petitioner, which in view of Section 2(i) of the Ordinance 1979 is included in rent and its-non payment renders the tenant liable for eviction and the admission of the petitioner regarding non-payment of electricity charges is sufficient to hold him guilty of non-payment of electricity charges . In support of his contention, he has relied upon the case of Sheezan Ltd. v. Abdul Ghaffar reported in 1992 SCMR 2400; the case of Secretary of Punjab, Forest Department v. Ghulam Nabi reported in PLD 2001 SC 415; the case of Mirza Abdul Aziz Baig v. Mushtaq Ahmed reported in 1980 SCMR 834; the case of Muhammad Sharif v. Muhammad Afzal Sohail reported in PLD 1981 SC 246; the case of Allah Din v. Habib reported in PLD 1982 SC 465; the case of Shaikh Muhammad Bashir Ali v. Soofi Ghulam Mohiuddin reported in 1996 SCMR 813 and the case of Abdul Ghaffor v. Mst. Amtul Saeeda reported in 1990 SCMR 28.
I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.
The petitioner is heavily relying upon the rent agreement executed in between the parties, vide annexure' 'B' to the petition to contend that shop in question was rented out to him on payment of
pagree amounting to Rs.40,000 and after execution of the said agreement, the respondent/landlord was not within his right to ask the ejectment of the petitioner on any ground including the default in payment of monthly rent. The said emphasis of the petitioner and his counsel, in my humble opinion, is devoid of any force, for the reason that under the provisions of
Ordinance 1979, the term "pagree" has not been recognized. The said term "pagree" is therefore, foreign to the provisions of Ordinance 1979. Even terms and conditions arrived at, with consent of the parties, which are contrary to the law of land, could not be treated as lawful and enforceable under the law. The learned counsel for the petitioner has completely failed to produce any case law to show that terms and conditions which are against the prevailing law can be legitimately enforced before the Courts and Court can grant such relief on the basis of illegal terms and conditions settled in between the parties. There could be no cavil to the proposition that term
"pagree", is against the provisions of Ordinance, 1979 which could not be enforced through the process of Court, as such in my opinion the agreement, annexure B' containing the term "pagree" is against the provisions of Ordinance, 1979. Even otherwise, in case, if the said agreement is given effect, then too the default in payment of rent by the tenant could not be condoned, if it has been wilfully committed by him. In the present case, Respondent No. 3 has alleged the default committed by the petitioner from
October, 2002 which has not been controverted by the petitioner in his evidence before the learned lower Courts. The default as alleged by the respondent/landlord against the petitioner therefore remains unshaken. The plea raised by the petitioner that he paid Rs.5,000 as friendly loan to Respondent
No. 3 adjustable towards the monthly rent, in my humble opinion, has not been supported with convincing and plausible evidence by the petitioner. The petitioner has led evidence of DW Muhammad Khalid and DW Saleem Akhtar, who both in their affidavits-in-evidence have stated that the petitioner paid friendly loan of Rs. 5000 to the respondent/landlord which was adjustable towards monthly rent DW Muhammad Khalid in his cross-examination has stated that the loan of Rs.5,000 was advanced in the month of March 2000 whereas the petitioner and his witness Saleem Akhtar have stated the advancement of loan in the month of July, 2000, adjustable towards the monthly rent. The evidence of the petitioner and his witness is therefore divergent on the date and month of advancement of alleged friendly loan of Rs.5,000 to the respondent/landlord.
Even otherwise, in case, if it was agreed in between the parties to adjust the monthly rent towards friendly loan of Rs.5,000 how the petitioner allegedly paid the rent after July, 2000 to the respondent as according to him he paid rent of August and September, 2000, vide receipt, annexureE-6' to the petition. The said receipt produced by him, itself negate the stance taken by him and adversely reflect on his defence. Even after advancement of
B
C
such loan, he did not obtain any receipt from the Respondent No. 3 though he was obtaining receipts of monthly rent from him prior to September, 2000. Even no notice has been served by him on the landlord regarding adjustment of monthly rent towards alleged loan of Rs.5,000. There is, therefore, no independent and confidence inspiring evidence available on record to accept the contention advanced by the petitioner regarding payment of loan of Rs.5,000 to the Respondent No. 3 which appears to be fallacious, concocted and with out any substance.
The petitioner, in his statement before the learned lower Court, has admitted that the electricity was disconnected by KESC because of non-payment of bills. The said admission of the petitioner is sufficient to hold that he failed to pay the electricity charges to KESC which includes in rent, in view of Section 2(i), ibid, as the electricity, water and conservancy charges are included in rent and its non-payment tantamount to default in payment of monthly rent. In the case of Abdul Ghafoor, supra, the Hon'ble Supreme Court was pleased to observe that the electricity being included in the definition of rent and tenant being liable to pay the same, default on his part would make him liable for ejectment for non-payment of such charges when default was clearly established by evidence before the Rent Controller. In the present case the default in payment of electricity charges has been admitted by the petitioner in his cross-examination as such default in payment of electricity charges has also been established on the basis of evidence available on record.
The present petition has been filed by the petitioner against the concurrent findings of facts recorded by the both the learned Courts below on perusal of whole evidence available on record. The said findings of the learned lower Courts neither seems to be capricious nor arbitrary nor are the result of misreading or non-reading of the evidence available on record, and the findings on fact, in my humble opinion, could not be disturbed in writ jurisdiction nor reappraisal of the evidence is possible in writ jurisdiction of this Court. In the case of Muhammad Sharif, supra, the Hon'ble Supreme Court was pleased to observe that the Tribunal having jurisdiction to decide the matter, has jurisdiction to decide it rightly or wrongly and mere fact that another conclusion being possible on the evidence available on record, does not make it a case for interference in exercise of its constitutional jurisdiction. The dictum laid down by the Hon'ble Supreme Court is fully applicable under the circumstances of the present case. The case law relied upon by the learned counsel for Respondent No. 3 supports the judgment passed by the lower Courts. The case-law relied upon by the counsel for the petitioner, in my humble opinion, is distinguishable from the circumstances of the present case.
After examining the order impugned passed by the learned lower Court, I am of the firm opinion that no illegality is apparent on the
Kar. Muhammad Siddiq v. Mushtaq Ali PLJ (Muhammad Afzal Soomro, C.J.)
2008 Muhammad Siddiq v. Mushtaq Ali Kar. (Muhammad Afzal Soomro, C.J.)
face of record to declare the impugned order, passed by the learned Court, to be illegal, ultra vires and passed without lawful authority. In the morning, the petition was dismissed, vide short order, reproduced hereinbelow, for the sake of convenience:
"For the reasons to be recorded later on, the petition is dismissed. The judgments passed by the learned lower Courts are maintained. Since the time to vacate the premises in question, granted by the lower Court has expired, as such the petitioner is allowed two months time to vacate the premises in question, subject, however, to the condition, that he shall continue depositing the rent in the Court of Rent Controller, failing which the Rent Controller will be at liberty to issue writ of possession without any notice to the petitioner."
The above are the reasons for the short order.
(R.A.) Petition dismissed
PLJ 2008 Karachi 121
Present: Muhammad Afzal Soomro, C.J.
MUHAMMAD SIDDIQ--Applicant
versus
MUSHTAQ ALI and 5 others--Respondents
C.R. No. 71 of 2006, decided on 19.2.2008.
Specific Relief Act, 1877 (I of 1877)--
----Ss. 8, 39 & 42--Contract Act, (IX of 1872), S. 188--Suit for declaration, cancellation of power of attorney and possession--Registered irrevocable power of attorney executed by him in favour of his son was not liable to be exercised during the lifetime, as there was difference between power of attorney and will--Validity--Section 188 of Contract Act, described the extent of agents authority; Agent having an authority to do an act had authority to do every lawful act and thing for the execution of the same--Power of attorney was an instrument by which authority was conferred on an agent--Such an instrument was construed strictly and conferred only such authority as was given expressly or by necessary implication--Irrevocable general power of attorney in the suit indicated that same was to be operated during lifetime of the plaintiff and after his death same would operate as will--Alleged cancellation of said registered general power of attorney did not bear the signature of attorney nor it was registered--Attorney was son and attorney of the plaintiff having power to do so sold the disputed property--Appellate Court below had not considered all said facts and passed impugned order hastily--Impugned judgment and decree, were set aside and resultantly the possession of the property in question was restored to the buyer of the property. [P. 123] A & B
Mirza Sarfraz Ahmed, Advocate for Applicant.
Respondent No. 1 (in person).
Date of hearing: 19.2.2008.
Judgment
This revision application is directed against the order/judgment dated 21-4-2005 and decree dated 13-5-2005 passed by the learned District and Sessions Judge, Karachi East in Civil Appeal No. 51 of 2005, whereby the appeal was allowed.
The brief facts of the case are that the applicant purchased Plot No. 317. Old No. C-5/6, Sheet No. 3, Block-C, Qayyumabad, Korangi Road, Karachi, by way of sale-deed for a sum of Rs.36,000 from the Respondent No. 2 on the basis of General Power of Attorney given to him by his father Respondent No. 1. After purchase the applicant obtained loan from NBP. The applicant made construction and spent huge amount. The Respondent No. 1 filed Suit No. 531 of 2004 in the Court of VII Senior Civil Judge Karachi East for declaration, cancellation and possession alleging that he has cancelled the power of attorney in favour of his son Respondent No. 2. Notice/summon was issued but the same were not received by the applicant. There was publication in newspaper at Karachi, Lahore. The applicant in fact had no knowledge of filing the suit as he is uneducated. The suit was dismissed on 26-1-2005.
The learned counsel for the applicant has contended that the order of the learned District Judge is illegal, void as no summon was served upon the applicant; that the learned VII Senior Civil Judge Karachi East did not serve any notice or summon upon the applicant. In fact the applicant had no knowledge of the pendency of the case till 28th March, 2006 and he was dispossessed with the help of police; that Respondent No. 1 has falsely alleged that he had revoked the General Power of Attorney and Deed of will; that whole proceedings have taken place at the back of the applicant and the judgment is ex parte and lastly it is contended that the impugned order may be set aside.
Respondent No. 1 appearing in person contended that he had executed a will in favour of his son Respondent No. 2 to facilitate him to deal with the property in question, who malafidely misused the same converted it into General Power of Attorney which was cancelled by him and that Respondent No. 2 had stolen away the lease and got the sale-deed executed in favour of the applicant.
Kar. Rana Muneer Ahmed v. KASB Bank Limited PLJ ( )
2008 Rana Muneer Ahmed v. KASB Bank Limited Kar.
I have heard the learned counsel for the applicant and the Respondent No. 1 and gone through the record and proceedings.
Perusal of the record shows that the Respondent No. 1 had prayed for declaration to the effect that registered irrevocable power of attorney executed by him in favour of his son is a will and same is not liable to be exercised during the lifetime although there is very much difference between power of attorney and will. Section 188 of Contract Act describes to the extent of agents authority. An agent having an authority to do an act has authority to do every lawful act and thing for the execution of it. A power of attorney is an instrument by which authority is conferred on an agent. Such an instrument is construed strictly and confers only such authority as is given expressly or by necessary implication. The Irrevocable General Power of Attorney in suit indicates that same is to be operatable during life time of plaintiff and after death of plaintiff same would operate as Will. The alleged cancellation of registered General Power of Attorney does not bear the signature of the attorney of the Respondent No. 1 nor it was got registered. Respondent No. 2 being son of attorney of Respondent No. 1 sold the property in question to applicant who had power to do so. It appears that the learned Appellate Court has not considered all the above facts and passed the impugned order hastily.
A
In view of the above discussion this revision stands allowed the impugned judgment and decree dated 21-4-2005 and 13-5-2005 respectively are set aside, suit stands dismissed and resultantly the possession of the property in question is restored to the applicant.
B
(R.A.) Application allowed.
PLJ 2008 Karachi 123 (DB)
Present: Mushir Alam & Arshad Siraj, JJ.
RANA MUNEER AHMED--Petitioner
versus
KASB BANK LIMITED--Respondent
C.P. No. D-2095 of 2007, decided on 04-10-2007.
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 16--Constitution of Pakistan, 1973, Art. 199--Sale of buses--Observation sale of sixteen buses being ply under the supervision of the Official Assigned of High Court--Seating capacity of the sixteen (16) buses is 100 passengers as according to Counsel the buses are having seating capacity of 48 passengers only--Consolidated issued
Kar. National Logistic Cell Ministry of Defence PLJ Govt. of Pakistan v. National Insurance Corp. (Khalid Ali Z. Qazi, J.)
2008 National Logistic Cell Ministry of Defence Kar.
Govt. of Pakistan v. National Insurance Corp. (Khalid Ali Z. Qazi, J.)
have been framed and the matter is ripe for the evidence and it can be expeditively adjudicated after the evidence of the parties are recorded at Katcha Peshi Stage--Impugned order is suspended.
[P. 124] A
Mr. Salim Salam Ansari with Rana Azeem, Advocates for Petitioner.
Date of hearing: 4.10.2007.
Order
Granted
Learned counsel undertakes to comply the office objections before the next date.
Granted subject to above and all just exception.
4/5. It is submitted by the learned counsel that through the impugned order the learned single judge in chamber has ordered for sale of 16 buses being ply under the supervision of the Official Assigned of this Court. It is urged that the learned single judge has eared in observing that the seating capacity of the said 16 buses is 100 passengers as according to the learned counsel the buses are having seating capacity of 48 passengers only. It is stated that consolidated issued have been framed and the matter is ripe for the evidence and it can be expeditively adjudicated after the evidence of the parties are recorded at Katcha Peshi Stage.
Notice be issued to respondents. In the meantime, operation of the impugned order is suspended.
To come up after four weeks.
(R.A.) Petition accepted.
PLJ 2008 Karachi 124
Present: Khalid Ali Z. Qazi, J.
NATIONAL LOGISTIC CELL MINISTRY OF DEFENCE GOVERNMENT OF PAKISTAN through its Commander--Plaintiff
versus
NATIONAL INSURANCE CORPORATION through its Managing Director--Defendant
Suit No. 694 of 2001, decided on 11.1.2008.
Qisas & Diyat Ordinance, 1991--
----Art. 323--Sindh Chief Court Rule, R. 176--In view of the provision of Art. 323 Qisas Diyat Ordinance, 1991 it is established that Para-7 of the Judgment dated 13-01-2003 passed by High Court has been treated as maximum liability to the extent of the amount so deposited at the rate of Rs. 1.76.000/- only per person being the value of Diyat--Decree is to be prepared accordingly. [P. 126] A
Mr. Abdur Rauf, Mr. Nasir Maqsood and Mr. Mukhtar Ahmed Kober, Advocates for Plaintiff.
Nemo for Defendant.
Date of hearing: 11.1.2008
Order
This is a office reference submitted by Assistant Registrar (OS-I) through Additional Registrar (OS-I) wherein it is solicited whether;
(a) Decree may be prepared in terms of Para 7 of the judgment dated 13.1.2003 to the extent of the maximum liability of the Insurance Company as disclosed in Para 6 of the judgment that since the amounts pertaining to the liability of the defendants under the policy has already been deposited or paid (Rs. 3,20,000/- + Rs. 6,24,000/- Rs. 9,44,000/-) deposited with the Nazir of this Hon'ble Court.
(b) Any other orders may be passed as deemed fit and proper.
Under the facts and circumstances of the case, to do the substantial justice I have issued notice to the parties M/s.. Abdur Rauf Nasir Maqsood and Mukhtair Ahmed Kober Advocates appeared but none appeared on behalf of the defendant/National Insurance Corporation. Notice was served on National Insurance Corporation on 19.12.2007 for 11.1.2008 at 8:15 a.m for rehearing of office reference dated 28.10.2004. The case was called thrice, thereafter, with the assistance of the learned advocates of the parties I have perused the record and the order passed by Mr. Justice Anwar Mansoor Khan (as he then was) dated 19.7.2001 and 7.8.2001 wherein his lordship (as he then was) held as under:
"Earlier Mr. Siddique had given a bank draft for a sum" of Rs. 320,000/- stating that this is the only liability that was to be paid by him. Subsequently, after the case was partly heard on 19.7.2001 Mr. Siddique stated that in other cases, where, the insurance policy was taken up after 21.3.1991 they would be liable to be extend Rs. 1,76,000/- and undertook to pay the said balance. Today he has given a pay order for Rs. 6,24,000/ making the total to Rs. 7,04,000/- in respect of four cases which, according to him fall under the category where the insurance agreement was entered into on or after 21.3.1991. The cheque be delivered to the Nazir upon his receipt."
On perusal of the order as reproduced hereinabove it is clear that the Insurance Policy taken up after 21.3.1991 the defendant would be liable to the extent of Rs. 1,76,000/- and undertook to pay the said balance.
I have also gone through the order passed by Mr. Justice Zahid Qurban Alvi (as he then was) dated 20.11.2002 wherein his lordship has been pleased to hold that he would like to rely on the detailed observations made by Mr. Justice Anwar Mansoor Khan (as he then was) in his order dated 19.7.2001.
I have also gone through the case Law cited at bar:
(i) AIR 1981 MADRAS 299;
(ii) AIR 1986 RAJASTHAN 2;
(iii) PLD 1993 SC 158;
(iv) PLD 1984 KARACHI 38;
(v) AIR 1977 SC 1158;
(vi) 2002 MLD 861;
(vii) 2002 SBLR 1010;
(viii) 2003 SBLR 43;
and Article 323 Qisas & Diyat Ordinance, 1991.
In view of the following law laid down by Hon'ble Superior Courts of Pakistan and India and keeping in view the provision of Art. 323 Qisas & Diyat Ordinance 1991 it is established that para 7 of the judgment dated 13.1.2003 passed by this Hon'ble Court may be treated as maximum liability to the extent of the amount so deposited at the rate of Rs. 1,76,000/- per person being the value of Diyat. Let the decree be prepared accordingly.
(R.A.) Order accordingly.
PLJ 2008 Karachi 127
Present: Nadeem Azhar Siddiqui, J.
MUHAMMAD ANWAR--Plaintiff
versus
PAK ARAB REFINERY LTD. through its Managing Director, Pumping Station No. 1, Karachi--Defendant
Civil Suit No. 1343 of 2004 and C.M. No. 1216 of 2005, decided on 29.8.2007.
Limitation Act, 1908 (IX of 1908)--
----Ss. 19, 22 & 23 of First Schedule--Civil Procedure Code, (V of 1908)--O. VII, R. 11--Condonation of delay--Rejection of plaint on the grounds of suit is barred by resjudicata and suit is hopelessly barred by time--Malicious prosecution--Illegal dismissal from service, mental torture and incapacitation--Claim of damages cannot be awarded under the law and that plaintiff was acquitted by Court on the basis of compromise--In Counter affidavit plaintiff submits that suit was filed within three years of the judgment--Validity--Plaintiff has claimed compensation on account of malicious prosecution, illegal dismissal from service, mental torture and incapacitation of son--Limitation for filing the suit is one year in terms of Arts. 19, 22 & 23 of First Schedule of Limitation Act--Suit was filed after one year of the limitation without filing application for condonation of delay--Held: Cause of action to plaintiff accrued when plaintiff was acquitted when the Service Tribunal has reinstated him--Suit can be filed within one year from specified dates.
[P. 130] A & E
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 11(d)--Barred by any law--Prima facie--Plaint can be rejected under clause (d) of Order VII, Rule 11 of CPC where the suit appears to be prima facie barred by any law from perusal of the statement in plaint and no enquiry is needed. [P. 130] B
Limitation--
----Question of law and facts--Plea of limitation--Question of limitation is not a mixed question of law and facts and where the question of limitation is apparent on the face of record the Court can proceed without any further enquiry. [P. 130] C
Duty of Court--
----Plea of limitation was raised or not--Matters of limitation cannot be left to pleadings of the parties, but a duty was imposed on Court to notice the point of limitation, whether the plea of limitation was raised or not. [P. 130] D
PLD 1970 Lah. 298 and PLD 1968 Kar. 376 rel.
Nemo for Plaintiff.
Mr. Shahid Anwar Bajwa, Advocate for Defendant.
Date of hearing: 13.8.2007.
Order
By filing of application under Order VII Rule 11 CPC the Defendant has prayed for rejection of plaint. The ground taken in the application are that the suit is bared by res judicata, the suit is hopelessly barred by time, the claim of damages cannot be awarded under the law and that the plaintiff was acquitted by the Court on the basis of compromise and payment of compensation to legal heirs of the deceased girl.
The Plaintiff has filed counter affidavit to the application. In the counter affidavit the Plaintiff submits that the suit is within time and the suit was filed within three years of the judgment dated 16-6-2001 of the accident case passed by 1st Additional Sessions Judge, Shikarpur. The Plaintiff further submits that, the Ist Additional Sessions Judge has decided the case on merits.
The facts of the case are that on 07.12.1995, when the Plaintiff was on duty driving the vehicle belongs to Defendant met with an accident and a girl namely Miss Shazia was killed. The Plaintiff was challaned in Case No. 66/96 and was acquitted by extending benefit of doubt by Ist Additional Sessions Judge, Shikarpur vide judgment dated 16-6-2001. Before his acquittal plaintiff was dismissed from service on 24-6-1996, which order was challenged before the Federal Services Tribunal, who reinstated the Plaintiff vide order dated 31-5-2003 without back benefits. The Plaintiff challenged the order of Service Tribunal before the Honourable Supreme Court by way of filing CPLA, in which the leave was refused.
The Plaintiff has prayed compensation on following accounts:--
(i) Advocate fees and related expenses
Rs. 50,000/-
(ii) Bail and Misc. police expenses
Rs.50,000/-
(iii) Conveyance expenses from Karachi to Shikarpur at last 120 hearing from 1996-2001 @ of Rs.2000/- per hearing
Rs.240,000/-
(iv) Compensation paid to legal heirs of deceased girl
Rs. 500,000/-
(v) Compensation due to injury caused to the Plaintiff
Rs.200,000/-
(vi) Damages for not arranging the bail of the Plaintiff
Rs. 500,000/-
(vii) Damages due to incapacitation of the son for want of proper care and treatment due to mental pressure and tension of the accident case
Rs.2500,000/-
(viii) Damages for mental torture, harassment, tension pains and agonies for 5 and half years
Rs.1500,000/-
(ix) Damages for loss of reputation
Rs.500,000/-
Total Rs.60,40.000/-
In Para-12 of the plaint the Plaintiff submits that the cause of action for filing of the suit accrued on 21.6.2001 when he was acquitted by the 1st Additional Sessions Judge, Shikarpur and thereafter when the Federal Services Tribunal held that the accident took place due to mechanical defects in the vehicle and is still continuing.
The learned Counsel for the Defendant submits that the suit is hopelessly time barred. He submits that under Article 19 of the Limitation Act the limitation for filing the suit for compensation for false imprisonment is one year from the day when imprisonment ends. He further submits that under Article 23 of Limitation Act the limitation for filing of the suit for compensation for malicious prosecution is one year from the date when the Plaintiff was acquitted or prosecuted was terminated. He submits that the Plaintiff was acquitted by extending benefit of doubt on 16.6.2001 on payment of compensation to the legal heirs of the deceased as such is not entitled to claim of compensation. He also referred Article 22 of the Limitation Act, which provides that suit for compensation for any other injury to the person can be filed within a period of one year from the date when the injury was committed. He submits that in this case the cause of action accrued when the Plaintiff was dismissed from his services on 24-6-1996, acquitted on the basis of benefit of doubt on 21-6-2001 and reinstated by the Services Tribunal on 31-5-2003 and the CPLA was refused on 25-11-2003.
The learned Counsel for the Defendant has relied upon the following reported cases:--
(i) Abdul Majid Butt v. United Chemicals Ltd. PLD 1970 Lahore 298
(ii) Kayumarz v. Messrs Mohammedi Tramway Company, Karachi, PLD 1966 Karachi 376
(iii) Abdulla Mahomed Jabli v. Abdulla Mahomed Zulaikhi, AIR 1964, Patna 372
The Plaintiff has claimed compensation on account of malicious prosecution, illegal dismissal from service, mental torture and incapacitation of son. For all above acts the limitation for filing the suit is one year in terms of Articles 19, 22 & 23 of the First Schedule of the Limitation Act. The suit was filed on 11-6-2004 after one year of the limitation without filing application for condonation of delay.
The plaint can be rejected under Clause (d) of Order VII Rule 11 CPC where the suit appears to be prima facie barred by any law from perusal of the statement in the plaint and no enquiry is needed. The question of limitation is always not a mixed question of law and facts and where the question of limitation is apparent on the face of record the Court can proceed without any further enquiry. Matters of limitation cannot be left to pleadings of the parties, but a duty was imposed on Court to notice the point of limitation, whether the plea of limitation was raised or not.
In this case admittedly the cause of action to the Plaintiff accrued on 21.6.2001 when the Plaintiff was acquitted and on 31.5.2003 when the Service Tribunal has reinstated him. The suit can be filed with in one year from the above mentioned dates. The Plaintiff has not filed any application for condonation of delay, but in his counter affidavit states that the suit was filed within three years of the judgment dated 16.6.2001 of the accident case passed by Ist Additional Sessions Judge, Shikarpur. From the statement of the Plaintiff in Para-12 of the plaint it is apparent that the suit is prima facie barred by limitation provided under Articles 19, 22 & 23 of the First Schedule of the Limitation Act.
The Plaint is therefore, rejected under Order VII Rule 11 CPC with no order as to cost.
(R.A.) Suit rejected.
PLJ 2008 Karachi 131
Present: Arshad Noor Khan, J.
ABDUL ABID--Plaintiff
versus
SIDDIQUE MOTI and another--Defendants
Civil Suit No. 508 and CM.As. Nos. 4348, 8796 of 2007, decided on 26.8.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Suit for recovery of damages--Barred by law--Rejection of plaint--Scope--Plaint could only be rejected if it did not disclose cause of action and suit was barred by any law or plaintiff fails to pay requisite court fee in spite of direction of court and for such purpose the court had to look into the averments contained in the plaint.
[P. 133] A
Limitation Act, 1908 (IX of 1908)--
----Art. 25--Civil Procedure Code, 1908 (V of 1908), O. II, R. 2 & O.VII, R.7--Suit for recovery of damages for fraudulent act, loss of business, profits, shock, humiliation, physical agony, distress, harassment, mental torture, disgrace, loss of expectation of life loss of amenities of life, loss of valuable times, loss of health and loss of reputation including honour and dignity--Damages, recovery of--Limitation--Rejection of plaint--Cause of action--Earlier round of litigation between the parties was decided by Supreme Court on 28-11-2005 and suit for recovery of damages was filed by plaintiff on 21-11-2006--Plea raised by defendant was that as plaintiff omitted his claim of damages in the suit filed earlier, therefore, he did not have cause of action for subsequent suit--Validity--Suit was filed after the end of litigation between the parties, as claim of damages was not available to plaintiff at the time of filing of earlier suit--Plaintiff had not wilfully, intentionally and deliberately relinquished the part of his claim because subsequent suit was outcome of final decision of lis between the parties, thus provisions of O. II, R. 2, C.P.C. were not attracted--Suit filed within one year from the date of final decision was within limitation--High Court declined to reject the plaint under O.VII, R. 11 C.P.C.--Application was dismissed in circumstances.
[Pp. 133 & 134] B, C & D
PLD 1970 Kar. 770 and 2003 MLD 22 distinguished.
Mr. Muhammad Ayub Khan, Advocate for Plaintiff (along with Plaintiff present in person).
Mr. Sajid Latif, Advocate for Defendant No. 1.
Date of hearing: 26.8.2008.
Order
By this order I intend to dispose of CM.A. No. 4848/07, filed under Order VII, Rule 11, C.P.C, for rejection of the plaint.
The facts leading rise to the present application, in brief, are that the plaintiff filed suit for recovery of damages to the tune of Rs. 80,000,000 stating therein that he entered into an agreement with Defendant No. 1, who is a stock broker/agent/member in the Stock Exchange, for sale and purchase of shares and paid cash amounting to Rs. 403,000, Rs. 110,000, Rs. 10,000, Rs. 100,000 and Rs. 25,000 on various dates, mentioned in the plaint and further cash of Rs. 158,000 in December, 1987, for sale and purchase of shares of different companies and the defendant, though purchased the shares of the companies in 1986, but did not pay any profit or even the capital amount to him, which compelled the plaintiff to file suit for recovery, being Suit No. 409/1990 in the Court of Senior Civil Judge, Karachi, which litigation went up to the Honourable Supreme Court and finally the Honourable Supreme Court decided the lis on 25-11-2005. It is further stated in the plaint that the plaintiff because of such illegal, unwarranted and baseless attitude and conduct of the defendant, sustained mental and physical agony as well as financial loss, besides the division in his family and sustaining cancer by his wife because of such mental torture, as such the plaintiff filed suit for damages against Defendant No. 1, as stated above.
The notice of the suit has been served on the defendant, who filed written statement as well as the present application under Order VII Rule 11, C.P.C. for rejection of the plaint on the ground that the suit, as framed and filed, is not maintainable as the plaintiff has intentionally omitted the claim of damages in his earlier Suit No. 409/1990 (new No. 1757/1996), as such the suit is barred under Order II Rule 2, C.P.C. as well as the suit is also hit under Article 25 of the Limitation Act.
The plaintiff filed objections to the application, filed by Defendant No. 1, denying the assertions of the defendant that the suit as barred under Order II Rule 2, C.P.C. and under Article 25 of the Limitation Act, I, therefore, heard Mr. Muhammad Ayub Khan, learned counsel for the plaintiff, and Mr. Sajid Latif, learned counsel for the defendant.
Learned counsel for the defendant vehemently contended that the plaintiff omitted his claim of damages in the suit filed by him though the said claim was available at the time of filing of the suit, which was omitted by him intentionally and that the suit is bared under Article 25 of the Limitation Act, as such the suit is barred under Order VII Rule 11, C.P.C. In support of his contentions, he has relied upon the case . reported in PLD 1970 Karachi 770 and 2003 MLD 22.
Learned counsel for the plaintiff, while controverting the arguments advanced by learned counsel for Defendant No. 1, has vehemently contended that the present suit has been filed for recovery of damages against Defendant No. 1 because of mental and physical agony sustained by him because of illegal and unwarranted attitude and conduct of Defendant No. 1 and finally the plaintiff has succeeded before the Honourable Supreme Court, therefore, the suit has been based on the claim of damages, which the plaintiff sustained during the course of pendency of the litigation for a long period of two decades, as such the suit is not barred under Order II Rule 2, C.P.C. and that the suit is also not barred under Article 25 of the Limitation Act.
I have considered the arguments advanced on behalf of the parties and have gone through contents of the plaint as well as relevant law on the subject.
There could be no cavil to the proposition that the plaint could only be rejected, in case, if the plaint does not disclose cause of the action and the suit is barred by any law or the plaintiff failed to pay the requisite court-fees in spite of the direction of the Court and for the said purpose the Court has to look into the averments contained in the plaint. A perusal of the contents of the plaint shows that Defendant No. 1 had usurped the capital amount as well as the profit earned by the plaintiff through him, which resulted him in heavy financial loss and mental and physical agony to the plaintiff, which resulted in filing of the civil suit by the plaintiff in the year 1987, which finally was decided by the Honourable Supreme Court in Constitutional Petition No. 721/2003 on 28-11-2005, which took about two decades, as such the suit filed by the plaintiff is based on recovery of damages for fraudulent act of the defendant, loss of his business, profits, shock, humiliation, physical agony, distress, harassment, mental torture, disgrace, loss of expectation of life, loss of amenities of life, discontinuation of relationship between the family members, loss of valuable times, loss of health/energy and loss of reputation including honour and dignity, which cannot be calculated in terms of money and for the said losses the plaintiff has estimated his suit to the tune of Rs. 80,000,000. Admittedly, the suit been filed after the end of litigation in between the parties, as such it could not be said that the claim of the damages because of the litigation was available to the plaintiff at the time of filing of the main suit before the learned Senior Civil Judge, as such it could not be said that the plaintiff wilfully, intentionally and deliberately and relinquished the part of his claim because the present suit is the outcome of the final decision of the lis in between the parties. In my humble opinion the claim of damages as estimated by the plaintiff in Paras 7 and 11 of his plaint, were not available to him at the time of filing the main suit, as such the provisions of under Order II Rule 2, C.P.C. are not attracted to the circumstances of the present case.
The contention of the learned counsel for the defendant that the suit is barred under Article 25 of the Limitation Act is also not available to him for the reason that the limitation to file the suit for compensation for libels/slander is provided one year. In case if Article 25 of the Limitation Act is applied, then too the suit in any way could not be termed to be barred under Article 25 of the Limitation Act as the suit for damages has been filed by the plaintiff after the judgment of the Honourable Supreme Court on 28-11-2005 and the suit has been filed within one year from the date of passing the judgment by the Honourable Supreme Court on 21-11-2006, which is within one year from the date of decision by the Honourable Supreme Court, as such in my humble view the suit filed by the plaintiff, in any way is not barred under any Article of the Limitation Act. The case laws relied upon by the learned counsel for the plaintiff in my humble opinion are distinguishable from the circumstances of the present case and are inapplicable.
For all the aforesaid reasons I do not find any merit in the present application which is hereby dismissed. Cost to abide the final event.
R.A. Application dismissed.
PLJ 2008 Karachi 134
Present: Arshad Noor Khan, J.
GHULAM FAREED--Plaintiff
versus
SHAHID-UD-DIN TUGHALAQ--Defendant
Suit No. Nil and C.M.As. Nos.14 & 1371 of 2008, decided on 20.8.2008.
(i) Specific Relief Act, 1877 (I of 1877)--
----S. 12--Civil Procedure Code (V of 1908), S.16 & O.VII, R. 10--Suit of declaration and recovery of damages--Return of plaint--Jurisdiction--Determination--Territorial Jurisdiction of Trial Court was challenged by defendant on the ground that he was resident at the place where he was running his business and Contention of plaintiff--Validity--Agreement relied upon by plaintiff was with regard to terms and conditions of partnership between both the parties and subject matter of suit was property which was situated at place "T" and agreement was nothing but showing entitlement of partners regarding share in property in dispute--Property in dispute being situated at place "T", parties to the suit were residing at place "T" and were running their business for gain there, therefore, courts at place "T" had territorial jurisdiction to entertain and adjudicate upon the suit--Trial Court at place "K" declined to entertain the suit--High Court returned the plaint to plaintiff in view of S.16 C.P.C., for presentation before proper court--Plaint was returned.
[Pp. 137 & 138] A & B
Mr. Zaheer H. Minhas, Advocate for Plaintiff.
Raja Mir Muhammad, Advocate for Defendant.
Date of hearing: 20.8.2008.
Order
The Plaintiff filed suit for declaration, mandatory injunction, specific performance and recovery of damages against the defendant, stating therein that land, bearing Survey Nos. 255/1B, 255 1-A, 531, 532, 533, 535, 536, 537, 540, 329, 938, 255/2, admeasuring 16.2 acres and the property in land, bearing Survey Nos.429, 429/2, 422/2, 422/4, 428/1, 428/II-A, 428/2, 423/3 and 423/4, admeasuring 15 acres, situated in Deh Dando Adam, District Sanghar, was initially owned by Messrs Tanweer Textile Mills Ltd. The said company had availed the facility of finance and mortgaged the afore-stated property with Habib Bank Ltd, because of default, were put to an auction by the Court and one Khawaja Aamir Ishaque and Muhammad Nadeem jointly purchased the said property in auction proceedings before official assignee under the name and style of Bhittai Corporation. It is further stated in the plaint that subsequently both the partners, namely, Khawaja Aamir Ishaque and Muhammad Nadeem did not continue their partnership and separated their ways by distributing the properties of their business and executed a power-of-attorney in the name of the defendant, which was registered on 23-5-2005 before Sub-Registrar Tando Adam. It is further stated in the plaint that the plaintiff belongs to Tando Adam Town and he purchased the said property from the defendant. After one month of the execution of the agreement, the defendant approached the plaintiff and requested him to change the terms of the transaction instead of sale of property he suggested to become a partner of the property, to which the plaintiff agreed and another agreement was executed in between the parties, whereby by the price of the land was reduced to Rs. 2,50,00,000 from Rs. 4,50,00,000 and also the payment of new price was referred in construction of the land. It was also agreed that the defendant will obtain all the necessary permissions to convert the land into commercial and the share of profit was agreed to be 60% and 40% respectively. In pursuance of the second agreement, the plaintiff was put into possession of the property and had also applied for registered sub-power-of-attorney of original documents including registered sale-deed and original power-of-attorney of the defendant, were handed over to the plaintiff. It is further stated in the plaint that in pursuance of the aforesaid agreement the plaintiff spent huge amount on removing the encroachment. The plaintiff smells that the defendant has changed his attitude and behaviour and has become dishonest and has executed sale-deed in his favour through Official Assignee in respect of land, Bearing Nos.429, 429/2, 422/2, 422/4, 428/1, 428/II-A, 428/2, 423/3 and 423/4, admeasuring 15 acres. It is reiterated by the plaintiff that the defendant became dishonest and is trying to deprive the plaintiff from the fruit of the property ripped only through the efforts made by the plaintiff. The plaintiff has, therefore, filed the present suit, as stated above. The office has raised the following objections about the maintainability of the suit:
(i) It appears that the defendant is a agent/attorney of the principals/owners of Messrs Bhittai Corporation through its Directors Khawaja Ajmir Ishaq son of Khawaja Muhammad Razzak and Malik Muhammad Ismail son of Malik Muhammad Subhan in respect of suit-land which is situated at Tando Adam District Sanghar and the plaintiff has not joined the above noted owners in the suit proceedings and the suit is hit under Sections 230 and 231 of the Contract Act.
(ii) It appears that the suit-land is situated at Tando Adam District Sanghar and the alleged agreement as annexure P/3 at pages 43 to 44 was executed at Tando Adam District Sanghar and the suit is to be filed before the Court of Senior Civil Judge Tando Adam, District Sanghar and the instant suit is for specific performance of contract and other consequences relief(s) having pecuniary and territorial jurisdiction and the suit-land is also situated at Tando Adam, District Sanghar."
Learned counsel for the plaintiff has not filed any reply in writing to the objection raised by the office and has directly argued the matter.
I have heard Mr. Zaheer H. Minhas, learned counsel for the plaintiff, and Mr. Raja Mir Muhammad, learned counsel for the defendant, and have gone through the file of the case.
Mr. Zaheer H. Minhas learned counsel for the plaintiff vehemently contended that the defendant is the agent/attorney of Messrs Bhittai Corporation, therefore, there was no necessity to implead Messrs Bhittai Corporation as defendant in the present case. He further contended that the suit is not barred under any provision of law as the agreement (Annexure P/6) was executed at Karachi, therefore, the suit filed at Karachi is maintainable, therefore, the objection may be overruled.
Mr. Raja Mir Muhammad, learned counsel for the defendant, supported the objections raised by the office.
I have considered the arguments advanced on behalf of the plaintiff.
The contention of the learned counsel for the plaintiff that the agreement (Annexure P/6) was executed at Karachi, therefore, this Court has jurisdiction to proceed with the matter seems to be devoid of any force. Admittedly, the plaintiff has filed the suit for specific performance regarding the property which admittedly is situated at Tando Adam. In paragraph 2 of the plaint, the plaintiff has well worded that he belongs to Tando Adam Town, where the suit property is located and deals in development, sale and purchase of the property, therefore, the defendant approached to the plaintiff and offered him to purchase the said two properties for the purpose of launching a housing project on the property as the property is located in the heart of Tando Adam Town. The said admission of the plaintiff shows that he is residing at Tando Adam and the property involved in the present suit is also situated within the territorial jurisdiction of Tando Adam. The plaintiff has filed the Sale Agreement (Annexure P/3), which also shows that the said agreement was executed at Tando Adam, District Sanghar. The plaintiff has also filed photocopy of sale-deed executed in between Mr. Bashir Ahmed Memon and Mr. Khawaja Aamir Ishaque son of Khawaja Muhammad Razzaque and Malik Muhammad Ismail son of Malik Muhammad Subhan, being the purchasers of the property in question through Official Assignee and the said sale-deed (Annexure P/l) was also registered before the sub-Registrar at Tando Adam. The general power-of-attorney (Annexure P/2), executed by Messrs Bhittai Corporation in favour of the defendant, was also registered before the sub-Registrar, Tando Adam. The sub-general power-of-attorney-(Annexure P/7), produced with the plaint, also shows that it was also registered before the Sub-Registrar, Tando Adam. All the said material, produced by the plaintiff along with the plaint, shows that all these documents were registered at Tando Adam and the property involved in the present case is also admittedly situated at Tando Adam. A perusal of Sale Agreement (Annexure P/3) also shows that the plaintiff and defendant are residents of Tando Adam. There is, therefore, sufficient evidence available on record to show that the parties are residing at Tando Adam and the property in dispute is also situated at Tando Adam, as such the suit ought to have been filed in Court situated at Tando Adam in view of Section 16, C.P.C. Learned counsel for the plaintiff vehemently contended that agreement (Annexure P/6) was executed at Karachi in between the parties, therefore, this Court has jurisdiction to proceed with the matter, but the fact remains that the agreement (Annexure P/6) is with regard to the terms and conditions of partnership in between the plaintiff and the defendant and the subject matter of this suit is the property which is situated at Tando Adam and Agreement Annexure P/6 is nothing but showing the entitlement of the partners regarding share in the property in dispute and agreement regarding share over the property which is situated at Tando Adam does not confer any power on the plaintiff to present and institute the suit at Karachi, especially when the residential address of both the parties is again mentioned in Agreement Annexure P/6 as that of Tando Adam. Since the property in dispute is situated at Tando Adam, the parties to the suit are residing at Tando Adam and are running their business for gain at Tando Adam, therefore, the Court situated at Tando Adam has territorial jurisdiction to entertain and adjudicate upon the suit. This Court, therefore, cannot entertain the suit, cause of action of which has been wholly accrued at Tando Adam and the parties are residing and running their business at Tando Adam. The office objection No. (ii) is, therefore, upheld and the plaint is, therefore, returned to the plaintiff for proper presentation before the proper Court in view of Section 16, C.P.C.
(R.A.) Plaint returned.
PLJ 2008 Karachi 138
Present: Arshad Noor Khan, J.
PAK AMERICAN COMMERCIAL (PVT.) LTD. through Director--Plaintiff
versus
HUMAYOUN LATIF and 7 others--Defendants
Suit No. 981 of 2002, C.M.A. No. 6871 of 2005, 6923, 7251, 7569 of 2002, 4825 of 2003 & 7230 of 2006, decided on 25.8.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 11--Specific Relief Act, (I of 1877), S. 42--Rejection of plaint--Declaration of title--Limitation--Plaintiff was tenant of defendants and consequently sought possession of suit property--Validity--Director of plaintiff company was in knowledge about execution of transfer of tenancy rights by his father in favour of his brother--Suit was filed belatedly after about five years of registration of transfer deed in favour of his brother and no explanation had been put forward by plaintiff seeking such declaration after inordinate delay--No privity of contract existed between parties, therefore, plaintiff possessed no legal character to maintain suit against defendants--Suit filed by plaintiff was not maintainable in law--Plaint was rejected.
[Pp. 140, 147 & 148] A, B & D
2001 SCMR 1140; 1986 CLC 1378; 1985 CLC 261; 1968 SCMR 734; 1986 SCMR 1638; 1991 CLC 1220; PLD 1967 Dacca 190; 1989 CLC 964; 1982 SCMR 1178; 1982 SCMR 1181; PLD 1971 SC 550; PLD 1997 Karachi 62; PLD 1991 Lahore 381; 2002 CLD 1665; 1980 CLC 1932; 1998 CLC 1767; 1987 CLC 367; 1994 CLC 2413; 2002 SCMR 338; 1981 SCMR 878; 2000 CLC 1633; 1989 CLC 15; 1994 MLD 207; 1993 MLD 2419; 1999 CLC 246; 1991 MLD 2295; 1994 MLD 126; 2001 MLD 1159; PLD 1970 BJ 5; 1970 SCMR 29; PLD 1970 Kar. 332; 1994 CLC 2004; PLD 1949 Lah. 100; 1991 CLC 149; AIR 1967 SC 1386; AIR 1926 Allah. 457; 1994 SCMR 2142; 1995 SCMR 96; PLD 1998 SC 1509; 2003 SCMR 1416; 1986 CLC 110 and 1985 SCMR 714 ref.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXIX, R.I--Suit for declaration, cancellation, damages and permanent injunction against defendants by corporation--Non-filing of resolution of Board of Directors--Effect--Plaint filed by or on behalf of plaintiff company, did not show that its director had filed any resolution passed by its Board of Directors authorizing him to sign, verify and present the plaint--Such plaint was without lawful authority as plaint had not been presented properly. [P. 148] C
PLD 1971 SC 550 rel.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Specific Relief Act, (I of 1877), S. 39--Limitation Act (IX of 1908), Art. 91--Rejection of plaint--Cancellation of registered document--Plaintiff sought cancellation of registered--Validity--Cancellation of document fell u/S. 39 of Specific Relief Act, and period to file suit for cancellation of such document was three years u/Art. 91 of Limitation Act, 1908, from the date when facts had become known to the plaintiff--Execution and registration of the document was within the knowledge of plaintiff and plaint filed on 27-9-2002 was filed after expiry of limitation period--Suit regarding cancellation of registered document executed on 31-10-1997 was barred u/Art. 91 of Limitation Act--Plaint was rejected. [P. 148] E
Mr. Muhammad Ismail Memon, Advocate for Plaintiff.
Raja Qasit Nawaz, Advocate for Defendant Nos. 1 and 8.
Mr. Farhan Abrar, Advocate for Defendant No. 7.
Date of hearing: 25.8.2008.
Order
By this common order, I intend to dispose of C.M.A. No. 6871/05 filed by the plaintiff under Order XXXIX, Rule 2(3), C.P.C. and CM.A. No. 6923/2002 filed by Defendant Nos. 1 and 8 under Order VII, Rule 11, C.P.C for rejection of plaint as the facts and the circumstances as well as law involved in both of these applications are identical.
The facts leading rise to file the aforesaid applications are that the plaintiff filed suit for declaration, cancellation, damages and permanent injunctions against the defendants stating therein that the plaintiff and Defendant No. 7 are real brothers inter se and plaintiff is running a private limited company under the name and style of Pak. American Commercial (Pvt.) Ltd incorporated under the Companies Act, 1984 and their registered office is situated at 1st floor, Hamid Chambers, Zaib-un-Nisa Street, Saddar, Karachi and Arshad R. Jaffri, plaintiff and Ahsan Raza Jaffri, Defendant No. 7 are the directors of the plaintiff company and all the directors of the company are real brothers and father of the directors of company namely Agha Mohsin Jaffri was also a director of the company. The father of the plaintiff obtained the aforesaid premises on rent from the father of Defendant Nos. 1 to 4 namely Latif Hamid. The rent agreement in between the father of the plaintiff and father of Defendant Nos. 1 to 4 was executed somewhere in 1967 and plaintiffs company is running the business of retail and wholesale of books and magazine, general, encyclopedias, computers, children Islamic basic management marketing reference books and other subjects since last about 34 years and they used to pay rent Rs. 4,785 per month and Rs. 4,730 as monthly maintenance charges to the Defendants Nos. 1 to 6. It is further stated in the plaint that electricity, telephone charges etc. were being paid by the plaintiff. The father of Defendants Nos. 1 to 4 died in the year 1990 and Defendant Nos. 1 to 6 being his legal heirs became the owner of the suit property, therefore tenancy agreement in between the directors of the plaintiff and Defendants Nos. 1 to 6 was executed. The Defendant Nos. 1 to 7 hatched out a conspiracy to usurp the share and pagree amount to the tune of Rs. 6,000,000 thereby depriving all the remaining directors of the plaintiff's company. On 27-8-2002 a director of the plaintiff's company namely Arshad R. Jaffri received telephonic call from their staff whereby informing him that Defendant No. 1 stormed in his office and threatened him to vacate the office forthwith. He therefore immediately rushed to the office where he found Defendant No. 1, as such he reported the matter to the police, but before arrival of the S.H.O. they de-camped from there. On 29-8-2002 plaintiff lodged a complaint against Defendant Nos. 1 and 7 at police station Artillery Maidan and on 30-8-2002 Defendant No. 1 along with his companions again visited the suit property and threatened the son of Arshad R. Jaffri and introduced a person, said to be Tanzanian Consulate General (Defendant No. 8) who allegedly is the brother-in-law of Defendant No. 1. Zulfiqar Jaffri son of Arshad R. Jaffri then informed him on telephone and upon calling police they fled away from there. The plaintiff, therefore, sent applications to the then Chief Executive, Governor of Sindh, A.S.P., S.S.P., Nazim, Naib Nazim, T.P.O. and S.H.O. Artillery Maindan, requesting therein to save them from highhandedness of the defendants. Subsequently the said director was informed that the property has been sealed by the police. The furniture, fixture, appliances, article and cash etc. worth Rs. 10 to 12 lacs were lying in the suit property at the time of seal. Subsequently, proceedings under Section 145, Cr.P.C. were initiated before the Judicial Magistrate-X, Karachi-South, which were contested by Arshad R. Jaffri and his son Zulfiqar A. Jaffri and defendants filed their respective objections/written statements in the Court of judicial Magistrate, who after holding inquiry decided the matter in favour of Defendant Nos. 1 and 8 vide order dated 27-9-2002. It is further stated in the plaint that Agha Mohsin Jaffri, father of Arshad R. Jaffri was served with a fake notice which does not bear his signature as a token of its receipt. He was paralyzed in the year 1991 as such someone impersonated as Agha Mohsin Jaffri and got registered undertaking dated 12-11-1997 by way of misrepresentation and fraud as because of wrecked condition of his father, he was unable to talk, sign or move. It is further alleged in the plaint that the tenancy agreement dated 20-12-1997 was prepared falsely in back date and that intimation notice dated 21-8-2002 served by the defendant on Defendant No. 7 was collusive document and on 25-8-2002, the Defendant No. 7 showed his willingness to vacate the property on or before 31st August 2002. It is further stated in the plaint that Honorary Consulate of the United Republic of Tanzania addressed letter to Defendant No. 1 for the purpose of obtaining possession of the suit property. The plaintiff therefore filed the suit against the defendant, with the following prayers:
(a) To declare that the plaintiff is tenant of the Defendants Nos. 1 to 6 in respect office 1st floor, Hamid Chambers, Zaibunnisa Street, Sadder, Karachi.
(b) To declare that Notice dated 1-7-1990, Undertaking dated 17-11-1997, Tenancy Agreement dated 20-12-1997, Certificate dated 27-10-1998, Termination Notice dated 21.8.2002, its Reply dated 25-8-2002, Possession Letter dated 27-8-2002, Notice for Re-confirmation dated 29.8.2002, Tenancy Agreement dated 30-8-2002, complaints of Honorary Consulate of United Republic of Tanzania both dated 31-8-2002, Complaints dated 28-8-2002 and 31.8.2002, Police Letter/Reports dated 30-8-2002 and any other documents etc. are collusive, fabricated, forged, back dated, illegal, null and void. The same may kindly be ordered to be delivered up and adjudged void and cancelled.
(c) To declare that the action of the Defendants Nos. 1, 7 and 8 to seal the suit office and harass the plaintiff are null and void.
(d) To direct the Defendants Nos. 1, 7 and 8 to pay a sum of Rs. 60,00,000 as damages.
(e) Permanent Injunction restraining the defendants, their employees, agents, subordinates etc., and any body under them from renting out the suit office to the Defendant No. 8 and/ or any other person(s), firm, company etc., occupying the same or delivering the possession thereof as well as harassing, blackmailing and threatening the plaintiff and misappropriating, removing, destroying etc the articles lying in the suit office.
(f) To award costs against the Defendant No. 1,7 and 8.
(g) Such other and/or further relief which on the facts disclosed above and/or under the circumstances of the case, this Honourable Court may find the plaintiffs are entitled to and/or this Honourable Court may deem fit and proper to grant.
The defendants were served with the notice of the suit, who filed their written statements and denied the allegations contained in the plaint. The Defendant No. 7 in his written statement emphatically submitted that the plaintiff never remained as director and he was the tenant of the defendants in his independent capacity and that the tenancy agreement as well as registered undertaking were well within the knowledge of present alleged director of the company and the present suit has been filed, for ulterior motives.
The learned counsel for Defendant Nos. 1 and 8 filed application under Order VII, Rule 11 read with Section 151, C.P.C. for rejection of plaint, notice of which has been served on the plaintiff, who also filed counter-affidavit to this application. The plaintiff has also filed application under Order XXXIX, Rule 2(3), C.P.C. against the defendants, who have also filed their counter-affidavit and have denied the violation of any order passed by this Court.
I have heard Mr. Muhammad Ismail, Advocate for the plaintiff and Mr. Raja Qasit Nawaz, Advocate for Defendants Nos. 1 and 8 and Mr. Farhan Abrar, Advocate for Defendant No. 7.
The learned counsel for the plaintiff vehemently contended that the plaintiff through their directors are running a company and their brother Defendant No. 7 wrongly deprived off the plaintiff from their legitimate right by executing the document not warranted under the law. He further contended that the possession of the property in dispute was obtained from the plaintiff by using foul tactics and the business of the plaintiff company has been admitted by the Defendant No. 7 and the remaining directors of the company and cause of action arose to the plaintiff to file the suit and each of the allegations contained in the suit requires evidence and without recording the evidence of the parties no substantial justice could be done, as such the issue may be framed and the plaintiff may be allowed to lead his evidence and suit may be decided on merit. According to him Defendant No. 8 being the Consulate General of Tanzania, used his status and influence in getting the possession of the property in dispute in the proceedings under Section 145, Cr.P.C. which was also an illegal act of the defendants, which further requires evidence. The defendants have violated the order passed by the Court and just to avoid the consequence of the contempt committed by them, they have filed application of rejection of plaint, which is not maintainable.
Mr. Raja Qasit Nawaz, Advocate for Defendant Nos. 1 and 8, vehemently contended that the suit admittedly has been filed by the plaintiff being a private limited company and no resolution or the power of attorney has been filed along with the suit thereby empowering Mr. Arshad R. Jaffri to sign, verify and present the suit. According to him the plaintiff possess no legal character to file suit against them as there was no privity of contract in between the parties, as such the suit is hit under Section 42 of the Specific Relief Act. He further contended that Defendant No. 7 was the actual tenant of Defendant No. 1 who has surrendered the possession of the property in favour of the Defendants Nos. 1 to 6 and the plaintiffs have nothing to do with the act of the Defendant No. 7. According to him, the plaintiff illegally attempted to obtain the possession of the property which was vacated by Defendant No. 7, therefore the property was sealed by the police and after holding an enquiry under Section 145, Cr.P.C. possession was resorted by the Judicial Magistrate to the defendants. According to him the suit is hopelessly time-barred and that no useful purpose will be served to proceed further with the matter because the plaintiffs are strangers, who never remained in possession of the property in dispute as such the suit is liable to be rejected under order VII, Rule 11, C.P.C. He further contended that no specific instance of alleged violation of any order passed by this Court has been pointed out. In support of his contention, he has relied upon the case of Pakistan State Oil Company Ltd. Karachi v. Pirjee Muhammad Naqi reported in 2001 SCMR 1140; the case of Minochar N. Kharas v. Ali Hassan Manghi and others reported in 1986 CLC 1378; the case of Aijaz Hussain Bhatti v. Haji Bagh Ali and other reported in 1985 CLC 261; the case of Khawaja Muhammad Yaqub Khan v. Sh. Abdur Rahim and others reported in 1968 SCMR 734; the case of Muhammad Sarwar v. Muhammad Shafi reported in 1986 SCMR 1638; the case of Messrs Services Sales Corporation v. Abdul Karim reported in 1991 CLC 1220; the case of Burmah Eastern v. Burmah Eastern Employees' Union and others reported in PLD 1967 Dacca 190; the case of Mst. Sakina and others v. The Excise and Taxation Officer and others reported in 1989 CLC 964, the case of Dr. Faqir Muhammad v. Maj Amir Muhammad and others reported in 1982 SCMR 1178, the case of Muhammad Sharif v. The State, reported in 1982 SCMR 1181, Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd. reported in PLD 1971 SC 550, the case of Abdul Rahim and 2 others v. Messrs United Bank of Pakistan reported in PLD 1997 Karachi 62, the case of Government of Pakistan v. Premier Sugar Mills and others reported in PLD 1991 Lahore 381, the case of Messrs Taurus Securities Ltd. v. Arif Saigol and others reported in 2002 CLD 1665, Punjab Livestock Dairy and Poultry Development Board v. Sheikh Muhammad Younus reported in 1980 CLC 1932, the case of Friendship Textile Mills (Pvt.) Ltd v. Government of Balochistan reported in 1998 CLC 1767, the case of Abubakar Saley Mayet v. Abbot Laboratories and another reported in 1987 CLC 367, the case of Messrs Standard Hotels (Pvt.) Ltd. v. Messrs Rio Centre and others reported in 1994 CLC 2413, the case of S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan (Moin) reported in 2002 SCMR 338, the case of Muhammad Akhtar and others v. Abdul Hadi and others reported in 1981 SCMR 878, the case of Maj. (Retd.) Hamid Ali Khan v. Mian Muhammad Anwar reported in 2000 CLC 1633, the case of Mian Muhammad Akram and others v. Muhammad Rafi reported in 1989 CLC 15, the case of Muhammad Zaman v. Tariq Mahmood and 28 others reported in 1994 MLD 207, the case of Muhammad Yaqub and 63 others v. The Province of the Punjab reported in 1993 MLD 2419, the case of Abdul Zahir v. Mir Muhammad and 10 others reported in 1999 CLC 246, the case of Muhammad Yasin Khan and 4 others v. Azad Government of Jammu and Kashmir reported in 1991 MLD 2295, the case of Fazal Rahim v. Al-Wajid Town reported in 1994 MLD 126, the case of Ghous Bux v. Muhammad Suleman and others reported in 2001 MLD 1159, the case of Muhammad Amin and others v. Mian Muhammad reported in PLD 1970 BJ 5, the case of Chiragh Din and Another v. Chairman, Thai Development Authority reported in 1970 SCMR 29, the case of Oil and Gas Development Corporation v. Lt. Col. Shujauddin Ahmed reported in PLD 1970 Karachi 332, the case of Tahir Mahmood Rana v. The Development Corporation of Punjab, Lahore and 2 others reported in 1994 CLC 2004, the case of Karam Ali and others v. Raja and others reported in PLD 1949 Lahore 100, the case of Messrs Haydari Construction Co. Ltd. v. Bank of Credit and Commerce International Overseas, Ltd. and another reported in 1991 CLC 149, the case of Mulraj v. Murti Raghunathji Maharaj reported in AIR 1967 SC 1386, the case of Nand Kishore v. Shadi Ram and others, reported in AIR 1926 Allahabad 457, the case of Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan reported in 1994 SCMR 2142, the case of Syed Fakhar Mahmood Gillani v. Abdul Ghafoor reported in 1995 SCMR 96, the case of Sardara and 4 others v. Muhammad Khan reported in PLD 1998 SC 1509, the case of Wajid Ali Khan v. Sheikh Murtaza-Ali and 2 others reported in 2003 SCMR 1416, the case of M. Shafi v. The State reported in 1986 CLC 110 and the case of Pakistan Banking Council and 4 others v. Ali Maohtaram Naqvi and others, reported in 1985 SCMR 714.
Mr. Farhan Abrar, learned counsel for Defendant No. 7 has supported the arguments advanced by Mr. Raja Qasit Nawaz, Advocate for Defendant Nos. 1 and 8.
I have considered the arguments advanced on behalf of the parties and have gone through the contents of the plaint as well as material available on record.
Admittedly, as per contents of the plaint, Agha Mohsin Jaffri the father of Arshad R. Jaffri and Ahsan Raza Jaffri, Defendant No. 7 obtained the property in dispute from the father of Defendants Nos. 1 to 6 on rent and he was running his business with the assistance of Defendant No. 7 which continued till October 1997 when because of the wrecked condition surrendered the tenancy in favour of this son Ahsan Raza Jaffri and such undertaking/N.O.C. of transfer of tenancy was registered on 31-10-2007 before the Sub-Registrar. A perusal of the said undertaking/N.O.C. filed with the plaint as well as with the counter-affidavit filed by Defendant No. 7 shows that two sons of deceased Agha Mohsin Jaffri namely; Abbas Jafferi and Syed Hassan Raza Jaffri had singed it as witnesses and, in case, if the plaintiff company was being run and all the sons of Agha Mohsin Jaffri were directors of the company, Abbas Jaffri and Syed Hassan Raza Jaffri, who were the signatory of registered undertaking/N.O.C. had to raise objection regarding transfer of tenancy in favour of Ahsan Raza Jaffri. The non-raising of any objection by the two sons of Agha Mohsin Jaffri at the time of registration of document regarding transfer of tenancy in favour of Ahsan Raza Jaffri, speaks volume about joint running of business as directors by all the sons of Agha Mohsin Jaffri, even both the remaining alleged directors namely Abbas Jaffri and Syed Hassan Raza Jaffri have neither signed the plaint nor have sworn any affidavit to that effect which shows that their brother Arshad R. Jafferi has taken misconceived steps in maintaining the present suit. Admittedly after registration of transfer of tenancy deed, the tenancy agreement has been executed in between Defendants Nos. 1 to 6 and Defendant No. 7 on 20.12.1997, which fact has also not disputed by the plaintiff nor raised any objection to the execution of the tenancy agreement in favour of Defendant No. 7 by the Defendants Nos. 1 to 6, in spite of their knowledge which also adversely reflect on the claim of the plaintiffs company. As per contents of the plaint the plaintiff was in knowledge of these facts but prior to filing of the present suit he never served any notice on defendants or on his brother to claim the tenancy in respect of the property in dispute which allegedly was wrongly transferred in favour of Defendant No. 7, even no evidence to show that the plaintiff company was being run by the directors who are brothers inter se so as to prove that the company was being run by the directors. Even the registration certificate of the company as required under Companies Act, 1984 has not been produced to show that the company was registered under Companies Act, 1984 nor the article of association as required under Companies Act 1984 have been prepared and produced in Court so as to arrive at a conclusion that the plaintiff company was being run lawfully under the Companies Act. In absence of such evidence of registration of the firm, the claim of the plaintiff seems to be not legal and proper.
The independent tenancy of Defendant No. 7 never remained disputed by the plaintiff as such relation of landlord and tenant remains in between Defendants Nos. 1 to 6 and Defendant No. 7 and Defendant No. 7 committed default in payment of rent therefore Defendant No. 1 served notice dated 21-8-2002 on him calling upon him to vacate the premises in dispute, which notice was responded by Defendant No. 7 vide his letter dated 25-8-2002 accepting therein the default committed by him and informed to the Defendant No. 1 that he was unable to continue his business because of financial implications and he will vacate the premises by 31st August 2002. In pursuance of said letter of Defendant No. 7 dated 25-8-2002 possession was handed over to defendant" No. 1 by Defendant No. 7 through receipt dated 31-8-2002 executed in presence of the witnesses. After obtaining possession from Defendant No. 7, the Defendant No. 1 let out the said premises to Consulate General of Republic of Tanzania vide tenancy agreement dated 30-8-2002. It is also an admitted position that the property in question was sealed by the police and proceedings under Section 145, Cr.P.C. were initiated before the Judicial Magistrate-X. Karachi-South wherein Arshad R. Jafferi and Defendant Nos. 1 and 8 contested the matter and in the inquiry conducted by Judicial Magistrate, it was proved that at the time of the seal of property the Defendant No. 8 was in possession, as such, vide order of the Magistrate, dated 29-9-2002 the property was ordered to be de-sealed and be handed over to Defendant No. 1. In pursuance of the order dated 27-9-2002 the possession of the property in question was handed over by Hasnain Raza, S-I.P. of P.S. Artillery Maidan to Defendant No. 1 vide mashirnama dated 28-9-2002. The order passed by the Magistrate dated 27-9-2002 was not challenged by the plaintiff before the competent Court, which shows that evidence recorded by the Magistrate was admitted by the plaintiff, which without any iota of doubt shows that the plaintiff's director Arshad R. Jaffri never remained in possession of the demised premises, even the remaining alleged directors of the plaintiffs company did not contest the proceedings under Section 145, Cr.P.C. which also shows that they were not interested to support the claim of Arshad R. Jafferi, being director of the plaintiffs company regarding his possession over the property in question.
All the contents of the plaint and the evidence available on record, therefore show that at no point of time, Arshad R. Jaffri being director of the company remained in possession over the shop in question.
The plaintiff in prayer clause (a) have sought the declaration to the effect of their tenancy with Defendant Nos. 1 to 6, but fact remains that the plaintiff were in knowledge about the execution of transfer of tenancy rights by his father in favour of Defendant No. 7, and the present suit has been filed belatedly after about five years of registration of transfer deed in favour of Defendant No. 7 and no explanation has been put forward by the plaintiff for seeking such declaration after inordinate delay, as such there exists no privity of contract in between
B
the parties, therefore, the plaintiff possesses no legal character to maintain the suit against Defendant Nos. 1 to 6.
The plaintiff admittedly has also not filed any resolution passed by the board of directors thereby authorizing him to sign, verify and present the plaint and the plaint shows that Arshad R. Jaffri has filed the plaint without any lawful authority as such the plaint has not been presented properly. In case, if any authority is needed, reference may be had to the case reported in PLD 1971 SC 550 wherein Honourable Supreme Court was pleased to observe that non-filing of resolution by the board of directors thereby authorizing any director or person of the firm to file the suit, was not proper presentation of the suit.
The plaintiff has also sought cancellation of registered instrument namely: undertaking/transfer of tenancy rights in favour of Defendant No. 7 vide registered deed dated 31-10-1997 which falls under Section 39 of the Specific Relief Act and the period to file the suit for cancellation of such document is provided as three years under Article 91 of the Limitation Act from the date when the facts become known to him. The plaintiff in his plaint has admitted the execution of undertaking by deceased Agha Mohsin Jaffri. In view of Para. 23 of the plaint, it is, therefore, evident that plaintiff Arshad R. Jaffri was very much within his knowledge about execution and registration of undertaking/transfer of tenancy rights in favour of Defendant No. 7 and the present suit has been presented on 27-9-2002 which shows that the suit has been filed much after the expiry of limitation period, as such, the suit regarding cancellation of registered document executed on 31-10-1997 is barred under Article 91 of the Limitation Act. The said prayer, therefore, could not be granted finally.
The learned counsel for the plaintiff has also not pointed out any violation of the order passed by this Court so as to take any action against the defendants nor has seriously argued his application under Order XXXIX, Rule 2(3), C.P.C. as such the application filed by him seems to be for ulterior motives.
The case law relied upon by the learned counsel for the defendants supports the case of the defendants. CM.A. No. 6871/05 therefore merits no consideration and is hereby dismissed.
In view of aforesaid discussion, I am of the opinion that the suit filed by the plaintiff's firm is not maintainable in law, as such, the application is allowed and plaint is rejected under Order VII, Rule 11, C.P.C. with no order as to cost. All the remaining applications listed with these applications are also dismissed in view of observation made above.
(R.A.) Plaint rejected.
PLJ 2008 Karachi 149 (DB)
Present: Azizullah M. Memon Actg. C.J. and Khalid Ali Z. Qazi, J
Syed TARIQ PERVEZ through Legal Heirs--Appellants
versus
TRADING CORPORATION OF PAKISTAN (PVT.) LTD.--Respondent
H.C.A. No. 206 of 2006 and C.M.A. No. 757 of 2008, decided on 21.5.2008.
Limitation Act, 1908 (IX of 1908)--
----Civil Procedure Code, (V of 1908), O. XXII, R. 4--Time--barred application--Legal representatives of the deceased defendant be impleaded as defendants with an application u/S. 5, Limitation Act, 1908, for condonation of delay--Held: No doubt in each and every relevant case a party seeking condonation of the delay in pursuing the proceedings of a case has to satisfactorily explain delay of each and every day occurring against his pursuing of such proceedings. Yet, that wherever a prejudice is likely to cause to a party who is not afforded due opportunity to defend himself in the facts and circumstances of a peculiar case--Further held: Wherever the same essentially demands that the technicalities should not be allowed to serve as a obstacle in doing the full and complete/substantial justice, delay in pursuing the proceedings alone would not defeat the rights of such a party in such a case. [Pp. 151 & 152] A
Civil Procedure Code, 1908 (V of 1908)--
----O. XXII, R. 4--Limitation Act, 1908--S. 5--Time-barred application--Legal representatives of deceased be impleaded as defendants with an application for condonation of delay--In order to see that the defendants were afforded with due opportunity to defend themselves in the suit, wherein a claim worth Rs. 184,356,681/accounts thereto was involved, the delay in filing of the application u/O. XXII, R.4, C.P.C. was not to allow to defeat their rights to defend themselves--Held: High Court condoned the delay in filing of the applications u/O. XXII, R. 4, C.P.C, so that the complete and full justice may be provided to the party who is ultimately found to deserve the same.
[P. 152] B & C
PLD 1989 SC 755; 1991 SCMR 1765; 2003 SCMR 318 and
PLD 1963 SC 382 ref.
Agha Zafar Ahmed, Advocate for Appellants.
Mr. Safdar A. Syed, Advocate for Respondent.
Mr. Rizwan Ahmed Siddiqui, learned D.A.G. as Amicus curiae.
Date of hearing: 21.5.2008.
Order
Heard the learned counsel appearing for the parties. Respondent filed Suit No. 558/1997 in this Court wherein the predecessor-in-interest of the appellants was cited as a defendant. The said defendant expired on 10-7-2001, during pendency of the said suit, whereafter his learned counsel moved an application bearing CM.A. No. 685 of 2004, under Order XXII, Rule 4, C.P.C, on 9-2-2004, with a prayer that legal representatives of the said defendant be impleaded as defendants; such an application was accompanied with CM.A. No. 3873 of 2004 praying therein to condone the delay in filing of the said application under Order XXII, Rule 4, C.P.C.
A learned single Judge heard both the applications and vide order dated 13-3-2006 dismissed the same. The relevant observations, as recorded in the said order, read as under:--
"As to the reasons contained in the application for condonation of delay, learned counsel for the plaintiff Mr. Mamnoon Hassan Advocate has stated that no reasonable ground has been shown. He relied upon Messrs Ahan Saz Contractors v. Pak Chromical Limited (1999 MLD 1781). In the said case it was held that party seeking condonation of delay in filing suit or application was required to explain satisfactorily the delay of each and every day. In the present case the application was moved on 9-2-2004 whereas death took place on 10-7-2001 i.e. after an inordinate delay of about 29 months whereas Article 177 of the Limitation Act provides a period of only 90 days for moving such application. The only reason disclosed for seeking condonation of delay is unawareness of the pendency of this suit, which is not a plausible reason. Ignorance of the pendency of suit cannot be made ground for condonation of delay. It may be so that the legal heirs were not aware of the pendency of the suit but the law has made it mandatory for a party to a suit to file a list of his or her presumptive legal heirs so that in the event of death of a party, the Court can on its own motion send notice to the legal heirs at the address mentioned in the list. This would have taken care of situation where the legal heirs were not aware of the proceedings. Having not complied with the requirements of law, the legal heirs have to suffer the consequences provided under the law for the omission committed by their predecessor. Had there been a list of legal heirs filed with the written statement. I would have still condoned the delay in moving the application, as the names of the legal heirs in any case were already on the case file. In such a situation it would have been just a mere formality to make them a party. This being not the case in the present case, the facts of the case reported in 1992 MLD 490 referred by learned counsel for the plaintiff are fully attracted to the present case and there is no other alternative left with this Court but to dismiss the listed applications.
In view of the above legal position, legal heirs of the deceased are debarred from participating in the proceedings. Suit is to proceed against the dead defendant and any judgment that may be pronounced in the present case shall have the same force and effect as if it has been pronounced during lifetime of the deceased. As there is no other defendant to this suit, office is directed to fix the case for final disposal. The plaintiff is directed to file affidavit in ex parte proof before the next date of hearing. Both the listed applications are dismissed. However, there shall be no order as to costs."
Hence the legal representatives of the said deceased defendant have filed present High Court Appeal against the said order with a prayer to set aside the same and they may be afforded due opportunity to defend themselves in the above stated suit by impleading them as defendants therein.
Learned counsel for the respondent has cited a number of precedents and has argued that the dictum laid down by the Hon'ble Supreme Court of Pakistan is to the effect that where a defendant of a suit expires during pendency of a suit and the concerned party fails to apply for impleading of his legal heirs as defendants within time limit of 90 days, and on expiry of such time limit if such a party fails to satisfactorily explain the delay so occurring in filing of such an application then he shall not be allowed to be impleaded as a defendant therein. Learned counsel has further argued that the appellants filed the applications after a very very long delay and no satisfactory explanation was put forward by them for such a long delay and that by stating that they were unaware of pendency of the said suit during lifetime of their (deceased) predecessor-in-interest and also after his death, would not suffice to say that satisfactory explanation has come on the record of the suit so as to condone such a long delay of two years and eight months.
No doubt, it is a settled principle of law that in each and every relevant case a party seeking condonation of the delay in pursuing the proceedings of a case has to satisfactorily explain delay of each and every day occurring against his pursuing of such proceedings. Yet, it is also a settled principle of law that wherever a prejudice is likely to cause to a party who is not afforded due opportunity to defend himself in the facts and circumstances of a peculiar case, and further that wherever the same essentially demand that the technicalities should not be allowed to serve as a obstacle in doing the full and complete/substantial justice, delay in pursuing the proceedings alone would not defeat the rights of such a party in such a case.
The reliance has been placed on Muhammad Sadiq v. Muhammad Sakhi PLD 1989 SC 755, WAPDA v. Muhammad Khalid 1991 SCMR 1765, Mst. Arshan Bi and another v. Maula Bakhsh and others 2003 SCMR 318 and Imtiaz Ahmed v. Ghulam Ali and others PLD 1963 SC 382 by learned counsel for the appellants.
In order to see that the appellants are afforded with due opportunity to defend themselves in the present suit, wherein a claim worth Rs. 184,356,681/accounts thereto is involved, the delay in filing of the above stated application is not to allow to defeat their rights to defend themselves.
We feel inclined to condone the delay in filing of the above stated applications under Order XXII, Rule 4, C.P.C., with a view that the complete and full justice may be provided to the party who is ultimately found to have the same.
Under the circumstances, this High Court Appeal is hereby allowed. Impugned order passed by learned Single Judge is set aside resulting both the applications viz. one under Order XXII, Rule 4, C.P.C. and the other under Section 5 of the Limitation Act are allowed, the order/judgment/decree which may have been passed by learned Single Judge in the above stated suit against the appellants stand set aside with directions to the plaintiff/respondent to file amended memo, of D plaint in the suit, impleading the appellants as defendants therein for further proceedings according to law. However, the appellants are hereby directed to pay cost amount of Rs. 50,000 (Rupees Fifty Thousand Only) to the plaintiff/respondent within a period of 90 days from this date.
(R.A.) Appeal allowed.
PLJ 2008 Karachi 153 (DB)
Present: Mrs. Qaiser Iqbal and Syed Mehmood Alam Rizvi, JJ.
SUI SOUTHERN GAS COMPANY LTD., KARACHI--Petitioner
versus
FEDERATION OF PAKISTAN through Ministry of Petroleum and Natural Resources, Government of Pakistan, Islamabad
and 2 others--Respondents
C.P. No. D-91 of 2006, C.M.A. No. 6017 of 2007 and C.M.A. No. 321 of 2006, decided on 21.4.2008.
Constitution of Pakistan, (1973)--
----Art. 199--Oil and Gas Regulatory Authority Ordinance, (XVII of 2002), Ss. 2(xxxii), 3 & 12--Constitutional petition--Demand of gas supply for Captive Power Plant--Refusal of Sui Southern Gas Company (SSGC) to accept such demand of applicant--Dismissal of appeal and review--Plea of SSGC was that applicant-hotel was not export--oriented industry; and that acceptance of its demand was violative of decision of Economic Coordination Committee of Federal Cabinet and Power Policies prohibiting supply of gas for power generation to Hotels lacking foreign investment of 500 million rupees or above--Validity--Applicant did not fulfil requirements for grant of gas connection for power generation--Power Policies announced by Government subsequent to rejection of applicant-hotel's demand by SSGC would not govern such matter--As no dispute existed regarding "regulated activity" as defined in S.2(xxxii) of Oil and Gas Regulatory Authority Ordinance, all proceedings before authority were irregular and without jurisdiction--High Court accepted constitutional petition with observations that applicant-hotel would be at liberty to make fresh application to Federal Government, which would decide same according to law and its policies. [P. 159] A
PLD 1961 SC 178 ref.
Mr. Asim Iqbal, Advocate for Petitioner.
Mr. Khalid Mehmood Siddiqui, Advocate for Respondent No. 2.
Mr. Rasheed A. Rizvi, Advocate for Respondent No. 3.
Date of hearing: 21.4.2008
Order
The petitioner Sui Southern Gas Co. Ltd., hereinafter referred to as (SSGC) has sought declaration that the Respondent No. 2 is not entitled to be provided gas connection for Captive Power Generation. The Respondent No. 3 is a private organization engaged in running Hotel Industry established a Hotel under the name and Style of Days INN claiming to be franchise from DAYS INN World Wide Inc. of United States of America. The Respondent No. 3 wrote a letter to the petitioners on 18-10-2003 reads as under:--
"This refers to our A/C No. 710101700 for the gas supply to our kitchen, due to frequent interruption in K.E.S.C. supply we plan to install Gais Fixed generating set for our standing arrangements. The said capacity 200 K.W. will be used during the K.E.S.C. interruption.
In view of our best relations we request your good-self to kindly allow us the facility at your earliest."
It is urged that the Respondent No. 3 changed his stand demanded connection for Gas of Captive Power Generation which was against the decision of Economic Coordination Committee of the Federal Cabinet and Power Policies/Priorities for the supply of gas to captive power units. The Respondent No. 3 entered into long correspondence with the petitioner, therefore, Respondent No. 3 filed a complaint before the Federal Ombudsman, preferred a Complaint No. 85 of 2004 before Respondent No. 2 Oil & Gas Regulatory Authority under Section 11 of the Oil and Gas Regulatory Authority Ordinance 1962 hereinafter referred to as the OGRA for the sake of brevity which was allowed vide order dated 31-3-2005, petitioner has resorted to file an Appeal bearing No. OGRA-6(A-2)(1)2005 which was dismissed. Its review was declined on 26-12-2005 therefore, the petitioner has approached this forum for redress.
Mr. Asim Iqbal pointed out that the supply of Gas to captive power units provisions of natural gas for operating stand by, gas generator was limited to certain conditions contained in letter dated 27th September, 2000, reads as under:--
(a) Each company may provide gas up to 10 MMCFD in a year for Captive Power Plants of Export Oriented Units on the recommendations of their respective Chamber of Commerce and Industry.
(b) --------------------
(c) --------------------
(d) --------------------
(e) If Captive Power Plant is not located on company's existing gas pipeline it would be considered on 100% cost recovery from the applicant.
To support the above version reliance is placed on Notification of Ministry of Pakistan, Ministry of Pertoleum and Natural Resources Department of Petroleum and Energy Resources of Director-General Gas Policy Wing dated 30th December, 2003 reads as under:-
"Islamabad the 30th December, 2003
The Managing Director, Sui Southern Gas Company Limited, St. 4/B, Block 14, Sir Shah Suleman Road, Gulshan-e-Iqbal, Karachi.
The Managing Director, Sui Northern Gas Pipeline Limited, 21 Kashmir Road, Lahore.
SUBJECT: ALLOCATION OF GAS FOR SELF-GENERATION OF POWER BY THE EXPORT-ORIENTED INDUSTRIES
I am directed to refer to the correspondence exchanged on the above subject and to convey the decision of the Government as follows:--
(I) The two gas companies may be allowed to clear the backlog of Captive Power Units having been thus far created due to restrictive allocation of 10 MMCFD gas per year.
(II) Thereafter, the previous allocation policy may continue with the following modifications:--
(a) The industries having sizeable foreign investment may also be included in this scheme to encourage foreign investment. Gas would be connected on the recommendations of BOI who would confirm the foreign investment.
(b) Gas supply to export-oriented companies having 70% export target of their production would be given gas on recommendations of EBP instead of Chamber of Commerce and Industries. In case the target is not met then the companies may disconnect the gas given for the purpose.
You are requested to ensure compliance of the above decision and kept this office informed. Also please submit a unified Press Release at the earliest to disseminate the decision in the public by this Ministry.
Yours faithfully, (Sd.)
(Mansoor Muzaffar Ali)
Deputy Director (Gas)"
It is further revealed from the minutes of the meeting held on 19th June, 2004 regarding the policy of ECC for Gas availability for new Power Projects, clause (vii) provides as under:--
"(vii) Gas to Captive Power projects would be supplied strictly in accordance with the ECC's decision to industrial units only and not to the Hotel, Shadi Halls, banks and others commercial organizations."
It is urged that the Respondent No. 3 was neither an Industry having sizable foreign investment not export-oriented company having 70% export target of their production, for such recommendation Export Promotion Bureau instead of Chamber of Commerce and Industries, was required to furnish requisite information. It is urged that the Respondent No. 3 had extended foreign exchange US$ 3.22 million whereas Avari Hotels Ltd., had extended Rs. 193 million as foreign exchange likely to be extended to Rs. 374 million by the end of the year and Rs. 676 million by next 3 years. It is urged that the quantum of foreign investment was quantified was Rs. 500 million.
The petitioner has resorted to file Appeal No. 3 of 2005 under Section 12(1) of the Oil & Gas Regulatory Authority Ordinance, 2002 challenged the decision on the basis of the Government of Pakistan Policy regarding supply of Gas to Captive Power Units however, the appeal was dismissed.
Mr. Rashid Ahmed Razvi learned counsel for Respondent No. 3 has contended that at the time of filing of the complaint by the Respondent No. 3 before the Respondent No. 2 the policy voke pertained to the existing policy referred to in accordance with the policy of Government prevalent prior to the amendment in policy before Ministry of Petroleum and Natural Resources Letter No. NG (II)-7(143) PS/04 dated January 29, 2005 whereas the foreign investment was quantified, whereas prior policy related to sizable investment. During this span the Hotel had entertained the status of investment earning foreign exchange, case of the Respondent No. 3 was recommended by Board of Investment which was mandatory requirement for obtaining a gas supply for Industries. It is next urged that the petitioner had provided gas for Captive Power Generation to National Bank of Pakistan, Muslim Commercial Bank Ltd., simultaneously PIA Training Centre Karachi, HEJ Research Institute of Chemistry Karachi and Dream World Resort Karachi. (2 banks and 3 non-export-oriented industries) thereby Respondent No. 3 has been discriminated despite of having status as that of Dream World Resort Karachi.
It is primarily contended by Mr. Rasheed Ahmed Razvi learned counsel for Respondent No. 3 that under the Ordinance XVII of 2002 in candid words refers to the expedient and foster competition, increase private investment and ownership in the midstream and downstream petroleum industry, protect the public interest while respecting individual rights and provide effective and efficient regulations and for matters connected and for matters connected therewith or incidental thereto.
Section 3 refers to the Establishment of the Regulatory Authority by the Federal Government which is commonly known as Oil & Gas Regulatory Authority, prescribes it constitution in connection with resolution of any dispute between Respondents Nos.2 & 3. Section 2 sub-section (16) pertains to a Member of the Authority, including the Chairman for resolution of a dispute relating to regulatory activities. It is next urged that the petitioner has availed all the remedies available under Section 12 sub-section (2) of Ordinance, 2002 as after the decision in Complaint No. 85 of 2004 the petitioner has approached the competent forum for redress, sub-section (2) of supra provides that relation to any decision concerning a regulated activity, the High Court may, if it is satisfied that no other adequate remedy is provided, on application of an aggrieved party, make an order:--
(a) directing the Authority to refrain from doing anything it is not permitted by law to do, or to do anything the Authority is required by law to do; or
(b) declaring that any act done or proceedings taken by the Authority has been done or taken without lawful authority and is of no legal effect.
Appeal filed by the petitioner was dismissed, the remedy was availed by way of filing Review under Section 13 of Ordinance, 2002 whereby the Authority may review, rescind, change, alter or vary any decision, or may re-hear an application before deciding it is the event of a change in circumstances or the discovery of evidence which, in the opinion of the Authority, could not have reasonably been discovered at the time of the decision or (in the case of a re-hearing) at the time of the original hearing if consideration of the change in the circumstances or the discovery of evidence which is in the opinion of the Authority could not have been reasonably discovered at the time of the decision which was declined.
It is urged that the petitioner has no authority to file petition, authority vests in Respondent No. 2 to challenge the impugned judgment of interpretation of beneficial consideration of the statute. With reference to the above contention reliance is placed on (1) District Magistrate, Lahore and (2) Commissioner, Lahore Division v. Syed Raza Kazim (PLD 1961 SC 178), Full Bench of the apex Court having regard to the limited scope of the powers vested in the High Courts and this Court by the Laws, (Continuance in Force) Order to issue the writs only of habeas corpus, mandamus prohibition, quo warranto and certiorari, we have to point out that the foundation for an application for a writ of mandamus (which alone is applicable in the present case as the function of the Licensing Authority is purely administrative) is that there must exist a legal right in the person seeking in writ to insist upon a clearly duty being performed by some public officer or authority in respect of that rightly. In the present case, this foundation does not exist, for, in our opinion, on a plain reading of the provisions of the Arms Act none has a right to possess or carry a gun. The legal right to do so is created only after the licence is granted. The grant of a licence amounts, in these circumstances, for all practical purposes to the conferment of a privilege. Hence the respondent cannot, in our opinion, maintain an application for a writ of mandamus in the absence of any such clear right in him to possess a revolver.
Referring to the above, it is urged that no legal right exists in favour of the petitioner to invoke provisions of Ordinance 2002, as available remedies were already exhausted. Adverting to the merits of the case complaint by Respondent No. 3 was lodged in the year 2003 on account of the policy of Government of Pakistan, the Licensing Authority was required to provide the connection to the Respondent No. 3 as the Hotel Industry was termed as "service industry" as was recommended by Chamber of Commerce and Industries, Government of Pakistan through circular dated 2nd August, 1999 No. 1-129/98-INV-IV the status of Tourism was changed to "Services" reproduced hereinbelow:-
"No. 1-129/98-INV-IV
Government of Pakistan
Ministry of Industries & Production
Islamabad, the dated 2nd August, 1999
CIRCULAR
Sub: Restoration of the status of Tourism as Industry
In pursuance of the Cabinet decision in Case No. 19/11/90, dated 4-6-1990, the Government of Pakistan declared tourism as an `Industry' and extended in all those benefits which were available to the industry. (In this connection this Ministry circular letter No. 6(146)/09-P, dated 30th July, 1990 refer).
Subsequently the Board of Investment announced investment policy in 1997 in which the status of tourism was changed to that of `Services'.
In pursuance of recent directive of the Prime Minister of Pakistan the status of (tourism as industry is hereby) re..........This will entitle the investors in Tourism projects to a ........... such facilities/concessions which are presently available to ............. industries in this country.
(Sd.)
(Muhammad Anwar Khan)
Chief Research Officer."
Director-General Board of Investment Karachi vide letter addressed to the Managing Director of the petitioner dated 5-4-2004 has appraised that Respondent No. 3 has invested US$ 3.122 million in the project of Messrs Days Inn Hotel, Karachi and has recommended for supply of Gas for operating the Standby generator, per policy on merits.
Learned counsel appearing for the Respondent No. 2 has supported the version of Respondent No. 3 regarding discrimination despite of having similar status as that of Dream World Resort Karachi, required to be treated at par as service Industry. Subsequent policy of Government of Pakistan cannot be retrospective in nature therefore, present policy will not come into operation while the case of the Respondent No. 3 was decided by the two competent forums on the question of applicability of the policy prevalent in the year 2003 as subsequent Government Policies were not attracted on the cut date when the Respondent No. 3 applied for availing facility.
We have heard the learned counsel for parties and examined the record and have considered the law and the policies of the Government on the subject. We are convinced that Respondent No. 3 did not fulfil the requirements for the grant of gas connection for power generation. The Respondent No. 3 applied for the gas connection on 18-10-2003 which was rejected by the petitioner vide letter dated 24-11-2003 in terms of Government Policy dated 27-9-2000. Thereafter, several other policies were formulated by the Government prohibiting the supply of gas for Power Generation, to Hotels, etc., or organization which lacked the foreign investment of 500 million rupees or above. The Respondent No. 3 claimed to be governed by policy dated 30-12-2003 and by subsequent policies but the first policy relied upon backlog matters only whereas application of Respondent No. 3 stood rejected on 24-11-2003 and was no longer a backlog matter. The other policies did not apply to the Respondent No. 3 as there was no application of Respondent No. 3 pending with the petitioner.
Mr. Rasheed A. Rizvi, Advocate argued that the petitioner discriminated the responded No. 3 as captive gas generation was allowed to others.
The argument is not tenable as gas connection has been provided to others after they have obtained specific permission from the Government having complied with requirements for the grant of such gas connections.
Regarding the jurisdiction of Respondent No. 2, we agree with the submission of Mr. Asim Iqbal, Advocate that since there was no dispute regarding "regulated activity" as defined in clause (xxxii) of Section 2 of the OGRA Ordinance, 2002 all proceedings before the Respondent No. 2 were irregular and without jurisdiction and of no effect and as such the petitioners have been entitled to file the instant petition.
In view of the above the petition is disposed of with no order as to costs. The Respondent No. 3 shall be at liberty to make a fresh application to the Respondent No. 1 who will decide the matter according to law and the Government Policies and if the permission is duly granted by Respondent No. 1, a concerned gas connection would be provided to Respondent No. 3.
(R.A) Order accordingly.
PLJ 2008 Lahore 1
Present: Muhammad Akhtar Shabbir, J.
MANZOOR AHMAD and another--Petitioners
versus
ELECTION TRIBUNAL FOR FAISALABAD AT GOJRA/ADDL. DISTT. & SESSIONS JUDGE, GOJRA, DISTT. TOBA TEK SINGH and 9 others--Respondents
W.P. No. 1308 of 2007, decided on 27.2.2007.
Punjab Local Government Ordinance, 2001 (XIII of 2001)—
----S. 152(1)(e)--Constitution of Pakistan, 1973, Art. 199--Candidate for the office of membership of local government--Academic qualifications not less than matriculate or secondary school certificate or equivalent--Disqualified to contest election--Elected candidate was not entitled to hold office--Due to lack of academic qualification--Election can be challenged on the basis of disqualification by filing election petition or writ of "quo-warranto" by a voter of the area.
[Pp. 3 & 4] A
Punjab Local Government Election Rules, 2000—
----R. 71(3)--Verification of documents annexed with election petition--Defect in verification of documents annexed with election petition would not render the same un-maintainable. [P. 4] B
PLD 1967 SC 486; 2004 SCMR 602 and 2006 CLC 718 ref.
Punjab Local Government Election Rules, 2000—
----Rr. 75, 76 & 77--Exercise of powers--Validity--Election tribunal has rightly exercised the jurisdiction granting relief to the election petitioner. [P. 6] C
Nomination Papers--
----Rejection of--Rejection of nomination papers of any of the joint candidates shall be rejection of nomination papers of both candidates because both the petitioners filed the joint nomination papers.
[P. 7] D
M/s. Azam Nazir Tarar and Hassan Nawaz Makhdoom, Advocates for Petitioners.
Mr. Nazir Ahmad Ghazi, Advocate for Respondents No. 2 to 9.
Date of hearing: 27.2.2007.
Order
The brief resume of the case is that the petitioners contested the election for the posts of Nazim and Naib Nazim of Union Council No. 156 Dhandra, Faisalabad against Respondents No. 2 & 3 and other candidates. The petitioners have been declared successful candidates by the Returning Officer of the Union Council No. 156 by securing 2489 votes and in this regard a notification has been issued.
The election petition was contested by the petitioners and from the factual controversy appearing on the pleadings of the parties the various issues were framed by the Election Tribunal. The Election Tribunal after recording the evidence of the parties vide judgment dated 08.02.2007 accepted the election petition, declared the election of the petitioners as illegal being ineligible to contest the election due to disqualification of Petitioner No. 2 whose matriculation certificate was found in genuine.
Learned counsel for the petitioners contended that no objection against the matriculation certificate of Petitioner No. 2 Muhammad Aslam was raised at the time of scrutiny of the nomination papers and the record of the concerned Board of Secondary Education to verify the matriculation certificate issued has not been summoned by the Election Tribunal. Further contended that the application of the petitioners filed under Order VII Rule 11 C.P.C. for rejection of the election petition due to non-verification of the documents has not been decided by the Election Tribunal before announcing the final Order on the election petition. Further contended that due to the disqualification of Petitioner No. 2, Petitioner No. 1 could not be non-suited as he qualifies to contest and hold the post of Nazim. He placed his reliance on the cases of Messrs Bashir Leather Int. (Pvt.) Limited and 2 others vs. Muslim Commercial Bank Limited through Manager (2006 CLD 132) and Gul Muhammad through Legal Heirs vs. Karachi Development Authority and another (1998 MLD 150). While on the other hand, learned counsel for the contesting Respondents No. 2 & 3 vehemently opposed the arguments of the learned counsel for the petitioners, supported the order of the Election Tribunal contending that raising of objection at the time of scrutiny of the nomination papers would not entitle Petitioner No. 2 to retain the office despite his disqualification in education. Further contended that the application of the petitioners filed under Order VII Rule 11 C.P.C. has also been attended by the Election Tribunal and non-verification of the documents annexed with the petition would not vitiate the proceedings before the Election Tribunal. Further contended that Petitioner No. 2 has not claimed his matriculation certificate as genuine in his reply to the election petition. He further contended that Petitioner No. 2 has not specifically denied the allegation of his bogus matriculation certificate. Further contended that the Election Tribunal is competent to declare the runner up candidates as successful if the fact of bogus matriculation certificate is already brought to the notice of the electorals of the area.
I have heard the learned counsel for the parties and perused the record with their kind assistance.
Section 152 of the Punjab Local Government Ordinance, 2001 provided qualification for candidates and elected members. Sub-section (1) (e) of Section 152 envisaged that a candidate for the office of membership of Local Government should have academic qualifications of not less than matriculation or secondary school certificate or equivalent from a recognized institution, for contesting the election of a Nazim or a Naib Nazim. This is one of the qualifications of the
A
candidates for the office of the Local Government and if any of the qualifications contemplated in Section 152 is lacking the candidate becomes disqualified to contest the election or to hold the office or membership of a local council. If the objection at the time of scrutiny of the nomination papers is not raised by the contesting candidates, it would not entitle the elected candidate to hold the office, if he is disqualified due to lacking of his academic qualification or matriculation examination from a recognized institution. The election of the elected candidate can be challenged on the basis of his disqualification by filing an election petition by the contesting candidate or by filing a writ of "co-warranto" by any electoral/voter of the area.
As to the arguments of the learned counsel for the petitioners that the election petition is not maintainable for non-verification of the documents annexed with the petition is concerned, this argument has no force. This question has already been decided by the Honourable Supreme Court in the case of S.M. Ayub vs. Syed Yusaf Shah (PLD 1967 SC 486) in which it was held that mere defect in verification of documents annexed with election petition would not render the same un-maintainable and same view was further affirmed by the Honourable Supreme Court in the case of Abdul Nasir vs. Election Tribunal T.T. Singh and others (2004 SCMR 602). Further followed in the case of Muhammad Zafarullah Khan and another vs. Ehsan Ullah Khan and 2 others (2006 CLC 718).
It would be relevant to mention here that on the application filed by the petitioners under Order VII Rule 11 C.P.C. Additional Issue No. 1-A has been framed which reads as under:-
"Whether the election petition is not maintainable in view of non-verification of the documents annexed with the election petition? OPR"
This issue was very much attended to by the Election Tribunal and while recording its findings observed that the respondents/petitioners have failed to prove this issue and the same has been decided against the present petitioners.
So far as the disqualification of Petitioner No. 2 Muhammad Aslam is concerned, the election petition was filed against the petitioners for the disqualification of one of the petitioners, candidate of Naib Nazim, challenging the matriculation certificate before the Election Tribunal and full opportunity was provided to them to establish their case. No evidence was produced by the petitioners on the record, which could prove that the matriculation certificate claimed by Petitioner No. 2 was a genuine one. Petitioner No. 2 is son of Muhammad Tufail and during the proceedings before the Election Tribunal, he placed on record photocopy of his matriculation certificate bearing Roll No. 24225, wherein paternity of one Muhammad Aslam is written as Shah Muhammad whereas, Petitioner No. 2 is admittedly the son of Muhammad Tufail. This factual position available on the record has not been rebutted by the petitioners. It was his legal duty to produce the original matriculation certificate issued in his name by the concerned institution. The onus to prove the genuineness of the matriculation certificate was legally upon Petitioner No. 2 who based his qualification to hold the post of Naib Nazim on the basis of the said certificate. Petitioner No. 2 miserably failed to prove that the matriculation certificate based upon, by him is a genuine document. Learned Election Tribunal after recording the evidence has rightly gave findings in favour of the election petitioners/Respondents No. 2 & 3 and against the present petitioners. Petitioner No. 2 was legally and validly declared disqualified to hold the post of Naib Nazim.
The Election Tribunal may upon the conclusion of the trial of the election petition would pass the following order as provided in Rule 75 of the Punjab Local Government Elections Rules, 2005,--
(a) dismissing the petition;
(b) declaring the election of the returned candidate to be void;
(c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or
(d) declaring the election as a whole to be avoid.
From the plain reading of the above rules it is manifestly cleared that the Election Tribunal is empowered and competent to declare any other contesting candidate to have been duly elected as in the present case. The application of the petitioners for summoning the record of the Board of Secondary Education, Sargodha has been rightly dismissed by the Election Tribunal being belated and mala fide, because it was not filed within three days following the date on which the parties were called upon to produce their evidence as envisaged in Rule 71 (1)(e).
In the election petition the election petitioners/Respondents No. 2 & 3 had prayed for declaring them to be elected candidates as Nazim and Naib Nazim of the constituency. Section 77 of the Rules, contemplated that the Election Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidates was entitled to be declared as elected. As the petitioners were not even qualified to file the nomination papers and to contest the election, so in exercise of the powers under
Rules, 75, 76 and 77 of the Punjab Local Government Elections Rules, 2005, the Election Tribunal has rightly exercised the jurisdiction granting relief to the election petitioners/Respondents No. 2 & 3. This argument is further supported by an unreported judgment passed in W.P. No. 1555/2007 titled as Shahid Aslam etc. vs. Election Tribunal etc. dated 21.02.2007.
As to the objection of the counsel for the petitioners that the disqualification of the petitioner Muhammad Aslam was not notorious the Doctrine of `throw away votes' would not be applicable to the present case. The objection was raised by the contesting Respondents No. 2 & 3 with regard to the disqualification of Petitioner No. 2 before the Returning Officer which was rejected on the ground that it was not raised within the stipulated period on 17.8.2005 and this news was splashed in the National Newspaper daily "Express" on 20.8.2005. The appeal was also filed by Respondents No. 2 & 3 before the District Returning Officer for rejection of the joint candidature of the petitioners but the said appeal was also dismissed being barred by time on 19.08.2005. Paragraph No. 3 of the election petition showing splashing of the news in the National Newspaper daily "Express" with regard to the disqualification of petitioner Muhammad Aslam has not been denied by the present petitioners so it is established that the electorals/voters of the area were having the knowledge of disqualification of Petitioner No. 2. This fact has also been admitted by RW-2 that the news of forged certificate of Muhammad Aslam Petitioner No. 2 was published newspaper "Daily Express".
In Main Ahmed
Saeed case reported as (2003 S.C.M.R. 1611) the Hon'ble Judges of the Supreme
Court of Pakistan in paragraph 30 have observed that the principle of notoriety cannot be invoked in a case in which the disqualification of a candidate was not notorious at the time of polling or escaped notice of the Returning Officer during the process of scrutiny of the nomination papers and the electors, despite being aware of such disqualification in the light of decision of acceptance of nomination papers of the candidate formed opinion that he was qualified to contest the election, were justified in exercising their right of vote in his favour. The essential requirement for the application of this rule is that disqualification must be established on record to be notorious through the positive evidence and it must be known to the electors or it must be of the nature which may give rise to the presumption of notoriety' but if the above elements are not satisfied, the electors cannot be said to havethrown away' their votes by casting votes in favour of a disqualified person and in such a case declaring the next candidate securing highest votes would amount to defranchise the electors for no fault on their part, but in the case in hand the disqualification of Petitioner No. 2
Muhammad Aslam was published in the newspaper as
Lah. Ahmad Din v. Mst. Fatima (Widow) PLJ (Maulvi Anwar-ul-Haq, J.)
2008 Ahmad Din v. Mst. Fatima (Widow) Lah. (Maulvi Anwar-ul-Haq, J.)
admitted by RW. 2 as well as petitioners in their reply to the election petition, thus, in this case the Election Tribunal has rightly declared the Respondents No. 2 & 3 as returned candidate. It has further been observed in Bashir Ahmed Bhanbhan's case reported as (PLD 2004 S.C. 570) wherein it has been stated that the notorious means the fact of being publicity or commonly or generally known forming a matter or common knowledge.
D
(M.S.A.) Petition dismissed.
PLJ 2008 Lahore 7
Present: Maulvi Anwar-ul-Haq, J.
AHMAD DIN and 38 others--Petitioners
versus
Mst. FATIMA (WIDOW) and others--Respondents
C.R. No. 2614 of 1996, heard on 17.4.2007.
Punjab Tenancy Act, 1887 (XVI of 1887)—
----Ss. 38 & 114(2)(c)--Punjab Tenancy (Amendment) Rules, 1953--Date of addition--Occupany tenancy--Extinguished of--Respondents have not deposited the Zar-e-Malkana--They have lost their rights and the land vests in petitioner--Period for depositing of Zar-e-Malkana--Amended from time to time--Thereafter, the Punjab Tenancy (Validation and Extension of Period for Payment of Compensation) Ordinance, 1967, was promulgated--Land came to vest in the said occupancy tenants by virtue of S. 114(2)(c) of the Act, 1887--Revision dismissed. [Pp. 8 & 9] A & B
1981 SCMR 569 ref.
Mr. Muhammad Jehangir Asif, Advocate for Petitioners.
Nemo for Respondents.
Date of hearing: 17.4.2007.
Judgment
This judgment shall decide C.R. No. 2614/96 to C.R. No. 2618/96 as common questions are involved and these matters were ordered to be heard together.
The petitioners in all these cases filed suits on 23.11.1970. In the similarly worded plaints, it was stated that the contesting respondents were occupying the suit land as " " and not as occupancy tenants. It was further stated that they had abandoned the said rights and the petitioners have taken over possession 30/40 years ago and are continuing in possession and earlier decisions in proceedings inter partes operate as the res-judicata. The grievance made out was that the said contesting defendants have got a mutation of conferment of ownership rights attested on 30.11.1961 in collusion with Revenue Officers and are trying to deposit the Zare-e-Malkana. They sought a declaration accordingly. The contesting defendants pleaded that they were occupancy tenants and after the extinguishments of the said tenancy have obtained ownership rights by depositing of Zar-e-Malkana and the mutation has been correctly attested. Issues were framed. Evidence of the parties was recorded in all these cases which is similar. The learned trial Court dismissed all the suits on 8.1.1987. First appeals filed by the petitioners were dismissed by learned ADJ, M.B. Din, on 30.9.1996.
Learned counsel for the petitioners contents with reference to copy of Fard Intikhab prepared for the year 1958-69 produced by the petitioners in all these cases that the said respondents are described as " " and not as occupying tenants i.e. " ". He also refers to the earlier judgments referred to in the plaint to urge that the suits filed by the respondents for possession of the land were dismissed. In the same breath, he contends that the said respondents had abandoned the tenancy within the meaning of Section 38 of the Punjab Tenancy Act, 1887 and were not entitled to the benefit under Section 114 thereof. No one has turned up for the respondents.
I have gone through the copies of the records, appended with all these cases, with the assistance of the learned counsel. To my mind, the very judgments being relied upon by the petitioners go to establish that the contesting respondents were occupancy tenants in the land. It was found as a fact by the learned trial Court as also the Appellate Court that they were occupancy tenants. However, the relief claimed by them i.e. the possession of the land was refused on the ground that since the
Lah. Rana Abdul Rasheed v. Iqbal Hussain PLJ (Mian Hamid Farooq, J.)
2008 Rana Abdul Rasheed v. Iqbal Hussain Lah. (Mian Hamid Farooq, J.)
occupancy tenancy has been extinguished by Section 114 of the Punjab Tenancy Act, 1887, w.e.f the date of addition of Section 114 by Punjab Act VII of 1953 and they have not deposited the Zar-e-Malkana as they were paying cash rent, they have lost their rights and the land vests in the petitioners.
It is a matter of record that Punjab Tenancy (Amendment) Rules, 1953, prescribing the period for deposit of Zare-e-Malkana to be two years from the date of amendment of the said Rules i.e. 16.3.1953 was amended from time to time so as to extent the period up to 30.6.1960. Thereafter, the Punjab Tenancy (Validation and Extension of Period for Payment of Compensation) Ordinance, 1969, was promulgated and the period was further extended upto 1.12.1977. There is no denial on record that the Zare-e-Malkana was deposited within the said extended period. This being so, the land came to vest in the said occupancy tenants by virtue of Section 114(2)(c) of the said Act, 1887.
So far as the contention regarding abandonment in terms of Section 38 of the said Act is concerned, learned counsel contends that since the said respondents left the village it shall be deemed that they have abandoned the tenancy. The contention is fallacious. It is not even the plea of the petitioners that they came to occupy the land because of the failure of the occupancy tenants for a whole year prior to their occupant of the land or that they got any mutation of extinction of tenancy attested in their favour. In somewhat similar circumstances in the case of Baz and others v. Yar Muhammad (1981 SCMR 569) their Lordships of the Hon'ble Supreme Court of Pakistan held that notwithstanding the fact that the landlords have been in possession for several years, a case of legal abandonment is not made out. All the five civil revisions are accordingly dismissed but without any orders as to costs.
(M.S.A.) Revision dismissed.
PLJ 2008 Lahore 9
Present: Mian Hamid Farooq, J.
Rana ABDUL RASHEED--Petitioner
versus
IQBAL HUSSAIN--Respondent
C.R. No. 908 of 2005, decided on 17.10.2007.
Administration of Justice--
----A party is not allowed to lead evidence in respect of a plea which was not taken in pleadings and even if evidence was led, the same could not be considered as evidence in case. [P. 13] D
Pleadings--
----Litigant has to first plead facts and pleas in the pleadings and then to prove facts/pleas through evidence. [P. 13] C
Jurisdiction--
----Court of competent jurisdiction cannot be interfered in revisional jurisdiction--Findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities--Petition was dismissed. [P. 14] E
Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 13(2) & (3)--Suit for possession through pre-emption--Talab-e-Muwathibat--Date of talab was mentioned but the place and time of performance of Talab-e-Muwathibat did not mention--Mandatory to mention in plaint--Petitioner had narrated the date of performance of "Talab-e-Muwathibat", but he did not mention the place and time of "Talab-e-Muwathibat" inasmuch as he did not state as to how the plaintiff came to know about the sale--It would be mandatory for a plaintiff to mention in plaint the date, place and time of performance of "Talab-e-Muwathibat"--Held: As the petitioner, admittedly, did not mention time and place of performance of Talb-i-Muwathibat in plaint--Petitioner's suit deserves to be dismissed on such short ground. [Pp. 12 & 13] A & B
Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 13(2) & (3)--Civil Procedure Code, (V of 1908), S. 115--Suit for possession through pre-emption--Petitioner has failed to prove mandatory talabs--Petitioner did not mention the time and place of performance of Talab-e-Muwathibat in plaint--Dismissed by Courts below--Civil revision--Appreciation of evidence--Jurisdiction--No illegality--Concurrent findings of facts were recorded by Courts below which are based on proper appreciation of evidence, oral and documentary, produced by parties before the trial Court--No case of misreading and non-reading of evidence has been made out, neither any legal infirmity has been pointed out by the counsel nor illegal exercise of jurisdiction nor failure of exercise of jurisdiction by Courts below has been attributed--Concurrent findings of facts, based on evidence, are not liable to be interfered in exercise of jurisdiction--Revision petition was dismissed. [P. 14] F & G
PLD 2007 SC 302; PLD 1964 SC 68; 1968 SCMR 804; PLD 1976 SC 469; PLD 1992 Peshawar 144; 1991 CLC 140; 1992 CLC 235; 1990 CLC 1200; PLJ 2000 Lahore 157; 2000 SCMR 346; 2000 SCMR 431; 2000 SCMR 1647; 2000 SCMR 314; 2000 SCMR 329; PLD 1994 SC 291 and PLD 2002 SC 293 ref.
Mr. Zafar Iqbal Chauhan, Advocate for Petitioner.
Nemo for Respondent.
Date of hearing: 17.10.2007.
Order
One Rana Nehmat Ali son of Chajoo exchanged land measuring 20 Kanals 12 Marlas (described in the plaint) with the respondent of his land measuring 4 Kanals through exchange deed registered on 20.8.1996. The petitioner, on 7.12.1996, filed the suit for possession through pre-emption in respect of the suit land, against the respondent, inter alia, pleading that, in fact, the respondent purchased the suit land for a total consideration of Rs. 75,000/- but with a view to defeat petitioner's superior right of pre-emption, the transaction was given colour of exchange; the petitioner came to know about the said transaction on 26.11.1996 through one Talib Hussain Shah and he in the same Majlis pronounced "Talab-e-Muwathibat" in presence of the witnesses; notice under registered cover attested by the witnesses was also sent to the respondent, which was not replied by him and he claimed his superior right of pre-emption being co-sharer in the same Khata and property of the petitioner is contiguous with the suit land. The respondent resisted the suit through written statement, raising preliminary objections, including the one that the transaction was an exchange and not a sale, controverting the contents of the plaint and asserting that the petitioner did not make the requisite Talabs as required under the law. The learned trial Court framed as many as 12 issues, recorded the evidence of the parties and in the ultimate analysis concluded that the petitioner has failed to prove mandatory Talabs, transaction was exchange instead of sale and thus proceeded to dismiss the suit with compensatory costs of Rs. 10,000/-, vide judgment and decree dated 30.7.2004. The petitioner, through challenged the said decree in the appeal but the learned Addl. District Judge maintained the findings of the learned trial Court and dismissed the appeal, vide impugned judgment and decree dated 7.3.2005, hence the present revision petition.
Learned counsel states that both the judgments are not sustainable in law. He, when confronted with the latest law on the subject laid down by the Hon'ble Supreme Court of Pakistan in the case reported as Mian Pir Muhammad and another vs. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302) injuxta-position with para 4 of the plaint, has stated that although the petitioner has not pleaded in the plaint, the time and place of performance of Talab-e-Muwathibat, yet, he has so the deposed in his statement, when he appeared as PW1.
I have heard the learned counsel and perused the available record. The petitioner in para 4 of the plaint, has simply stated that he came to know about the sale qua the suit land on 26.11.1996 through Talib Hussain Shah and in the same Majlis, he announced to exercise his right of pre-emption. A portion para-4 of the plaint is reproduced below:-
It is evident from the said reproduction of portion of para 4 of the plaint that the petitioner has narrated the date of performance of "Talab-e-Muwathibat", but he did not mention the place and time of performance of "Talab-e-Muwathibat" inasmuch as he did not state as to how the plaintiff came to know about the sale. It is now settled law that it would be mandatory for a plaintiff to mention in the plaint the date, place and time of performance of "Talab-e-Muwathibat". The Hon'ble Supreme Court of Pakistan in a case reported as Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302) has held that to give full effect to the provisions of Section 13(2) and (3) of Punjab Pre-emption Act, 1991, it would be mandatory to mention in plaint the date, place, and time of performance of "Talab-i-Muwathibat". Here it appears appropriate to reproduce a portion of para 4 of the judgment, which really clinches the matter and reads as follows:
"It is observed that grat emphasis and importance is to be given to this word in making of Talab-i-Muwathibat and it is necessary as soon as the pre-emptor acquired knowledge of the sale of pre-empted property he should make immediately demand for his desire and intention to assert his right of pre-emption without the slightest loss of time. According to the dispensation which has been reproduced hereinabove after performing Talab-i-Muwathibat, in terms of Section 13(2) of the Act, the pre-emptor has another legal obligation to perform i.e. making of Talab-i-Ishhad as soon as possible after making Talab-i-Muwathibat but not later than two weeks from the date of knowledge of performing Talb-i-Muwathibat, therefore, the question can conveniently be answered by holding that to give full effect to the provisions of sub-sections (2) and (3) of Section 13 of the Act, it would be mandatory to mention in the plaint date, place and time of performance of Talab-i-Muwathibat because from such date, the time provided by the statute, i.e. 14 days under sub-section (3) of Section 13 of the Act shall be calculated. Supposing that there is no mention of the date, place and time of Talb-i-Muwathibat then it would be very difficult to give effect fully to sub-section (3) of Section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully the pre-emptor may attempt to get a latitude by claiming any date of performance of Talab-i-Muwathibat in his statement in Court and then in the basis of the same would try to justify the delay if any, occurring in the performance of Talab-i-Ishhad. It is now a well-settled law that performance of both these Talabs successfully is sine qua non for getting a decree in a pre-emption suit.......
As the petitioner, admittedly, did not mention time and place of performance of Talb-i-Muwathibat in the plaint, therefore, in view of the latest law on the subject, as noted above, petitioner's suit deserves to be dismissed on this short ground.
B
C
D
In view whereof, if the petitioner has stated the time and place of performance of "Talab-e-Muwathibat" in his statement that could not in any way advance his case and he cannot succeed on this ground.
I have examined both the judgments and find that both the Courts, after adverting to the evidence on record, both oral as well as documentary, rightly came to the conclusion that the petitioner is not entitled for any relief. Although this Court, in exercise of its revisional jurisdiction, when the findings of facts are concurrent, is not required to re-appraise the evidence on record, yet in the interest of justice, I have examined the evidence on record and find that the findings rendered and conclusions arrived at by both the Courts are not only in accordance with the record of the case but also in consonance with the law on the subject. No misreading or non-reading has either been urged or pointed out by the learned counsel. I feel that both the Courts while deciding the matter did not commit any illegality or material irregularity, therefore, there is no justification to interfere in the impugned judgments in exercise of the revisional jurisdiction of this Court.
It is settled law that the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. Reliance is placed on Muhammad Rafique vs. Aamer Shahzad and others (PLJ 2000 Lahore 157).
The concurrent findings of facts were recorded by both the Courts below which are based on proper appreciation of evidence, oral and documentary, produced by the respective parties before the learned trial Court. No case of mis-reading and non-reading of evidence has been made out, neither any legal infirmity has been pointed out by the learned counsel even during the arguments, nor illegal exercise of jurisdiction nor failure of exercise of jurisdiction by both the Courts below has been attributed.
It is settled law that concurrent findings of facts, based on evidence, are not liable to be interfered in the exercise of jurisdiction under Section 115 C.P.C. Reliance is placed on Abdul Rahim and another vs. Mst. Janatay Bibi and others (2000 SCMR 346), Anwar Zaman and 5 others vs. Bahadur Sher and others (2000 SCMR 431), Aziz Ullah Khan and others v. Gul Muhammad Khan (2000 SCMR 1647), Altaf Hussain vs. Abdul Hameed and Abdul Majeed through legal heirs and another (2000 SCMR 314), Haji Noor Muhammad vs. Abdul Ghani and 2 others (2000 SCMR 329), Haji Muhammad Din vs. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rashid Ahmed vs. Muhammad Siddique (PLD 2002 SC 293).
Lah. Bashir Ahmad v. S.H.O. PLJ (Ijaz Ahmad Chaudhry, J.)
2008 Bashir Ahmad v. S.H.O. Lah. (Ijaz Ahmad Chaudhry, J.)
(N.F.) Petition dismissed.
PLJ 2008 Lahore 15
Present: Ijaz Ahmad Chaudhry, J.
BASHIR AHMAD--Petitioner
versus
SHO etc.--Respondents
W.P. No. 10503 of 2007, decided on 26.10.2007.
Constitution of Pakistan, 1973—
----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 22-A & 22-B--Justice of Peace--Registration of second F.I.R.--Validity--Application for registration of the case was dismissed--Constitutional petition--Registration of the second F.I.R. will complicate the matter which is not a proper approach--F.I.R. sought to be registered cannot be stopped as prima facie cognizable offence is made out from the perusal of the contents of the application and second F.I.R. can be registered. [P. 17] A
Criminal Procedure Code, 1898 (V of 1898)—
----S. 154--Preliminary inquiry cannot be conducted and SHO is bound to register the F.I.R. in a case of cognizable offence--Respondent is directed to record statement of the petitioner under S. 154 Cr.P.C. and proceed further in accordance with law--Held: Investigation of the case will be condcuted by Senior Police Officer who will try his best to bring on record the true picture of occurrence and ensure that no injustice is done to any party. [P. 17] B
NLR 1999 Cr.C. 98; PLD 1997 Kar. 199 & PLD 2007 SC 539 ref.
M/s. Ghulam Hussain Awan and Syed Gul Shad Hussain Shamsi and Ch. Abdul Rashid Kallis, Advocates for Petitioner.
Date of hearing: 26.10.2007.
Order
Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner seeks issuance of direction to Respondent No. 1 (SHO) for registration of case against Respondents No. 2 to 5 and challenges the order dated 18.2.2007, whereby the learned Justice of Peace has refused to issue direction for registration of the case on the ground that already FIR has been registered regarding the same occurrence and the petitioner can get his version recorded in the same FIR or may file a private complaint, but the second FIR will complicate the matter.
The brief facts of the case are that Muhammad Ansar son of petitioner had been married with Mst. Sidra on 30.8.2004 against the wishes of Respondent No. 2 (father of Sidra) and other family members. Respondent No. 2 got lodged a case against the son of the petitioner and other family members under Section 11 Offence of Zina (Enforcement of Hudood), Ordinance No. VII of 1979 with the allegation that she had been abducted by the son of the petitioner. Then Mst. Sidra Bibi had been residing in the house of the petitioner and on 19.06.2007 the private respondents abducted her forcibly on gun point and kept her in the house of Nabi Ahmad (Respondent No. 5) at Ferozwala, where she was murdered on 21.6.2007. However, case FIR No. 497-2007 was registered at Police Station Ferozwala, District Sheikhupura on 21.6.2007 under Section 302 PPC on the statement of Muhammad Arif (Respondent No. 2).
The learned counsel for the petitioner has contended that the petitioner had moved an application under Section 491-A Cr.P.C. before the learned Sessions Judge, Sialkot for the recovery of Mst. Sidra Bibi on 25.6.2007 and apprehension had been shown against the respondents for the murder of Mst. Sidra Bibi and the petitioner came to now about the murder of aforesaid Mst. Sidra Bibi when the repot was submitted in the Court on 26.6.2007 by the SHO that the alleged abductee was murdered; that after the abduction of Mst. Sidra Bibi, she was murdered by the private respondents, but in order to save their skin, the FIR was got recorded on a concocted story only against Nabi Ahmad, while showing her unmarried, whereas all the respondents accused were responsible for the same.
I have heard the arguments advanced by the learned counsel for the petitioner and gone through the impugned orders and other relevant documents attached with this writ petition.
Muhammad Ansar son of the petitioner claims to have contracted marriage with Mst. Sidra Bibi with her consent on 30.8.2004 against the wishes of Respondent No. 2 (father of Sidra) and other family members. Respondent No. 2 also got lodged case against the son of the petitioner and other family members under Section 11 Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979. The version of the petitioner is that Mst. Sidra Bibi had been residing in the house of the petitioner when on 19.6.2007 private respondents had abducted her forcibly on gun point and she was kept illegally in the house of Nabi Ahmed (Respondent No. 5) at Ferozwala. The petitioner moved an
Lah. Amer Bakht Azam v. Co-operative Model PLJ Town Society (1962) Ltd. (Syed Hamid Ali Shah, J.)
2008 Amer Bakht Azam v. Co-operative Model Lah. Town Society (1962) Ltd. (Syed Hamid Ali Shah, J.)
application under Section 491-A Cr.P.C. for the recovery of Mst. Sidra Bibi on 25.6.2007 before the learned Sessions Judge, Sialkot, who called for report from the concerned SHO. The SHO produced report on 26.6.2007 according to which the alleged abductee was murdered. The petitioner approached SHO (Respondent No. 1) for the registration of case against the private respondents for the murder of Mst. Sidra, but in vain. Thereafter, the petitioner moved an application under Section 22-A/22-B Cr.P.C. before the learned Justice of Peace for registration of case against the private respondents on 2.7.2007, who dismissed the same vide order dated 18.9.2007 only on the ground that registration of the second FIR will complicate the matter, which is not a proper approach. Keeping in view the peculiar facts and circumstances of the case, the FIR sought to be registered cannot be stopped as prima facie cognizance offence is made out from the perusal of the contents of the application and second FIR can be registered. Muhammad Anwar's case (NLR 1999 Criminal 98) and Ghanwa Bhutoo's case (PLD 1997 Kar. 119) are referred. As per law laid down by the Hon'ble Supreme Court in case "Muhammad Bashir vs. The State" (PLD 2007 S.C. 539), the preliminary inquiry cannot be conducted and the SHO is bound to register the FIR in a case of cognizable offence. Thus, Respondent No. 1 is directed to record the statement of the petitioner under Section 154 Cr.P.C. and proceed further in accordance with law. However, the investigation of the said case will be conducted by some Senior Police Officer, who will try his best to bring on record the true picture of the occurrence and ensure that no injustice is done to any party.
A
B
With the above direction, this writ petition is disposed of accordingly.
(R.A) Petition disposed of.
PLJ 2008 Lahore 17
Present: Syed Hamid Ali Shah, J.
AMER BAKHT AZAM and 3 others--Petitioners
versus
CO-OPERATIVE MODEL TOWN SOCIETY (1962) LTD., CLUB CHOWK, MODEL TOWN, LAHORE and 6 others--Respondents
W.P. No. 5245 of 2007, decided on 13.8.2007.
Punjab Private Site Development Scheme Model Town Society (Regulation) Rules, 2005--
----R. 14--LDA Act, 1975, Ss. 14, 38 & 46--Constitution of Pakistan, 1937, Art. 199--Constitutional petition--Conversion of land reserved for amenities to another purpose--Dispute of society and members--Amendment in master plan--Jurisdiction--Alternative remedy--Extra ordinary constitutional jurisdiction--Neither challenged in earlier petition nor in main petition--Order was passed by authority after calling objections from the public and members of society--Petitioners have submitted objections to the jurisdiction of Authority, which High Court have already held appropriate forum to resolve the controversy--Petitioners have not approached the forum of appeal, against the approval of conversion by authority--No appeal to challenge approval of agenda, has been filed--These actions can be challenged before High Court in its extra-ordinary Constitutional jurisdiction, when remedy is exhausted--Remedy of constitutional petition is available, when the remedy in the hierarchy of department, is exhausted--Petitioners have not challenged Rules, 2005 in main petition--Vires and validity of rules has been questioned in reply to application for vacation of injunctive order--Application was filed for impleadment of Government of Punjab, without resorting to seek amendment in main petition--Legality of Rules, cannot be assailed in ancillary/collateral proceedings--Further objections were filed without objecting to the validity and legality of rules--Petitions dismissed on question of maintainability, with pending application. [Pp. 28 & 29] B, C, D, E & F
Co-operative Societies Act, 1925 (VII of 1925)--
----Ss. 70-A & 54--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Dispute between society and members--Alternative remedy--Question of--Moving repetitive petitions on same subject--Not availed remedy--Dispute between the society and members, comes within the purview of S. 70-A of Co-operative Societies Act, 1925, which provides alternative remedy--Court refused to enter into such controversy and left the field open for the petitioners to invoke jurisdiction under Act, 1925--Petitioners have not availed the remedy under the Act, 1925, they cannot re-open this issue once again, by moving repetitive petitions on same subject--Additionally, matter is already pending before Registrar in a petition under provision of S. 54 of Co-operative Societies Act, 1925, on same subject--Petition dismissed. [P. 25] A
Mr. Bilal Hassan Minto, Advocate for Petitioner.
Mr. Wasim Sajjad, Advocate for Respondent No. 3.
M/s. Munir Ahmad Bhatti, Advocate and Ch. Imtiaz Elahi, Advocate for Respondent No. 1.
Mr. Iftikhar Ahmad Mian, Advocate for Respondent No. 2.
Date of hearing: 20.7.2007.
Judgment
This single judgment shall dispose of Writ Petitions Nos. 5245 and 4792 of 2007, as questions of fact and law involved in these petitions are common.
Backdrop of the controversy in its narrow compass is that Co-operative Model Town Society, through its management invited expression of interest, for a joint venture or on lease basis, for establishment of a project at the promises of society, for marketing fresh farm produce and other ancillary food items. The project comprises of land measuring 70 Kanals with proposed covered/constructed area of 100,000 Sq. ft and the provision of parking space, for 300 to 400 vehicles. Three companies responded to advertisement and submitted their proposals. Respondent No. 1, found proposal of Respondent No. 3 reasonable, resultantly put the proposal, before its general meeting, scheduled for 30.4.2006. General house approved lease of land to Respondent No. 3 for a period of 33 years at a rate of Rs. 3« lacs per Kanal per annum with annual increase @ 4%. The petitioners with one Naushaba Muddassar invoked extraordinary constitutional jurisdiction of this Court through W.P. No. 4006/2006, and assailed the expression of interest cited in local press and also the decision by general house in its meeting dated 30.4.2006. Writ Petition was held as premature and was disposed of vide order/judgment dated 14.11.2006 (announced on (1.12.2006) with certain observations. Respondents No. 1 and 2 through filing ICA No. 388 of 2006, challenged the order of learned Judge in Chamber, which met the fate of dismissal through order dated 27.12.2006. Respondents No. 1 and 2 subsequently moved to Respondent No. 7 (LDA) for approval of revised layout plan. Respondent No. 7 though a public notice cited in daily Nawa-i-Waqat in its print dated 2.2.2007, invited objections from public at large and also from the members of Respondent No. 1. The petitioners filed objections in response to public notice. The Authority (LDA), in its meeting dated 17.2.2007, acceded to the request of Respondent No. 1, approved the revised plan and conveyed the decision through letter dated 19.5.2007. Respondents No. 1 and 2 entered into lease agreement with Respondent No. 3 on 07.5.2007. The petitioners have now assailed the lease agreement as well as the approval of the plan, through this constitutional petition.
Learned counsel for the petitioners has drawn my attention to order dated 14.11.2007 passed in W.P. No. 4006/2006, whereby according to learned counsel, it was observed that the land designated as fruit garden in the master plan cannot be proposed for another use, without amending master plan; decision taken in meeting dated 30.4.2006 pertains to transfer of suit land but the decision is silent with regard to change in the master plan; commercialization envisages conversion of plot from "residential" to "commercial" but the bye-laws do not permit conversion of public amenity plot to commercial use; sanction of Town Municipal Administration is essential requirement for affecting change in master plan and that after amendment/approval/sanction the petitioners (herein) can always challenge such decision. Learned counsel after referring to above observations, has contended that Respondents No. 1 and 2 have leased out the plot without adhering to and complying with the observations of this Court. He added that the impugned act of the respondents is not only illegal but also amounts to contempt of Court. It was contended that the respondents; on the basis of agenda (Item No. 5) of the meeting dated 30.4.2006, wrongly claim that amendment in master plan was approved by general house. It was for that reason that respondents had not claimed before learned Single Judge in earlier petition that plan had already been amended. Further submitted that the amendment can only be affected, if it is approved by 2/3rd majority in a general meeting, while impugned approval is by a simple majority. Learned counsel has emphasized that bye-laws of the society nowhere provide for amendment in the master plan, absence of such provision is meaningful that existing plan is so accurate that it does not require amendment. Learned counsel added that sanction/approval for amendment, vests with Town Municipal Administration (TMA) and not with LDA (Respondent No. 7), as envisaged in Section 54-A(d) of Punjab Local Government Ordinance, 2001. Learned counsel submitted that Respondent No. 7 has approved the amendment in the master plan, under Punjab Private Site Development Scheme (Regulation) Rules, 2005. He went on to argue that Rules, 2005 are applicable to a new society, or the society which intends to develop a new scheme but these rules, do not apply to a developed society. Learned counsel has attacked the vires of Rules, 2005, on the grounds that Governor has no power or authority to frame rules and authority vests with Government. Further, the rules have not previously been notified. Cases of Khawaja Ahmad Hassan vs. Government of Punjab and others (PLD 2004 SC 694) and Haji Mushtaq Ahmad Khan and 2 others vs. Government of N.W.F.P. and 2 others (PLD 2000 Pesh. 73) are referred to contend that the rules, which have been framed without prior inviting these objections from the public, have no legal sanctity. Learned counsel contended that public amenity area/land, could not be converted into commercial use. Conversion of public amenity plot is an offence under LDA Laws. Learned counsel supported his contentions by referring to the cases of Moulvi Iqbal Haider vs. Capital Development Authority and others (PLD 2006 SC 394), Ardeshir Cowasjee and 10 others vs. Karachi Building Control Authority (KMC), Karachi and 4 others (1999 SCMR 2883) and Muhammad Yousaf and others v. Mst. Najma Bibi and others (PLD 2006 SC 512). While referring to the case of Ardeshir Cowasjee and 9 others vs. Karachi Development Authority through Director General and 3 others (2007 CLC 668), it was contended that even a school cannot be established at the premises, which are reserved for a public park. Learned counsel in response to the various objections of respondent, has contended that non-filing of appeal against the order of authority (LDA) and non-availment of the remedy before Registrar, (where similar issue is already pending) and refraining from agitating the matter under Environmental Protection Act, is due to the reason that various fora under different statutes though provide remedy to the petitioners but the same is not adequate as the same is not available at single forum. Additionally, the conversion of amenity plot for different use is infringement of fundamental rights of the petitioners. Cases of Shamsuddin vs. Ghulam Farid and others (1994 SCMR 2006) and Muhammad Yousaf and 15 others vs. Province of Punjab through Secretary, Local Government and 6 others (2003 CLC 576) were referred to contend that the impugned acts, which violate the fundamental rights of the petitioner, are amenable to challenge in extraordinary constitutional jurisdiction of this Court. Learned counsel has summed up his arguments by submitting that the order of learned Judge in Chamber passed in W.P. No. 4005/2006, whereby certain conditions for conversion of use of plot were observed by Court as essential requirements, was not interfered by the learned Division Bench of this Court. Learned Division Bench dismissed the ICA, without notice to the petitioners, reason being that no order adverse to the interest of the petitioner was made.
Mr. Rafay Ahmad Khan, learned counsel for the petitioner in connected Petition No. 4792 of 2007 has adopted the line of arguments of Mr. Bilal Minto Advocate. He added that by virtue of Punjab Local Government Ordinance, 2001, LDA Act, 1975 has been repealed through implication. He supported the contention by making reference to the cases of Malik Mir Hassan and another v. The State (PLD 1969 Lah. 786), Muhammad Arif vs. Muhammad Kawshar Ali (PLD 1969 SC 435) and Mumtaz Ali Khan Rajban and another vs. Federation of Pakistan and others (PLD 2001 SC 169). It was then contended that Punjab Private Site Development Scheme (Regulations) Rules, 2005 are inconsistent with parent legislation i.e. Punjab Local Government Ordinance, 2001 and as such the provision has no legal force. Further the rules are in complete oblivion of dictum of law laid down by Hon'ble Supreme Court of Pakistan in the case of Khawaja Ahmad Hassan vs. Government of Punjab (PLD 2004 SC 694). Learned counsel has then contended that doctrine of public trust imposes a restraint on LDA to grant approval for conversion of land reserved for amenities to another purpose. Cases of Muhammad Ismail and others vs. Province of Punjab through Secretary Irrigation and 2 others (PLD 1977 Lah. 226) and Khan Faizullah Khan vs. Government of Pakistan through the Establishment Secretary, Cabinet Secretariat and another (PLD 1974 SC 291) were referred to support the contention that Rules 2005 do not apply retrospectively. Learned counsel lastly contended that the impugned act of Respondent No. 7 besides being mala fide, is violative of Section 12 of Punjab Environmental Protection Act.
Mr. Wasim Sajjad, Senior Advocate, learned counsel for Respondent No. 3, has drawn my attention to para 14 of the judgment of this Court dated 14.11.2006, where issue regarding mode and method of general meeting dated 30.4.2006 and its vires came up for consideration. It was found that dispute of society and members, come, within the purview of Section 70-A of Co-operative Societies Act, 1925, which provides alternate remedy. Learned Court declined to enter into this aspect of controversy, leaving the petitioners to invoke relevant provisions under the Act, 1925, to seek redressal of their grievance. Learned counsel submitted with vehemence that validity of meeting and decision taken in the meeting, cannot be agitated in the instant petition once again. Learned counsel thereafter referred para 21 of the judgment and submitted that amendment in the master plan, sanction for change of land use and environmental impact assessment from Government Agency under Pakistan Environmental Protection Act, 1997, were held available when such actions are taken or after grant of sanction, as the case may be. The petition was held being pre-mature. It was also submitted that the above order of learned Judge in Chamber was assailed in appeal (ICA No. 388 of 2001), whereby the learned Division Bench of this Court through order dated 27.12.2006 has held that the impugned order of the learned Judge in Chamber, had not caused any prejudice to the appellants. Learned Division Bench observed that mere reference to certain laws, considering generally the process that a standard case may undergo, does not amount to placing conditions. Learned counsel submitted that no direction was given in judgment dated 14.11.2006 to act or not to act in a particular way. It was also submitted that no direction is in the field nor any provision of law had been violated, in entering into lease agreement with Respondents No. 1 & 2. Respondent No. 3 is an intentional chain and is known for providing fresh farm, item for health conscious citizens. Learned counsel summed up his arguments by contending that the environmental impact assessment will be obtained at the relevant time and an undertaking to that effect has also been placed on record.
Mr. Munir Ahmad Bhatti, Advocate representing respondent society, has submitted that in the judgment dated 14.11.2006, certain parameters were laid down, which the Respondents Nos. 1 and 2 have followed. Amendment in the master plan was approval in general meeting held on 30.4.2006, as per item 5 of the agenda. Approval for amending the master plan was acceded by the concerned authority (Respondent No. 7) and a formal approval in this respect was conveyed through letter dated 19.5.2007 and accordingly amended master plan has been placed on the record of the society. Registrar through letter dated 17.1.2007 approved the minutes of the meting with specific reference to leasing of plot in question to multi-national company/Respondent No. 3. He went on the argue that plot as leased out in accordance with law and in the best interest of the members of the society. The petitioners have not challenged the order of authority in appeal under Rules 2005 (ibid). Learned counsel further submitted that according to bye-law No. 5(c) of the society, the society can lease, its property to generate funds. Reference to bye-law 40(a)(x) was made to contend that after approval of Register, the decision taken by managing committee and general body has attained finality. Learned counsel has contended that the petitioner in W.P. No. 4792/07 is not a member of the society and as such he has not locus standi to file this petition. Additionally, he does not come within the definition of an aggrieved person. It was urged that the plot in question remained under threat of illegal possession. Recently some trespassers, claimed this property as graveyard and after tremendous efforts of society, the trespassers failed in their illegal designs. He submitted at the end of his arguments that lease agreement is highly beneficial to society and its members so much so that out of this transaction, the society will earn Rs. 156,42,0005.70, which amount shall be utilized for the uplift of Society.
Mr. Iftikhar Ahmad Mian, Advocate, learned counsel for Respondent No. 2 has submitted that in the past, open land of the society remained under continuous threat. He quoted various instances when the society was deprived of its valuable land. Land specified for fruit garden was taken over by LDA and blocks L, M, N, P, Q and R were established under the name and style of Model Town Extension. Linear Park of Model Town Society has recently been taken over by PHA and the dispute with regard to plot of co-operative store having 11/4 share of employees of Society, at prime location has not yet been resolved, which the Government of Punjab has handed over to private concern for the construction of I.T. Tower. The property, subject-matter of this petition, remained under threat of dispossession of land grabbers and Government bodies have also made attempts for acquisition of land. The plot due to unauthorized dumping of garbage is a constant source of pollution. The Managing Committee and thereafter the general house, in this background, opted to lease out the property, in the best interest of its members. Learned counsel has drawn attention to the master plan, whereupon the property in dispute exists as "open space" and not a fruit garden as claimed by the petitioners. Learned counsel has explained that area for fruit garden (orchard) was taken over by LDA in 1976 and fruit garden was converted into residential site. Blocks L.M, N, P, Q, and R of Model Town Extension Scheme were developed by LDA which are now in occupation of owners of residential houses and also of commercial centers. A few decades ago (during early seventies), the society made extension by developing block-J and K and extending block, C, D, G & H on green areas. The notification of take over of society's land in the year 1976, was challenged in W.P. No. 644/1976, which was disposed of, as a result of compromise between the LDA and the Society. Learned counsel has submitted further that open space can be used for commercial purpose, more so when the Registrar and the Authority (LDA) have accorded sanction in this respect. It was also submitted that according to Section 1(2), the provisions of the Punjab Local Government Ordinance, 2001, apply to whole of the Province except the Cantonment property i.e. land/notified as Cantonment land under Cantonment Act, 1924. He added that according to Section 191 of Ordinance, 2001, rules for carrying out the purpose of Ordinance, 2001, could be made with regard to matters, which are specified in Part-I of the Fifth Schedule. It was contended that Local Government Regulations of Site Development Schemes are mentioned at Serial No. 9, Part-I of 5th Schedule. While referring to Sections 13 and 14 of the LDA Act, 1975, it was contended that as per sub-section (5) of Section 13, no plan of development scheme can be prepared by any person or local body or Government agency within the area, except with the concurrence of the Authority. It was explained that Respondent No. 1 has applied to the Authority for modification of scheme within the contemplation of Section 14, by invoking the provisions of sub-section (5) of Section 13 (ibid). Learned counsel has submitted that according to Rule 3 of the Punjab Private Sites Development Schemes (Regulation) Rules, 2005, an application by a developer for sanction of the scheme, which falls in the area of City District Government, Lahore, lies to LDA and any modification in sanctioned scheme is permissible in a manner and according to the procedure, which is prescribed for sanction of law scheme, under Rules, 2005 (ibid). Learned counsel submitted with vehemence that according to the above referred provision of law the sanction/modification of the master plan of the respondent society is subject to the approval of LDA and not by the Town Municipal Administration. Learned counsel went on to argue that authority comprises of various functionaries including Town Nazims. The Nazim of Gulberg Town in that capacity is also a member of Authority, who has also accorded the approval. He added that a similar application was also filed with TMA Gulberg like the one moved before Respondent No. 7. LDA proceeded with the matter, being competent forum to entertain the application. TMA Gulberg Town, considered that application is not competent before it, decided not to proceed in the matter. Learned counsel went to argue that jurisdiction of TMA, extends in the matters, which neither fall under LDA nor under the cantonment area. The respondents sought impugned approval, by invoking Rules, 2005 and the petitioners through filling objections without raising issue of jurisdiction, have conceded to the jurisdiction of LDA under Rules. The petitioners have neither challenged Rules, 2005 in earlier petition, nor these Rules have been challenged in the main petition. Rules, 2005 cannot be challenged through application. Learned counsel, responding to the objection of the petitioners that in the absence of any specific bye-law, land cannot be converted for a different use, has submitted that there is no prohibition for conversion of use of property. He added that when bye-laws are silent with regard to a matter then such matter is governed under general law. Case of Rehmat Petroleum Service through Proprietor vs. Public at Large and 28 others (PLD 2006 Lah. 339), was referred to support this contention.
Additional Advocate General, Punjab, has contested the application filed under Order I, Rule 10 CPC, for impleading Government of Punjab as respondent. He has submitted that the petitioners being objectors, were aware of the impugned approval by LDA under Punjab Private Site Development Schemes (Regulation) Rules, 2005. These Rules were not challenged before LDA or in the instant petition. Perusal of grounds raised in the petition and the prayer in the petition, reflect that Rules remained unchallenged throughout. Vires of legislation cannot be assailed through filing of petition under Order I, Rule 10 CPC.
Heard learned counsel for the parties and record perused.
The petitioners had in the earlier constitutional petition (W.P. No. 4006/2006) challenged the resolution, minutes and conduct of meeting dated 30.4.2006. It was observed by this Court in its judgment dated 14.11.2006 that dispute between the society and members, comes within the purview of Section 70-A of the Co-operative Societies Act, 1925, which provides alternative remedy. The Court refused to enter into this controversy and left the field open for the petitioners to invoke jurisdiction under Act, 1925. The petitioners (herein) have not availed the remedy under the Act, 1925, they cannot re-open this issue once again, by moving repetitive petitions on the same subject. Additionally, the matter is already pending before Registrar in a petition under provisions of Section 54 of the Cooperative Societies Act, 1925, filed by Mrs. Naila Najam on the same subject.
A
Reference to certain laws and the process that a standard case may undergo in an identical situation, finds mention in judgment dated 14.11.2006. While deciding appeal (ICA No. 388 of 2006) it was observed by learned Division Bench of this Court, in its order dated 27.12.2006 that the reference to a process does not amount to imposition of condition, nor it amounts to a direction to act or not to act in a particular manner. The reading of judgment of learned Judge in Chamber, conjunctively with order of the learned Appellate Bench, reflects that there is no specific direction to Respondents No. 1 and 2 to proceed in a particular manner, in leasing the plot to Respondent No. 3 for commercial use. The petitioner stance that the instant petition has been filed to seek implementation of direction of decision dated 14.11.2006, has no substance.
Adverting to the question of legality and propriety of impugned approval of LDA, the permission has been accorded by the Authority (Respondent No. 7) for conversion of open plot/area for commercial use. The petitioners have addressed two fold arguments to assail the approval of authority, Namely that plot was a fruit garden/public amenity plot, which cannot be converted for commercial use and secondly such approval can be accorded by Town Municipal Administration. The plot in question is shown, as open space in the master plan, which is a paramount document. A fruit garden as existed in the original plan finds its description, in layout plan of Model Town by Mr. Khem Chand, the then Secretary Model Town Society Limited, printed in the Punjab Central Press Anarkali, Lahore in the month of January, 1941, as under:-
"A fruit garden almost 6 miles in length and some 350 feet in widest will encircle the main town. The fruit garden will be connected with the central garden by 4 strips of lawns which could be used as playground for children. Along the fruit garden there will be a nice 75 feet wide road which will have a 15 feet wide footpath on the garden side. This footpath will be unbroken for long distance and will have a canal running on its garden side. It will be an ideal footpath for persons who are fond of walking. (The sections of roads of different width are shown separately on the plan in the top right hand corner)."
The area comprising 6 miles in length and 350 feet in width, remained un-utilized since 1976. Land measuring 4894 Kanals of the society was acquired by LDA under Section 26 of LDA Act, 1975 for development and implementation of Model Town Extension Scheme and a notification (No. LAC 11/504) under Section 4 of Punjab Acquisition of Land (Housing) Act, 1973 was notified in official gazette. The land under existing Model Town Society measuring 1546 acres and excluded, original notice dated 21.1.1976 under Section 18 of LDA Act, 1975 was amended and accordingly notified through Notification No. SB-238/7001. The acquisition of land of the Respondent No. 1 by LDA, was challenged in W.P. No. 644 of 1976. The dispute regarding acquisition of land of Respondent No. 1, was settled through agreement, executed and signed on 6.2.1980. Consequently Model Town Extension Scheme of LDA was established and now blocks L, M, N, P, Q and R exist, whereupon residential housing scheme of LDA has been raised. LDA has handed over the possession of the plots to the allottees while construction of houses, flats and commercial cites had already been accomplished. The area reserved for fruit garden had been utilized for scheme of LDA as far back as in 1976. The fruit garden according to above description, never existed. The plot in dispute has different dimensions from the proposed scheme of fruit garden. It is a triangular plot, its width from one side is just 22 feet, while it is 467 feet wide on the other side. The question whether the disputed open plot is an amenity plot as defined in the of Bye-laws of the society or an open space not reserved for fruit garden is not to be resolved by this Court. I am not inclined to enter into this issue because it is a factual controversy and its resolution lies in appropriate forum constituted under the law. Writ jurisdiction, which provides summary procedure, is not meant to resolve these issues.
The petitioners have challenged the jurisdiction of the Authority to grant the impugned approval. The order passed in excess of jurisdiction is always amenable to challenge, in writ jurisdiction. The objection of the petitioners that the approval or modification in the master plan can only be sought from the Town Municipal Administration, Gulberg and the impugned approval of the LDA, being without jurisdiction, has no legal sanctity, is not convincing. The approval and sanction of a scheme, which falls within the area of City District Government, Lahore vests with LDA, according to Rule 3 of Punjab Private Sites Development Schemes (Regulation) Rules, 2005. According to Rule 12 (ibid) a modification in the sanctioned scheme has to be made by observing the procedure prescribed for the sanction of the new scheme. Section 13(5) of the LDA Act, 1975 is relevant, which is reproduced hereunder:
"13. Preparation of Scheme.--(1) The Authority shall, in such form and in such manner as may be prescribed, prepare schemes for the area or any part thereof.
(2) ..................
(3) ..................
(4) ..................
(5) No planning or development scheme shall be prepared by any person or local body or Government agency within the area except with the concurrent of the authority."
The planning of a scheme within the City District Government of Lahore, requires concurrence/approval of the Authority and any modification in an existing scheme, according to the provisions of Section 14 of the LDA Act, 1975, vests with the Authority. Section 38 of the LDA Act further provides for approval from the Authority for conversion of the property to a different use or purpose other than one provided under a scheme. The provisions of LDA Act, 1975, as per Section 46, prevail over other laws. LDA Act, 1975 has thus over riding impact in respect of any inconsistent provision in Punjab Local Government Ordinance, 2001. Respondents No. 1 and 2 have approached the right forum (Respondents No. 7) for the approval/ conversion of the use of their property.
Reverting to the order passed by the authority, the order of the authority was passed after calling objections from the public and also from the members of the society. The petitioners had contested the grant of impugned approval, through filing objections. The petitioners have submitted to the jurisdiction of Authority, which I have already held appropriate forum to resolve the controversy. The impugned decision is assailable in appeal under rule 14 of Rules 2005 (ibid) before Secretary, Government of the Punjab, Local Government and Rural Development Department.
In para 21 of judgment dated 14.11.2006 passed in W.P. No. 4006/2006, it was observed that the objections of the petitioners can be adjudicated upon in fora vested with the jurisdiction under law to decide such matter. The petitioners have not approached the forum of appeal, against the approval of conversion by authority (conveyed through letter dated 19.5.2007). No appeal to challenge approval of agenda item 5 of general meeting dated 17.1.2007 by the Registrar, has been filed. These actions have been held by this court, in earlier petition, justiciable separately under Cooperative Societies Act, 1925 and Punjab Local Government Ordinance, 2001. These actions can be challenged before this Court in its extra ordinary constitutional jurisdiction, when remedy in the hierarchy of respective departments is exhausted. This has not been done in the instant case. Extra ordinary Constitutional jurisdiction cannot be stretched, on the ground that assailing the matters in different fora is inconvenient. Mere convenience is no ground to deprive a forum from its jurisdiction, which the relevant statute has provided. The remedy of constitutional petition is available, when the remedy in the hierarchy of the department, is exhausted.
Adverting to the question, which the petitioners have raised subsequently, through filing C.M. No. 1472/2007. The application has been filed with prayer to implead the Government of Punjab as respondent on the ground that vires of Punjab Private Site Development
Lah. M. Khurram Muggo v. Parveen Hameed Muggo PLJ (Mian Saqib Nisar, J.)
2008 M. Khurram Muggo v. Parveen Hameed Muggo Lah. (Mian Saqib Nisar, J.)
Schemes (Regulation) Rules, 2005 is now being assailed. The petitioners have filed objections before Authority in response to public notice. The petitioners were conscious and aware of the fact that impugned approval was being sought and Authority was approached, by invoking Rules, 2005. The petitioners have not challenged those rules in main petition. The vires and validity of rules has been questioned in reply to application for vacation of injunctive order. Application was filed for impleadment of Government of Punjab without resorting to seek amendment in main petition. Legality of Rules, cannot be assailed in ancillary/collateral proceedings. Moreso when these rules are on statute book, duly notified and published in the official gazette, at the time, when the petitioners invoked the constitutional of this Court. Further the objections before LDA were filed without objecting to the validity and legality of the rules.
E
F
(N.F.) Petitions dismissed.
PLJ 2008 Lahore 29 (DB)
Present: Mian Saqib Nisar and Fazal-e-Miran Chauhan, JJ.
M. KHURRAM MUGGO--Appellant
versus
PARVEEN HAMEED MUGGO and 3 others--Respondents
R.F.A. No. 392 of 2006, heard on 10.4.2007.
Civil Procedure Code, 1908 (V of 1908)—
----O. VII, R. 11--Cause of action--While considering the question--It is only the averments of plaint which should be deemed as correct and must be taken into account no data no material provided by defence should be looked into while rejecting plaint on the premise, of non-disclosure the cause of action. [P. 33] A
Cause of Action--
----It could be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. [P. 33] B
Limitation Act, 1908 (IX of 1908)—
----Art. 120--Barred by time--Agreement for transfer of shareholding admittedly was executed in the year 1992--Appellant has failed to challenge the agreement within time even if maximum period is provided to him under the residuary Art. 120 of Limitation Act, which envisages six years from the date of the accrual of the cause of action--In plaint if respondents ever accepted the appellant's right to shares and therefore, he got the cause of action from the date of denial, which falls within the requisite period--Held: On account of the suit being barred by time, the plaint is also liable to be rejected.
[P. 38] F
Pleadings--
----Parties to a lis cannot prove their case beyond the scope of their pleadings, foundation of the facts whereupon structure of proof has to be built must be laid down in the pleadings, if the necessary foundation of the facts is lacking in pleadings--Evidence is brought on the record, shall be ignored by the Court--Appeal dismissed. [P. 34] C
Rendition of Account--
----Scope of seeking--Defendant must be an accounting party and on account of their legal relationship, the defendant is obliged to render the account. [P. 37] E
Specific Relief Act, 1877 ( I of 1877)—
----S. 42--Scope of--Concept of custody--Legal character of a person--Concept of custody cannot be equated with entitlement and right to any property which is a condition for grant of declaration within the purview of S. 42 of Specific Relief Act--Such also has nothing to do with legal character of a person. [P. 37] D
PLD 1970 SC 63; 1991 SCMR 2030; PLD 1959 SC 356; 2006 SCMR 489 and AIR 1942 Privy Council 13 ref.
Mr. Ali Sibtain Fazli, Advocate for Appellant.
Mr. Zaeem-ul-Farooq Malik, Advocate for Respondents No. 1 and 2.
Mr. Agha Abu-ul-Hassan Arif, Advocate for Respondents No. 3(i) & (ii).
Mr. Salman Akram Raja and Kh. Nasir Maqsood, Advocates for Respondent No. 4.
Date of hearing: 10.4.2007.
Judgment
Mian Saqib Nisar, J.--Through the impugned order dated 2.5.2006, the plaint of the suit for the declaration and permanent injunction brought by the appellant against the respondents has been rejected by the learned trial Court, by applying the provisions of Order 7 Rule 11 CPC. Hence this appeal.
Briefly stated that facts of the case are that Mian Abdul Hameed Muggo, the predecessor-in-interest of the appellant and Respondents Nos. 1 to 3, and his brother Mian Hanif Muggo were, inter alia, the promoters and the first directors of M/S United Industries (Pvt.) Limited/Respondent No. 4, a company duly incorporated under the law; both had 37.5% of shareholding in the company. The present dispute is between the appellant, who is the son of Mian Abdul Hameed Muggo, and Respondent No. 2, his mother (widow of Mr. Mugoo), Respondent No. 3, his sister, while Respondent No. 3(i) & (ii) are the legal heirs of his other deceased sister.
The factual backdrop of the case is that in the year 1973, the aforesaid company was nationalized, and for the purposes of compensation payable to the shareholders, the value of its shares was assessed by the Government on 11.11.1976 as Rs. 23.586 per share. It may be pertinent to state here that before the above, Mian Abdul Hameed Muggo had died on 5.5.1976, therefore, the amount was paid to his L.Rs in the nature of a compensation bond for which they duly obtained a succession certificate; it is not the case of the appellant/plaintiff that out of the above, his share was not paid to or received by him.
In 1992, according to the policy of the Government of Pakistan, the company was denationalized and option was given to the shareholders of the company from whom it was taken over, to purchase the shares. Accordingly, a sale agreement dated 21.5.1992 was executed between Ghee Corporation of Pakistan (Pvt.) Limited through the Privatization Commission and Akbar, Muggo, the son of Mian Hanif Muggo, who acted as a representative for and on behalf of the other members of the Muggo family, who were interested to exercise the option. It is mentioned in Paragraph No. 8 of the plaintiff that "all the family members of Mian Hanif Muggo became the share holders and Director of the Company/Defendant No. 4 but quite unfortunately out of the legal heirs of deceased Abdul Hameed Muggo only his widow/Defendant No. 1 was co-opted as Director and shareholder. Thereafter the Defendant No. 2 succeeded in becoming share holder on 24.5.1992 and then a Director on 31.12.1995 to unlawful exclusion of plaintiff and Defendant No. 3." It is further stated that "being one of the legal heirs of deceased Abdul Hameed Muggo, the plaintiff was also entitled to the share holding upon the privatization of Defendant No. 4. Instead of rendering accounts and making settlement of the same the Defendant No. 1 being mother, who has not only fiduciary relationship with the plaintiff but also a dominant position as the plaintiff was unwell at the relevant time, acted as all in all and deprived the plaintiff of his due entitlement of share holding." In Paragraph No. 9, it is mentioned that "the plaintiff also approached Defendant No. 4 to consider being a lawful legal heir of deceased Abdul Hameed Muggo share holder to the extent of lawful share in Sharia as the Defendant No. 1 was just a Custodian of the interest of all the legal heirs." Furthermore, in Paragraph No. 10, it is stated "that the Defendant No. 1 was only a Custodian who could exercise rights only to the extent of her share in Sharia. She was liable to purchase the share holding in the name of all the legal heirs of deceased Abdul Hameed Muggo as per their respective share in Sharia as the share holding had started prior to nationalization and subsequently after privatization when the ex-share holders were given preference to repurchase the unit." In Paragraph No. 14, which pertains to the cause of action, it is the appellant's case that the cause of action firstly accrued to him on 9.2.1978 when his father died; secondly in the year 1992 when Defendant No. 1 was co-opted as shareholder/Director of Defendant No. 4; thirdly when Defendant No. 2 became shareholder/Director of Defendant No. 4 in the year 1995; fourthly when out of the dividends and benefits of the company, Defendants No. 1 and 2 had purchased the Property No. 46-C, DHA and some agricultural land and lastly on 5.1.2006 when the plaintiff requested Defendant No. 4 (company) not to issue any dividends and profits to Defendants No. 1 and 2 over and above their actual entitlement under the Sharia. According to the relief clause, a declaration is being sought that Defendant No. 4 (company) is under a legal obligation to take necessary steps for the issuance of 14/32 share devolved upon the appellant on account of his inheritance upon the death of his predecessor; and a decree for the rendition of account against Defendants No. 1 and 2 to render the accounts of assets mentioned in Para No. 4 to 8 left by the deceased Mian Abdul Hameed Muggo. It was further claimed that Defendants No. 1 and 2 be directed to share the ownership benefits of Property No. 46-C, DHA Lahore and the agricultural land and mesne profit of the immovable property. In the end, the appellant sought the permanent injunction restraining the company from issuing or delivering the Share Certificates, dividends or benefits to Defendants No. 1 and 2 and he also asked for a decree in his favour of Rs. 70 Million as a due share.
The defendants contested the matter, filed the written statement and also moved an application under Order 7 Rule 11 CPC seeking the rejection of the plaint on the ground that it does not disclose a cause of action on the basis of the facts as set out in the plaint. The said application has been accepted by the learned Civil Judge vide impugned order dated 2.5.2006 and has rejected the plaint in terms of Order 7 Rule 1 CPC. Hence this appeal.
Learned counsel for the appellant has argued that according to the contents of Paragraphs No. 4 to 8, it is established that the appellant was a co-sharer in the estate left by his deceased father and was accordingly seeking the enforcement of his right; when United Industries (Pvt.) Limited was denationalized, the appellant was entitled to the transfer/re-purchase of the same amount of shares in the company, which he would have inherited according to the Sharia, but he
has been deprived in this behalf; the mother of the appellant, who was the Incharge of the affairs as a custodian, had re-purchased all the shares in her favour and also in favour of Defendant No. 2 by illegally excluding the appellant; specifically referring to the contents of the plaint, which have been produced above, it is vehemently argued that the plaint does disclose a cause of action and it is settled law that while considering the above question, it is only the averments of the plaint, which should be deemed as correct and must be taken into account, and no data or material provided by the defence should be looked into, while rejecting the plaint on the premise of non-disclosure of the cause of action. Lastly, it is submitted that all the facts mentioned in the plaint were controverted by respondents in their written statement and, therefore, it is a factual discord between the parties, which can only be determined after the framing of the issues and providing them opportunity of leading their evidence.
A
B
invoked if there was no room for any other possible approach to the case and no triable issue was made out in case or suit was clearly hit by any mandatory provisions of law justifying rejection of plaint." It has also been held "As mentioned above, for the purpose of determination whether plaint discloses a cause of action or not, Court has to presume that ever averment made in the plaint is true, therefore, power to reject the plaint under Order VII Rule 11 must be exercised only if the Court comes to the conclusion that even if all the allegations are proved, the plaintiff would not be entitled to any relief whatsoever." The above dictum substantially answers the second part of the proposition under discussion as well; however we may add that the Court may also take into account certain admitted or uncontroverted material placed on the record by the defendant, the genuineness and the veracity of which is beyond doubt and by looking whereupon, the Court comes to the conclusion that to continue with the suit shall be a futile exercise and/or the case has been filed by the plaintiff with manifest dishonestly of purpose, oblique object, to retain or claim the benefits of such gain which the plaintiff is not entitled to, and to simply cause prejudice and harassment to the defendant of the case.
We proceed to examine the case of the appellant, which in nutshell is; (A) that the assets left by his father as his estate is the compensation bond, which was issued by the Govt. of Pakistan on account of the compulsory acquisition of his share holding in the said company (see para 4 of the plaint); (B) the legal heirs received the succession certificate of the deceased's tangible asset (see para 5 of the plaint), but it is not his case that he did not receive his share out of the compensation bond and that the property Bearing No. 60-61 FCC Gulberg Lahore, for which the appellant executed the power of attorney in his mother's favour is the estate left by his father, he in the plaint has not even raised any claim on this basis; (C) in para 7, it is mentioned that on account of the privatization policy, it was stipulated that the ex-owners, who are interested to purchase the nationalized units shall be given preference over the others, the appellant thus was entitled to participate in the purchase of the unit and the right of first refusal. Quite conspicuously in continuity of the above, it is not mentioned, if the appellant exercised the above option; he ever contributed any money for the purchase of these shares, or any money belonging to him which was available with any of the defendants has been utilized for the purchase of the shares, with the agreement or the understanding that the shareholding so acquired shall be held for and on behalf of the appellant; (D) there is another important aspect of the case, in the plaint it is averred that for the transfer of the shares an agreement dated 21.5.1992 was executed between the concerned parties, the appellant is admittedly not a party to the above, claims to have been deprived on account of this agreement, but has not challenged it at any point of time, even not through this suit; it has not been assailed on any ground whatsoever; the only grouse set out by the appellant is that he was unlawfully excluded from the above transaction (see para 8 of the plaint) and this exclusion seems to be rested on the appellant's right of inheritance under the Sharia. Obviously, he was entitled to the above right but only regarding the estate of this father, which at the relevant time was the compensation bond and it is not the case of the appellant that he did not receive his due share from the said amount. The option to purchase the share of the denationalized units was never the estate of the deceased Mr. Muggo, but a choice given to his L.Rs for buying the shares which he could have bought, had he been alive; there is not a single word in the plaint that the appellant ever exercised that option and contributed the money to the extent of the shares, which he could have been; it is also not his case that shares original acquired by the mother were "Benami" or as a trustee for the appellant. Therefore, the assertion of the plaint of unlawful exclusion is a bald and baseless allegation, without giving any rise to a cause of action in favour of the appellant.
Therefore, it is to be examined; if the plaintiff is entitled to seek any rendition of account from the respondents when it is not his case that out of the estate left by his father, he has not received his due share, which was withheld by the respondents and thus, they are the "accounting party" which is condition "sine qua non" for the cause of action regarding the suit of such a nature.
In the same para i.e. No. 8, the appellant has vaguely taken up the plea that out of the proceeds of the "assets mentioned ante"; obviously by this he means the amount of the compensation bond, as according to the plaint this was the only asset left by Mr. Abdul Hameed Muggo, regarding which he does not claim that he has not received his share; his assertion that the properties such as a house Bearing No. 46-C in DHA, Lahore and agricultural land has been acquired by the respondents on account of any proceeds or the dividends, is baseless; because as mentioned above, the appellant has not established any right to the shareholding, therefore, how does he has any right in any property even if acquired through the dividends of such shares.
Again Para No. 9, which at the best can be said to be relevant for the purpose of determining the cause of action, the case of the appellant is that he has approached the defendants "to settle the accounts and administer the property left by the predecessor-in-interest. The plaintiff also approached Defendant No. 4 (the company) to consider being a lawful legal heir of deceased Abdul Hameed Muggo share holder to the extent of lawful share in Sharia as the Defendant No. 1 was just a custodian of the interest of all the legal heirs. "But it is not explained that on what basis, he claims right about any share in the disputed shareholding, when it has never formed part of the estate of his father and especially when in the plaint, it is not admitted/conceded that the amount of compensation bond was the only asset left by his father, which the appellant never alleged not to have received.
In the light of above discourse, the questions which needs answer are:--
Whether on account of the privatization, the appellant was entitled to the transfer of share holding of the United Gee Mills Ltd. (the company) in his favour according to his share under the Sharia and has been unlawfully excluded.
The answer is no, because the shareholding was not the estate of the deceased and the appellant never exercised his right of option as mentioned above.
The reply is in the negative for the reason that the custody of a property cannot be equated with the title and ownership thereof.
Whether in the facts and circumstances of the case, the appellant is entitled to seek the rendition of accounts from the respondents.
Whether on account of their shareholding in the company, if any profit etc. have accrued to the respondents, which they have further used in buying the immovable properties and the appellant has any entitlement and rights in such properties.
The answer the above Questions Nos. 1 and 2, as has been thoroughly dilated, the appellant though was entitled to opt for the purchase of the shares of the Company, but he has neither asserted in the plaint nor there is any proof on the record that he had exercised such option. The agreement regarding the transfer of the shares was made between the Privatization Commission and Akbar Muggo in the year 1992 and till the filing of the suit, the appellant has never raised any grievance; the said agreement has never been challenged. The appellant does not claim that the money used for the purchase of the shares in favour of Respondent No. 1/mother is out of his share of the compensation bond. It is also not his case that he contributed any money independently, which was paid to his mother etc. for the purposes of buying the shares. It is also not his case that Respondent No. 1 was holding the shares as `Benamidar' or Trustee for him. The concept of custody cannot be equated with the entitlement and right to any property, which is a condition for the grant of the declaration within the purview of Section 42 of the Specific Relief Act, this also has nothing to do with the legal character of a person.
D
E
So far as Question No. 4 is concerned, when the appellant was not even the shareholder of the company and it is not established if the shares transferred in favour of the respondents are illegal and unlawful, therefore, simply asserting on the baseless grounds his right to the shareholding, the appellant cannot claim any right to the profits, dividends or any benefits, which have been gained by the defendants from the said shareholding. It is also unfounded to assert that the appellant has any entitlement to any moveable or immovable properties created by the respondents on the basis of any profits occurring from such shareholding, therefore, he again cannot seek the declaration of the ownership of any such property vaguely mentioned in the plaint.
Before summing up, we are also inclined to reject the plaint as being barred by time. The agreement for the transfer of shareholding, admittedly was executed in the year 1992; the appellant has failed to challenge the agreement within time even if maximum period is provided to him under the residuary Article 120 of the Limitation Act, which envisages six years from the date of the accrual of the cause of action. It is not stated in the plaint if the respondents ever accepted the appellant's right to the shares and, therefore, he got the cause of action from the date of denial, which falls within the requisite period. We are also not convinced to agree that the alleged cause of action in favour of the appellant is recurring one and has accrued to him as averred in the plaint. Therefore, on account of the suit being barred by time, the plaint is also liable to be rejected, which is hereby rejected for this reason as well. The judgment cited by the learned counsel for the appellant reported as Bhuru Mal vs. Jagannath and others (A.I.R. 1942 Privy Council 13) has no application to the facts and circumstances of this case. Article 127 of the Limitation Act, which has been considered in the aforesaid judgment, provides for a suit by a person who has been excluded from the joint family property to enforce his right to the share therein. As has been held above, the appellant has not been able to even establish on the basis of the averments of the plaint that he has any right in the shares of the company or any other assets referred to in the plaint, which could be said to be a joint family property, from which he has been excluded. Therefore, the said article has no application to this case. Besides, the period of 12 years is to be reckoned from the date when the exclusion became known to the plaintiff. In the instant case, the agreement of the transfer of the shares by the Government of Pakistan Privatization Commission was executed on 21.5.1992 and it is not the case of the appellant that he was unaware of the same, thus, the present suit brought by him on 6.2.2006 is undoubtedly beyond the time provided by the said article.
In the light of above, this appeal has no merits and is hereby dismissed.
(M.S.A.) Appeal dismissed.
PLJ 2008 Lahore 39
Present: Muhammad Jehangir Arshad, J.
MUHAMMAD RAFIQ and others--Appellants
versus
UMAR DIN and others--Respondents
R.S.A. No. 145 of 1988, decided on 7.5.2007.
Civil Procedure Code, 1908 (V of 1908)—
----O.XLI, R. 26--Punjab Pre-emption Act, (I of 1913), S. 28--Pre-emption suit--Terms of findings--Superior right of pre-emption--Not challenged--Respondent could not have been granted first decree of pre-emption as against appellants who in terms of findings of trial Court recorded in additional issue framed by High Court holding the appellants having superior right of pre-emption qua respondents and such findings having been admitted by respondents through counsel and not challenged in terms of Order XLI, R. 26 C.P.C. despite query by High Court from his counsel before opening of arguments. [P. 45] A
Punjab Pre-emption Act, 1913 (I of 1913)—
----S. 28--Civil Procedure Code, (V of 1908), O.XLI, R. 26--Suit for pre-emption--Appellants being real sons of vendees have superior right of pre-emption qua respondents being their real brothers--To extent of 3/4 share of appellant (deceased) decree at least to the extent of respondent be kept intact--Proceedings conducted by lower Courts have been perused and verify the contention of counsel for respondent, when except widow of deceased all the legal heirs stated before District Judge that they had no objection if the decree in favour of respondent to the extent of share of appellant (deceased) is kept intact in favour of respondent. [Pp. 45 & 46] B & C
Mr. Iqbal Abid Chaudhry, Advocate for Appellants.
Mr. Javed Akhtar Vains, Advocate for Respondent No. 1.
Ch. Abdul Ghani, Advocate for Respondents Nos. 2 and 3.
Dates of hearing: 16.4.2007 and 23.4.2007.
Judgment
This R.S.A. is directed against the judgment dated 18.1.1984 passed by learned Civil Judge Ist Class, Chichawatni decreeing pre-emption suit of the respondent. Umar Din and the judgment dated 17.10.1988 passed by learned District Judge, Sahiwal rejecting the Ist appeal of the appellants against judgment and decree of learned trial Court dated 18.1.1984.
ISSUES:
Whether present suit cannot proceed? OPD.
Whether suit has not been valued properly for the purposes of Court-fee. If so, what is its effect? OPD.
Whether suit is barred by time? OPD.
Whether the ostensible sale price of Rs. 60,000/-was fixed in good faith or actually paid? OPD.
In case Issue No. 4 is decided against the defendants, then what is the market value of the land in suit? OP parties.
Relief.
After receipt of written statement from Muhammad Rafiq and Abdul Ghafoor present appellants, the learned trial Court on 29.10.1978 framed the following additional issues:
ADDITIONAL ISSUES:
1-A. What is the effect of decree for possession by way of pre-emption obtained by Defendants Nos. 3 and 4 on 20.1.1976 in respect of the suit land? OPD.
1-B. Whether the plaintiff had not taken interest to purchase the suit land and was not prepared to purchase it. If so its effect? OPD.
After recording evidence and on the conclusion of the trial vide judgment dated 18.1.1984 the learned trial Court decreed the suit in favour of Umar Din Respondent No. 1 on payment of Rs. 60,000/- by answering Issue No. 1-A against the appellants holding the decree obtained by the appellants on 20.1.1976 as collusive. Against the above judgment and decree of the learned trial Court the appellants filed an appeal and the learned District Judge, Sahiwal vide order dated 16.5.1987 famed the following additional issue:
ADDITIONAL ISSUE:
1-C. Whether the decree dated 20.1.1976 in favour of Defendants No. 3 and 4 against Defendants Nos. 1 and 2 is for the benefits of the letters and moreover, collusive, fraudulent void and ineffective on the rights of the plaintiff? OPP.
And also amended Issue No. 1-A as follows:
1-A. If issue No. 1-C is answered in affirmative, what is its effect? OPP.
The learned District Judge, thereafter, sent the file to the learned trial Court with the direction to record evidence of the parties on Issue No. 1-C above, if produced any and then to return the findings alongwith file to the appellate Court. The learned trial Court was also directed to record fresh findings on amended Issue No. 1-A. Before the learned trial Court Umar Din respondent produced only one witness Abdul Majeed and on the basis of said evidence the learned trial Court vide findings recorded on 28.9.1987 answered both the issues i.e. Issue No. 1-C and 1-A in favour of the appellants. However, on receipt of the findings from the trial Court the learned District Judge vide judgment dated 17.10.1988 reversed the findings of the learned trial Court on Issue No. 1-C and by holding the decree dated 20.1.1976 in favour of appellants as collusive dismissed their appeal. Against the judgments and decree of the two Courts below the appellants filed by present R.S.A. and this Court vide order dated 8.3.2004 framed the following additional issue:
ADDITIONAL ISSUE:
Whether the plaintiff pre-emptor i.e. Umar Din, Muhammad Rafique and Abdul Ghafoor have superior right as against the vendees, if so, what is the inter-se superiority of the rival pre-emptors"? OP-Parties.
and sent the file the learned District Judge, Sahiwal with the direction to entrust the file to any Civil Judge of competent jurisdiction to record evidence of the parties and its findings on the above issue and then transmit the file back to this Court. The learned District Judge, thereafter, sent the file to the learned Civil Judge 1st Class at Chichawatni who after recording the evidence vide judgment dated 21.6.2004 held the appellants having superior right of pre-emption as against Umar Din respondent pre-emptor. It would not be out of place to mention here that against the above mentioned order of this Court dated 8.3.2004 Umar Din respondent filed a Civil Appeal No. 326/2004 before the Hon'ble Supreme Court of Pakistan but the same was dismissed on 1.10.2004.
(i) What is the effect of decree dated 20.1.1976 obtained by the appellant; and
(ii) Who among the appellants and Umar Din Respondent No. 1 possess the superior right of pre-emption under the Punjab Pre-emption Act, 1913.
So far as the first question is concerned, the main stay of Mr. Javed Akhtar Vains, Advocate learned counsel for Umar Din Respondent No. 1 is that as the decree obtained by the appellants on 20.1.1976 was collusive and had been obtained without impleading Respondent No. 1 as party in terms of Section 28 of the Punjab Pre-emption Act, 1913 therefore, the same was no decree having any binding effect on Umar Din respondent, as such the findings of the learned trial Court dated 28.9.1987 answering Issue Nos. 1-A and I-C be up held and the appeal be dismissed. Reliance in this respect has been placed on the case "Zahoor Alam and others versus Fazal Hussain and others" (1991 SCMR 763) and "Keshri Kumar Singh versus Ran Swaroop Singh and others" (AIR 1942 Oudh 19). However, learned counsel has not disputed the findings recorded by the learned trial Court on additional issue framed by this Court on 4.3.2004 viz. superior right of pre-emption in favour of the appellants.
On the other hand, learned counsel for the appellants has argued that the suit was in fact filed by the respondents on 5.2.1975 vide plaint Ex. P-2 which was decreed on 20.1.1976 vide judgment and decree dated Ex. P-8 and Ex. P-9, whereas Umar Din filed pre-emption suit on 27.7.1975 and as the factum of pendency of the suit filed by Umar Din at the time of decree dated 20.1.1976 was not in the knowledge of the appellants, therefore, neither requirement of Section 28 of the Punjab Pre-emption Act, 1913 could be fulfilled nor Umar Din could be impleaded in the pre-emption suit filed by the appellants. Even Umar Din filed his pre-emption without impleading the appellants as party and it was later on when objection was raised on behalf of Falak Sher and Ghulam Muhammad in their written statements, the appellants were impleaded in his suit by Umar Din. However, the contention of learned counsel for the appellants is that even if the decree obtained by the appellants is ignored having been obtained in violation of Section 28 of the Punjab Pre-emption Act, 1913, the decree in favour of the appellants could not be declared as nullity, as held by this Court in the case "Mahmood Khan vs. Khan Muhammad and 5 others" (PLD 1973 Lahore 806) and the suit filed by Respondent No. 1 can still be decided on the comparative analysis of superior right of pre-emption between the rival pre-emptors and since admittedly both the appellants were sons of vendees Imam Bibi and Karam Bibi, therefore, has superior right of pre-emption qua Umar Din being brother of Imam Bibi, etc. and on this score also the appellants having superior right of pre-emption had rightly been held so entitled by the trial Court in its findings recorded on 21.6.2005. Learned counsel for the appellants to support his contention has also placed reliance on the case "Ghulam Tayyib versus Shahro Khan and others" (PLD 1962 (W.P.) Baghdad-ul-Jadid 1). It is further argued by learned counsel for the appellants that even otherwise the findings of the learned trial Court dated 17.10.1988 holding the decree dated 20.1.1976 as collusive is neither supported by evidence nor law.
I have considered the above-mentioned arguments of learned counsel for the parties; have gone through the entire record with their assistance and thrashed the cited case-law.
My considerable opinion after appraisal of the above-mentioned arguments is that as the decree in favour of appellants was obtained in violation of Section 28 of the Punjab Pre-emption Act, 1913, therefore, the same is neither a valid decree nor has any finding effect on Umar Din respondent, but this alone is not sufficient to non-suit the appellants especially when suit of Umar Din respondent was filed after the institution of the suit by the appellants and that too without impleading the appellants in his suit at the initial stage and the learned trial Court on coming to know of the passing of the decree in favour of appellants on 20.1.1976 besides impleading the appellants as party in the suit should have immediately requisitioned the file of the suit filed by the appellants and should have initiated proceedings in the said suit also in terms of Section 28 of the Punjab Pre-emption Act, 1913, notwithstanding the decree dated 20.1.1976 obtained by the appellants and then should have decided the legality of the said decree. Today, i.e. after a lapse of three decades it is neither proper nor in the interest of justice to non-suit the appellants by merely declaring the decree obtained by them as collusive, whereas, in terms of Section 28 of the Punjab Pre-emption Act, 1913 the only effect of such decree is that same is not binding on the rival pre-emptor if the same has been obtained in violation of the provisions as contained in Section 28 of the Punjab Pre-emption Act, 1913, as produced below:
"28. Concurrent hearing of suits.--When more suits than one arising out of the same sale or for closure are pending the plaintiff in each suit shall be joined as defendant in each of the other suits, and in deciding the suits in the Court shall in each decree state the order in each claimant is entitled to exercise his right."
A bare perusal of the above provision, clearly indicates that in case of rival pre-emptors the claim of both rival pre-emptors to exercise their respective right of pre-emption shall be stated by the Court while decreeing the suits and it is no where provided under Section 28, ibid that suit filed by the pre-emptor without impleading the rival pre-emptor in his suit in violation of above provision shall be thrown out as being collusive or not maintainable. The same is the rational behind a Division Bench judgment of this Court in "Ghulam Tayyib vs. Shahro Khan and others" (PLD 1962 (W.P.) Baghdad-ul-Jadid) and "Mahmood Khan vs. Khan Muhammad and 5 others" (PLD 1973 Lahore 806). The following observations of this Court in the later judgment are of valuable help for decision of this case:
"There is no gainsaying the fact that Muhammad Asif's decree having been obtained in disregard of the provisions of Section 28 of the Punjab Pre-emption Act, is not binding on Mahmood Khan, but as has been rightly pointed out by counsel for the respondents, with reference to Ghulam Tayyib v. Shahro Khan and others (2) such a decree is not a nullity and Mahmood Khan shall have to prove his superior right as against the vendees and Muhammad Asif, in his own suit, in which Muhammad Asif has been impleaded as a party."
So far as the judgment of Hon'ble Supreme Court in "Zahoor Alam and others vs. Fazal Hussain and others" (1991 SCMR 763) is concerned, the same is of no help to the respondents, rather same advances the claim of appellants that the decree dated 20.1.1976 was not nullity and the present Respondent No. 1 had to prove his superior right in his suit as against the appellants as well as vendees. The above discussion leads me to conclude that despite the decree obtained by the appellants on 20.1.1976 in violation of Section 28 of the Punjab Pre-emption Act, 1913 and even if the same is ignored, Umar Din Respondent No. 1 could not have been granted first decree of pre-emption as against the appellants who in terms of findings of the learned trial Court dated 21.5.2004 recorded on the additional issue framed by this Court on 28.4.2004 holding the appellants having superior right of pre-emption qua Umar Din Respondent No. 1 and the said findings having been admitted by Respondent No. 1 through his learned counsel and not challenged in terms of Order 41, Rule 26 C.P.C. despite query by this Court from his learned counsel before opening of arguments.
A
B
C
District Judge, Sahiwal have been perused and same verify the contention of learned counsel for respondent Umar Din, when except Mst. Parveen Akthar widow of Abdul Ghafoor all the legal heirs stated before the learned District Judge that they had no objection if the decree in favour of Umar Din to the extent of share of Abdul Ghafoor is kept intact in favour of Umar Din.
I. Umar Din Respondent No. 1 is held entitled to retain area to the extent of 26-Kanals falling to the share of Abdul Ghafoor deceased after deducting the share of his widow measuring 8-Kanals 14-Marals;
II. Muhammad Rafiq appellant is held entitled to retain 35-Kanals 18-Marlas (1/2 share of the total area i.e. 43-Kanals 18-Marla) and Mst. Parveen Akhtar appellant is held entitled to 1/4th share of heritance of Abdul Ghafoor as widow out of the remaining 34-Kanals 18-Marla (measuring 8-Kanals 14-Marlas), therefore, the suit filed by Umar Din to the extent of 42-Kanals 14 Marlas stand dismissed and the decree passed by two Courts below is kept intact to the extent of 26-Kanals;
III. Out of the total amount of Rs. 60,000/-, if already deposited by Umar Din respondent in terms of judgment of the learned District Judge dated 17.1.1988, an amount of Rs. 22500/- shall be paid to the above-mentioned legal heirs of Abdul Ghafoor deceased, except his widow Mst. Parveen Akhtar, and the remaining amount of Rs. 37500/- (Rs. 30,000/- as price of « share of Umar Din and Rs. 7500/- as share of Mst. Parveen Akhtar) shall be returned to Umar Din Respondent No. 1. Amended decree be prepared in the above manner, and
IV In case, Umar Din in terms of the judgment of the learned District Judge dated 17.10.1988 has not deposited the amount so far, he can deposit Rs. 22500/- minus Zar-e-Panjum, if any, till 30.6.2007.
(N.F.) R.S.A. allowed.
PLJ 2008 Lahore 47
Present: Syed Hamid Ali Shah, J.
KHALID MAHMOOD--Petitioner
versus
ANEES BIBI and 2 others--Respondents
W.P. No. 1888 of 2005, decided on 20.7.2007.
Dower--
----Decree for dissolution of marriage has attained finality, terms whereof can neither be altered nor modified in subsequent suit--Respondent had not for gone her claim of dower and as such she cannot be deprived of it--Impugned order of the First Appellate Court, does not call any interference, being devoid of any legal infirmity--Appeal dismissed. [P. 52] D
Jurisdiction--
----Dower--Court has power to fix any amount of compensation, being the consideration of Khula' if it is found after recording of evidence, thatKhula' is not claimed merely on the desire of wife but the fault of husband, is also the reason for recourse to Khula'--Consideration ofKhula' cannot be any consideration except the amount of dower.
[P. 51] A
Khula--
----Court can dissolve the marriage on the basis of
Khula' even without any compensation, when if finds thatKhula' is being claimed due to the fault, on the part of husband. [P. 52] C
West Pakistan Family Courts Act, 1964 (XXXV of 1964)—
----S. 10(4)--Constitutional of Pakistan, 1973, Art. 199--Dissolution of marriage on the basis of Khula--Entitlement of Court has power to fix any amount of compensation, being the consideration of Khula--Fault of husband--Determination--Question of dissolution of marriage is determined after proper trial then proves of Family Courts Act, 1964, S. 10(4) is not applicable and Court can dissolve the marriage according to the circumstances of each case--Power of the Family Court to fix any consideration for dissolution of marriage, cannot be curtailed. [P. 52] B
Mr. Rafaqat Ali Kahloon, Advocate for Petitioner.
Rana Muhammad Anwar, Advocate for Respondent No. 1.
Date of hearing: 16.5.2007.
Judgment
Respondent No. 1, instituted the suit for recovery of dower amount to the tune of Rs. 1,61,000/- comprising of Rs. 100,000/- (Rupees One lacs) as amount of dower and Rs. 60,000/- (Rupees Sixty Thousands) as dowery articles, consisting of one buffalo and two calves. The petitioner contested the suit through filing the written statement, wherein the petitioner controverted the assertions of the plaint and raised various preliminary objections. Learned trial Court at the first instance struck the preliminary issues as to the maintainability of suit but subsequently on 16.2.2004, after framing of 4 (four) other issues put the parties to regular trial. Learned trial Court, on conclusion of trial, decreed the suit vide judgment and decree dated 13.4.2004. The decree of the Learned trial Court was set aside on appeal, vide judgment dated 7.6.2004, whereby learned Appellate Court remanded the case with the direction to decide the suit afresh, give finding on each issue (preliminary) and others) simultaneously and separately with proper reasoning and finding with specific reference to amendment in Section 10 of the Family Courts Act, 1964, through Ordinance LV of 2002. Learned trial Court, in post remand proceedings, dismissed the suit, vide judgment and decree dated 2.10.2004. Respondent No. 1, assailed the judgment and decree of the learned trial Court in appeal, which borne fruit and suit was decreed partly (to the extent of amount of dower i.e. Rs. 100,000). Appellate decree dated 6.1.2005, has now been assailed, in the instant petition.
Learned counsel for the petitioner has contended that the suit of the plaintiff for dissolution of marriage was decreed on the basis of Khula, by the Judge Family Court, Hafizabad through judgment and decree dated 15.5.2003. Learned counsel added that the marriage was dissolved on the basis of Khula' thus Respondent No. 1, is not entitled to claim any amount of dower. Learned counsel supported his contention by referring to proviso to sub-section (4) of Section 10 of the Family Courts Act, 1964, Learned counsel went on to argue that in view of the proviso, wife seekingKhula' has to restore to husband the "Haq Mehr" received by her in consideration of marriage, at the time of marriage. Learned counsel went on to argue that before the phrase "...... also restore to the husband the Haq Mehr...." Word
"shall" has been used, which makes the intention of the Legislature clear that restoration of "Haq Mehr" is mandatory and there is no
"Khula" if the "Haq Mehr" is not restored to the husband or unless it is not relinquished. Learned counsel further supported his contention by referring to the case of Mst. Saleha Babar vs. Basit Saleem (2005 YLR 1648).
Leaned counsel has submitted that decreeing the suit of Respondent No. 1, for
Khula' without resorting to the provisions of Section 10(4) of the Family Courts
Act, 1964, the decree of dissolution of marriage is in excess of jurisdiction.
He then referred to the case of Ali Muhammad vs. Hussain Bakhsh and others (PLD 1976 SC 37) to contend that decree in excess of jurisdiction has no sanctity in the eye of law. Such decree can be ignored and does not require formal setting aside. Learned counsel contended that the consideration ofKhula' can be amount of dower only and it cannot be any other debt. Learned counsel submitted that the above principle is based on the thought of Imam Abu Hanifa and finds specific mention in Digest of Mohammadan Law by Neil B.E. Baillie in Chapter
VIII at page 306. A further reference was made to "The Hedaya" by
Charles Hamilton (Page 113) where a tradition of Holy Prophet (PBUH) was quoted, regarding a woman who was advised to forego the amount of dower and
"nothing more" as compensation to include the husband to divorce her.
Learned counsel referred to various pages in
"Majmooa-e-Qawaneen-e-Islam" by Dr. Tanzeel-ur-Rehman in support of his conditions.
Learned counsel for Respondent No. 1, on the other hand, has fully supported the impugned judgment and decree. He has submitted that the marriage was dissolved through decree of the Court, which had not been challenged in any higher forum. The judgment has attained finality in the eyes of law. Learned counsel has referred to the case of Shahid Hameed Janjua vs. Addl. District Judge, Rawalpindi and another (2002 YLR 2601) and contended that in identical circumstances, the amount of dower was granted. Learned counsel lastly contended that cases where husband is at fault, the Court can grant the decree of `Khula' even without any compensation at all. Learned counsel supported his contention by making a reference to the case of Mst. Saiqa vs. Addl. District Judge, Rawalpindi and 2 others (2003 YLR 70).
Heard learned counsel for the parties and record perused.
The parties have a long history of litigation. The litigation between the parties started when Respondent No. 1, instituted suits in the Court of Mr. Khalid Mahmood, Judge Family Court, Hafizabad, for her maintenance and the maintenance of her child, dissolution of marriage and for recovery of amount of dower. The petitioner on the other hand instituted suit for restitution of conjugal rights in the Family Court at Sheikhupura. The litigation came to end, through a compromise inter-se the parties. The parties started living together and during this period Mobeen Shehzadi (daughter) was born. Another dispute between the parties, gave rise to the institution of suits, when the petitioner filed suit for restitution of conjugal rights against Respondent No. 1 at Sheikhupura. Respondent No. 1, instituted lis against the petitioner at Hafizabad, filed suits for recover of maintenance for herself and for her daughter and suit for dissolution of marriage on 17.2.2003. The suit of the petitioner was transferred to Hafizabad and all the suits were consolidated. Learned Judge Family Court, Hafizabad, through a consolidated judgment dated 15.5.2003, dismissed the suit for restitution of conjugal rights, dissolved the marriage on the basis of `Khula' against the consideration of relinquishment of claim of maintenance and also the expenses of delivery on the birth of Mobeen Shehzadi. The judgment and decree attained finality, as it was not challenged by either party. The litigation between the parties started for the third time when the suit subject-matter of this petition was filed.
There exists no dispute with regard to the fact that the amount of dower as incorporated in
Nikahnama, Ex.P. 1, is
Rs. 101,000/- (Rupees One lac and one thousand) of which Rupees one thousand
(Rs. 1000/-) have been paid to Respondent No. 1 as prompt dower. The controversy inter-se the parties rests on the propositions that the wife, who has sought dissolution of marriage on the basis of Khula' is entitle to claim her dower, where the decree ofKhula' was granted on the consideration, other than the amount of dower.
The petitioner addressed two fold arguments that according to proviso to sub-section (4) of
Section 10 of Family Courts Act, 1964, simultaneously on failure of reconsideration, the Court has to dissolve marriage on the basis of Khula' and the wife will immediately restore back to husband the dower, received at the time of marriage. Secondly consideration ofKhula' can be no other consideration except return of amount of dower. The petitioner's learned counsel has confined his arguments before me, to these questions only.
Khula' is provided to woman in opposition to right of divorce vested in man. The trouble, if arises from the side of woman, the man is given power to divorce her and when injury is from the man's side, the woman is given the right to obtainKhula', which she exercises, subject to restoration of dower. Dower is considered by various jurists, as only consideration and nothing beyond it.
Their opinion is based on the incidence of divorce sought by Jamila wife of
Sabit, Holy Prophet (Peace be upon Him) advised Sabit to take back the orchid and nothing more. Hazrat Azhar Bin Marwan in this respect narrated Hadith and quoted Holy Prophet (PBUH) saying:
It was so, because the wife of Sabit (Jamila) was herself course of dispute. She admitted before Holy Prophet that she had no complaint against the conduct or behaviour of her husband but decided to seek divorce, when she saw him from tent, while he was coming with his companions and found his complexion dark/black, face ugly and short in height. In this background Jamila was asked to return everything which she received and was stopped to give anything other than what she received. Dr. Tanzeel-ur-Rehman, in book Majmooa-e-Qawaneen-e-Islam has expressed (page 576) that many jurists on the basis of verse of Holy Quran:
have formed the opinion that the soupse can agree to any other consideration of Khula' or they can restrict this consideration to any extent. He has also expressed that the Court can also fixed the consideration ofKhula', according to circumstances of the case. The extent of compensation of money, in lieu of `Khula' came up for consideration before this Court in the case of Qamar Alam Sheikh vs. Mst. Robina and others (1997 CLC 985) and it was held:-
"The petitioner's demand for additional compensation contained in the written statement and his deposition rather militates against his bana fides. In my view the principle is that a wife can buy her freedom upon payment of compensation and in the event of mutual agreement, parties can agree upon any figure. However, once the Court is approached, the command of Shariah is very clear about the extent of compensation money. It cannot be fixed at a figure higher than the dower amount and return of benefits received by wife from her husband. However, in case fault is found on the part of husband, the Court can reduce the amount of compensation and may even grant decree for `Khula' without any compensation at all. I find support for such view from the judgments in Mst. Parveen Begum v. Muhammad Ali (PLD 1981 Lah. 116), Mst. Zahida Bibi vs. Muhammad Masood (1987 CLC 57). Mst. Shagufta Jabeen v. Sarwar Bi PLD 1990 Kar. 239 and Dilshad v. Mst. Musarat Nazir (PLD 1991 SC 779)."
Khula' if it is found after recording of evidence, thatKhula' is not claimed merely on the desire of wife but the fault of husband, is also the reason for recourse to Khula'. In other cases consideration ofKhula' cannot be any consideration except the amount of dower.A
In the earlier round of litigation the Court passed the decree for dissolution of marriage, whereby the claims of the wife as to her maintenance and the buffalo and two calves, given to her in her dowery was held to be the consideration of Khula'.
The suit was decreed on 5.5.2003 which the petitioner had not assailed in appeal and has attained finality. The petitioner has not paid the maintenance, nor the buffalo and two calves were returned besides non-filing of appeal, which leads to conclusion that the petitioner has accepted the consideration ofKhula' which the learned Court fixed through decree dated 5.5.2003. The decree for dissolution of marriage and quantum of consideration for decree of `Khula' have therefore, therefore attained finality. The decree, which has attained finality, and modification by reverting to another decree cannot be made therein nor the defendant's another suit, can find fault in the decree which has attained finality. In holding so, I find support in this respect, from the judgment, in the case of Shahid Hameed Janjua (Supra).
The condition on the wife to restore to husband the dower, received by her at the time of marriage, while seeking dissolution of marriage on the basis of Khula', according to proviso to sub-section (4) of Section 10 of Family Courts Act, is explicitly indicative of fact that this provision of law (brought through amendment vide Ordinance, 2002) is only meant to apply in suits in which dissolution of marriage is prayed for, only on the basis ofKhula'. Further in such like situation the decree is passed straightway on failure of reconciliation. This proviso is not applicable, where the decree is not passed forthwith, on failure of reconciliation proceedings and where the dispute cannot be resolved without recording of evidence. Proviso was introduced to absolve the Court from following normal procedure of trial and to empower it pass a decree, on failure of reconciliation, without framing of issues and recording of evidence. Word and' used between the sentences. "If reconciliation fails, shall pass a decree for dissolution of marriage forthwith" and "shall also restore to husband the Haq Mehr", has been employed unsight fully. This envisages that order for dissolution of marriage and restoration of Haq Mehr was to be passed simultaneously. When question of dissolution of marriage is determined after proper trial then proviso (ibid) is not applicable and Court can dissolve the marriage according to the circumstances of each case. The power of the Family Court to fix any consideration for dissolution of marriage, cannot be curtailed. The Court can dissolved the marriage on the basis ofKhula' even without any compensation, when if finds that `Khula' is being claimed due to the fault, on the part of husband.
Decree for dissolution of marriage dated 5.5.2003 has attained finality, the terms whereof can neither be altered nor modified in subsequent suit. Respondent No. 1 had not fore gone her claim of dower and as such she cannot be deprived of the same. The impugned decree of the lower Appellate Court, does not call for any inference, being devoid of any legal infirmity.
Lah. Abdul Haleem v. Muhammad Tahir Khan PLJ (Maulvi Anwar-ul-Haq, J.)
2008 Abdul Haleem v. Muhammad Tahir Khan Lah. (Maulvi Anwar-ul-Haq, J.)
(N.F.) Petition dismissed.
PLJ 2008 Lahore 53
Present: Maulvi Anwar-ul-Haq, J.
ABDUL HALEEM--Appellant
versus
MUHAMMAD TAHIR KHAN--Respondent
R.S.A. No. 176 of 2005, decided on 16.4.2007.
Punjab Pre-emption Act, 1991 (IX of 1999)—
----S. 24(2)--Superior right of pre-emption--Suit for possession was put up before trial Court on same day--Notices were issued--Direction for depositing of zar-e-soam--Appellant filed an application for extension of time--Not pressed--Disposed of--Case came up for hearing on 19.6.2000--On this date a receipt was filed alongwith an application for extension of time, suit was also dismissed--Validity--Suit was filed on 17.5.2000--Taken up by trial Court on same day and direction was issued on the same date and not on 18.5.2000--Being entertained cannot suffer for the fault of the Court--Amount was deposited within 30 days--Court either did not pass an order or it was passed at a latter point of time--Held: Parties cannot suffer for the fault of the Court--Order for depositing has been passed in complete accordance with the provision of S. 24(1) of Punjab Pre-emption Act--Ground being urged for extension of time are prima facie, incorrect. [P. 55] A & B
Mr. Noor Muhammad Khan Chandia, Advocate for Appellant.
Nemo for Respondent.
Date of hearing; 16.4.2007.
Order
For the purpose of this judgment pleaded facts need not to be narrated. Suffice it to say that the respondent purchased the suit land for a consideration of Rs. 8,00,000/- vide registered sale-deed dated 7.2.2000. On 17.5.2000, the appellant filed a suit for possession of the suit land by pre-emption. The suit was put up before the learned trial Court on the same day. After receiving office report the case was taken up in presence of counsel for appellant. The suit was registered. Notices were issued for 15.6.2000 and the appellant was directed to deposit 1/3 of the said sale price, which was calculated as Rs. 2,66,667/- till the said date. When the case came up for hearing on 15.6.2000 the learned counsel for appellant put in appearance, the respondent was also represented and his counsel filed his power of attorney. The learned counsel for appellant filed an application for extension of time for deposit of the said amount. The learned Trial Court heard the counsel for parties and fixed the case for order in the later part of the day. At this stage, the learned counsel for appellant stated that the case be adjourned to enable him to obtain receipt for deposit of the amount from his client and the application was not pressed. It was accordingly disposed of. The case came up for hearing on 19.6.2000. On this date a receipt was filed along with an application for extension of time. This application was contested and was dismissed by the learned trial Court on 29.9.2000 and the suit was dismissed under Section 24(2) of the Punjab Pre-emption Act, 1991. First appeal filed by the appellant has been dismissed by the learned Additional District Judge, Mandi Bahauddin on 19.7.2005.
The learned counsel for appellant has cited the cases of Mst. Mumlikat Begum vs. Malik Nasrullah (2004 S.C.M.R. 1290), Ghulam Mustafa Khan vs. Ashiq Hussain and others (2003 CLC 1661), Imran Ahmad and another vs. The District Judge, Dera Ghazi Khan and 2 others (2003 CLC 1597) and Muhammad Ilyas and 4 others vs. Munshi Khan (2003 CLC 1815) to contend that since the appellant has established his bona fide on record by making deposit within time fixed by the statute i.e. 30 days from the date of institution of the suit, therefore, a case for extension of time is made out and the plaint ought not to have been rejected.
The respondent was served, however, none has turned up on his behalf.
I have gone through the Trial Court's record with the assistance of the learned counsel for appellant. In the plaint the ostensible sale price as shown in the sale-deed was not questioned. In para 4 of the plaint it was stated that the appellant had acquired the knowledge of sale on 8.2.2000 and he made first "Talab" in the course of exercise of his first superior right of pre-emption. He served notice of "Talab-i-Ishhad" under registered over A.D. on 17.2.2000. The suit was filed on 17.5.2000, which came up on the same day and the learned Trial court in compliance with the Provision of Section 24(1) required the appellant to deposit 1/3rd of the sale price, which was worked out and was conveyed to his counsel. The direction was that the said amount was to be paid upto 15.6.2000. In the first instance an application was filed on 15.6.2006 stating that due to other business the amount could not have been deposited and the time be extended. This application was withdrawn as not pressed. Admitted position is that the amount had not been deposited prior to the said date, but was deposited on 17.6.2000. In
Lah. Muhammad Tariq Chaudhry v. Khalid Ahmad PLJ (Syed Hamid Ali Shah, J.)
2008 Muhammad Tariq Chaudhry v. Khalid Ahmad Lah. (Syed Hamid Ali Shah, J.)
the application filed on 19.6.2000 for extension of time it was stated that the suit was filed on 17.5.2000 while the order for deposit of the amount was made on 18.5.2000. According to the appellant he was under the impression that the amount was to be deposited within 30 days and his counsel also informed him accordingly and he deposited the amount on 17.6.2000.
A
B
(R.A) R.S.A. dismissed.
PLJ 2008 Lahore 55
Present: Syed Hamid Ali Shah, J.
MUHAMMAD TARIQ CHAUDHRY--Petitioner
versus
KHALID AHMAD and 7 others--Respondents
W.P. No. 851 of 2007, decided on 9.7.2007.
Punjab Local Government Election Rules, 2005—
----R. 57--Constitution of Pakistan, 1973, Art. 199--Exercise of re-counting--Agreed for re-counting--Strong and unimpeachable evidence in rebuttal--Bar of estoppel--No right to challenge--Petitioner has agreed for re-counting of votes--Firstly, when he accepted the decision of High Court, by not assailing the same in any higher forum--Secondly, when petitioner appeared before tribunal, agreed for re-counting and raised objection that such exercise must be done in presence of his counsel--Petitioner signed the order sheet in due acceptance of process of recount of votes pertaining to disputed polling stations, from the election record--Petitioner having agreed before election tribunal for re-counting from election record is now estopped by his conduct to turn around that re-counting of ballot papers from unsealed bags is unfair exercise--Petition dismissed.
[P. 59] B
Estoppel--
----Bar of--No right to challenge--Bar of estoppel can be applied to case of petitioner with its vigor--Petitioner has no right to challenge re-count of votes from unsealed bags, when he has himself consented to it, at the time of re-count before the Tribunal. [P. 60] C
Assessment of Record--
----Materially affected--Statements of count prepared by Presiding Officer and copies thereof provided to agents of candidates, were discrepant, which has materially affected the outcome of result--Petition dismissed. [P. 58] A
Dr. Khalid Ranjha, Advocate and Mr. Atir Mehmood, Advocate for Petitioner.
Hafiz Abdul Rehman Ansari, Advocate for Respondent No. 1.
Date of hearing: 22.6.2007.
Judgment
Election of Nazim and Naib-Nazim of Union Council No. 139, Green Town, Lahore were held on 28.5.2005. The petitioner and Shabbir Hussain were joint candidates they were allocated basket as election symbol, while Respondents No. 1 & 2 were rival joint candidates who were allotted symbol of hockey. Besides the aforesaid candidates, there were two other sets of candidates who are Respondents No. 3 & 6. The petitioner and Shabbir Hussain, were declared returned candidates who secured 2925 votes as against Respondents No. 1 & 2 who bagged 2283 votes. The return of the petitioner and Shabbir Hussain, was challenged through election petition, mainly on the ground that election result was changed, through tampering by incorporating illegal additions and detections, in the count sheet.
Election petition was contested by the petitioner and out of divergent pleadings of the parties, five issues were framed. Respective evidence of the parties was recorded and on conclusion of the trial, learned Tribunal vide order dated 30.9.2006, accepted the election petition. The decision of the learned Election Tribunal was assailed in W.P. No. 10595 of 2006, which was allowed vide order dated 19.12.2006, whereby the Tribunal was directed to summon record of disputed Polling Stations recount votes in presence of the parties or their Polling Agents and prepare the result afresh. Election Tribunal summoned the Polling Bags, pertaining to Polling Stations No. 5, 12, 18, 20, and 21. The petitioner made a request for adjournment on 16.1.2007, to engage a counsel. Learned Tribunal took the exercise of recounting on 17.1.2007, in presence of the parties. The result was tabulated in the course of recount and in view whereof, Respondents No. 1 & 2 secured 2364 votes, while the votes casted in favour of the petitioner and Shabbir Hussain were to 2349. Resultantly Respondents Nos. 1 & 2 were declared returned candidates with a lead of 15 votes in place of the petitioner and Shabbir Hussain. Order of Tribunal dated 17.1.2007, has been assailed in this petition.
Learned counsel for the petitioner has submitted that it is evident from order dated 17.1.2007 of the Tribunal that Polling Bags of disputed Polling Stations, were not sealed. The only Polling Bag which was sealed pertained to Polling Station No. 20, but the seal was not readable. It was also noted by the Tribunal that Ashtar Abbas, Returning Officer, his pre-decessor, has also made similar report. Learned counsel emphasized that recount of votes from the unsealed bags, could not lead to authentic result. Having referred to Rules 57 and 58 of the Punjab Local Government Election Rules, 2005. It was submitted that the Polling Bags were not sealed by Presiding and Returning Officer according to mandatory requirement of these Rules. The votes in the bags which are neither sealed nor kept in the safe custody, according to above-referred rules, do nor depict true picture and no result can validly be announced on the basis of defective record. Learned counsel supported his contention by placing reliance on the case of "Malik Muhammad Munawar Khan vs. Election Tribunal District Judge, Lahore and 8 others" (1991 CLC 180). Learned counsel added that according to referred judgment, the recounting of vote was held to be unsafe in respect of bags which were torn and unsealed. He went on to argue that learned Tribunal has erroneously undertaken the exercise of recounting of votes from the bags which were unsealed. Learned Tribunal instead of adopting the right course of dismissal of the petition, preferred accounting of votes on defective and unauthentic material. Learned counsel further submitted that 36 valid votes in favour of the petitioner, were wrongly excluded by Respondent No. 7. Since there was no evidence on record to prove that the petitioner had manipulated the casting of votes in illegal manner, therefore, holding the petitioner responsible for such an act, is unjustified. He went further to submit that Respondents No. 1 & 2 remained involved in manipulation and tampering with the record.
Learned counsel for Respondents No. 1 & 2, on the other hand, has submitted that scope of writ petition is limited. Constitutional jurisdiction can be exercised in the matter where order/action impugned is wholly without jurisdiction, Constitutional petition cannot be invoked to set aside an erroneous decision on facts of law. Learned counsel supported his contention by referring to the cases of "Badarul Haque Khan vs. The Election Tribunal, Dacca etc." (PLD 1963 S.C. 704) and "Muhammad Hussain Munir and others vs. Sikandar and others" (PLD 1974 S.C. 139). It was then contended that the case was remanded to the Election Tribunal for recounting of votes at the disputed Polling Stations. The petitioner has not assailed the order of this Court before any other higher forum. The order has attained finality. Learned Tribunal has undertaken the exercise of recounting of votes, in view of, the decision of this Court. The order of recount is not open to any exception. Learned counsel has summed up his arguments by submitting that the petitioner is estopped by his conduct to raise objection on recounting of ballots, as the petitioner has agreed to it and raised no objection when the recounting of votes was ordered.
I have heard the learned counsel for the parties and perused the material available on the record.
It was observed by this Court in it's order dated 19.12.2006, in earlier petition (W.P. No. 10595 of 2006), that overall assessment of record shows that statements of count prepared by Presiding Officer and copies thereof provided to the agents of the candidates, were discrepant, which has materially affected the outcome of result. The Court in this background found that learned Tribunal ought to have undertaken the exercise of recount of votes polled, during elections at the disputed Polling Stations. Specific direction was given to the Election Tribunal to prepare election result, afresh after recount.
The impugned exercise of recounting of votes was carried out by the learned Tribunal, strictly in accordance with order dated 19.12.2006 of the Court. Learned Tribunal had to proceed in the manner, as it was directed by this Court. There was neither any room, nor any justification to deviate from the course/manner which was suggested by this Court.
Admittedly, Polling Bags of the disputed Polling Stations, were not sealed according to Rule 57 of Rules, 2005. The possibility of tampering of record, if any stands negated by the conduct of the petitioner. Relevant part of order dated 16.1.2007 needs mention here, which is re-produced below for ready reference:-
The case was then adjourned to 17.1.2007. The parties and their learned counsel present before the learned Tribunal, agreed for recount and signed the margin of order sheet to that effect. It will be appropriate that this order may also be re-produced:
B
Lah. Ch. Muhammad Azeem v. Election Tribunal/ PLJ Distt. & Sessions Judge, Hafizabad (Syed Hamid Ali Shah, J.)
2008 Ch. Muhammad Azeem v. Election Tribunal/ Lah. Distt. & Sessions Judge, Hafizabad (Syed Hamid Ali Shah, J.)
by the petitioner. This argument of the petitioner is neither convincing nor there is any justification to accept such logic. Court record has the presence over any other material to the country, unless strong and unimpeachable evidence is brought on the record in rebuttal. The case of "Fayyaz Hussain vs. Akbar Hussain and others" (2004 SCMR 964) can be referred in this respect wherein the apex Court has held, as under:
"..... Learned counsel attempted to persuade us, to accept the affidavit of Ch. Muhammad Afzal Kahloon. Advocate over the judicial proceedings recorded in the Court of Additional District Judge in view of unfair reputation of the Presiding Officer but we are not inclined to adopt this course of action which may lead to a large number of legal complications. In any event this being an essentially a disputed question of fact could neither by resolved by the High Court nor by this Court in the exercise of extraordinary Constitutional jurisdiction. There is always a presumption of correctness in favour of judicial proceedings and credibility is attached to the proceedings before a judicial forum. Strong and unimpeachable evidence is required to rebut the presumption."
The petitioner has not moved against the Presiding Officer of learned Tribunal, for incorporating in order dated 17.1.2007, unauthorized addition as to his consent, in his absence. So much so, no such allegation finds mention in the instant petition, in this respect. The petitioner is, therefore, bound by his consent and cannot wriggle out of it, by merely saying that unauthorized additions were made in the order sheet. Bar of estoppel can be applied to case of the petitioner with it's vigor. The petitioner has no right to challenge recount of votes from unsealed bags, when he has himself consented to it, at the time of recount before the learned Tribunal.
For the foregoing, I see no merit in this writ petition, which is accordingly dismissed with no orders as to costs.
(N.F.) Petition dismissed.
PLJ 2008 Lahore 60
Present: Syed Hamid Ali Shah, J.
Ch. MUHAMMAD AZEEM--Petitioner
versus
ELECTION TRIBUNAL/DISTRICT & SESSIONS JUDGE, HAFIZABAD and 8 others--Respondents
W.P. No. of 2165 of 2007, decided on 29.6.2007.
Punjab Local Government Election Rules, 2005—
----Rr. 65 & 74--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Election of Nazim and Naib Nazim--Joint candidate/ candidacy--Election for casual vacancy--Fee was not deposited--Disqualification on the basis of mis-declaration of assets--Principle of sinker--Statutory qualification--Returned candidate--Held: Joint candidacy is not limited to election only but the principle of sinker would be applicable even in election petition--Petitioner had failed to file recrimentory petition and gave no such evidence within 14 days of the commencement of the trial--Disqualification was not in the knowledge of the voters at the time of election or at the time of scrutiny of the nomination papers, therefore, votes given to the petitioner cannot be thrown away, at the belated stage cannot be entertained--Petitioner has neither raised the point nor an issue to that effect was framed--Petitioner had not produced any witness, while the petitioner in his solitary statement had not uttered a single word about his notorious disqualification--Petitions dismissed.
[Pp. 64, 65 & 67] A, B & C
2004 SCMR 1242; PLD 2003 Lah. 138; PLD 2006 Lah. 24; 2003 SCMR 1611 & PLJ 2004 SC 463 ref.
Mr. Talib H. Rizvi, Advocate for Petitioner.
Ch. Muhammad Anwar Bhinder, Advocate for Respondents No. 3 and 4.
Ch. Abdul Ghaffar, Advocate for Respondent No. 9.
Date of hearing: 25.6.2007.
Judgment
This judgment shall dispose of W.P. No. 2165-2007 and W.P. No. 2654-2007 titled "Tassadaq Hussain vs. Election Tribunal etc."
Respondents Nos. 3 to 9 and petitioners in these petitions, contested the election of Nazim and Naib-Nazim of Union Council No. 83/47-Khayali Shahpur, District Gujrat. The petitioner and Respondent No. 9, (who is also petitioner in the connected petition), were declared returned candidates. Respondents No. 3 and 4, through filing election petition, challenged the return of the petitions in the above-referred writ petitions. The petition was contested by the petitioners herein, who controverted the assertions of the petition and raised various preliminary objections. Learned Tribunal framed four issues and recorded evidence of the parties and on conclusion of trial, through order dated 1.3.2007 accepted the election petition, resultantly Respondents No. 3 and 4 were declared returned candidates under Rule 74 of the Punjab Local Government Election Rules, 2005, being the second highest votes getter.
Both the petitioners have assailed the order of learned Tribunal in two afore-referred constitution petitions on different grounds. Tassadaq Hussain (petitioner in W.P. No. 2654-2007) has defended his return mainly on the ground that disqualification of other joint candidate is not fatal to him, once he was declared successful. Learned counsel then submitted that the petitioner incurred no disqualification and disqualification of the petitioner (in connected petition) does not effect his position. He went on to argue that as per Rule 14(3) of Rules ibid, joint rejection of nomination papers, relate to the matters regarding scrutiny of papers. Once the nomination papers are accepted and a candidate has been declared elected, then concept of sinker comes to an end. The candidates once declared returned, resume their respective offices separately. Rule 76 speaks of candidate instead of candidates to convey the intention of legislature that Nazim and Naib-Nazim act and perform their duties in their own capacity and disqualification of one, after declaration of result, is not fatal to the other candidate.
Mr. Talib Haider Rizvi, Advocate, learned counsel for the petitioner in W.P. No. 2165-2007, has submitted that learned Tribunal dismissed the application for additional evidence, without any legal justification. Statement of Secretary BISE Lahore was highly essential for just disposal of the case and refusing to summon a material witness has resulted into miscarriage of justice. Respondent No. 3 was not matriculate, which fact could only be determined, after requisitioning of record from BISE Lahore; that the learned Tribunal has declared unqualified candidates, as returned candidates. Impugned order is not sustainable; that by unseating the petitioner, the respondents cannot be declared successful candidates and de-franchising the voters, without any fault on their part, is not the intent of law. Case of "Sardar Tariq Javaid vs. Provincial Election Commission of Punjab and 8 others" (2004 SCMR 1242) was referred to support this contention. He has submitted further that the petitioner owned 2¬ marlas of land in Kotli Rustam, Gujranwala but subsequently he sold this property through an agreement to sell. The property did not vest in the ownership of the petitioner on the date of filing of nomination papers. Learned counsel went on to argue that learned Tribunal has not given due weightage to material document namely Ex. R/1, R/2, R/3 and R/4. Learned counsel has submitted that filing of the petition independently, without joint candidate, is not fatal and supported this contention by referring to the case of "Ch. Maqbool Ahmad and others vs. Malik Falak Sher Farooqa, A.D.J./Election Tribunal and others" (PLD 2003 Lahore 138). Learned counsel has contended that the impugned judgment is silent about the objection of the petitioner that election petition was not filed according to mandatory requirement of Ordinance, 2001. It has also been argued that learned Tribunal has observed in the impugned judgment that no evidence regarding transfer of Haveli, or any agreement has been produced to prove the sale. It has been added that the petitioner has deposed in his statement that he will produce agreement dated 24.3.2006 at the time of arguments. Arguments were addressed and agreement was produced at the time of arguments, as per statement, but the impugned judgment is silent in this regard, which proves the mala fide of learned Tribunal. Learned counsel has lastly contended that the petitioner has not mentioned about Haveli measuring 2.1/4 marlas in his "asset form" under Rule 12(4) of Punjab Local Government Election Rules, 2005, for the reason that property after it's sale was not vested in the ownership of the petitioner.
Learned counsel for Respondents Nos. 3 & 4, has fully supported the impugned judgment and order and contended that the petitioners in these petitions, filed their nomination paper jointly. Their proposer, secondar and the declaration was joint. Additionally they contested election with one symbol, secured votes jointly as per Rules 20 and 30 of Rules, 2005 and were declared successful jointly. Their disqualification is joint and separate writ by each petitioner is not competent. Learned counsel while referring to Rule 16(1) and the case of "Sheikh Muhammad Akram and another vs. Sheikh Muhammad Yaqub and others" (PLD 2006 Lahore 24), has contended that concept of joint candidature, has it's rigid application, a joint candidate cannot withdraw his nomination papers singly, similarly the disqualification cannot be assailed singly, it has to be challenged by the joint candidates, jointly. Learned counsel has submitted that challenge to disqualification of Respondent No. 3 was not urged through filing recriminatory petition, under Rule 74 of Punjab Local Government Election Rules, 2005. Learned counsel further submitted that request of the petitioners for additional evidence was rightly declined by the learned Tribunal because the petitioners had themselves closed their evidence and recorded statement before the Tribunal in that regard. It was contended that matter regarding summoning of witness and additional evidence cannot be raised now as, the earlier writ petition filed by the petitioner (W.P. No. 10175/2006) on the same question was dismissed ion 5.12.2006, by observing that failure to bring evidence on the record at proper time was a matter of his (petitioner's) choice. Application did not disclose good ground for brining on the record such evidence that was already available to the petitioner before he closed his evidence. Learned counsel submitted further that sale agreement is of subsequent date, which itself proves that Ch. Muhammad Azeem, petitioner was owner of Haveli, in question. Agreement to sell, does not confer title, nor ownership is transferred on the basis of such agreement. Learned counsel has submitted that the petitioner has himself admitted that he lives in Haveli. This fact is known to the voters of the constituency. Non-declaration of such property in the assets form, entail notorious disqualification.
I have heard the learned counsel for the parties and perused the material available on the record.
I shall take up first the question raised by the petitioner in W.P. No. 2654-2007, that disqualification of the other petitioner/joint candidate (W.P. No. 2165-2007) is not fatal to him, as doctrine of sinker is not applicable to joint candidate, after the declaration of result. Identical issue came up for consideration before the apex Court firstly in the case of Mian Ahmad Saeed and others vs. Election Tribunal for Kasur as Okara and 7 others" (2003 SCMR 1611) wherein it was observed by Hon'ble Court that joint candidates must possess the statutory qualifications individually and collectively on the nomination day and lack of such qualification of any one would invalidate their nomination jointly They face the consequences of the disqualification of any of them and both are equally affected by result of election petition. Subsequently same question arose before the Hon'ble Supreme Court of Pakistan in the case of "Sher Zaman Sher and others vs. Jahanzeb Khan and others" (PLJ 2004 S.C. 463) and the apex Court found that:
"...... The joint candidates for the seat of Nazim and Naib-Nazim must share the fate of election with each other in the matters of disqualification, invalid nomination and the result of election in the form of success or defeat. It was also held that the disqualification attached to the candidate on the day of the filing of nomination paper would not disappear after the election, therefore, the defect of invalid nomination paper is not curable."
Provisions of Punjab Local Government Ordinance provide for election of Nazim or Naib-Nazim as the case may be on the individual basis to fill casual vacancy. The apex Court has observed in the case of Ch. Maqbool Ahmad and others (supra) that a casual vacancy, subsequent to election occurs as a result of resignation, death or any other unforeseen reason but does not include a vacancy which occurs in consequence of declaration of election of a returned candidates, void by election. Tribunal in an election petition. The dictum laid down by the Hon'ble. Supreme Court in these judgments, brings me to conclude that Chaudhry Muhammad Azeem and Tassaduq Hussain, who have contested the election as joint candidates, will share the fate of election with each other jointly. The disqualification of former will invalidate the
election of latter. The disqualification, they will not share only up to the nomination paper and scrutiny thereof but in the election petition as well. Joint candidacy is not limited to election only but the principle of sinker would be applicable even in election petition.
Adverting to issue of mis-declaration of assets by the petitioner (W.P. No. 2165-2007), there is no dispute that at the time of submission of nomination papers, none including the respondents raised objection regarding the "Asset Form" submitted by the petitioner. Failure to objection to the asset form in respect of mis-declaration therein, does not debar a contesting candidate to challenge through election petition, the return of a candidate who has declared his assets incorrectly. There is no bar of estopped and rightly held so by the learned Tribunal.
Admittedly the petitioner (Muhammad Azeem) in his assets form (Ex P/1) has not declared property measuring 2-1/4 marlas in village Kotli Rustom. He in his cross-examination has admitted that nature and use of land is Haveli with one room and four wall boundary, having thickness of nine inches and height upto 6/7 feet. The petitioner has justified non-mentioning of the property in the asset form, on the ground that it was sold through agreement. Learned Tribunal found that sine the petitioner has not produced any agreement in his evidence to prove the transfer of the property, therefore, he was guilty of mis-declaration and not eligible/qualified to contest election.
Learned Election Tribunal has rightly held that in the absence of any agreement on record, it cannot be concluded that a Haveli measuring 2-1/4 marlas in Kotli Rustam was sold land transferred to the vendee. The petitioner produced in this evidence Ex. R/1 to R/5 when he recorded his statement on 13.6.2006. The alleged agreement dated 24.3.2005 was not produced in his documentary evidence. They only witness who has entered in the witness-box in this respect was the petitioner himself who appeared As RW/1. Ch. Iftikhar Ahmad, to whom statedly the Haveli/property in question was sold by the petitioner has not appeared as witness. Relationships of Ch. Iftikhar Ahmad with the petitioner are very cordial, which fact can be ascertained from Ex. R/4, the general power of attorney, whereby the petitioner and Ch. Iftikhar Ahmed sold 7 Kanals 11 marls of land in village Ashfaqabad to Ch. Imtiaz Ahmad Bhatti and executed a general power of attorney in his favour. Failure of the petitioner to produce agreement dated 24.3.2005, the vendee and the marginal witnesses in the witness box, is fatal to the case of the petitioner. The petitioner's request for production of the additional evidence after closing his evidence through statement recorded on 13.6.2006, was declined firstly by the Election Tribunal and thereafter by this Court in it's order dated 5.12.2006 passed in W.P. No. 10175-2006. It was observed by this Court that the application for additional evidence did not disclose good ground for bringing on record such evidence which was already available to the petitioner before he closed his evidence. The question of additional evidence attained finality, therefore, the petitioner cannot re-agitate this matter once again in this petition.
Respondents No. 3 and 4 in their election petition have specifically stated in para 3-C of the election petition that the petitioner (herein) has concealed the ownership of Haveli measuring 2-1/4 marlas in Kotli Rustam and failed to declare the same in his asset form. The petitioner has not denied the contents of this para rather an evasive denial was made which is re-produced hereunder:
The evidence of the petitioner was concluded on 13.6.2006 and thereafter an application under Order 6, Rule 17 CPC was moved by the petitioner, whereby he sought amendment in Para 2-C of written reply seeking the permission to incorporate the sale of the property on 24.3.2006 in presence of the witnesses. The stance of the petitioner that he had sold the Haveli stands negated by his statement recorded as RW 1, wherein he admitted in his cross-examination that he is raising there (Haveli) but in the same breath he stated "I am not resign there because it is just a Haveli". This statement of the petitioner proves that the Haveli remained in his possession. In the reply to election petition, failure to bring in the witness-box the vendee or the witnesses in whose presence the Haveli was statedly sold and failure to produce agreement dated 24.3.2005 at the time of recording of evidence speak about the fact that the petitioner has failed to prove the factum of sale of Haveli to the vendee through agreement dated 24.3.2005. Agreement dated 24.3.2005 cannot be considered as the sale agreement, rather it is deemed as an agreement to sell which does not confer any title to the vendee, with the result, legal title of the property remains with the petitioners which he was bound to mention it as his asset in the declaration form. Conversely, if the agreement is considered as sale, it is un-registered and as such not admissible in evidence. The conclusion of learned Tribunal on Issue No. 1 is not open to any exception, for the same is devoid of any legal infirmity.
stage cannot be considered. Respondents Nos. 3 and 4 had claimed in their election petition, for their declaration as returned candidates. The petitioner had failed to file recriminatory petition and gave no such evidence within 14 days of the commencement of the trial. Besides no notice to the Tribunal was given in terms of provisions of Rule 74(ibid) and the prescribed fee according to Rule 65, was not deposited. The requirement of Rule 74 was not compiled with by the petitioner, therefore, he has no right at this stage to claim the annulment of election on the ground of disqualification of Respondent No. 3
B
12A. The stance of the petitioner that disqualification is not notorious, it was not in the knowledge of the voters at the time of election or at the time of scrutiny of the nomination papers, therefore, votes given to the petitioner cannot be thrown away, at this belated stage cannot be entertained. The petitioner in his reply to election petition, has neither raised this point nor an issue to that effect was framed. The petitioner had not produced any witness in this regard, while the petitioner in his solitary statement had not uttered a single word about his notorious disqualification. The ground which was not urged before learned Tribunal cannot be raised at this stage.
C
(A.S.) Petitions dismissed.
PLJ 2008 Lahore 67
[Multan Bench Multan]
Present: Sh. Hakim Ali, J.
Mst. MEHVISH SHABBIER--Petitioner
versus
CHIEF EXECUTIVE, NISHTER MEDICAL COLLEGE, MULTAN and 3 others--Respondents
W.P. No. 3439 of 2007, heard on 19.9.2007.
Constitution of Pakistan, 1973—
----Art. 199--Educational institution--Constitutional petition--Petitioner had applied for being admitted in Dental Nursing Course on the basis of her qualification of matriculation--Passed 1st year examination--Objection letter was issued--Not eligible for 2nd year examination because she had obtained 3rd Division in her matriculation examination--Assailed--Fault of admission committee--After the authority has granted such an admission and petitioner has passed her examination, it would be depriving the petitioner in the mid of her study course of two years out of which she has spent one year--Petitioner cannot be deprived at that stage--Held: Objection letter was declared to be illegal and unlawful--Petitioner allowed. [P. 69] A
Mr. Muhammad Bilal Butt, Advocate for Petitioner.
Mr. Zafarullah Khan Khakwani, A.A.G. alongwith Dr. Shamsheer Ali, Principal Dental Paramedical School & Muhammad Rashid, Admin. Officer for Respondent.
Date of hearing: 19.9.2007.
Order
Through this writ petition, Mst. Mehvish, the writ petitioner has sought indulgence of this Court in the following facts:-
"Tersely the facts of the case are that writ petitioner had applied for being admitted in Dental Nursing Course commencing from 2004, in Dental Paramedical School, Nishtar Medical College Multan, on the basis of her qualification of matriculation. She was admitted to that school vide letter dated 1.4.2005. After having passed 1st year examination of the above noted course, an objection letter Bearing No. 1734 dated 29.5.2007, was issued by Punjab Medical Faculty that the petitioner was not eligible for 2nd year examining because she had obtained 3rd division in her matriculation examination. To obtain the declaration that aforementioned objection dated 29.5.2007 was illegal and unlawful, the instant writ petition has been filed in this Court."
Learned counsel for the petitioner submits that after granting admission and having passed 1st year examination, the future of writ petitioner cannot be tarnished by the respondents by making objection. Learned counsel further submits that there was no mala fide on the part of the writ petitioner while filing applicant form to get admission. She had declared in the form of her qualification of having obtained 375 marks in matriculation. Despite that she was granted admission and now when she was going to complete her study, objection could not be made by respondents on the basis of principles of locus poentientiae. Learned counsel has supported his arguments by referring to 1997 SCMR 15 (Chairman, Selection Committee/Principal King Edward Medical College, Lahore and two others v. Wasif Zamir Ahmad) 2003 SCMR 410 (Director General, Ordinance Services, General Headquarters, Rawalpindi vs. Muhammad Abdul Latif) and 2004 SCMR 1864 (Bashir Ahmad Solangi vs. Chief Secretary, Government of Sindh Karachi and two others).
On the other hand, Principal, Dental Paramedical School Multan, Respondent No. 3 and Muhammad Rashid, Admin Officer appearing on behalf of Respondent No. 2 have admitted these facts that the writ petitioner was granted admission and she had passed 1st year examination. It has also been informed by them that writ petitioner has already participated in 2nd year examination and there result of its is still awaited.
Mr. Zafarullah Khan Khawani, learned A.A.G has appeared on Court's call but has not been able to defend forcibly the case of the petitioner. So, in these circumstances, when fault was lying with admission Committee/Authority at the time of admission, who must have been shown the care and caution at that time while admitting the writ petitioner. After the authority has granted such an admission and petitioner has passed her 1st year examination, it would be depriving the petitioner in the mid of her study course of two years out of which she has spent on year. She cannot be deprived at this stage. On the strength of principles of locus poenitentiae, judgment of Hon'ble Supreme Court of Pakistan, I accept this writ petition and declare objection Form No. 1734 dated 29.5.2007 issued by Punjab Medical Faculty, to the illegal and unlawful, consequently, the petitioner shall be allowed to continue with her study.
(A.A) Petition accepted.
PLJ 2008 Lahore 69 (DB)
Present: Syed Hamid Ali Shah and Nasim Sikandar, JJ.
NATIONAL HIGHWAY AUTHORITY through its Chairman, Islamabad--Petitioner
versus
NASRULLAH KHAN CHATTAH, SECRETARY BOARD OF REVENUE, GOVERNMENT OF THE PUNJAB, LAHORE and 3 others--Respondents
W.P. No. 989 of 2005, decided on 9.7.2007.
Colonization of Government Land Act, 1912—
----S. 4 & 10--National Highway Authority Act, 1991, S. 10(2)(xiii)--Constitution of Pakistan, 1973, Art. 199--Question of--Right of way was transferred to NHA--Typographical error--Cancellation the mutation without jurisdiction and without any notice--Lease was cancelled--Challenge to--Validity--Violation of principles of natural justice--Question of--Right of way was conferred to NHA, by approval of Government C & W Department had authority to direct mutation in favour of petitioner, mutation was sanctioned with limited authority or name of petitioner was incorporated in column of cultivation and that all the relevant rules and procedural formalities were complied in sanction of mutation, are all questions of facts--These questions need determination through closer and thorough examination--Such exercise cannot be carried out, unless through resort to recording fo evidence--High Court therefore, leave it to the relevant authority to decide such issue and that after hearing the parties concerned--Such order cannot be passed, without affording the opportunity of being heard to petitioner--Letter impugned in these petitions, cannot sustain--Review of mutation is not merely an executive order, it involves determination of valuable rights of parties and must be passed through well reasoned, speaking order--Held: High Court, thus, persuaded to allow these petitions and set-aside the cancellation of mutation, being violative of principles of natural justice--Resultantly matter of impugned cancellation of mutations shall be deemed to be pending with District Officers (Revenue), who will decide it afresh after hearing the parties.
[Pp. 74 & 75] A, B, C & D
M/s. Raja Muhammad Akram, Advocate, Mr. Jahanzeb Khan Bharwana and Syyed Nayyar Abbas Rizvi, Advocates for Petitioner.
Ch. Rizwan Mushtaq, AAG for Respondents.
Mr. Zafar Abbas Kalanuri, Advocate for Respondent 3.
Date of hearing: 15.2.2007.
Judgment
Syed Hamid Ali Shah, J.--This judgment shall dispose of W.P. No. 989/2005 (National Highways Authority vs. Nasrullah Khan Chattah, Secretary BOR etc.), W.P. No. 65/2005 (Muhammad Shafique Butt vs. Allah Dad Tarar, DOR, Jhelum etc.), W.P. No. 1134/2005 (National Highways Authority vs. Sajjad Ahmad Khan, Nazim, TMA, Kamonki), W.P. No 1214/2005 (National Highways Authority vs. Cantonment Board, Gujranwala), W.P. No. 1622/2005 (National Highways Authority vs. Cantonment Board Kamra Attock), W.P. No. 2419/2005 (Ch. Sajjad Zaman vs. Nasir Warriach, TMO Kharian), W.P. No. 3415/2005 (Ch. Muhammad Akbar & Co. vs. National Highways Authority), W.P. No. 1929/2003 (National Highways Authority vs. Cantonment Board, Rawalpindi) and W.P. No. 7000/2006 (TMA, Kharian vs. National Highways etc.), as common question of law is involved in all these petitions.
Land and area forming part of Grand Trunk Road (G.T Road), falling part of N-5 within the Province of Punjab, was in effective Control of Communication and Works (C&W) Department of Government Punjab. It was transferred to National Highways Authority (NHA), vide letter dated 31.1.2002. The transfer, according to terms of letter, was unconditional, free of cost, without encumbrance. Government of Punjab was to effect mutation in the name of NHA/petitioner. Communication and Works Department of Government of Punjab through letter dated 31.1.2002, addressed to Chairman NHA conveyed acceptance of decision of the Federal Cabinet of handing over/taking over of "right of way". The right of way, was transferred to NHA included G.T. Road (N-5) Indus Highway (N-55), Multan-Rakhni, (N-70) Khanewal-Lodhran Road and Kashmir Chowki-Satra Mile Lower Topa Kohala Road.
Government of Punjab subsequently through Letter No. 1059/2004/46/LR(1) dated 10.1.2005, conveyed to the concerned District Officers (Revenue) that word "right to ways" appearing in letter dated 15.2.2003, is typographical error and be substituted as "right of way". Decision of Punjab Cabinet taken in its meeting held on 30.11.2004 was also communicated where it was decided that ownership of roads (handed over to NHA) must remain with Provincial Government. Additionally District Officers (Revenue) were directed to cancel the mutations in favour of NHA and restoration of ownership to Provincial Government. District Officer, Jhelum addressed communication to Tehsildar vide letter dated 15.10.2004 and directed him to get property measuring 3« Marla, leased to M/s Muhammad Shafeeq Butt and others by NHA, vacated from illegal occupants i.e. lessee of NHA. Mr. Shafiq Butt was informed through letter dated 20.10.2004 about cancellation of his building plan and was further asked to remove the building plan. District Officer through letter dated 31.8.2004, addressed to Assistant Director NHA, informed that lease to Mr. Shafeeq Butt by NHA, is against the policy of Government of Punjab. NHA can use the land only for departmental purpose and its onward lease to other persons is not permissible. The lease, on this score, was cancelled. The petitioner, through instant petition, has challenged the action of the respondent subject-matter of letter dated 10.1.2005, 15.02.2003, 15.10.2004 and 20.10.2004.
Learned counsel for the petitioner has contended that after having alienated the land unconditionally in favour of NHA, Government of Punjab, has no power or authority to cancel the same. The cancellation is without any notice to the petitioner and as such violative of principles of natural justice, cannot sustain legally. While referring to Section 10(2) (xiii) of NHA Act, 1991, it was contended that Authority is empowered to raise its fund by leasing its assets, besides borrowing, floating of bonds etc. The Executive Board of the petitioner in its 104th meeting dated 29.5.2004 approved the policy for preservation of commercial use of right of way regarding establishment of Filling/Gas Stations, hotels and motels etc. Learned counsel added that Rule 11 of National Highways Strategic and Control Rules, 1998, permits erection and installation of any structure or amenities for carrying out commercial activities. Learned counsel contended that Secretary Board of Revenue, Punjab, has issued impugned letter dated 10.1.2005 without jurisdiction. He had no authority to cancel mutation in favour of the petitioner. Learned counsel went on to argue that impugned letter/impugned action, of the respondent, is violative of principles of natural justice. The petitioners were condemned unheard, such order is not sustainable. Learned counsel a support his contention by referring to the case of Fuel Auto Supply Company and 5 others vs. Federation of Pakistan (PLJ 2006 Lahore 469).
Learned counsel further submitted that NHA Act of 1991, as amended in 2001, is Federal Act. It is Federal Legislation as per Entry No. 34 in the Federal Legislative List. The right of way, as per Section 10(XV), has been conferred by the Provincial Government and relevant mutation had also been sanctioned in favour of NHA. Mutations were sanctioned being mandate of NHA under Sections 10 & 15. Provisions of Land Revenue Act are not applicable to a transfer of land, fallen to NHA. It was contended that executive authority of Province, is to be exercised to secure compliance with Federal Laws as per Article 148(1) of the Constitution of Islamic Republic of Pakistan, 1973. Learned counsel supported his contention by referring to the cases of Rimpa Limited and another vs. Karachi Metropolitan Corporation (2004 CLC 1797) and Shamas Textile Mills Ltd. and others vs. The Province of Punjab and 2 others (1999 SCMR 1477).
While meeting the objection of respondents that remedy of appeal has not been availed, it was contended that remedy is not adequate but illusory and remedy of writ petition remains only option before the petitioner. Case of Zahida Sattar vs. Federation of Pakistan (PLD 2002 SC 48) and Collector of Customs, Customs House, Lahore and 3 others vs. Messrs S.M. Ahmad & Company (Pvt.) Limited, Islamabad (1999 SCMR 138) were referred to support this contention. Learned counsel emphasized that the land in question, after the conferment of its right of way to petitioner and after sanction of mutations, cannot be cancelled. Once an order passed by a lawful authority and it has been implemented, such authority has no power to recede. Learned counsel supported his contention by referring to Section 24 of the General Clauses Act, and cases of Pakistan International Airlines Corporation through Chairman vs. Inayat Rasool (2003 SCMR 1128) and Muhammad Nawaz vs. Federation of Pakistan and 61 others (1992 SCMR 1420).
Learned Assistant Advocate General, on the other hand, has fully supported the impugned letter/order of the respondent. It was contended that mutations earlier sanctioned in favour of NHA, were wrongly attested, yet the ownership was never transferred to the NHA. Entries in the relevant mutations reflect entry in favour of NHA in cultivation column "( )", while Communication and Works Department has been shown in possession of property in dispute. The petitioner has no title in the property and as such cannot leave out the property, without the permission of paramount owner. It was urged that the title and ownership was never transferred to NHA and thus the principle of locus-poenitentiae is not available to the petitioner. Case of Abdul Haque Indhar and others vs. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others (2000 SCMR 907) was referred in this regard. Learned counsel cited cases of Federation of Pakistan through Secretary Ministry of Interior, Government of Pakistan, Islamabad vs. The General Public (PLD 1988 SC 645) and Miss Rukhsana Soomro vs. Board of Intermediate and Secondary Education, Larkana, Sindh and others (2000 MLD 145), to contend that instant case falls, within the exception and right of hearing in such matters cannot be claimed as a matter of right. Rules of business with more specific reference to Rules 152 and 173 and case of Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and another vs. Messers Shoaib Bilal Corporation and 2 others (2004 CLC 1104), was referred to submit that the letter issues without the consent of Chief Executive of Province and without his instruction, confer no legal title in favour of the petitioner. It was lastly contended that Entry No. 34 in the Federal Legislature List is read in isolation while it has to be read with Entry No. 37 of the list and also with Section 2(9) of the NHA Act. Combined reading of these provisions, show that ownership has not passed on to the petitioner. Commercial use of right of way is not permissible and rules being contrary to main statute i.e. NHA Act, have not legal values. Learned counsel in this respect has referred to the cases of Muhammad Saleem II, Stenographer, Establishment Division, Islamabad vs. Federation of Pakistan through Secretary Establishment Division, Islamabad and others (1998 SCMR 747) and Messers Mehraj Floor Mills and others vs. Provincial Government and others (2001 SCMR 1806).
Heard learned counsel for the parties and record perused.
Legal title of the land subject matter of these petitions vests with the Secretary (Colonies), Government of Punjab, by virtue of Section 4 of the Colonization of Government Lands Act, 1912. Such land can be granted to any person, by the Board of Revenue, subject to approval of the Government, within the contemplation of Section 10 of Act, 1912. According to Rules of Business, Administration of West Pakistan Highways Ordinance, 1959, vests with Communication and Works Department and Secretary C & W has administered control of such land but its legal title vest in Colony Department of Provincial Government. The questions that right of way, was conferred by NHA, by the approval of Government, C&W Department had the authority to direct mutation in favour of the petitioner; mutation was sanctioned with limited authority or name of the petitioner was incorporated in the column of cultivation (" ") and that all the relevant rules and procedural formalities were complied in sanction of mutation, are all questions of facts. These questions need determination through closer and thorough examination. This exercise cannot be carried out, unless through resort to recording of evidence. We, therefore, leave it to the relevant authority to decide such issue and that after hearing the parties concerned.
So far as the impugned letter dated 10.6.2005 is concerned, it has been issued without notice to the petitioner. Rights of the petitioner had been adversely affected, when the mutations in favour of the petitioner, were ordered to be cancelled. Such order cannot be passed, without affording the opportunity of being heard to the petitioner. The letter impugned in these petitions, cannot sustain.
Additionally Respondent No. 1 has cancelled the mutations through impugned letter. Review of mutation earlier attested in favour of the petitioner, has to be conducted in open assembly, after notice to the parties and after hearing the parties concerned. Review of mutation is not merely an executive order, it involves determination of valuable rights of the parties and must be passed through well reasoned, speaking order. This exercise has not been undertaken in the instant matter.
Cancellation of mutations primarily the function, assigned to Revenue Officer. This exercise has been undertaken by Respondent No. 1, depriving the affected party of right of appeals and revision in the hierarchy of Board of Revenue. This Court has settled this issue in the case of Muhammad Suleman vs. Addl. Deputy Commissioner (General), Lahore Cantt. (PLD 2000 Lahore 262) and Khadim Hussain vs. Deputy Commissioner Hafizabad etc. (NLR 2000 Revenue 127) and Gulzar Ahmad Khan and 2 others vs. Deputy Commissioner, Hafizabad and others (2002 CLC 1746). Respondent No. 1, before proceeding further in the matter will first determine the issue of jurisdiction.
We are thus persuaded to allow these petitions and set aside, the cancellation of mutation through impugned letter dated 10.6.2005, being violative of principles of natural justice. Resultantly, the matter of impugned cancellation of mutations shall be deemed to be pending with the District Officers (Revenue), who will decide it afresh after hearing the parties.
(N.F.) Case remanded.
PLJ 2008 Lahore 75
[Bahawalpur Bench Bahawalpur]
Present: Sh. Hakim Ali, J.
BASHIR AHMAD--Petitioner
versus
MIR ASLAM JAN--Respondent
C.R. No. 670 of 2004/BWP, decided on 7.2.2007.
Civil Procedure Code, 1908 (V of 1908)—
----O. VII, R. 10--Conciliation Courts Ordinance, 1961, S. 6--Return of plaint--Application--Suit be returned to plaintiff--Suit was based upon a document in shape of pronote and receipt--Applicability--Accepted without jurisdiction--Proceedings are nullity--If a Court has got jurisdiction, objection having not been raised it cannot be granted jurisdiction or even the consent of parties cannot confer upon it--Jurisdiction of Additional District Judge having been taken away by Conciliation Courts Ordinance, 1961 with regard to the extent of matters, jurisdiction could not be assumed by the Additional District Judge--Proceeding conducted without jurisdiction are nullity in the eye of law and cannot be held sacrosant--It cannot be held legally justified on the score of raising it through delayed application--Revision accepted. [P. 77] A
Mr. A.R. Aurangzeb, Advocate for Petitioner.
Mr. M. Abdul Aleem Qureshi, Advocate for Respondent.
Date of hearing: 7.2.2007.
Order
Meer Aslam Jan, had filed a suit for recovery of Rs. 16,500/- on the basis of a pronote and receipt dated 6.2.2001, in the Court of learned Additional District Judge, Bahawalpur on 5.7.2003. Application for grant of permission to appear and defend the suit was allowed and written statement was submitted by Bashir Ahmad, present petitioner. Thereafter, parties were directed to produce their evidence upon the framed issues. On 18.10.2004, Bashir Ahmad, defendant filed an application under Order VII, Rule 10 of the CPC with prayer that the suit be returned to the plaintiff, as it was exclusively triable by Conciliation Court under the Conciliation Court Ordinance, 1961. Application was contested but was dismissed on 21.10.2004. Hence, this revision.
Learned counsel for petitioner submits that according to Section 6 of the Conciliation Courts Ordinance, 2001, the present case was exclusively triable by Conciliation Courts, as it had fallen in Section 6 read with Part-I, Section B-Civil Cases of the Schedule attached to the aforesaid Ordinance. Therefore, the learned Additional District Judge had no jurisdiction to entertain, hear and adjudicate the case in hand and the plaint was to be returned for presentation before the competent Court.
On the other hand, respondent's learned counsel submits that petitioner had not raised the point of jurisdiction in the written statement with regard to the jurisdiction of learned Additional District Judge, Bahawalpur, therefore, application thereafter, under Order VII Rule 10 of the CPC was not competent. Learned counsel further submits that the objection to jurisdiction must have been raised by the petitioner at its initial stage, otherwise, it would be considered to have been waived. Further states that the objection was to be dismissed, as it was not based on bona fides as the application was moved when petitioner's evidence was to be recorded and he had failed to produce evidence and his right of production of the evidence was closed. At this stage, this applicant was not competent. Moreover, the civil revision in which copies of all the statements of witnesses have not been appended is not properly constituted. So, it may be dismissed.
After considering the arguments of both the learned counsel and the perusal of record, I have noted that both the parties are residents of Bahawalpur according to the plaint and written statement, and the suit was also based upon a document in the shape of pronote and receipt. To assertion the applicability of Section 6 of the Conciliation Courts Ordinance, 1961 in that situation, I would like to reproduce it in this judgment, so as to have an immediate look on it:-
"6. Jurisdiction of Conciliation Courts, etc.--(1) Subject to the provision of sub-section (2), a Conciliation Court shall be constituted and shall have jurisdiction to try a case only when the parties to the dispute ordinarily reside within the jurisdiction of the same Union Council in which the offence has been committed or the cause of notice has arisen.
(2) Where one of the parties to be dispute ordinarily resides, and the offence has been committed or the cause of action has arisen, in one ward of a city, municipality or cantonment, and the other party ordinarily resides in another ward of the same city, municipality or cantonment, then, a Conciliation Court may be constituted in the ward in which the offence has been committed or, as the case may be, the cause of action has arisen."
(N.F.) Revision accepted.
PLJ 2008 Lahore 78
Present: Syed Hamid Ali Shah, J.
SHAMAIL MASUD--Petitioner
versus
MALIK MANZOOR AHMAD and 4 others--Respondents
C.R. No. 1607 of 2006, decided on 1.6.2007.
Arbitration Act, 1940 (X of 1940)—
----S. 14--Civil Procedure Code, (V of 1908)--S. 12(2)--Rule of Court--Application for making award--Jointly objections--Counsel withdraw objections--Award was made rule of Court--Order for auction of property--Assailed through filing application u/S. 12(2) of CPC--Question of maintainability--Applicability of provisions of S. 12(2) CPC--Withdrawal of objection, at the back of petitioner through a person who had no valid authority and passing the preliminary decree on assumption that objections to award stood withdrawal leads to conclude that decree is result of misrepresentation. [P. 84] A
Civil Procedure Code, 1908 (V of 1908)—
----S. 12(2)--Fraud, misrepresentation--Defect of jurisdiction--Condition of withdrawal of object--Decree--Validity--Decree can be set aside u/S. 12(2) of CPC considering the factors which are envisaged in section itself that is to say fraud, misrepresentation and defect of jurisdiction--Withdrawal of objection through an unauthorized person and passing the preliminary decree suppressing the terms of award and by ignoring the material condition of withdrawal of objection which establish that decree was result of fraud and misrepresentation. [P. 85] B
Limitation Act, 1908 (I of 1908)—
----Art. 181--Civil Procedure Code, (V of 1908), S. 12(2)--Award was announced on 17.4.1998--Objection was withdrew on 11.3.2000--Application u/S. 12(2) of CPC was filed on 5.12.2005--Question of limitation--Delay of six years--Period prescribed for filing the application u/S. 12(2) of CPC is governed u/Art. 181 of Limitation Act, which is three years--Application has been filed with the delay of six years from the date of withdrawal of objection--Preliminary decree was passed on 5.12.2005 while petition was filed u/S. 12(2) of CPC on 23.2.2006--It appears from the record that the petition under reference was filed 5 years 11 months and 13 days, after the withdrawal of objections--Period of limitation shall run either from the date of knowledge of fraud or from the date of decree--Held: Petitioner has challenged the decree within a period of two months 18 days--Application is within limitation--Application accepted.
[P. 86] C, D, E & F
Mr. Abdul Waheed Khan, Advocate for Petitioner.
Mr. Abdul Razzaq, Advocate for Respondent No. 1.
Mr. Ghulam Mustafa Shahzad, Advocate for Respondent No. 2.
Mr. Muhammad Tahir Chaudhry, Advocate for Respondent No. 3.
Syed Ali Hassan Gillani, Advocate for Respondent No. 4.
Kh. Saeed-uz-Zafar, Advocate and Mr. M.M. Anwar Tarar, Advocate for Respondent No. 5.
Date of hearing: 2.3.2007.
Judgment
Late Masood Ahmad Malik, left behind, various properties including the property known as 15-B/1 Gulberg,-III, Lahore. The deceased died issueless and was survived by a widow (Respondent No. 3) and two brothers (Respondent Nos. 1 & 2) as his legal heirs. The petitioner who was his adopted son, claimed 1/3rd of the property, on the basis of "Will" signed and executed on 6.1.1985 and registered on 4.3.1985. Respondent Nos. 1 and 2, sought the partition of the estate of the deceased through filing a suit for partition, impleading therein the petitioner and Respondent No. 3 as defendants. The defendants contested the suit through filing their written statement. During the pendency of suit, the dispute was referred to arbitration and a sole arbitrator was appointed by the consent of the parties. The award was announced on 17.4.1998 and filed in the Court. An application under Section 14 of the Arbitration Act was filed for making the award, rule of the Court.
Rs. 2,19,00,000/- and have paid entire bid price. The auction has not as yet been confirmed. The petitioner assailed the order dated 5.12.2005, whereby the award was made rule of the Court, through filing application u/S. 12(2) CPC. Respondent Nos. 1 and 2 contested the application while Respondent No. 3 conceded the same. Learned trial Court dismissed the application vide order dated 25.5.2006, hence this petition.
Learned counsel for the petitioner has contended that the petitioner had never engaged Mr. Tahir Chaudhry, Advocate as his counsel, thus he had no authority to withdraw objections on behalf of the petitioner. He added that there was no request on behalf of the petitioner for withdrawal of objections. Learned counsel went on to argue that Wakalatnama upon perusal, reflects that it was signed only by Respondent No. 3 and not by the petitioner. It was then contended that Court has made the award as rule of Court, without proceeding the petitioner against ex-parte. It was contended further that award being not properly stamped, was inadmissible and as such not liable to be made rule of Court. Learned counsel while referring to the case of "Raja Dil Nawaz Khan vs. Muhammad Siddique and 6 others" (1993 MLD 1495) has contended that a counsel can represent a party only, when such counsel is appointed through a document in writing which is signed by such person. Learned counsel went on to argue that an award can be challenged either through provisions of Section 33 of the Arbitration Act, 1940 or through invoking provisions of Section 12(2) CPC, by relying upon the case of "Muhammad Yasin vs. Sh. Hanif Ahmed and 4 others" (1993) SCMR 437). Learned counsel submitted that application u/S. 12(2) CPC is competent, even where the fraud has not been played in Court but it was practiced on the parties inter se. Case of "Muhammad Aslam and others vs. Mst. Kundan Mai and others" (2003 CLR 855) was referred in this respect.
Auction purchase moved application i.e. C.M. No. 2908-C-2006, which was allowed on 19.10.2006. They were impleaded as party and their learned counsel Kh. Saeed-uz-Zafar, Advocate contended that objection to award, filed on 11.5.1998 were withdrawn on 11.3.2000 while application under Section 12(2) CPC was filed on 23.3.2006. Learned counsel has submitted that application after the delay of six years, was not competent. Case of "Mst. Nasira Khatoon and another vs. Mst. Aisha Bai and 12 others" (2003 SCMR 1050) was referred to contend that limitation for filing the application u/S. 12(2) CPC is 3 years. Learned counsel has argued further that the objections were filed jointly through Mr. Tahir Chaudhry, Advocate. The denial of authority to counsel, by the petitioner, proves that no objections were filed on behalf of the petitioner. Learned counsel went on to argue that if it is assumed that the objections ware validly filed on behalf of the petitioner, through Mr. Tahir Chaudhry, Advocate, then it will have the impact that Mr. Tahir Chaudhry, Advocate had also the authority to withdraw the same on behalf of the petitioner. It was also contended that Mr. Tahir Chaudhry, Advocate had throughout been representing the petitioner in the proceedings before arbitrator and before the Court which reflects that authority was conferred through conduct. He contended that the act of Mr. Tahir Cahudhry, Advocate to represent the petitioner, in the absence of a valid authority, stands rectified, under the provisions of Sections 196 and 197 of the Contract Act, 1872. M/s Abdur Razzaq and Ghulam Mustafa Shahzad, Advocates of Respondent Nos. 1 and 2, have adopted the arguments of Kh. Saeed-uz-Zafar, Advocate. They added that the petitioner has not challenged the decree of the Court in appeal and as such the petition under Section 12(2) CPC is not competent. They stood behind the impugned order and submitted that the petitioner has failed to establish a case for interference in revisional jurisdiction, as no legal infirmity or illegality was pointed out in the impugned order. Respondent No. 3, however, conceded the petition.
It have heard the learned counsel for the parties and perused the material available on the record.
The case in hand, is the case of comedy of errors, in number of ways namely:--
(i) Where learned trial Court allowed the withdrawal of objections without verifying that counsel, statedly representing the petitioner, had no valid authority.
(ii) The case thereafter was fixed on number of occasions, when the petitioner was neither represented nor in attendance, yet a formal ex-parte order was never passed.
(iii) A Court auctioneer was appointed for sale through auction, of property in dispute. The auctioneer was appointed at the point of time when neither the award was made rule of the Court, nor a preliminary decree was passed.
(iv) The award was made rule of Court vide preliminary decree dated 5.12.2005, on the basis of award dated 17.4.1998 but at the same time, the preliminary decree was passed ignoring the terms of award, specially para-8 thereof.
(v) The property was put to public auction without first offering the same to the share-holders, which is a condition precedent, in the partition suit.
(vi) It is reflected from statements of parties recorded on 11.3.2000, that Defendant No. 1 (now Respondent No. 3) accepted award conditionally, whereby Respondent No. 3 accepted the award if Bandhan Shadi Ghar (property in dispute) is re-evaluated. Respondent Nos. 1 & 2 accepted the offer and agreed for re-evaluation of the property in dispute. Learned trial Court gave a schedule of auction, without first resorting to valuation of the property.
In the above background, the petitioner moved an application on 24.2.2006 under Section 12(2) CPC, for setting aside preliminary decreed dated 5.12.2005, whereby the award was made rule of the Court. The petitioner took the plea that objections were withdrawn by Respondent No. 3 on 11.3.2000, when Respondent No. 3 and her counsel Mr. Tahir Chaudhry Advocate appeared and recorded their statements, qua the withdrawal of objections. The petitioner had neither appeared nor had entrusted any authority to Mr. Tahir Chaudhry, Advocate to make the said statement on his behalf. Mr. Tahir Chaudhry, Advocate through filing application under Section 151 CPC, admitted that he was never engaged as a counsel by the petitioner. He also affirmed that the objections on behalf of the petitioner were not withdrawn.
Adverting firstly to the question of maintainability of the petition, under Section 12(2) CPC, Challenge to a decree based on award, through a petition under Section 12(2) CPC, remained under consideration in number of cases. Applicability of provisions of Section 12(2) CPC, regarding decree based on award came up for consideration in the following cases and it was observed as under:--
(a) The Apex Court in the case of "Muhammad Yasin vs. Sh. Hanif Ahmad and others" (1193 SCMR 437) has enunciated that Arbitration Act, 1940, contains no provision of challenging a decree, that has been obtained through fraud and misrepresentation, therefore, the applicability of Section 12(2) CPC had not been excluded.
(b) It has been held in the case of "Mrs. Anis Haider and three others vs. Additional District Judge and 6 others" (2003 CLC 462) that if the question arises that the proceedings and orders of Court, in relation to the proceedings under Arbitration Act, 1940, have been procured through fraud and misrepresentation, such question falls outside the domain of Arbitrating Act, 1940. Thus, the bar contained under Sections 32 and 33 of Arbitrating Act, 1940, would not be attracted, rather the question would be connected with the proceedings of the Court independently and in order to seek, setting aside of the same on the ground enunciated in Section 12(2) CPC only, such application would be competent.
(c) Learned Division Bench of Sindh High Court, in the case of "Dr. Izhar Fatima vs. Aftab Ahmad Khan and others" (NLR 1993 A.C. (Civil) 551) has held that award can be set aside through application under Section 12(2) CPC. It was further observed that it is wrong to contend that proper remedy for challenging an award is through an application under Section 30 or under Section 33 of the Arbitration Act, 1940.
(d) It has been held in the case of "Mst. Afroz Jahan vs. Mst. Noor Jahan and others" (NLR 1991 CLJ 606) that order making award rule of Court, obtained by practising fraud on Court, would be invalidated through application under Section 12(2) CPC.
A resume of aforementioned judgments clearly demonstrates that through filing a petition under Section 12(2)CPC, a decree based on award, can be competently assailed. Non-filing of objections under Sections 30 and 33 of the Arbitration Act, or non-availing of other remedy, creates no bar in this respect.
Withdrawal of objection, at the back of the petitioner, through a person who had no valid authority and passing the preliminary decree on assumption that objections to award stood withdrawn, leads me to conclude that the impugned decree is result of misrepresentation.
"4. ...... As per award all other properties were given to the defendants except Bandhan Shadi Ghar which was given to the plaintiffs with its valuation of Rs. 1,88,00,000/-, however plaintiffs objected the valuation of the property and it was finally decided that value of suit property would be determined in the Court auction where plaintiffs would get their share and would also pay an amount determined in the award to the defendants. Since none of the parties have raised any objection on the award and said award also does not required any stamp duty, so award dated 17.4.1998 Mark-A, is made rule of the Court and in terms of the award Mark-A, the preliminary decree is passed. The parties would have same rights and liabilities as determined in the arbitration award. As per arbitration award Bandhan Shadi Ghar has been given to the plaintiffs, it is to be auctioned and plaintiffs are to receive its valuation, while all other properties are given to the defendants ...."
According to para-8 of the award, the arbitrator treated the fate of suit property, in the following manner:
"(8) In view of the above the final position is that the plaintiffs, Mr. Iqbal Ahmad Malik and Mr. Manzoor Ahmad Malik, would be entitled to Property No. 2-L, Gulberg-III known as Bandhan Shadi Ghar, and the house at Sialkot. They would, however, be under an obligation to pay an amount of Rs. 36,60,000.00 to the defendants being the excess value of property as compared to their share indicated in detail as above. The mode of payment of this excess amount and the time frame may be determined by the Hon'ble Civil Judge."
The petitioner and Respondent No. 3, filed objections to the award and in response to para-8 of the award, the petitioner objected on valuation, mode and time frame of payment, besides the calculation of shares by the arbitrator. The objections, according to the statement of Respondent No. 3 and her counsel were withdrawn conditionally. Joint statement of Respondent Nos. 1 & 2 and Respondent No. 3 (Defendant No. 1) recorded on 11.3.2000 (plaintiffs) is re-produced as under:
Learned trial Court in it's order dated 5.12.2005 observed that award should have been made rule of the Court and preliminary decree should have been passed but that procedure has been avoided/missed inadvertently. The Court, thus, passed preliminary decree, making the award rule of the Court. Sale of the property was not intended in the award, rather property was agreed to be evaluated. Learned Court passed the orders for auction of the property, without first determining the mode and time frame for payment to the petitioner and Respondent No. 3. Learned Court deviated from the award, conditions imposed by Respondent No. 3 on acceptance of award and previous orders of Court. Reading/examining objections of the petitioner and Respondent No. 3, statement recorded for withdrawal of objection by Respondent No. 3 and order dated 15.12.2004, conjunctively lead to conclude that preliminary decree was passed in suppression of available evidence and relevant material.
The judgment and decree can be set aside under Section 12(2), considering the factors which are envisaged in the section itself that is to say fraud, misrepresentation and defect of jurisdiction. Withdrawal of objections through an unauthorized person and passing the preliminary decree suppressing the terms of award and by ignoring the material condition of withdrawal of objection by Respondent No. 3, are the factors which establish that impugned decree (preliminary decree dated 5.12.2005), was result of fraud and misrepresentation. Thus, the impugned order dated 25.5.2006 passed by learned trial Court has no legal sanctity.
Having dealt with the other aspects of the case, I now proceed to examine the question of limitation. There is no dispute that period prescribed for filing the applicant under Section 12(2) CPC, is governed under Article 181 of the Limitation Act, 1908, which is three years. Respondents claim that application under reference, has been filed with the delay of six years (approximately) from the date of withdrawal of objections. The petitioner filed objections on award on 11.5.1998, Mst. Zahida Malik (Respondent No. 3 and her counsel recorded their statements on 11.3.2000, consequently the objections were withdraw on the same day. Preliminary decree was passed on 5.12.2005, while petition under Section 12(2) CPC was filed on 23.2.2006. It appears from the record that the petition under reference was filed, 5 years 11 months and 13 days, after the withdrawal of objections. But it was filed on the second day of arrival of the petitioner from abroad and within two months and 18 days of the impugned decree. Period of limitation shall run either from the date of knowledge of fraud i.e. 22.2.2006 or from the date of decree i.e. 5.12.2005, the date when right to apply accrues. While holding so, I am fortified from the judgment of the Apex Court, in the case of "Mst. Nasira Khatoon and another vs. Mst. Aisha Bai and 12 others" (2003 SCMR 1050), where the Hon'ble Court observed:-
"The period of limitation for an application under Section 12(2), CPC is not specifically provided under law, therefore, the same is governed by residuary Article 181 of the Limitation Act, 1908 under which such an application can be filed within three years from the date when the right to apply accrues and such date would be the date of passing the judgment, decree or order as the case may be."
The petitioner has challenged the decree within a period of two months 18 days. The application is within limitation.
Parties to bear their own costs.
(R.A.) Revision allowed.
PLJ 2008 Lahore 87
Present: Sayed Zahid Hussain, J.
AMIR FAYYAZ ALI KHAN--Petitioner
versus
MEMBER BOARD OF REVENUE--Respondent
W.P. No. 41-R of 2007, heard on 23.10.2007.
Civil Procedure Code, 1908 (V of 1908)—
----S. 12(2)--Constitution of Pakistan, 1973, Art. 199--Transfer of possession--Not entitle to claim its transfer--Scope for reagitation and reopening the matter--Jurisdiction--Abusing and misusing the process of law--Transferred the property in petitioner's favour--Successfully defending the such transfer--Petitioner had been litigating for decades and had ultimately been transferred the property in his favour and was successful in defending such transfer--Nothing can compensate or alleviate the anguish agony and sufferance of such a litigant, exept to declare the impugned order qua him, as wholly without jurisdiction and of no legal effect and that the present petition should be accepted with costs--Property having lawfully been transferred in favour of petitioner all such petitions hold on ground whatsoever--Order accordingly. [P. 94] A
Mr. Ahmed Waheed Khan, Advocate for Petitioner in W.P. No. 41-R/2007.
Mirza Hafeez-ur-Rehman, Advocate for Petitioner in W.P. No. 51-R/2007.
Malik Mubashir Khalid Saeed, Advocate for Petitioner in W.P. Nos. 82-R/2007, W.P. No. 83-R/2007, W.P. No. 84-R/2007 and W.P. No. 85-R/2007.
Syed Waseem-ul-Hassan Naqvi, Advocate vice Mr. Nazir Ahmed Ghazi, Advocate for Petitioner in W.P. No. 75-R/2007.
Ms. Sidra Sheikh, Advicate vice Mr. Mahmood A. Sheikh, Advocate for Settlement Department.
Mr. Aamer Rehman, Additional Advocate General Punjab for Respondent.
Date of hearing: 23.10.2007.
Judgment
The property in dispute in this petition and connected petitions (W.P. No. 51-R/2007, W.P. No. 75-R/2007, W.P. No. 82/2007, W.P. No. 83/2007, W.P. No. 84/2007, W.P. No. 85/2007) is Bungalow No. P-145/1, Ward No. 10, Railway Road, Faisalabad. Multiple litigation before the Settlement Authorities and Courts, including the Hon'ble Supreme Court of Pakistan had been going on concerning this property, which has continuously kept the parties engaged till date. It is now order dated 20.4.2007 passed by the respondent Member (Judicial-V) Board of Revenue/Chief Settlement Commissioner, Punjab, which is sought to be assailed through this petition. By means of this order the petitioner has been non-suited on the ground that "Amir Fayyaz Ali Khan lost his case up to the Supreme Court of Pakistan, therefore, he is not eligible to file the application under Section 12(2) CPC before the CSC." So far as the case of Sheikh Saeed Ahmed petitioner in W.P. No. 51-R/2007 is concerned, he had also been non-suited by means of the same order on the ground that "the transfer of the property in favour of Sheikh Saeed Ahmad, made by ADC(G), vide his order, dated 16.8.1988, the transfer order is illegal and without jurisdiction for reason that the matter was not remanded by the Superior Court of the country. The ADC (G) acted illegally and without jurisdiction in transferring the property to Sheikh Saeed Ahmad. The Settlement Laws stood repealed w.e.f. 1.7.1974 and the claim of Sh. Saeed Ahmad for transfer of suit property was not covered by Section 2(2) of the Repealing Act, 1975." The rest of the petitioners in the respective petitions claim to be occupants in the same property. Qua them, the observation in the impugned order is that "The miscellaneous applications filed by the encroachers for transfer of the vacant plot are hereby rejected for the reason that their ejectment was ordered by the competent authority as back as 1988 and secondly none of the applicant fulfils the conditions of R.P. Scheme, 1977." It was thus ordered that the property "shall be available for disposal by unrestricted public auction under the Scheme for the Management and Disposal of Available Properties, 1977."
In view of the commonality of impugned order and the controversy the learned counsel have been heard in the matter. The learned counsel for the Department did not turn up due to his engagements elsewhere, but as these petitions were adjourned for today in presence of all the learned counsel, there is no justification for adjournment.
In the background of past litigation and the impugned order passed by the respondent, the right/entitlement of Amir Fayyaz Ali Khan and Sheikh Saeed Ahmad in the first instance need to be considered. For that matter, brief reference to the previous litigation concerning the property in dispute with factual background mentioned in the various judicial orders need to be kept in view:-
On 4.6.1956 the Deputy Rehabilitation Commissioner, Lyallpur, allotted the bungalow in dispute to the Executive Engineer, PWD Building and Roads, Provincial Division for his residence as a Government servant. Amir Fayyaz Ali Khan, (petitioner herein) was then a Government servant. On his posting as Executive Engineer at Lyallpur, the possession of the bungalow in dispute was handed over to him on 16.11.1959. On 11.4.1961 he approached the Chief Settlement Commissioner seeking permission to file belated NCH form for its transfer. The Chief Settlement Commissioner condoned the delay. In consequence the Assistant Settlement Commissioner with powers of Deputy Settlement Commissioner vide order dated 4.7.1961, transfers the bungalow in dispute to the petitioner, on the basis of his sole occupation. The informers, namely, Mirza Khurshid Beg and Rai Abdul Razzaq, lodged information before the Evacuee Properties Authorities that Amir Fayyaz Ali Khan, petitioner, was a local and not a displaced person. In consequence of that information, the transfer made in favour of Amir Fayyaz Ali Khan, petitioner, was set aside. The bungalow was transferred to Rai Abdul Razzaq. The petitioner filed petition W.P. No. 1310-R of 1962. Mirza Khurshid Beg, informer, also filed petition W.P. No. 21-R/63. The writ petition filed by the petitioner was dismissed while that of Mirza Khurshid Beg was remanded by order dated 16.3.1965 for determining afresh the question as to which of the two informants had first laid the information. The petitioner filed C.P.L.A. No. 217 of 1965, which was dismissed on 7.10.1965 with the observation that Amir Fayyaz Ali Khan was the resident of Bahawalpur District and not a displaced person. Rai Abdul Razzaq also filed Civil Petition for Leave to Appeal No. 200 of 1965, which was also dismissed by order dated 6.10.1965.
Pursuant to the remand order passed in Writ Petition No. 21-R/63, the bungalow in dispute was transferred to Mirza Khurshid Beg by order dated 26.2.1966 passed by the Settlement Commissioner. Rai Abdul Razzaq filed Writ Petition No. 591-R/66 against the said order. The petitioner Amir Fayyaz Ali Khan was also a party to this petition. This petition was dismissed on 2.12.1968 wherein it was held that none of the informers were entitled to the transfer of the bungalow in dispute. L.P.A. No. 34 of 1969 and L.P.A. No. 35 of 1969 were filed by Rai Abdul Razzaq and Mirza Khurshid Beg, respectively, against the said judgment. Both the appeals were, however, dismissed by the Division Bench of this Court vide order dated 14.1.1985. C.A. No. 468 of 1988 and C.A. No. 469 of 1988 were filed in the Supreme Court by them. Both the appeals were dismissed by order dated 19.11.1991. It may be pointed out that petitioner remained posted as Executive Engineer PWD Faisalabad, from 16.11.1959 to 30.8.1961 when he was transferred as Executive Engineer Bahawalpur and was never transferred back to Faisalabad.
After remaining unsuccessful for transfer of the bungalow in dispute under Settlement Scheme No. 1, as a result of the judgment dated 7.10.1965 passed in C.P.L.A. No. 217/65 Amir Fayyaz Ali Khan, petitioner, applied on 20.10.1966 under Settlement Scheme No. VIII for the transfer of the bungalow on the basis of his occupation/possession w.e.f. 16.11.1959. He also submitted an application under the Scheme for the Management and Disposal of Immovable Urban Property for transfer of the bungalow in dispute on the basis of his possession since 1959. Sh. Saeed Ahmad, petitioner in W.P. No. 51-R/2007 had applied for allotment of House No. 106, Civil Lines, Sargodha on 17.5.1959. The aforesaid house was, however, transferred to one Khalil Ahmed in the earmarking scheme. Consequently, his CH Forms were rejected by the Deputy Settlement Commissioner on 13.7.1966 He filed an appeal against the said order, which was dismissed on 7.9.1966. On revision the learned Settlement Commissioner remanded the case by order dated 3.4.1967. In the remand proceedings he and Khalil Ahmed expressed no objection for transfer of the house in favour of Khalil Ahmed but prayed for issuing a choice certificate in his favour. This was rejected by the Deputy Settlement Commissioner vide order dated 20.6.1967. On appeal filed by him, the learned Additional Settlement Commissioner vide order dated 9.2.1978 issued direction that available alternate evacuee property of his choice in the region be allotted to him. Consequently the choice certificate was issued to him by the Deputy Settlement Commissioner vide order dated 12.2.1978. He exercise his choice in respect of the disputed bungalow on 12.3.1978. The matter could not be taken up and decided by the Settlement Authorities due to pendency of LPA Nos. 34 of 1969 and LPA 35 of 1969 because of a status quo order, although he had been pressing for it.
As regards application of Amir Fayyaz Ali Khan under Settlement Scheme No. VIII the same was dismissed on the ground that there was no available property against which his application could be considered, in that, the bungalow in dispute stood already transferred to Mirza Khurshid Beg by order dated 26.2.1966 passed by the Settlement Commissioner. Amir Fayyaz Ali Khan preferred appeal against the said order before the Addl. Settlement Commissioner, Faisalabad, which was dismissed on 15.8.1988, on the grounds:--
(i) He was not in possession in pursuance of a valid order passed by any competent authority on or before 20.12.1958 a Settlement Scheme No. VIII requires that property in possession or as allotment order before that date;
(ii) That he had no locus standi to file the form as the property had already been transferred to Mirza Khurshid Beg on the date the application was filed;
(iii) Amir Fayyaz Ali was admittedly a licensee of the PWD and, therefore, he could not be said to be in possession;
(iv) Whatever was the nature of the possession; it was discontinued on his transfer from Faisalabad on 30.8.1961; and
(v) After the petitioner's failure to get the property transferred as a displaced person he filed form under Settlement Scheme No. VIII and that he had earlier misrepresented the facts.
Subsequently, the matter was taken up by the Addl. Deputy Commissioner General/Deputy Settlement Commissioner, Faislabad as Notified Officer who after hearing Amir Fayyaz Ali Khan and Sheikh Saeed Ahmad by order dated 16.8.1988 transferred the property in dispute in favour of Sh. Saeed Ahmed on the basis of findings recorded by him that under Settlement Scheme No. VIII Amir Fayyaz Ali Khan should have been in possession of the property on the basis of a valid order on or before 20.12.1958, whereas he claimed possession of the bungalow w.e.f.16.11.1959; that he was transferred from Lyallpur to Bahawalpur on 30.8.1961 and discontinued his occupation or possession after his posting and, therefore, he had no locus standi to apply for the property in dispute. As regards the availability of the property, it was held that the same had already been transferred to Mirza Khurshid Beg at the time when the application was filed and, therefore, he was not entitled to claim its transfer. As regards disposal of his form under Settlement Scheme No. IX it was observed that "No doubt bungalow is now available for transfer. The previous orders of transfer and P.T.D. issued in favour of Amir Fayyaz Ali Khan had been cancelled and this cancellation stands confirmed upto the Supreme Court of Pakistan. There is no other person, except Sh. Saeed Ahmed to claim the transfer of the disputed bungalow. Sheikh Saeed Ahmed was a regular allottee and occupant of Bungalow No. 106, Civil Lines, Sargodha, for which he filed CH Form in time as a claimant displaced person. He was debarred from this house covering 19 Kanals and 10 Marlas on account of the erroneous attitude of the Settlement Commissioner Staff. So the learned Settlement Commissioner, Sargodha directed all the Deputy Settlement Commissioners of the Region to accommodate him against an available property for transfer."
The claim of Amir Fayyaz Ali Khan based on the assertion that he was refugee displaced person did not find favour with the Courts upto the Hon'ble Supreme Court of Pakistan as his petition was dismissed on 17.10.1065 and about local in possession in the subsequent round of litigation also as his written petition (W.P. No. 125-R/1988) was dismissed on 1.11.1993. His appeal (C. A. No. 340/1995), against the said judgment was dismissed by the Hon'ble Supreme Court of Pakistan on 8.5.2001, upholding the judgment dated 1.11.1993, with the observation that "even his claim to the property on the ground of being a local was not tenable under the law." He filed Review Petition No. 285/2001, which was dismissed on 12.1.2004. It appears that he had also filed an application (C.M. A. No 2392/2001) under Section 12(2) of the Code of Civil Procedure, 1908 which was dismissed as withdrawn to approach the departmental authority under the relevant provisions of law. He then made application under Section 12(2) of the Code of Civil Procedure, 1908 before the respondent who entrusted the case to Deputy Settlement Commissioner (S&R) for detailed inquiry and report. The Deputy Settlement Commissioner, however, after holding inquiry, proceeded to dismiss his application on 21.5.2004. W.P. No. 101-R/2004 was then filed by Amir Fayyaz Ali Khan, primarily on the ground that the Chief Settlement Commissioner/Member Board of Revenue should have passed the order on the said application himself. The said petition was disposed of on 29.9.2005 with the direction to the respondent to dispose of the matter himself. It was observed that "there should remain no doubt that it will be open for the parties to raise all available pleas including as to the competency of proceedings before the learned Member, Board of Revenue/Chief Settlement Commissioner, and this order will not be construed as a remand order". Eventually order dated 20.4.2007 has been passed by the respondent who has non-suited Amir Fayyaz Ali Khan petitioner on the ground that he had failed in the contest for the transfer of the property upto the Hon'ble. Supreme Court of Pakistan.
There can be no denial as to the verity and efficacy of the findings and judgments of the Superior Courts in this case, nor any scope is left for anyone to ignore, by pass or overlook these judgments. As far back as in the year 1965, petition of Amir Fayyaz Ali Khan (C.P.L.A. No. 217/1965) was dismissed by the August Bench of Supreme Court comprising later Chief Justice A.R. Cornelius and late Justice Fazal-e-Akbar, but his audacity and persistence has continued despite successive defeats/findings that he was not a displaced person and could not be transferred the property on NCH form. Even afterwards C.A. No. 340/1995 was dismissed by the Apex Court on 8.5.2001 and also the review petition on 12.1.2004, meaning thereby that he was not entitled to transfer as a local under any scheme. To his extent the matter had become past and closed and attained finality for all intents and purposes. He was precluded to re-agitate the matter overagain. Any attempt to erode the affect of previous judgments should be curbed outrightly.
It need to be noted again at the cost of repetition that on 12.1.2004 there were two matters before the Hon'ble Supreme Court of Pakistan, one was the review petition qua judgment dated 8.5.2001 and the other application under Section 12(2) of the Code of Civil Procedure, 1908. The review petition was dismissed by a reasoned order and whereas the application (under Section 12(2) of the Code of Civil Procedure, 1908) was withdrawn. It was a voluntary act of withdrawal of the said applicant on the part of the petitioner. It is not possible to assume for a moment that after dismissal of his appeal and review petition, any scope for re-agitation and re-opening of the matter was left open. However, in the garb of application under Section 12(2) of the Code Civil Procedure, 1908 he once again launched another attack by abusing and misusing the process of law and of the Courts. Undoubtedly the import, object and purpose of Articles 189 and 190 of the Constitution of the Islamic Republic of Pakistan, 1973 cannot be defeated by adopting such devious means. Nor it can be permitted to be done by this Court in writ jurisdiction. The contention of his learned counsel as to the alleged fraud/misrepresentation by any other has no legs to stand. He cannot be allowed to drag others into litigation on flimsy allegations when he had lost his case repeatedly up to the Apex Court.
In such view of the matter, the petition of Amir Fayyaz Ali Khan is liable to be dismissed with costs.
On no discoverable principle or basis, any subordinate functionary can undo or stultify the effect of the judgment of a Superior Court, what to say of the verdict of the Hon'ble Supreme Court of Pakistan. The remedy provided by Section 12(2) of the Code of Civil Procedure, 1908 operates within its own folds as interpreted by the Superior Courts. The executive and State functionaries are duty bound to carryout, honour and respect the judgments of the Hon'ble Supreme Court and not to find faults with the same or act as a stumbling block in implementing the same.
While going through the record of the previous litigation between the parties and dealing with this matter I am reminded of the dismay expressed by late M.R. Kayani, J, in Abdul Ghafoor and thirty others vs. The Rehabilitation Commissioner West Pakistan, Lahore (PLD 1958 (W.P.) Lahore 48), who perhaps was constrained had to observe that "Dispensation of justice must be in recognised legal forms, so that at some stage in his struggle for existence a person in these surroundings could leave a sigh of relief and say to himself: "This is my own, my second native land". Such was the observation made by the great judge of the time in the year 1957. Half a century has passed by, but the parties are still litigating in Courts for the transfer of erstwhile evacuee properties. Sheikh Saeed Ahmad who had been litigating for decades and had ultimately been transferred the property in his favour in the year 1978 and was successful in defending the said transfer up to the Hon'ble Supreme Court of Pakistan, had once again been deprived of the same through the impugned order on incompetent proceedings and untenable grounds. Nothing can compensate or alleviate the anguish, agony and sufferance of such a litigant, except to declare the impugned order qua him, as wholly without jurisdiction and of no legal effect and that his petition should be accepted with costs.
As noted in the earlier part of the order, fate of the other petitions is dependant upon the fact as to whether the property was available or not. The property having lawfully been transferred in favour of Sheikh Saeed Ahmed (petitioner in W.P. No. 51-R/2007) all such petitions hold no ground whatsoever.
As a result of the above, W.P. No. 41-R/2007 filed by Amir Fayyaz Ali Khan is dismissed with costs, W.P. No. 51-R/2007 filed by Sheikh Saeed Ahmad is accepted with costs, whereas W.P. No. 75-R/2007 filed by Ch. Wali Muhammad etc., W.P. No. 82-R/2007 filed by the Malik Khizar Hayat etc., W.P. No. 83-R/2007 filed by Malik Inayat Ullah Awan, W.P. No. 84-R/2007 filed by Muhammad Afzal etc. and W.P. No. 85-R/2007 filed by Muhammad Iqbal Zafar are dismissed with no order as to costs.
(N.F.) Order accordingly.
PLJ 2008 Lahore 95
[Bahawalpur Bench Bahawalpur]
Present: Sh. Hakim Ali, J.
Mst. GHULAM FATIMA & another--Petitioners
versus
PROVINCE OF PUNJAB & others--Respondents
C.R. No. 41-D of 1997/BWP, decided on 15.3.2007.
Pakistan (Administration of Evacuee Property) Act, 1957—
----S. 22--Evacuee property--Ownership of an evacuee person--Redemption of mortgage--Question of--Recovery of possession and declaration--Property could not be allotted even to deceased because it was never treated as a property in the ownership of an evacuee person, having migrated to India and having been treated and acquired it as owned land of an evacuee owner--Allottment in favour of deceased according to entries of jamabandi was void ab intio--Petitioner was not an evacuee and had not left the land in dispute to become an evacuee, and had not shifted his place of abode from Pakistan to India or any other country--Property which was in the ownership of a Muslim owner, who had become Muslim, and was residing in Pakistan, could not be treated as an evacuee property or its ownership could not be allotted as such to any person--Held: Land in dispute was owned by father of plaintiffs and after his death plaintiffs. [Pp. 101 & 103] A & E
Evacuee and Displaced Persons (Land Settlement) Act, 1958—
----Ss. 22 & 25--Pakistan (Administration of Evacuee Property) Act, 1957, S. 22--Power and jurisdiction--Evacuee properties and lands--Settlement Authorities had no power or jurisdiction to declare or treat the land in dispute owned by a Muslim owner to be an evacuee and allot it to any one--Finality provided to orders of settlement Authorities is to those orders, which are passed within power and jurisdiciton Civil Court being Court of ultimate and final adjudication after the repeal of Displaced and Evacuee Lands can scrutinize as to whether the impugned order was passed within power and jurisdiction. [P. 101] B
West Pakistan Redemption and Restitution of Mortgaged Lands, 1964—
----S. 17--Jurisdiction--Period fo 60 years has passed--With regard to the objection of respondent's counsel that civil Court has no jurisdiction to entertain petition due to bar--As the period of 60 years has already passed, therefore, civil Court has got jurisdiction to declare that the disputed land has not remained a mortgaged property. [P. 101] C
Evacuee Displaced Persons (Land Settlement) Act, 1958—
----Ss. 22 & 25--Allottment of--Mortgagee rights--Defendants had failed to produce the allottment order on the record from where it could be decided as to whether deceased were allotted mortgagee rights or the absolute ownership rights in the land--Held: Ownership of disputed land could not be considered to have been allotted to deceased--Revision accepted. [P. 103] D
Mr. Ijaz Ahmad Ansari, Advocate for Petitioner.
Mr. Maftooh-ur-Rahim, Advocate for Respondent.
Date of hearing: 28.2.2007.
Judgment
Facts narrated, and stated by the learned counsels, found from the record, leading to the filing of this civil revision, in brief, are that one Sewa Mal son of Imra Mal, was owner of land, measuring 163 Kanals 18 Marlas (description of which was entered into the heading of the plaint), situated in Mauza Jindoo Shah, Tehsil Khairur Tamewali, District Bahawalpur. In his life time, he had mortgaged this land with Bhola Ram, Aaso Ram sons of Bihari Ram and Hazoor Singh, through Mutation No. 50, sanctioned on 14.5.1944. Before partition of the Sub-Continent, he had expired and his mutation of Inheritance No. 54 dated 25.6.1949 was got attested by widow of Sewa Mal, in favour of his son only, namely Otam Parkash, minor, although Sewa Mal had left behind Mst. Kushan Bai, widow and Mst. Bushan Mai, a daughter also. It is worth mentioning here that Mst. Kushan Bai, Mst. Bushan Mai and Ootam Parkash, mentioned above, had embraced Islam, so had also got Mutation No. 55 entered on 23.3.1951 for correction of their names in the revenue papers due to change of their religion from Hinduism to Islam before the partition. This mutation of correction of names was not sanctioned but had remained as such in the revenue papers. Thereafter, this land was allegedly allotted to Mehar Khan, as was displayed from entries of jamabandi of the year of 1966-67 (Ex.P-2) through RL-II No. 2 (date of confirmation is not noted in the aforementioned revenue papers and RL-II No. 2 has also not been produced by any party to the proceedings). In the year 1982, Mst. Kushan Bai and Mst. Bushan Mai, widow and daughter of Sewa Mal, who had got Islamic names of Mst. Ghulam Sakina Bibi and Mst. Ghulam Fatima Bibi, respectively, filed a suit for redemption of mortgage alongwith recovery of possession and declaration, in the Civil Court, Bahawalpur with regard to above noted lands. The suit was tried by learned Senior Civil Judge, Bahawalpur. Legal representatives of Mehar Khan, alleged allottee deceased contested the suit. Ultimately, the suit was dismissed by learned Senior Civil Judge, Bahawalpur on 26.7.1992. Appeal carried against that judgment and decree met with the same face on 18.4.1996. Hence, this civil revision.
Petitioners' learned counsel submits that the land in dispute was never treated as evacuee property. Therefore, it could not be allotted absolutely as evacuee property, as left by evacuee owners. Moreover, if the allotment through RL-II No. 2 dated nil, was deemed correct, even then Central Government had not gained and obtained more rights than the evacuees, namely, Bhola Ram, Aaso Ram and Hazoor Singh, who had got only mortgagee rights and these were to vest in the Central Government. Consequently, these rights could at the most be allotted/transferred to Mehar Khan, deceased. As per learned counsel, the land could not be in any event transferred absolutely, as ownership had remained vested in LRs of Sewa Mal and Ootam Parkash. To support his contentions, learned counsel has referred to PLD 1962 SC 284 (Muhammad Khan and others vs. The Chief Settlement and Rehabilitation Commissioner, West Pakistan and Shamsul Haq Khan), PLD 1986 SC 35 (Samar Gul vs. Central Government and others) and 2005 SCMR 1004 (Muhammad Hanif and another vs. Ghulam Rasool through LRs and others). Arguing the case further, learned counsel submits that the learned Courts below have wrongly declared the suit barred by time under Issue No. 1 because Article 148 of the Limitation Act, 1908 had provided 60 years when the right to redeem or to recovery possession had accrued to the mortgager. Challenging the validity of findings upon Issue No. 5, learned counsel submits that plaintiffs had become Muslims after conversion from Hinduism. Therefore, they were to be held as Muslims because they had got Mutation No. 55 entered with revenue authorities. Failure to sanction mutation for that purpose was not a bar for them to claim the land in question. Moreover, if they are considered to be Non-Muslims, they having not shifted from Pakistan to India, their land could not be allotted absolutely to an allottee. At the most, the mortgagee rights were considered to have been transferred to the Central Government and thereafter to the allottee. Therefore, findings of the learned Courts below that the plaintiffs were Hindus at the time of creation of Pakistan, so they were affected due to these facts could not be maintained. As per learned counsel, LRs of Sewa Mal had become Muslims before the formation of Pakistan as is evidenced through Mutation No. 55.
Replying to it, learned counsel for respondents submits that the Settlement Authorities had allotted the land in dispute to Mehar Khan through RL-II No. 2 without any condition attached to it. Therefore, this allotment was to be considered to have transferred the ownership rights to Mehar Khan without any condition of mortgagee rights. Learned counsel further submits that as this property was allotted in the year 1962, therefore, it was considered and treated as an evacuee property by the Settlement Authorities and it was incumbent upon the petitioner to invoke the jurisdiction of the learned Custodian, to file a petition under Section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957, to get a declaration with regard to the ownership of Ootam Parkash (Islamic name Allah Bakhsh) or by the plaintiffs that the land was not an evacuee property and could not be allotted to any displaced person. As plaintiffs had not approached the learned Custodian, therefore, they could not file a suit in the Civil Court. Further argues that in the year 1975, all the Evacuee Laws were repealed w.e.f 1.7.1974. Therefore, allotment being past and closed transaction could not be opened before the learned Civil Court. He has also got support from Sections 22 and 25 of the Displaced Persons (Land Settlement) Act, 1958 and submits that allotment made in favour of Mehar Khan having become final and having attained finality could not be challenged before the learned Civil Court. He has also argued that Civil Court had got no jurisdiction to determine the nature of the property in dispute on the basis of provision of the Pakistan (Administration of Evacuee Property) Act, 1957, which had vested the power and jurisdiction with the learned Custodian. Therefore, Civil Court had no jurisdiction to entertain and adjudicate upon the case in hand. He has also referred to provision of Section 17 of the West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, by which jurisdiction of Civil Court to entertain any claim or enforce any right under mortgage regarding its declaration, extinguishment or to question the validity of any proceedings was vested with the District Collector and the jurisdiction of Civil Court was barred. For the determination of nature of the property, learned counsel submits that nature of property cannot be determined by learned Civil Court. For this proposition, he has referred to 2002 SCMR 829 (Muhammad Sarwar and 5 others vs. Muhammad Ali and 18 others), 1992 SCMR 120 (Ghulam Muhammad and others vs. Custodian, Evacuee Property, Punjab (West Pakistan) Lahore and another) and PLD 2003 Lahore 441 (Muhammad Din and 8 others vs. Province of the Punjab through Collector and others).
Hearing of arguments, examining of judgments and pondering over the facts narrated, stated and brought on the record, I have concluded that it is an admitted fact that the land in dispute had belonged to Sewa Mal, who was its full owner and had mortgaged it with Bhola Ram, Aaso Ram and Hazoor Singh through Mutation No. 50, dated 14.5.1944, and in the year 1949, his inheritance had developed upon Ootam Parkash, his son, who was a Muslim with the name of Allah Bakhsh. For this purpose, Mutation No. 54, of the inheritance was also sanctioned on 25.6.1949 while Mutation No. 55 for correction of name due to the change of religion was entered on 23.3.1951. Mutation No. 54 was brought on the record as Ex. P-7 and this is also an undisputed mutation between the parties. This mutation has proved and strengthened the finding that the land in dispute was owned by Sewa Mal and was thereafter inherited by his son Ootam Parkash through the above mentioned mutation even after the partition. The record of the suit has also proved that from jamabandi for the year 1950-51 (Ex. P-9) and onwards, the name of Ootam Parkash had remained in the ownership column as owner ( ) while Bhola Ram and Asoo Ram sons of Behari Ram, Hazoor Singh son of Sekhoo Ram were noted and entered as ( ). Meaning thereby that uptill preparation of jamabandi for the year 1962-63 Ootam Parkash had remained as owner of the land in dispute and Central Government was not entered in the ownership column. The entires of jamabandi for the year 1950-51 (Ex. P-9), jamabandi of the year 1954-55 and jamabandi of 1962-63 (Ex. P-6) all had contained the name of Ootam Parkash son of Sewa Mal in the ownership column. In other words, ownership of Ootam Parkash had remained intact till the year 1963 and the property was never treated as an evacuee property. There is no evidence brought on the record that the land in dispute was ever treated by the learned Custodian or the Settlement Authorities to be an evacuee property. It is pertinent to point out that the land which was never treated as an evacuee property, by making any overt act to it, by the learned Custodian/Settlement Department, in such an event, it was not necessary for the real owner of the land in dispute, to file a petition under Section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957. Section 22 of the aforesaid Act is reproduced as below:-
"Section 22
CLAIMS BY INTERESTED PERSONS
(1) Any person claiming any right or interest in any property treated by the Custodian or a Rehabilitation Authority as evacuee property may prefer a claim to the Custodian on the ground that:--
(a) the property is not evacuee property; or
(b) his interest in the property has not been affected by the provision of this Act.
(2) An application under sub-section (1) shall be made within the prescribed period being a period of not less than thirty days from the prescribed date.
(3) On receiving an application under sub-section (2), the Custodian shall hold a summary inquiry in the prescribed manner, and after taking such evidence as may be produced shall pass an order, stating the reasons therefore, rejecting the application or allowing it wholly or in part on such terms and conditions as he thinks fit to impose."
The opening words of Section 22 are very clear that Any person claiming any right or interest in any property treated by the Custodian as evacuee property'
(underlining is by me). The wordstreated by the Custodian' are worth consideration and have not been used without any aim and purpose. Treatment of the property is a prerequisite for bringing into the compass of jurisdiction of the learned Custodian and thereafter by Settlement Authorities, to deal with any land or property as an evacuee. If a property was not treated as an evacuee property before 1.1.1957, then that property could not be treated as an evacuee property after 1.1.1957. Section 3 of the Pakistan (Administration of Evacuee
Property) Act, 1957 is clear on this point. Respondents have failed to bring on record any evidence that this property was ever treated by the learned
Custodian/Settlement Authorities before 1.1.1957 as an evacuee property.
Revenue Record has also not supported that this property was ever treated as an evacuee property. The entires of above noted revenue record in the form of jamabandies have clearly displayed that the land in dispute was being considered and treated in the ownership of Ootam Parkash as owner, otherwise the entires in jamabandies must have changed and converted into ownership of
Central Government according to Section 4 of the Displaced Persons (Land
Settlement Act, 1958. The land in dispute having not been treated as evacuee property and having not been shown in special jamabandi as such and having not been acquired into compensation pool, could not be allotted to any refugee claimant or non-claimant vide NLR 1987 UC 500 (Khuda Bux Bhango vs. Settlement Commissioner (Land), etc.) in which property which was recorded in Muslim ownership was not held to be acquired in compensation pool and allotment order of such property was set aside in writ jurisdiction. As the property in question was not treated, therefore, it was not necessary for the owner to file an application under Section 22 of the Pakistan
(Administration of Evacuee Property) Act, 1957. The word `treatment' is not a simple word, having simple meaning, but it is a term of law with specific connotation as held in PLD 1964 SC 74 (Abdul Khaliq Abdur Razzaq vs. Kishan
Chand, etc.) As the land in dispute was never treated as an evacuee property, therefore, it could not be considered to have gone to compensation pool, in consequence of which its ownership could be allotted absolutely and wholly to
Mehar Khan, deceased. According to my finding, this property could not be allotted even to Mehar Khan, deceased because it was never treated as a property in the ownership of an evacuee person, having migrated to India and having been treated as acquired it as owned land of an evacuee owner, before 1.1.1957. Therefore, the allotment in favour of Mehar Khan according to entries of jamabandi of 1962-63 was void ab initio.
It is also interesting that entires of the revenue record, jamabandis as shown above do not contain the date of confirmation of RL-II No. 2 From this also, it gives an impression that in fact no such allotment was ever made in favour of Mehar Khan; otherwise copy of RL-II No. 2 might have been brought on the record by him or by his legal representatives. If copy could not be obtained, then it could be made available on the record by summoning into the Court that record from the concerned department/quarter to prove the genuineness of allotment in favour of Mehar Khan. Why this exercise was not made, no reasonable explanation was brought on record by the respondents. Therefore, it appears that no allotment was in fact made in favour of Mehar Khan.
There is yet another aspect of the case, which has required consideration. If it is presumed that allotment, in actuality was made in favour of Mehar Khan through RL-II No. 2, then question would arise, how much and to what extent rights in the land in dispute were allotted to Mehar Khan? As noted above, the land having not gone into compensation pool, in that situation, at the most mortgagee rights could be deemed to have been transferred to Mehar Khan, which rights could be presumed to have been obtained or devolved upon by the Central Government or the Settlement Authorities. No order of treatment of the lands in dispute as an evacuee was ever passed for its acquisition by the Custodian Department before 1.1.1957 or thereafter, the Settlement Authorities or the Central Government under any Settlement Law could not claim its ownership to have vested in it for absolute ownership rights. Therefore, the rights could be, if any, transferred to Mehar Khan to the extent of mortgagee rights only and not the ownership rights of the land to Mehar Khan or his legal heirs. Learned counsel for the petitioners has rightly referred to PLD 1986 SC 35 (Samar Gul vs. Central Government and others) and 2005 SCMR 1004 (Muhammad Hanif and another vs. Ghulam Rasool through LRs and others), for the above discussed proposition.
The contention of the learned counsel that from 1.7.1974, Evacuee and Displaced Persons Laws were repealed, therefore the Civil Court had got no jurisdiction under Section 22/25 of the Displaced Persons (Land Settlement) Act, 1958 to determine the nature of the property in dispute, and petition under Section 22 of the Pakistan (Administration of Evacuee Property) Act, 1957 having not been filed before the learned Custodian, the land in dispute was correctly allotted to Mehar Khan, deceased could not be accepted. As noted above, the reply has already been given in the above noted paragraphs that this property was never treated, considered, or recorded as evacuee by any competent authority and never allotted to Mehar Khan, deceased. Therefore, the Settlement Authorities had no power or jurisdiction to declare or treat the land in dispute owned by a Muslim owner to be an evacuee and allot it to anyone. The finality provided to orders of Settlement Authorities is to those orders, which are passed within power and jurisdiction. Civil Court being Court of ultimate and final adjudication after the repeal of Displaced and Evacuee Lands can scrutinize as to whether the impugned order was passed within power and jurisdiction. This rule can be easily understood by this explanation that Settlement Authorities can deal with evacuee properties and lands only but have no power or jurisdiction with regard to properties and lands of non-evacuee owners. If such an order is passed by a Settlement Officer, it would be nullity and void ab initio, being without power and jurisdiction.
With regard to the objection of respondents' learned counsel that Civil Court had no jurisdiction to entertain the petition due to bar contained in Section 17 of the West Pakistan Redemption and Restitution of Mortgaged Lands, 1964, learned counsel for the petitioners has referred to a decision of the Hon'ble Supreme Court reported in 1992 SCMR 1822 (Malik Rais Khan vs. Abdul Mannan and another), which has clinched the matter. As the period of 60 years has already passed, therefore, Civil Court has got jurisdiction to declare that the land in dispute has not remained a mortgaged property.
The plea raised by the learned counsel for the respondents that under Sections 22/25 of the Displaced Persons (Land Settlement) Act, 1958, finality had attached to the allotment made in favour of Mehar Khan, suffice it to say that defendants had failed to produce the allotment order (R-II) on the record from where it could be decided as to whether LRs of Mehar Khan were allotted mortgagee rights or the absolute ownership rights in the land. Moreover, as earlier noticed and held, the ownership of the land in question could not be considered to have been allotted to Mehar Khan.
There is yet another important aspect of the case which has been found from record. Ootam Parkash was a minor when his father had died and even when mortgage was made in favour of above noted persons Ex. P-1 and Ex. P-2 are certificates issued by Primary School, in which the date of birth of Allah Bakhsh (Ootam Parkash) was noted as 4.12.1944 while he had left the school in the year 1960. In other words, he was attending the school till the year 1960. Therefore, Ootam Parkash was not an evacuee and had not left the land in dispute to become an evacuee, and had not shifted his place of abode from Pakistan to India or any other country, in consequence of partition of the Sub-Continent. Therefore, the property, which was in the ownership of a Muslim owner, namely, Ootam Parkash who had become Muslim, and was residing in this part of Pakistan, could not be treated as an evacuee property or its ownership could not be allotted as such to any person. Therefore, keeping in view this fact also. I consider that the land in dispute was owned by Allah Bakhsh and after his death his mother and sister, namely Mst. Ghulam Sakina Bibi and Mst. Ghulam Fatima, plaintiffs.
Consequently, by accepting this civil revision, the judgments and decrees of both the learned Courts below are set aside. Resultantly, the suit as prayed for is decreed in favour of the plaintiffs/petitioners without any encumbrance, charge or mortgage, as 60 years have already passed and defendants are not entitled for the grant of mortgage money even as found above.
(N.F.) Revision accepted.
PLJ 2008 Lahore 104
Present: Iqbal Hameed-ur-Rehman, J.
ZULFIQAR ALI--Petitioner
veruss
JUDGE FAMILY COURT--Respondent
W.P. No. 7251 of 2007, decided on 30.7.2007.
Constitution of Pakistan, 1973—
----Art. 199--Family matter--Constitutional jurisdiciton--Question of facts and findings--No patent illegality--High Court cannot interfere in concurrent findings of facts arrived at by Courts below after proper appraisal of evidence on record in exercise of its Constitutional jurisdiciton in the absence of any illegality or any other error of jurisdiction committed by Courts below--Where the question of facts which has been statedly discussed and appraised, High Court should decline to interfere with findings of family Court--No patent illegality has been pointed out by poetitioner's counsel in the impugned judgments of Courts below--Petition dismissed. [P. 106] B
Jurisdiction--
----Concurrent findings of facts--High Court has no jurisdiction to substitute its own findings in place of concurrent findings of facts of Courts below. [P. 106] A
2000 YLR 2637; 2001 CLC 863 and 2002 CLC 113 rel.
Mr. Muhammad Rehan, Advocate for Petitioner.
Date of hearing: 30.7.2007.
Order
Through the instant petition the petitioner seeks setting aside the impugned judgments and decrees dated 26.2.2007 and 3.7.2007 passed by the learned Judge Family Court and the learned Addl. District Judge, Sheikhupra, respectively.
No. 3 filed a suit for recovery of dowery articles and dower amount against the petitioner, which was initially decreed vide judgment and decreed dated 31.7.2006. On appeal the same was remanded to the learned Judge Family Court, Sheikhupura, only to the extent of determining the territorial jurisdiction of the case in hand. After remand Issue No. 3-A was framed:
"Whether this Court has no territorial jurisdiction to adjudicate the matter in hand because of the residence of the plaintiff at District Nankana Sahib? OPD
The issue of jurisdiction was decided in favour of Respondent No. 3 while the earlier findings of the learned Judge Family Court vide its judgment and decree dated 31.7.2006 were maintained on other issues. The suit was decreed in favour of Respondent No. 3 vide judgment and decree dated 26.11.2006. The petitioner preferred an appeal in the Court of learned District Judge, Sheikhupura, which was dismissed vide impugned judgment and decree dated 3.7.2007. Both the impugned judgments and decrees of the Courts below have been assailed through the instant writ petition.
The learned counsel for the petitioner contended that Respondent No. 3 has not been able to substantiate her claim for the recovery of dowery articles as well as dower amount through substantial evidence regarding the same before the learned Judge Family Court.
Arguments heard, record perused.
The learned Addl. District Judge held that evidence of both the parties shows that the findings of the learned Judge Family Court, does not suffer from any illegality or any sort of irregularity and the findings of the learned Trial Court does not deserve any interference as the dowry articles are always the ownership of the lady and the learned Trial Court has accepted the matter regarding the depreciation of value of the articles and maintained the findings of the learned trial Court. In Issue No. 2 it was further held that according to Nikah Nama Ex.P. 3 which is a registered document established the relationship between the parties and according to Column No. 13 of the Nikah Nama Ex. P. 2 the dower was fixed as Rs. 500/- and according to Column No. 14 it was prompt. According to Column No. 15 the same was paid by the appellant. However, under Column No. 16 the plot of measuring 03-Marlas of worth Rs. 75,000/- and golden ornaments weighing two tolas have also been mentioned by the petitioner to be the ownership of Respondent No. 3. It was also held that Column No. 17 of the Nikah Nama reveals that Rs. 1000/- maintenance allowance was also fixed by the petitioner for Respondent No. 3. The evidence of both the parties reveals that the petitioner himself pronounced the divorce in favour of Respondent No. 3 and the plot and golden ornaments mentioned in Column No. 16 have not been delivered to the respondent which has been proved by Respondent No. 3. The learned Judge Family Court while deciding Issue No. 1 has held that Respondent No. 3 has been able to produce the oral as well as documentary evidence that has not been refuted by the petitioner through the cross-examination of the witnesses of Respondent No. 3 except Respondent No. 3/plaintiff, therefore, the claim of the plaintiff/Respondent No. 3 was accepted as true. The perusal of Ex.P. 1 it reveals that these are the articles which are ordinarily given to a bride at the time of her marriage. Moreover, Column No. 16 of the Nikha Nama depicts that 03-Marlas plot valuing Rs. 75000/- was also written as consideration for the marriage as dower alongwith 2-tolas golden ornaments while the prompt dower of Rs. 500- was paid at the time of marriage. The learned Appellate Court after proper appreciation of the evidence on record upheld the findings of the learned Judge Family Court. Both the Courts below have given concurrent findings, which are based upon substantial evidence and the petitioner has not been able to controvert the same during the trial, as such, the petitioner has failed to show any illegality or irregularity committed by the Courts below in the impugned judgments so as to warrant interference by this Court in exercise of its extra-ordinary constitution jurisdiction. Reliance in this context can be placed to the cases of Muhammad Nawaz vs. Mst. Doulan and 2 others (2000 YLR 2637) and Lahore Development Authority through Director General vs. Shakil Ahamd Naser and 2 others (2001 CLC 863) that this Court has no jurisdiction to substitute its own findings in place of concurrent findings of facts of the Courts below. Moreover, this Court cannot interfere in the concurrent findings of facts arrived at by the Courts below after proper appraisal of evidence on record in exercise of its Constitutional jurisdiction in the absence of any illegality or any other error of jurisdiction committed by the Courts below as per law laid down in the case of Mst. Khair-un-Nisa vs. Abdul Majeed and others (1989 MLD 1945). Where the question of facts which has been statedly discussed and apprised, High Court should decline to interfere with the findings of the Family Court. Reliance in this context can be placed to the case of Adnan Aziz vs. Civil/Family Judge, East Karachi (2002 CLC 113). No patent illegality has been pointed out by the learned counsel for the petitioner in the impugned judgments of both the Courts below.
For the foregoing reasons, I do not find any force in this writ petition which is dismissed in limine.
(N.F.) Petition dismissed.
PLJ 2008 Lahore 107
[Multan Bench Multan]
Present: Maulvi Anwar-ul-Haq, J.
Malik TANVEER AHMED, SUPERINTENDENT ANTI-SMUGGLING SQUAD, CUSTOMS, CONTROL EXCISE AND SALES
TAX, MULTAN--Petitioner
versus
SHER NAWAZ BALOUCH and another--Respondents
W.P. No. 1583 of 2005, heard on 10.10.2005.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 380, 454, 392--Criminal Procedure Code, (V of 1898) S. 204--Constitutional petition--Conviction and sentence recorded against accused--Sufficint grounds for proceeding--Accused was one of the 13 unknown persons--No ground disclosed for summoning the petitioner--Allegation to open the lock who refused to do so--Court has to satisfy itself that there are sufficient grounds for proceeding before it shall issue summons for the attendance of an accused--Neither is there any ground disclosed in the impugned order for summoning the accused nor is one made out on the basis of the available material on record--Petition allowed.
[P. 108] A
Ch. Saghir Ahmad, Advocate for Petitioner.
Mian Abdul Ghaffar, Advocate for Respondents.
Date of hearing: 10.10.2005.
Judgment
The complainant is stated to have died. However, learned counsel has filed his Power of Attorney on behalf of the son of the deceased person.
2 The deceased Respondent No. 1 has filed a complaint (annex-G/1) u/S. 380, 454, 392 PPC against one Saif-ur-Rehman. Learned Respondent No. 2 recorded the preliminary evidence and summoned the said accused person. The petitioner feels aggrieved of order dated 25.10.2005, whereby the learned Magistrate has proceeded to summon the petitioner.
Ch. Saghir Ahmad, Advocate, learned counsel for the petitioner argues that neither the petitioner finds any mention in the complaint nor in the preliminary evidence and there is nothing in the impugned order as to why the petitioner has been summoned. Mian Abdul Ghaffar, Advocate, on the other hand, has tried to argue that the petitioner is one of the 13 unknown persons mentioned in the complaint.
I have examined the complaint as also the statement of the deceased complainant. I find that the only accusation against 12/13 persons is that they came to the gate of the factory and asked the chowkidar Muhammad Amin to open the lock, who refused to do so and told them that he will open the lock only upon the arrival of the owners of the factory. There is no other allegation whatsoever against the said 12/13 persons. The remaining allegations are only against Saif-ur-Rehman, the person against whom the complaint has been filed.
Now u/S. 204 Cr.P.C. a Court has to satisfy itself that there are sufficient grounds for proceeding before it shall issue summons for the attendance of an accused. To my mind, neither is there any ground disclosed in the impugned order for summoning the petitioner nor is one made out on the basis of the available material on record. The W.P. accordingly is allowed and the impugned order to the extent of summoning the petitioner in the complaint case by Respondent No. 2 is declared to be without lawful authority and is set-aside.
(N.F.) Petition allowed
PLJ 2008 Lahore 108 (DB)
Present: Mian Muhammad Najum-uz-Zaman and Ijaz Ahmad Chaudhry, JJ.
MUHAMMAD AZAM--Petitioner
versus
JUDGE ANTI-TERRORISM COURT, FAISALABAD and 6 others--Respondents
W.P. No. 1078 of 2007, heard on 24.10.2007.
Anti-Terrorism Act, 1997--
----Ss. 12 & 19(3)--Constitution of Pakistan 1973, Art. 199--Pakistan Penal Code, (XLV of 1860), S. 365-A--Criminal Procedure Code, (V of 1898), S. 190--Jurisdiction of Anti-Terrorism Court--Procedure and powers--Cognizance of case--Purpose of--Special Court can directly take cognizance of a case triable by such Court without the case being sent to it by the Magistrate as required u/S. 190 of Criminal Procedure Code--Held: During the investigation of the case, police has formed the opinion that only Section 365, PPC was made out, then that procedure to be adopted by the police is to submit the challan/report u/S. 173 of Cr.P.C., before the Court of ordinary jurisdiction--Court after perusing the record and taking cognizance of the matter, if forms the opinion that the data available on the record is sufficient to attract the provisions of scheduled offence, then that Court is competent to refer the matter to the Special Court through the District Attorney or Public Prosecutor, but the manner in which Special Judge through, the impugned order has directed the investigating officer to submit challan after inserting Section 365-A of PPC is not correct--Petitions allowed. [Pp. 110 & 111] A, B & C
Mr. Dost Muhammad Kahut, Advocate for Petitioner.
Mr. Ijaz Anwar, Advocate & Mr. Sarfraz Ali Khan, AAG for Respondents.
Date of hearing: 24.10.2007.
Judgment
Mian Muhammad Najum-uz-Zaman, J.--This order will dispose of two petitions i.e. one filed by petitioner Muhammad Azam (W.P. No. 1078-2007) and the other filed by Iftikhar Khan, petitioner (W. P. No. 616-2007), together (since questions of law and facts in both the said petitions are the same) challenging the order dated 10.1.2007 passed by learned Judge Anti-Terrorism Court, Faisalabad. The learned Special Judge, while entertaining application under Section 12 of the Anti-Terrorism Act, 1997 filed by the complainant, has directed the investigating agency that since prima facie, in the circumstances of the case, provisions of Section 365-A PPC, are attracted, the said offence is exclusively triable by Special Court, the challan by submitted under Section 365-A Cr.P.C.
Brief facts of the case are narrated in the FIR lodged by Muhammad Yaqoob petitioner are that on 30.11.2006 at 5.00 p.m., he alongwith Sher Khan and Liaquat Khan was present at his Dera, Chah Ahmad Wala when Hayat Khan, Ramzan, Iftikhar and two unknown accused came there on a white colour car and a land cruiser. They inquired about Rajab Ali, uncle of the complainant, who was not present so they went back. Statedly, on 1.12.2006 the same accused again came to the said Dera at about 11.00 a.m. when Rajab Ali, Sher Khan and Liaqat Ali were also present there. The accused asked Rajab Ali to accompany them to Mundi Shah Jewna in connection with some urgent piece of work. As the accused were known to him, so Rajab Ali accompanied them while sitting in the land cruiser which was being driven by Iftikhar accused. Rajab Ali did not return till 3.12.2006 so the complainant alongwith Sher Khan went to Mundi Shah Jewna to inquire about him where Iftikhar accused met them and demanded Rupees one lac for the release of Rajab Ali. Allegedly Iftikhar accused told them that Rajab Ali had been sent with Hayat Khan etc. and without recovering the money even the bones of Rajab Ali would not be returned. On hearing this, the complainant and his companions came back. Statedly, thereafter, Hayat Khan etc. accused made many calls on the mobile phone of complainant and demanded Rupees one lac. According to complainant, abductee owed Rs. 40,000,00 to the accused but they were demanding Rupees one lac for his release.
During the investigation, it transpired that only Section 365 PPC is made out from the facts and circumstances of the case, thus the Investigation Agency deleted Section 365-A PPC. Challenging the findings of Investigating Agency, application under Section 12 of the Anti-Terrorism Act, 1997, was filed before the trial Court by the complainant. The trial Court passed the impugned order directing the Investigating Agency to submit challan under Section 365-A PPC. Hence this petition.
After hearing the learned counsel for the parties and perusing the record, we have observed that though application under Section 12 of the Anti-Terrorism Act, 1997 was filed before the trial Court by the complainant, but it seems that the learned trial Court while exercising jurisdiction under Section 19(3) of the ibid Act has erroneously passed the impugned order. The relevant portion of Section 19 reads as under:-
"Procedure and powers of (Anti-Terrorism Court:- ...........
(1)
(2)
(3) The Anti-Terrorism Court may directly take cognizance of a case triable by such Court without the case being sent to it under Section 190 of the Code."
Bare perusal of Section 19(3) of ATA, 1997, reveals that the Special Court can directly take cognizance of a case triable by such Court without the case being sent to it by the Magistrate as required under, Section 190 of the Code. The purpose of this section is to by-pass the said procedure provided under the Criminal Procedure Code, according to which, at the first instance, challan/report under Section 173 Cr.P.C. is submitted before the concerned Magistrate who, under Section 190 of the Criminal Procedure Code, after examining the facts of the case refers the matter to the Court of competent jurisdiction, if the same is not triable by him, but through this special law, (i.e. Anti-Terrorism Act, 1997), the Special Courts constituted under the said Act have been given the jurisdiction to take cognizance of the matter directly when the matter is placed before them either through police challan or by way of private complaint disclosing the commission of offence falling within the ambit of the ibid Act. The jurisdiction given to the Special Court by virtue of Section 19(3) of the ibid Act does not mean that the Special Judge has the authority qua fishing out the cased from different police stations and directing the agency to submit challan after incorporating scheduled offences as the facts of the case disclose the commission of the said offence. We have also observed that such type of orders were also passed by Special Judge on reading the news item in the newspaper. This kind of suo moto authority or jurisdiction is not available to the Special Court and thus the impugned order passed by Special Judge Anti-Terrorism Court, Faisalabad, is not sustainable.
If during the investigation of the case, police has formed the opinion that only Section 365 PPC, is made out, then the procedure to be adopted by the police is to submit the challan/report under Section 173 Cr.P.C before the Court of ordinary jurisdiction. The said Court after perusing the record and taking cognizance of the matter, if forms the opinion that the data available on the record is sufficient to attract the provision of scheduled offence, then the Court is competent to refer the matter to the Special Court through the District Attorney or Public Prosecutor, but the manner in which Special Judge through, the impugned order has directed the Investigating Officer to submit challan after inserting Section 365-A PPC, is not correct.
Accordingly while setting aside the impugned order dated 10.1.2007 passed by Learned Special Judge Anti-Terrorism Court, Faisalabad, these petitions are allowed and the Investigations Agency is directed to submit report under Section 173 Cr.P.C. before the Court of ordinary jurisdiction, the said Court, after perusing the record shall proceed with the matter in the light of observations made above.
(A.S.) Petitions allowed
PLJ 2008 Lahore 111
Present: Syed Shabbar Raza Rizvi, J.
MUHAMMAD ABDULLAH--Petitioner
versus
GOVERNMENT OF THE PUNJAB through its House Secretary Civil Secretariat, Lahore and 3 others--Respondents
W.P. No. 2662 of 2007, decided on 28.5.2007.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 497 & 86-A--Pakistan Penal Code, (XLV of 1860) Ss. 406 & 420--Constitution of Pakistan, 1973, Art. 199--Removal in custody to Tribal Area after satisfied evidence--Powerful presumption--Magistrate, seized with matter, is fully competent to record the evidence and hear the parties on all matters, in the manner he would have competent if the original complaint had been filed before him--Magistrate shall direct removal of the arrested person in custody only if he satisfied with the evidence produced before him, and if it raises a strong or powerful presumption that the person arrested committed the offence mentioned in warrant--During the proceedings pending before him he can even decide whether the penal proceedings mentioned in the warrant were rightly applied or not--Such powers are conferred upon trial Courts--Held: Supreme Court even has allowed Magistrate to consider the question of bail--Since a competent Court is already seized with the matter, the interference by Supreme Court in Constitutional jurisdiction is neither allowed nor warranted--Petition dismissed. [P. ] A & B
Mr. Mushtaq Ali Tahir Kheli, Advocate for Petitioner.
Ch. Khurshid Anwar Bhinder, Addl. A.G., Sardar Safdar Hussain, Advocate for Respondents.
Date of hearing: 25.5.2007.
Order
The learned counsel submits that Respondent No. 4, Haji Sher Zaman, son of Elam Din filed a complaint before Assistant Political Agent (APA), South Wazirastan alleging that in 1977 petitioner contacted Respondent No. 4 and agreed to act as a broker that he would sell busses of Respondent No. 4 to other people on the basis of commission. Respondent No. 4 in 1998 appointed petitioner, Muhammad Abdullah as his agent to sell the vehicles on hire purchase basis and through instalments. The Respondent No. 4, authorized petitioner to retain commission in every deal. The Respondent No. 4 claimed that he paid a handsome amount to petitioner to deal with the customers. According to Respondent No. 4, petitioner came to his native village in South Wazirastan, where he was paid more money at different times in 1998 which comes in total Rs. 18,85,000/-. Respondent No. 4 further alleged that he paid Rs. 11,60,000/- to petitioner for purchasing and selling the vehicles. According to Respondent No. 4, the said amount was paid to petitioner within the jurisdiction of South Wazirastan. According to him, Respondent No. 4 and his son, Salah ud Din gave copies of their identity cards to the petitioner. Subsequently, original identity card was also given to the petitioner by Salah-ud-Din, son of Respondent No. 4. Petitioner sold 34 vehicles on behalf of Respondent No. 4 in the area of Multan and Chishtian. The Respondent No. 4 finally claimed that total amount of Rs. 56,27,000/- was outstanding against the petitioner.
"As the warrant issuing Court is situated in Tribal Areas, so he is to be released from jail, but with direction to SHO P.S. Iqbal Town to get released accused from the jail and produce him before the concerned Area Magistrate for appropriate order on 29.12.2006 and if the warrants direct for taking of security, then will to take security of Rs. 500,000/- otherwise he would be produced before Areas Magistrate. Robkar be sent to SHO for compliance and information. Meanwhile, notice to complainant be also issued for 29.12.2006."
Following the above order, Mr. Abid Zubair, Judl. Magistrate vide his order dated 15.3.2007 dismissed the application of bail on the ground that order dated 28.12.2006 already required petitioner to be released from the jail. The matter was adjourned for recording of evidence of the complainant and his witnesses.
The above order of not granting bail by the learned Magistrate, bail application was filed before the learned Sessions Court which was entrusted to Mr. Muhammad Bakhsh Masood, ASJ. The learned Addl. Sessions Judge held that the learned Magistrate is strictly directed to get implemented its order in its letter and spirit and taken stern legal action against the said SHO under provisions of contempt act and also make necessary direction for registration of case under Section 155-C of the Police Order against SHO and make necessary arrangement for the release of the petitioner. With the above directions/observation the bail application was disposed of on 29.3.2007.
The order of 29.3.2007 was challenged by Respondent No. 4 before this Court in Criminal Revision No. 222/07, Sher Zaman vs. M. Mubashar Masood etc. This Court allowed the criminal revision setting aside the order of the learned Addl. Sessions Judge, dated 29.3.2007. The learned Magistrate was directed to complete the proceedings under Section 86-A, Cr.P.C. expeditiously. The order of this Court was challenged before the Hon'ble Supreme Court by petitioner in Crl. Petition No. 266-L/2007. The above mentioned criminal petition was dismissed with the following observations:--
"Now the case has been remanded to the Magistrate proceeding under Section 86-A, Cr.P.C. all the above questions, except of the vires, can be raised before the Magistrate Ist Class, Lahore or before APA, Wana, as the case may be, including the question of bail which is to be decided in accordance with Section 497 of the Cr.P.C."
"As far as contention for grant of bail and release of accused, Muhammad Abdullah is concerned, it is suffice that may learned brother namely. Mr. Hassan Ahmad, Judl. Magistrate Section 30, Lahore has passed order regarding release of the accused on 28.12.2006, hence the instant applicant for grant of bail or release of the accused has become, infructuous, hence, is hereby dismissed, being infructuous. Adjourned to 3.4.2007 for recording of evidence of the complainant and his witnesses."
The learned counsel for the petitioner submits that proceedings before the learned Magistrate are without jurisdiction as learned Assistant Political Agent had no authority to issue warrant of arrest in offences covered by Sections 406, 420, PPC read with Sections 8, 11,20 of Frontier Crimes Regulation (FCR). Similarly, the learned counsel submits that Section 8 of F.C.R. is also not attracted. The learned counsel submits that Criminal Amendment. West Pakistan Criminal Law, 1963 (ACt-VII) of 1963 is applicable to P.A.T.A. instead of, F.A.T.A. The learned counsel for the petitioner in support of his contentions relied upon PLD 1958 West Pakistan Lahore 1039, PLD 1958 West Pakistan Lahore 1953, PLD 1957 West Pakistan Peshawar 100, PLD 1975 SC 66, PLD 1957 West Pakistan Quetta 1 and PLD 1958 West Pakistan Quetta.
On behalf of Respondent No. 4, the learned counsel submits that proceedings under Section 86-A, Cr.P.C. are pending before the learned Magistrate. The learned counsel submits that unless proceedings under Section 86-A, Cr.P.C. pending before the learned Magistrate are completed, the present writ petition could not be filed.
The learned Additional Advocate General, Punjab submits that proceedings under Section 86-A, Cr.P.C. are pending before the Judl. Magistrate and now the case is at stage of evidence. The learned Addl. Advocate General, Punjab refers to NLR 1994 Criminal Law Journal 394. On the basis of the above judgment, he contends that unless proceedings under Section 86-A, Cr.P.C. are not completed which are mandatory in nature, no further proceedings or action can be taken. He also refers to PLD 1995 Peshawar 118. In the said judgment it has been said that interference under the Constitutional jurisdiction is not allowed while proceedings under Section 86-A, Cr.P.C. are still pending. The learned Addl. A.G. refers to PLJ 1997 Peshawar (DB) 22, to argue that in the said judgment it is held that removal to the Tribal Areas of the accused shall depend upon the satisfaction of the Magistrate who is conducting proceedings under Section 86-A, Cr.P.C. That the accused has committed alleged offence and, therefore, required to be removed to the Tribal Area.
I have heard the learned counsel for the parties.
The learned counsel for the petitioner categorically submitted that he had objection to jurisdiction of the learned Magistrate before whom the proceedings are pending under Section 86-A, Cr.P.C. According to him, the learned APA has no jurisdiction to try or entertain the complaint under Sections 406 and 420 PPC read with Sections 8, 11 and 20 of Frontier Crimes Regulation, therefore, under Section 86-A, Cr.P.C., the learned Magistrate is also incompetent to continue proceedings pending before him as he desires his jurisdiction stemming from the filing of complaint before the A.P.A. Likewise, according to the learned counsel, APA could not have issued the warrants against the petitioner. In my view, in the presence of order of the Hon'ble Supreme Court of Pakistan, the above two matters cannot be decided by this Court during the pendency of proceedings before the learned Magistrate. For the convenience, relevant portion of the order of the Hon'ble Supreme Court is reiterated, "now the case has been remanded to the Magistrate, proceedings under Section 86-A, Cr.P.C. on all the above questions except of the vires can be raised before the Magistrate Ist Class, Lahore or before the APA, Wana as the case may be including the question of bail which is to be decided in accordance with Section 497 of the Cr.P.C."
Under Section 86-A, Cr.P.C. the learned Magistrate, seized with the matter, is fully competent to record the evidence and hear the parties on all matters, in the manner he would have had competent if the original complaint has been filed before him. The learned Magistrate shall direct removal of the arrested person in custody only if he is satisfied with the evidence produced before him, and if it raises a strong or powerful presumption that the person arrested committed the offence mentioned in the warrant. During the proceedings pending before him he can even decide whether the penal proceedings mentioned in the warrant were rightly applied or not. Such powers are conferred upon the trial Courts. For further guidance a reference may be made to a judgment delivered by a Full Bench of this Court reported as Khizar Hayat vs. I.G.P., PLD 2005 Lahore 470. The Hon'ble Supreme Court even has allowed Magistrate to consider the question of bail under Section 497, Cr.P.C. Since a competent Court is already seized with the matter, the interference by this Court in Constitutional jurisdiction is neither allowed nor warranted. For the above reason, this writ petition is dismissed.
(N.F.) Petition dismissed
PLJ 2008 Lahore 116
Present: Muhammad Muzammal Khan, J.
HABIB BANK LIMITED--Petitioner
versus
KALCO PHARMA LIMITED through its Chief Executive New Garden Town and 14 others--Respondents
W.P. No. 16432 of 1996, decided on 20.2.2007.
Transfer of Property Act, 1882 (IV of 1882)--
----S. 79--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Award--Registered mortgage deed--Assailed--Enacted an exception to the rule of priority, making the puisine (subsequent) mortgage as part of first mortgage, if the advanced amount was within the fixed minimum limit provided the puisine mortgagee had the notice of first mortgage--Subsequent mortgagee had no notice of the mortgage of petitioner--Held: Later mortgage was void--Petition allowed. [P. 120] A
PLD 1966 SC 267; PLD 1967 SC 294; PLD 1973 SC 236; PLD 1976 SC 208 & PLD 1980 Lah. 784, ref.
Mr. Shamas Mehmood Mirza, Advocate for Petitioner.
Mr. Jahangir Akhtar Jhojha, Advocate for Respondents No. 16.
Date of hearing: 20.2.2007.
Judgment
Instant Constitutional petition assailed the Award/judgments/ orders dated 4.5.1991, 12.3.1992, 3.9.1992 and 29.7.1996, passed by Respondents No. 10, 11 and 13, respectively, to be declared illegal, void and of no legal consequence, whereby under the Cooperative Societies Act, an award in favour of Respondent No. 9 was announced; petitioner-bank was declined to be impleaded as party; revision petition was disposed of and petitioner's objection petition was dismissed by the Chairman Banking Tribunal No. III Lahore.
Succinctly, relevant facts are that Kalco Pharma Limited (Respondent No. 1) was granted finance facility by the petitioner-bank in the year 1984 against a registered mortgage deed dated 16.3.1986 of the property situated at 18-Kilometer, Ferozepure Road near Chungi Amer Sidhu, Lahore, measuring 9 Kanals 10 Marlas alongwith Building/Walls, Shed, Structure, Fittings and Fixtures/Appliances/ appurtenances affixed, etc. This property was further mortgaged vide registered mortgage deed dated 18.5.1987 and equitably with the petitioner-bank by executing memorandum and deposit of title/ documents. The so created charges were committed and registered with the Registrar Joint Stock Company, Lahore. The liabilities towards the petitioner-bank were not liquidated, as per contractual obligations, leading to institution of suit for recovery before the Banking Tribunal. The suit was ultimately decreed on 30.11.1995.
Respondent-Company had also availed finance facility from the Mercantile Co-operative Finance Corporation Limited (Respondent No. 9) since June 1982, against the mortgage of land measuring 1-Kanal 18 Marlas owned by Respondent No. 2, the Chief Executive of the respondent-company and House No. 401/C/III, Allama Iqbal Town, Lahore, owned by Respondent No. 4. Some where in 1989 the Chief Executive of the respondent-company created a further mortgage of his property situated at 18 k.m. Ferozepure Road, Lahore which was already under mortgage with the petitioner bank. This availed loan was also not repaid where upon Mercantile Co-operative Finance Corporation Limited (Respondent No. 9) initiated proceedings before the Registrar, Cooperative Societies for recovery of its dues. The Registrar, Cooperatives Societies, announced award an Award on 11.8.1990 in favour of Mercantile Cooperative Finance Corporation. On an appeal, the Central Registrar, Islamabad set aside the Award through his order dated 1.12.1990 with a direction to the Registrar, to re-constitute the proceedings by impleading the respondent-company. Fresh Award was passed on 4.5.1991 on the same terms and all the three properties mentioned in the aforementioned were attached. This Award has been challenged by the petitioner in this Constitutional petition.
Petitioner moved an application under Order-I Rule 10 CPC praying impleadment to the appeal. The impleadment was declined and appeal was disposed of on 12.3.1992. Petitioner has also attacked this order in this petition.
Petitioner-Bank and Respondents No. 3, 7 & 8 were said to have filed their distinct revision petitions against appellant order before the Secretary, Cooperative, Government of the Punjab. Pending these revision petitions, Punjab Undesirable Cooperative Societies (Dissolution) Ordinance, 1992 was promulgated and the Cooperative Societies were took over by the Government of Pakistan. On 3.9.1992 Secretary Cooperative, disposed of the revision petitions with the observations that in view of promulgation of the said Ordinance, he has seized to exercise his jurisdiction.
Petitioner-bank, on the other side, went in execution of the decree-dated 30.11.1995 in its favour and detailed the property measuring 9 Kanals 10 Marlas situated at 18 k.m. Ferozepure Road Lahore in its "Fard Taliqa", for sale through auction. S.M. Yousaf (Respondent No. 15) Auction Purchase of this property, in auction held by the Cooperative Board as Liquidator, filed an objection petition with the claim that he is bona fide purchaser of the property in an open auction which was lawfully commenced and a sale Certificate No. E.221-25 AR.FCL dated 4.5.1995 has already been issued in his favour and thus asserted that his property was not liable to be proceeded against, in execution of the decree in favour of the writ petitioner. The Banking Court concerned through impugned order dated 29.7.1996, accepted the objection petition and excluded the above-referred property from auction. The petitioner being aggrieved of all the above noted orders, filed this Constitutional petition with the relief detailed above. Respondents in response to notice by this Court appeared and were represented through their respective counsel.
The learned counsel for the petitioner submitted that the petitioner-bank had first mortgage charge through registered deed over the property in question, with whom the documents of title were deposited by the owners/judgment debtors, hence this property could not be re-mortgaged without NOC by the First Charge Holder. According to him, there was no warrantee of title and the auction purchaser got the property subject to already existing restrictions, binding on the judgment debtors and it went with all encumbrances existing over the property at the time of its auction. It was further submitted that mortgage once having been created would terminate either by operation of law or by consent of parties by removing the encumbrances. It was also emphasized that termination of old mortgage had to be established. Similarly waiver/renouncement had to be intentional/deliberate especially when the original mortgage went on, being renewed by the mortgagor, will have priority over any puisine.
Intermediate mortgage was urged to be part of the first mortgage as enacted by Section 24 of the Transfer of Property Act. Referring to Section 24 of the Cooperative Societies Act 1925, it was submitted that only a statutory charge in favour of the society was created, leaving the right to redeem with the mortgagor. It was also attempted to be argued that charge on some property differed from a mortgage, not only in form but also in substance which according to him, could not have even been created without notice to the mortgagee-bank.
Learned counsel for the respondents especially for Respondents No. 14 & 15 refuted the arguments of the petitioner and supporting the impugned order of the Banking Court, urged that the Constitutional petition is not only bad on account of laches but the same is also not maintainable, as the order of the executing Court was open to challenge in appeal which was never filed by the bank. It was further contended that all the impugned orders including the award passed by the official working under hierarchy created by the Cooperative Societies Act 1925 were in the knowledge of the Bank and were deliberately not challenged in due course thus those have attained finality and cannot be adjudged in writ jurisdiction. Invocation of jurisdiction under Article 199 of the Constitution claimed to have been ousted in view of provisions of Sections 14 and 16 of the Punjab Undesirable Cooperative Societies (Dissolution) Ordinance, 1992. Estoppel by conduct against the petitioner-bank was assertively applied with the arguments that the petitioner moved some application before Liquidation Board but willfully abandoned/deserted this remedy and intentionally did not approach the Hon'ble Cooperative Judge, in view of which, petitioner was not entitled to challenge those orders thus passed, through collateral proceedings. It was also submitted that petitioner-bank had abandoned its right of the alleged first preferential claim regarding recovery of its loan from the property lawfully auctioned by the Cooperative Board. According to him, the asserted preferential claim of the bank was taken note in the order-dated 12.3.1992 but this part of the order has not even been challenged/assailed in this writ petition. Respondents attributed malice to the Bank as according to them Bank concealed claim of the Society/Board determined vide order dated 4.5.1991 which had matured into the order dated 3.9.1992, and was not brought to light through its suit filed on 2.1.1995 and according to them, obviously for the reason that it was not interested in recovery of decretal amount for the property already sold through public auction under a valid order of the Cooperative Board. Section 9 read with Section 11 of the Banking Tribunal Ordinance, 1984 was relied to urge that impugned order by the Banking Court was appeal able and there against, writ petition is not maintainable.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, property of Respondents No. 1 and 2 measuring 9 Kanals 10 Marlas situated at 18 k.m. Ferozepure Road Lahore was initially mortgaged through a registered deed dated 16.3.1986 in favour of the petitioner-bank and this property under went further mortgage on 16.5.1986, besides four equitable mortgages by deposit of title deeds. The mortgage so created was never terminated by operation of law or through deliberate act of the parties. The termination if any had to be proved/established but there was no evidence with the Banking Court to return any such finding. Apex Court of this country had mandated in the case of Nazeef vs. Abdul Ghaffar and others (PLD 1966 SC 267) that when a person is possessed of any right, question of its waiver/re-announcement had to be proved by evidence and while electing any of two interpretations one involving loss of that right and the other preserving the right, his conduct was to be construed on the basis, preserving hs right. Relinquishment/desertion of mortgagee rights inspite of holding title documents of the property under mortgage and institution of suit for recovery of the advanced finance facility, even though in 1995 would not lead to loss of mortgagee rights. The petitioner-bank had not issued any NOC in favour of Respondents No. 1 and 2 for creation of second mortgage and the petitioner being not party to this transaction, will not be bound by it. Second mortgage in favour of Respondent No. 9 could have been created by the owners, till the time their title in the property became extinct. Now keeping in view both these mortgages, Section 79 of the Transfer of Property Act, 1882 enacted an execution to the rule of priority, making the puisine (subsequent/intermediate) mortgage as part of the first mortgage, if the advanced amount was within the fixed minimum limit, provided the puisine mortgagee had the notice of first mortgage. The subsequent mortgagee i.e. Mercantile Co-operative Finance Corporation Limited had no notice of mortgage of the petitioner and as such it can hardly be held that later mortgage was void or became part of the Ist Mortgage under the ordinary law of the land, as mortgagor/owner could further mortgage/sell out his property but subject to earlier mortgage/charge/encumbrance.
Undisputedly, property in question was initially mortgaged with the petitioner-bank and was subsequently attached by the Registrar, Cooperative Societies, through his impugned order dated 4.5.1991 and this order was challenged by the Respondents No. 3, 7 and 8 where petitioner applied for its impleadment but the same was declined through order dated 12.3.1992 dismissing the appeal as well. By this time, suit, by the petitioner-bank was not decided but inspite of it, bank did file a revision petition before the Secretary Cooperative, Government of the Punjab, as bank was also a respondent in the revision petition filed by the other parties. Petitioner had also moved an application before the Cooperative Board, constituted under the Punjab Undesirable Cooperative Societies (Dissolution) Act, 1993 but fate of the same is not know even to the bank itself. The property mortgaged with Respondent No. 9 was put to open auction by the Cooperative Board and it is not the case of the bank that the auction was fake. Sale through auction was confirmed and a sale certificate was issued in favour of the contesting respondents, leading to sanctioning of Mutation No. 12904, earlier to the decree dated 30.11.1995 in favour of the bank. In this background, the property purchased by Respondent No. 14 remained under encumbrance in form of mortgage in favour of the petitioner-bank as the same had not been redeemed and the mortgagee rights were not waived/renounced by any intentional/deliberate act of the bank who had been asserting its mortgagee rights before different forums but this aspect of the case was not attended by the executing Court while accepting the objection petition for Respondents No. 14 and 15 and the property under the first charge of the petitioner-bank was excluded from the "Fard Taliqa" through a sketchy order.
Adverting to objections of the learned counsel for the respondent to the effect that petitioner-bank had not challenged the Award by the Registrar, Cooperative Societies, attachment of the property under Award was not assailed; case was not followed before the Cooperative Board or the Hon'ble Cooperative Judge was not approached and that an appeal was not filed against the order by the executing Court, petitioner-bank was not party to the proceedings before the Registrar, Cooperative Societies and it had no notice of those proceedings. An application was moved before the Cooperative Board and instead of appealing against the order of the executing Court, instant Constitutional petition was filed but for the reasons already noted in the earlier paragraphs, the order by the executing Court was patently illegal as the entire controversy was not comprehended and such an order cannot be allowed to continue in view of the judgments in the cases of Syed Ali Abbas and others vs. Vishan Singh and others (PLD 1967 Supreme Court 294) Nawab Syed Raunaq Ali etc. vs. Chief Settlement Commissioner (PLD 1973 Supreme Court 236) Khuda Bakhsh vs. Khushi Muhammad and 3 others (PLD 1976 Supreme Court 208) and Ch. Muhammad Amin vs. Mushtaq Ahmad etc. (PLD 1980 Lahore 784). Even otherwise the impugned order was passed by the Executing/Banking Court on 29.7.1996 and instant petition was filed on 15.9.1996 which can be converted/treated as an appeal, as the same would be within the period of limitation, after excluding time consumed in getting certified copies and the Court fee already affixed was excessive than the one required thus I feel no hesitation to intervene.
For the reasons noted above, instant petition is bound to succeed and is accordingly allowed. Impugned order dated 29.7.1996 passed by the Banking Court is declared to be void and nonexistent in the eye of law with the result that objection petition filed by the Respondents No. 14 and 15 shall be deemed to be pending and shall be decided afresh in accordance with law. There will be no order as to costs.
(M.S.A.) Petition allowed
PLJ 2008 Lahore 122
Present: Kh. Muhammad Sharif, J.
MUHAMMAD ARIF--Petitioner
versus
ADDL. SESSIONS JUDGE, GUJRANWALA and 5 others--Respondents
W.P. No. 11912 of 2006, heard on 26.2.2007.
Illegal Dispossession Act, 2005--
----S. 3--Constitution of Pakistan, 1973, Art. 199--Complaint was filed--Dispute of possession--Applicability--No legal title qua the house in-question lies with the present respondent i.e. no registered sale deed no mutation, no electricity bills to prove thier little--Reasons given in judgment impugned by Additional Sessions Judge are illegal, unjust, perverse, arbitrary against the record and have led to miscarriage of justice--Petition was allowed. [P. 127] A & B
2007 P.Cr.R. 201, ref.
Mr. Farooq Amjad Meer, Advocate for Petitioner.
Ch. Muhammad Hanif Khatana, AAG Mr. Naserruddin Khan Nayyar, APG for State.
Mr. Mushtaq Ahmad Qureshi, Advocate for Respondents No. 2 to 5.
Date of hearing: 26.2.2007.
Judgment
Through this petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner has challenged the impugned judgment dated 25.9.2006 passed by the learned Additional Sessions Judge Gujranwala (the learned trial Judge seized of the matter under the Illegal Dispossession Act, 2005), whereby, he has dismissed petitioner's complaint filed against the respondents under Section 3 of the Illegal Dispossession Act, 2005.
The facts leading to the filing of this Constitutional petition are that a House measuring 14 Marls bearing Khewat No. 39, Khatoni No. 108-122, situated at Mauza Kot Bilal, Tehsil Noshera Vikran, District Gujranwala was purchased by one Karam Hussain, petitioner's sister (Kubra Bibi's) husband, in 1986 through a registered sale-deed, the said Karam Hussain left his wife and children, left Pakistan and started living in UK, he died on 18.6.2005, so, the said house became the property of the above mentioned sister of the petitioner and her children, petitioner's sister in-question alongwith her children also left for UK whereafter petitioner became custodian of the captioned house coupled with its occupation. It is alleged in the complaint that on 19.12.2005 present Respondents No. 2 to 5 took forcible possession of the afore-referred house which led to the filing of a complaint by the petitioner under Section 3 of the Illegal Dispossession Act, 2005 which was entrusted to Mr. Muhammad Tammar Hayat Gondal, Additional Sessions Judge, Gujranwala, who, recorded preliminary evidence, called report from the police and then dismissed the said complaint without having summoned the respondents vide order dated 15.2.2006, upon which, petitioner filed WP No. 4197/2006 calling in-question the said order of the learned Additional Sessions Judge, it came up for hearing before this Court on 16.5.2006, was accepted and it was directed to the learned Additional Sessions Judge Gujranwala (the learned Trial Judge seized of the matter under the Illegal Dispossession Act, 2005) to proceed with the trial of the complaint as required under the law i.e. Illegal Dispossession Act, 2005. The learned ASJ, vide order dated 25.9.2006, after having completed the trial, dismissed the said complaint and acquitted the present respondents from the complaint case.
Learned counsel for the petitioner, assailing the above impugned judgment through the instant Constitutional petition, contends that the main contention of the respondents is that they had purchased the said house from Karam Hussain in-question on 27.4.2004 through an agreement to sell while contention of the present petitioner is that the house in-question was taken into possession by the respondents forcibly on 19.12.2005 and they were liable to be proceeded against under the relevant provisions of the Illegal Dispossession Act, 2005. Further contents that the said sale agreement, which was allegedly executed between Karam Hussain and Shabbir Hussain respondent, was never produced during the trial of the instant complaint filed under Section 3 of the Illegal Dispossession Act, 2005 coupled with the fact that not even the marginal witnesses of the alleged agreement to sell were produced. Adds that the 15/16 electricity bills were also produced by the petitioner before the learned Additional Sessions Judge Gujranwala (the learned trial Judge seized of the matter under the Illegal Dispossession Act, 2005) from October, 2005 to December, 2005 which are available on the record of this file. Averred that there is neither any registered sale-deed regarding the house in-question nor any mutation to the said effect in favour of the respondents which has falsified their claim. While concluding his submissions he argues that the respondents have committed offence under the Illegal Dispossession Act, 2005, therefore, they are liable to be proceeded against under the said law.
On the other hand, learned counsel for the respondents, while defending the impugned judgment of acquittal, submits that it is a second petition under Section 3 of the Illegal Dispossession Act, 2005 as the earlier was dismissed, respondent Shabbir had purchased this house from Karam Hussain through an agreement to sell in lieu of Rs. 4 lac, money was paid, possession was taken over on 27.4.2004, in fact petitioner was neither attorney nor was custodian of the said house, actually he had a house on the back side of the house in-question, intervening wall was demolished by him and he trespassed into the house in-question, took away belongings to the respondents on which a case vide FIR No. 302/06 dated 26.6.2006 under Sections 448/457 PPC, Police Station Tatley Wali, Gujranwala was registered against the present petitioner, respondent had also appeared as DW-1 before the learned ASJ, a suit for specific performance was also filed against Kubra Bibi in-question, her children and the present petitioner in which they filed reply through Arif son of Siddique which is on the record. Adds that the said Karam Hussain went to UK but thumb marked the documents as he was an uneducated person, on the same day he had also entered into an agreement person, which was also thumb marked by him. He has referred to a Full Bench judgment of this Court recently delivered in the case of Zahoor Ahmad and 5 others vs. The State and 3 others (2007 P.Cr. R. 201) especially sub-paras (ii) and (iii) of para 7. While advancing his submissions, learned counsel for the respondents further submits that during the pendency of a civil suit qua the subject-matter in-question, no application under Section 3 of the Illegal Dispossession Act, 2005 can be filed and if there is any application still lying with the learned trial Court, that shall be deemed to be dismissed.
While assisting this Court, the learned Additional Advocate General Punjab Ch. Muhammad Hanif Khatana and Mr. Naseeruddin Khan Nayyar, the learned Additional Prosecutor General, submit that FIR No. 302/06 dated 26.6.2006 under Sections 448/457 PPC, Police Station Tatley Wali, Gujranwala was found to be false, cancellation report was prepared which is pending with the DSP Circle for verification; that electricity bills on the record produced by the petitioner show that the house in-question was in occupation of the petitioner being real brother of widow of Karam Hussain; that non-filing of suit for specific performance by the respondents upto the death of Karam Hussain till filing of the earlier complaint, also casts doubts about the veracity of the version of the respondents; that the factor of non-production of original agreement to sell and marginal witnesses also goes against the respondents; that change of Attorney by the petitioner for filing reply to the suit for specific performance does not mean that the house was not taken into possession forcibly by the respondents and that the impugned judgment of acquittal is not sustainable in law.
I have heard learned counsel for the parties in a great length to their entire satisfaction. It is imperative to quote para 6 of the impugned judgment dated 25.9.2006 passed by the learned Additional Session Judge Gujranwala (the learned trial Judge seized of the matter under the Illegal Dispossession Act, 2005) which reads as under:
"6. The complainant has stated that his brother in law and sister reside in England and he looks after the disputed house as its custodian. In cross-examination, he has admitted that Shabbir Hussain accused has filed a suit against the legal heirs of Karam Hussain and in that suit Mst. Kubra Bibi etc. have not arrayed the complainant as their attorney. That they have appointed one Muhammad Arif son of Muhammad Siddique, as their attorney in that suit. This fact shows that the complainant was not made custodian of house by owners. So, he is neither owner nor occupier of the house. The complainant has miserably failed to prove the charge against the respondents/accused. They are therefore, acquitted of the charge. They are on bail, therefore, their bail bonds are also discharged. File be consigned to the record room after its due completion".
The dates in the instant case are very necessary for a just decision of the case. According to the respondent Shabbir, he had entered into agreement to sell with Karam Hussain deceased on 27.4.2004, his thumb-impression has been shown under his name, till the death of Karam Hussain i.e. on 18.6.2005 no effort was made to get the alleged sale-deed registered. The agreement to sell, which is according to the learned counsel for the respondents has created a title in favour of the respondent, was never produced before the learned Additional Sessions Judge Gujranwala (the learned trial Judge seized of the matter under the Illegal Dispossession Act, 2005). Even marginal witnesses were never produced to support case of the respondents. The date of occurrence given by the petitioner for taking illegal possession of the house in-question is 19.12.2005, the petitioner filed the first complaint against the respondents on 28.1.2006 which was dismissed by the same learned Additional Sessions Judge on 15.2.2006 on the ground that Illegal Dispossession Act, 2005 is applicable only to "land grabbers". The said order was challenged before this Court in WP No. 4197/06, the said order was set-aside vide this Court's order dated 16.5.2006 and the case was remanded back with a direction to the learned ASJ to proceed with the complaint filed by the petitioner and decide the same as mandated under the Illegal Dispossession Act, 2005. The suit for specific performance was filed after passage of the first order of dismissal of the complaint by the learned Additional Sessions Judge dated 15.2.2006 while the suit was filed on 22.2.2006 which was duly replied on 15.5.2006 through attorney Muhammad Arif son of Muhammad Siddique.
Apart from above, FIR No. 302/06 dated 26.6.2006 under Sections 448/457 PPC, Police Station Tatley Wali, Gujranwala, was got registered by respondents Shabbir, which, according to the learned APG, was found to be false and a cancellation report has been prepared which is pending verification with the DSP Circle.
Further more, electricity bills on the record produced by the petitioner from October, 2005 to December, 2005 show that the house in-question was in occupation of the petitioner being real brother of widow of Karam Hussain. It is the claim of the respondents that they had taken over possession of the house in-question on 27.4.2005. If this is the position then the electricity meter should have been in their name and not in the name of Karam Hussain and more so that why the petitioner would be depositing the said bills to the Wapda authority if it was not in their name till December, 2005.
It is pertinent to mention here that non-filing of suit for specific performance by the respondents upto the death of Karam Hussain till filing of the instant complaint, also casts doubts about the veracity of the version of the respondents coupled with non-production of original agreement before the learned Additional Sessions Judge seized of the matter.
It is not believable that Karam Hussain, who was living in UK, would only thumb mark the papers. At least he could have signed, if not in English, then in "Urdu" on the said agreement to sell. No effort was made by the respondents to get the house in-question mutated in their favour.
I may also mention here that in the earlier writ petition, the learned Additional Advocate General Punjab had submitted before this Court that there was no sale agreement between Shabbir and Karam Hussain, even in the police report which was submitted in the first application filed by the petitioner it was stated that the present respondents had taken the possession of the house in-question without consent of the petitioner party.
As far as judgment of the Full Bench reported in Zahoor Ahmad and 5 others vs. The State and 3 others (2007 P.Cr. R. 201) especially sub-paras (ii) & (iii) of para 7, which were referred to by the learned counsel for the respondents, are concerned, read as under:-
"7. For the purpose of providing guidance to all the Courts of Session in the Province of the Punjab, we declare as follows:-
(i) The Illegal Dispossession Act, 2005 applies to dispossession from immovable property only by property grabbers/Qabza Group/land mafia. A complaint under the Illegal Dispossession Act, 2005 can be entertained by a Court of Session only if some material exists showing involvement of the persons complained against in some previous activity connected with illegal dispossession from immovable property or the compliant demonstrates an organized or calculated effort by some persons operating individually or in groups to grab by force or deceit property to which they have no lawful, ostensible or justifiable claim. In the instant case of an individual it must be the manner of execution of his design which may expose him as a property grabber.
(ii) The Illegal Dispossession Act, 2005 does not apply to run of the mill cases of alleged dispossession from immovable properties by ordinary persons having no credentials or antecedents of being property grabbers/Qabza Group/land mafia, i.e. cases of disputes over possession of immovable properties between co-owners or co-sharers, between landlords and tenants, between persons claiming possession on the basis of inheritance, between persons trying for possession on the basis of competing title documents, contractual agreements or revenue record or cases with a background of an on-going private dispute over the relevant property".
A bare perusal of the above quoted paragraphs of the Full Bench judgment of this Court shows that the same is not applicable in the facts and circumstances of the case in hand because no legal title qua the house in-question lies with the present respondents i.e. they have no registered sale-deed in their favour, no mutation, no electricity bills or any other documents to prove their title.
The above resume of facts and law leads this Court to an irresistible conclusion that the reasons given in the impugned judgment dated 25.9.2006 by the learned Additional Sessions Judge Gujranwala (the learned trial Judge seized of the matter under the Illegal Dispossession Act, 2005) are illegal, unjust, perverse, arbitrary, against the record and have led to miscarriage of justice coupled with the fact that the Respondents No. 2 to 5 have committed offence under Section 3 of the Illegal Dispossession Act, 2005. Therefore, this writ petition is allowed, the afore-referred impugned judgment is set-aside and Respondents No. 2 to 5 are hereby convicted and sentenced to undergo four years RI each with a fine of Rs. 50,000/- each in default whereof to further undergo six months SI each. Although the respondents are present in Court but I am not inclined to take them into custody right here for the reason that this judgment of conviction shall be communicated to the SHO concerned within seven days from today by the office, the respondents shall hand over the possession of the house in-question to the petitioner, the SHO concerned shall take them into custody to undergo the above mentioned conviction and sentence accordingly and a compliance report in this regard shall be submitted before this Court through the Deputy Registrar (Judicial) for information.
(R.A.) Petition allowed
PLJ 2008 Lahore 128 (DB)
Present: Maulvi Anwarul Haq and Syed Asghar Haider, JJ.
LAND ACQUISITION COLLECTOR, WASA, L.D.A. 59-F, GULSHAN-E-RAVI, LAHORE and 2 others--Appellants
versus
INAYAT ULLAH (deceased) through his Legal Representatives
and others--Respondents
R.F.A. Nos. 456 and 457 of 2006, heard on 2.4.2007.
Land Acquisition Act, 1894--
----Ss. 4, 18 & 54--Town Improvement Act, 1922, Ss. 58 & 60--Award announced--Reference was filed which was decided by Lahore Development Authority--Respondents raised preliminary of objections--Assailed--Maintainability--Provisions of--Section 54 of the Land Acquisition Act 1894, provides for an appeal against the award and decree of the Court (meaning the refree Court)--Upon the plain reading of the provisions, application of S. 54 of the Land Acquisition Act, 1894, stands excluded--Held: Right of appeal has to be conferred by statute in express terms and it does nto exist otherwise RFAs held to be incompetent--RFAs was dismissed. [Pp. 131 & 132] A
AIR 1931 PC 149; AIR 1964 Punjab 455, AIR 1949 Nagpur 148 and
AIR 1945 Nagpur 146, relied upon.
Mr. Nayyar Iqbal Ghaury, Advocate for Appellants.
Ch. Mushtaq Masood, Advocate for Respondents.
Date of hearing: 2.4.2007.
Judgment
Maulvi Anwarul Haq, J.--This judgment shall decide RFA No. 456-06 and RFA No. 457-06.
The land belonging to the respondents-land owners respectively, located in villages Babu Sabu and Shera Kot, Tehsil and Distt. Lahore, was acquitted for the purposes of construction of wastage water channel. Notification under Section 4 of the Land Acquisition Act, 1894, was issued on 4.5.1991. An award was announced on 30.11.1992, respectively, awarding compensation at the rate of Rs. 1291/- per marla and Rs. 5721/- per marla. Feeling aggrieved the land owners filed references under Section 18 of Land Acquisition Act, 1894, which were decided by Lahore Development Authority Tribunal (hereinafter to be referred to as Tribunal) vide judgment dated 26.5.2006. The compensation payable was increased to Rs. 9000/- and Rs. 19000/- per marla, respectively.
RFA No. 456-06 has been filed against the judgment in respect of land located in village Babu Sabu while RFA No. 457-06 has been filed against the judgment in respect of land located in village Shera Kot. Mr. Mushtaq Masood, Advocate, learned counsel for the respondents in both the cases has raised a preliminary objection that these first appeals are not maintainable against the judgment of said Tribunal. According to him, the Tribunal stands constituted under Section 58 read with Section 60 of Town Improvement Act, 1922. He contends that upon reading of Section 59, particularly, Sub-clauses (a) thereof, an appeal provided under Section 54 of the Land Acquisition Act, 1894 is not available against the decisions of the Tribunal. He has cited the cases "Secretary of State vs. Hindustan Co-operative Insurance Society Ltd." (AIR 1931 PC 149), "Mangat Rai and others v. Jullunder Improvement Trust and others" (AIR 1964 Punjab 455), "Barmashel Oil Storage an Distributing Co. of India vs. Municipal Committee, Jubbulpore" (AIR 1949 Nagpur 148) and "Laxmanrao alias Baburao Shridharrao Deshmukh vs. Collector of Nagpur District" (AIR 1945 Nagpur 146). He has further explained that notwithstanding the repeal of Town Improvement Act, 1922, vide Section 48 of Lahore Development Authority Act, 1975, the said provisions of the Town Improvement Act, 1922, being relied upon, continued to apply by virtue of Section 48(3)(ii) of the said Act 1975. Mr. Nayyar Iqbal Ghaury, Advocate, learned counsel for the appellants argues that the said provisions of Town Improvement Act, 1922, were kept alive only for the purposes of pending case of land acquisition and not to those which were initiated after promulgation of said Act of 1975. Learned counsel in the alternate contends that these first appeals to be treated as writ petitions and the judgments passed by the said Tribunal be scrutinized within the scope of Article 199 of the Constitution. According to him the judgments, prima facie, gave impression that these suffer from legal mala fides. He supports this allegation with the contention that four judgments have been passed whereas two references were consolidated. According to him, in the matter of RFA No. 456--6, two judgments were passed; in one compensation was fixed at the rate of Rs. 9000/- per marla while in the other it was fixed at the rate of Rs. 19000/- per marla whereas yet another judgment was passed correcting the said judgment. Mr. Mushtaq Masood, Advocate, rejoins to urge that only a clerical error came to occur in the judgment, which though signed, was not dated and the same error was corrected in lawful exercise of jurisdiction by the Tribunal.
We have gone through the records with the assistance of the learned counsel for the parties. There is no manner of doubt in our mind that the acquisition in-question was initiated and conducted under provisions of said Lahore Development Authority Act, 1975, read with said provisions of Town Improvement Act, 1922. The appeals have been filed against the judgments of the said Tribunal. Acquiring agency, of course, is Lahore Development Authority constituted under Lahore Development Authority Act, 1975(4). We deem it appropriate to reproduce here Section 48(2) as also Section 48(3)(ii) of the said Act of 1975:--
"Section 48(2).--On the establishment of the Authority under this Act, the Town Improvement Act, 1922, shall cease to apply to the Area and all schemes, projects, or works started under the said Act but not completed, shall be taken over by the Authority and executed under the provisions of this Act.
Section 48(3)(ii)--The provisions of Sections 45, 56, 57, 58, 59, 60, 61, 62, 63, 64 and 65 of the Town Improvement Act, 1922 shall continue to apply insofar as the acquisition made under the Land Acquisition Act, 1894, are concerned and shall be deemed to have always applied."
In will be seen that the wording of said sub-section (2) is not the same as is usually employed in such like provisions. Said Act of 1922 has not been repealed as such rather intention is that its provisions would not apply to the area, schemes, projects or works to be taken over by the Lahore Development Authority and to be executed under provisions of Act of 1975. Sub-section 3(ii) of said Section 48 of said Act of 1975 is unambiguous terms provides that provisions of inter alia, Sections 58 to 60 shall continue to apply in respect of acquisition made under Land Acquisition Act, 1894. Nothing as suggested by Mr. Nayyar Iqbal Ghaury, Advocate, for the appellants is spelt out in the entire Section 48. On the other hand, clear intention is that the acquisition is to be made in accordance with the said provisions.
Out of Sections mentioned in Section 48(3)((ii) of the said Act of 1975, Section 45 provides for vesting of any street or other land belonging to the Municipal Committee in the Improvement Trust. This provision is not relevant here. The remaining Sections i.e. from Section 56 to Section 65 occur in Chapter 6 of Town Improvement Act, 1922, providing for acquisition, provision and application of said Town Improvement Act, 1922 to the other authorities. Section 56 provides for abandonment of acquisition by the Trust in consideration for a special payment and entire procedure is provided therein for the said purpose. Section 57 provides that any land regarding which an agreement has been entered into under Section 56 may be acquired again and only a fresh declaration under Section 6 of the Land Acquisition Act, 1894 would be sufficient. Section 58 provides for the Constitution of a Tribunal and then the Tribunal is to be constituted in accordance with Section 60 of the said Act of 1922 for the purpose of performing functions of the Court in reference to the acquisition of the land for the Trust under Land Acquisition Act, 1894. Sections 61 to 63 deal with remuneration of the members of the Tribunal and its officers and servants. Section 64 authorizes Provincial Government to make rules not repugnant to the Code of Civil Procedure for the conduct of business by the Tribunal. Section 66 provides for application of Act to acquisition of land by Municipal Committee or other local authority Section 65(1)(a) provides that the decision will be by opinion of the majority of the members of the Tribunal. Sub-clause (b) of the said Section 65(1) vests the President of the Tribunal with sole authority to decide the question of law, title and procedure. Sub-clause (2) of Section 65 provides for execution of the award of the Tribunal or any order made for payment of money by a Court of Small Cause and if there is no such Court then by the learned Senor Civil Judge or subordinate Judge or Ist Class Judge having territorial jurisdiction in the area and in that case award is to be treated as a decree passed by the said executing Court. We are told that the impugned awards are being executed by the Court of Small Causes.
Now coming to the said Section 59 of the Town Improvement Act, 1922, Section 59(a) is as follows:--
"59. For the purpose of acquiring land under the Land Acquisition Act, 1894, for the Trust--
(a) The Tribunal shall (except for the purpose of Section 54 of the said Act) be deemed to be the Court, and the President of the Tribunal shall be deemed to be the Judge, under the said Act."
Needless to state that Section 54 of the Land Acquisition Act, 1894, provides for an appeal against the award and decree of the Court (meaning the referee Court). Upon a plain reading of the said provisions, application of Section 54 of the Land Acquisition Act, 1894, stands absolutely excluded and the judgments cited by the learned counsel for the respondents do go to support the said obvious interpretation of the said provisions. It is by now well settled that a right of appeal has to be conferred by the statute in express terms and it does not exist otherwise. RFAs accordingly are held to be incompetent.
In view of the said alternate plea of the learned counsel for the appellant that the impugned judgments be scrutinized within the parameters of Article 199 of the Constitution, we have examined the same. So far as the RFA No. 457-06 is concerned, we do not find any ambiguity that the Land Acquisition Collector had awarded compensation at the rate of Rs. 5721/- per marla whereas with reference to the material on record and after considering the law laid down by the superior judiciary of the country as also some judgments from Indian jurisdiction, compensation has been assessed at the rate of Rs. 19000/- per marla. The land in this case is located in village Shera Kot, Lahore.
The second contention got noted by the learned counsel for the appellant pertains to RFA No. 456-06. We do find that in judgment signed by the President and all the members of the Tribunal but not dated, it has been stated that the market value of the land is fixed at Rs. 19000/-. This judgment is available at pages 260 to 271 of the paper book. The other judgment, which is signed by the President and all the members of the Tribunal is dated 26.5.2006, is available at pages 272 to 283 of the paper book, in which it has been stated that the said value is being fixed at the rate of Rs. 9000/- per marla. An application in terms of Section 152 CPC was filed on 20.9.2006 pointing out that a clerical error has occurred in the judgment. Learned counsel for WASA was called and he reported that since these appeals are pending, his clients have no comments to offer. The judgments were examined and it was held by the President and the members of the Tribunal on 23.9.2006 that a clerical error has occurred because a connected case was also decided on the same day and the person who typed the judgment proceeded to mention wrong figures of Rs. 19000/- instead of Rs. 9000/-. The error was accordingly corrected. We have compared both the said judgments with the assistance of the learned counsel for the parties and we find that there is no difference whatsoever so far as the words, reasons and the setting of the judgment are concerned, except that in one judgment the said figure came to be mentioned as Rs. 9000/- and in the other it came to be recorded as Rs. 19000/-. We do agree that it was a clerical error and has been corrected.
Learned counsel for the appellant then contends that both the cases were consolidated and the Tribunal should have written one judgment. We hardly find it a ground to interfere in exercise of Constitutional jurisdiction. It is but evident upon reading of both the judgments and both the files that the lands belong to different localities, compensations were assessed differently and matters were accordingly dealt with by the Tribunal. We, therefore, do not find any ground being made out for interference with the impugned judgments in exercise of Constitutional jurisdiction. Both the RFAs are accordingly dismissed but without any orders as to costs.
(M.S.A.) RFAs dismissed
PLJ 2008 Lahore 133 (DB)
Present: M. Bilal Khan and Tariq Shamim, JJ.
Mst. HUMAIRA ASIF--Petitioner
versus
ADDL. INSPECTOR GENERAL OF POLICE (INVESTIGATION), LAHORE--Respondent
W.P. No. 2371 of 2007, decided on 16.4.2007.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), S. 173--Constitutional petition--Transfer of investigation--Investigating agency conducted investigation of the case with mala fide intention under influence of high-ups--Falsely implicated--Neither legitimate demand of the petitioner to record and investigate the version of accused had been accepted nor was the case investigated on merits--Prayer has been made for transfer of investigation beyond jurisdiction of Distt. and to an honest police officer--Validity--Assertion as to pendency of an application preferred by petitioner for transfer of investigation does not appear to be correct--Mere pendency of an application when trial has commenced and partial prosecution evidence has been recorded by trial Court is inconsequential--Held: No illegality, procedural has been found by High Court in investigation conducted by police--Petition dismissed. [Pp. 136 & 137] A & B
PLD 2007 SC 31 ref.
Mr. M. Zubair Khalid Ch., Advocate for Petitioner.
Mr. Sher Afghan Asadi, Advocate for Respondent.
Mr. Faisal Ali Qazi, Asstt. A.G..
Date of hearing: 16.4.2007.
Judgment
Tariq Shamim, J.--Through this petition, the petitioner has prayed for transfer of investigation of case F.I.R. No. 782 of 2006 dated 1.7.2006, for offences under Sections 302, 201, 365 and 392 PPC and Section 7 of Anti Terrorism Act, 1997, registered at Police Station Lower Mall, Lahore to any competent and honest police officer of Crime Branch, Punjab.
The petitioner, whose husband Muhammad Asif is one of the accused in the double murder case of Nadeem Jafri, Excise Inspector and Khalid Iqbal, Head Constable registered vide F.I.R. No. 782 of 2006 on 1.7.2006 at Police Station Lower Mall, Lahore has preferred the instant writ petition on the premise that the Investigating Agency conduced the investigation of the case with mala fide intention, under the influence of the high-ups of the Excise Department and has implicated the husband of the petitioner falsely in the case. Despite repealed requests neither the legitimate demand of the petitioner to record and investigate the version of her accused husband had been accepted nor was the case investigated on merits. Thus, prayer has been made for the transfer of investigation beyond the jurisdiction of the District and to an honest police officer of the Crime Branch Punjab.
The learned counsel for the petitioner argued that the Investigating Agency under the influence of the high ups of the Excise Department, dishonestly ignored the version of the petitioner as well as relevant material regarding his innocence and that the investigation report was against the law and norms of justice and based on mala fide because the same was not prepared on merit. Further argued that since the Investigating Agency on the level of the District cannot conduct investigation of the case on merit, honestly and impartially as such, in order to secure the ends of justice the investigation of the case be entrusted beyond the jurisdiction of the District Lahore to an honest police officer of the crimes Branch, Punjab as otherwise the petitioner would suffer irreparable loss and injury.
The learned Assistant Advocate General representing the police officials and the State and the learned counsel representing Khalid Jafri contended that the investigation was conducted strictly in accordance with law firstly by Muhammad Hussain. Sub-Inspector (Investigation) Police Station Lower Mall, Lahore. The DIG (Investigation), Lahore constituted a Special Team on 27.7.2006 headed by S.P. Organized Crime, Lahore for the recovery of the Officials of the Excise Department which arrested Muhammad Asif accused, the husband of the petitioner who during the course of investigation disclosed that the abductees (later deceased) had been sold to Pathans of Waziristan for Rs. 3,00,000/-. During test identification parade, the accused had been duly identified by the witnesses. On the request of the Home Department, a joint investigation team comprising of representatives of the police department, Investigation Branch and Special Branch was constituted which conducted a thorough investigation on merits and consequently, the investigation report had been submitted in the Court on 20.1.2007 which had examined six witnesses in the case. Lastly contended that since after submission of challan the trial was in progress as such, change of investigation or re-investigation in the matter would be an exercise in futility.
We have heard the learned counsel for the parties and the learned Assistant Advocate-General and perused the record with their able assistance.
Initially the F.I.R. was lodged under Section 365 PPC at Police Station Lower Mall on the report of Muhammad Arif Excise Constable for the abduction of Nadeem Jafri, Excise Inspector and Khalid Iqbal, Excise Head Constable against Muhammad Aamir, Muhammad Asif (the husband of the petitioner), Malik Hamid Mehmood and Waseem Aftab. The investigation was conducted by Muhammad Hussain, Sub-Inspector who recorded the statement of witnesses and associated the accused with the investigation. On 27.7.2006, the Deputy Inspector General of Police (Investigation), Lahore constituted a Special Team headed by Superintendent of Police (Organized Crime) Lahore for the recovery of the abductees. On 4.8.2006 Hamid Mehmood alias Bhola accused and on 15.10.2006 Muhammad Asif accused was arrested who during investigation disclosed that the abductees had been sold for Rs. 3,00,000/- to some Pathans of Waziristan and consequently, vide Zimni No. 89 dated 27.11.2006 Section 7 Anti-Terrorism Act was added to the offences. On the request of the Home Department, Punjab, a joint investigation team comprising of the representatives of the police department, Investigation Branch and Special Branch, Punjab was constituted on 4.12.2006. However, prior thereto, on the orders of the Hon'ble Supreme Court of Pakistan dated 29.11.2006 a team comprising of Babar Sarfraz Alpa, SP (Investigation) City Division, Masood Aziz S.P. (Organized Crimes) and others was constituted for the arrest of the accused and recovery of the abductees. Their efforts resulted in the arrest of Muhammad Aamir, the main accused and brother of Muhammad Asif on 12.12.2006. Muhammad Aamir and Muhammad Asif accused during investigation conducted by the joint Investigation Team disclosed that the abductees had been murdered in their office and their dead bodies were thrown into the Nandipur Canal, Gujranwala. Subsequent investigation led to the recovery of dead bodies which were recovered from the canal by the local police and buried as unidentified/unclaimed. Samples were obtained for DNA test from the dead bodies. Blood stains obtained from the office of the accused Aamir and Asif as well as from the vehicle used in the crime were found to be those of Khalid Iqbal, Head Constable, one of the deceased. The pistol and the empty recovered from the place of murder, i.e. the office of Aamir and Asif accused were sent to the arms expert, Forensic Science Laboratory for comparison which in its report dated 5.1.2007 opined that the crime empty had been fired from the said pistol. After finalization of investigation, in which the husband of the petitioner and others were found to be fully implicated in the murders, challan has been submitted and the prosecution evidence is being recorded by the learned trial Court.
From the above, it is evident that the investigation in the case has been conducted in a most transparent manner by senior police officials who have made painstaking efforts to uncover the true facts. Their efforts were appreciated by the Hon'ble Supreme Court in the order dated 10.1.2007 passed in Human Rights Case No. 5587/2006. We have minutely examined the record of the case which unequivocally discloses that the husband of the petitioner and others are culpable for the murder of the Excise Inspector and the Head Constable. The argument advanced by the learned counsel for the petitioner that the investigation has not been conducted on merits and that the version of the accused Muhammad Asif has not been considered during the investigation is devoid of any force. The argument is illusionary and remains unsubstantial from the record. The assertion as to the pendency of an application preferred by the petitioner for the transfer of investigation also does not appear to be correct. Even otherwise, mere pendency of an application at this stage, when the trial has commenced and partial prosecution evidence has been recorded by the learned trial Court, is inconsequential. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Nasir Cheema v. Mazhar Javid and others (PLD 2007 SC 31) has observed as under:--
"At this stage, the learned Additional Advocate-General informs us that some Additional I.G. Police had passed some order on 15.7.2006 and had changed the investigation. We are surprised at this order passed by the Addl. I.G. Police (Investigation Branch), Punjab for more than one reasons. Firstly, because the report under Section 173, Cr.P.C. had already reached the trial Court as noticed above where the trial had already commenced and changing the investigation or ordering further investigation in the matter thereafter was an exercise unsustainable in law. Secondly, because the matter related only to a document which had been examined in depth, by the learned Election Tribunal comprising an Hon'ble Judge of the High Court and which document had then been re-examined by this Court in an appeal filed by Mazhar respondent and what further investigation was required in the matter is beyond comprehension."
In the above noted circumstances while being fully mindful of the observations made by the Hon'ble Supreme Court in the order dated 23.2.2007 passed in Civil Petition No. 134 of 2007 we are convinced that no prejudice has been caused to the husband of the petitioner in the investigation resulting in submission of report under Section 173 Cr.P.C. Further, no illegality, procedural or otherwise, has been found by us in the investigation conducted by the police in the matter.
Resultantly, the petition being devoid of merit is dismissed.
(R.A.) Petition dismissed
PLJ 2008 Lahore 137 (DB)
Present: Nasim Sikandar & Iqbal Hameed-ur-Rehman, JJ.
SADIA SAMAR--Petitioner
versus
UNIVERSITY OF THE PUNJAB through Vice-Chancellor Quaid-e-Azam Campus, Lahore and 4 others--Respondents
W.P. No. 7316 of 2007, decided on 30.8.2007.
Educational Institutions--
----Entitlement of promotion--Question of entry test and seek their promotions in M.Sc. Honours--Refuse to promote--Violation of Constitutional right--Appeals accepted--After having passed B.Sc. Honours Examination petitioners have joined M.Sc. Honours and they had almost completed their first mid term semester whereas petitioners are being treated discriminately whereas permission has been made accordingly to the students of two departments but it is not being allowed to petitioners as such discriminatory treatment is being meted out the petitioners, who have been refused to be promoted in M.Sc. Honours in violation of the Constitutional right--In such circumstances, writ petitions are accepted and respondents are directed to allow the petitioners to be promoted to M.Sc. Honours classes on the basis of such criteria as has been done in the Chemistry Department and Envirosnment Sciences Department--Petition was allowed. [Pp. 139 & 140] A
Malik Abdul Wahid, Advocate for Petitioners.
Raja Muhammad Arif, Legal Advisor for Respondents.
Date of hearing: 27.8.2007.
Judgment
Iqbal Hameed-ur-Rehman, J.--By this single judgment the following writ petitions are being decided having common question of law and facts:--
W.P. No. 7316/2007.
W.P. No. 7317/2007.
Through the instant writ petitions the petitioners have called in-question the entry test on the basis of National Testing Service and seek their promotion in M.Sc. Honours.
Brief facts succinctly required for the determination of this petition are to the effect that Respondent No. 1 through an advertisement in the "Daily Nawa-e-Waqt" dated 17.10.2002 had advertised as Admission Notice for B.Sc. Honours three years and B.Sc. four years degree programme and the applications were invited for admission in B.Sc. Honours three years degree programme in different categories. The petitioners got admissions with Respondent No. 1 in Botony on the basis of the said advertisement on open merits which were bases for three years and two years i.e. three years would be for B.Sc. Honours whereas two years would be for the M.Sc. Honours. The Syndicate of Respondent No. 1 held a meeting in the years 2006 and it was approved with reference to the Higher Education Commission that the B.Sc. Honours would be for four years and one year would be for M.Sc. Honours, so the admission granted to the petitioners on the basis of three plus two years was changed to four plus two years and the petitioners carried out their academic career under the aforementioned rules and regulations made by Respondent No. 1. The petitioners under the amended policy of Respondent No. 1 passed their examination as B.Sc. Honours in four years in March 2007 so the petitioners are B.Sc. Honours under the second policy made by Respondent No. 1 and now they were entitled for M.Sc. Honours admission straightaway. The Syndicate again held a meeting where they had decided that M.Sc. Honours would be for 18 years instead of 17 years and even under the third amended scheme passed by Respondent No. 1 the petitioners were entitled to be promoted for M.Sc. Honours but the same has not been done as Respondent No. 1 had got advertised on 8.7.2007 an Admission Notice wherein applications are being invited for admission for different categories and this advertisement was reference to the open competition for the admission of the students. All the interesting candidates are required to appear in the N.T.S. test as a prerequisite for the admission in M.Sc. Honours. The new scheme is being introduced in violation to the admission granted to the petitioners initially on three years plus two years course and thereafter the amended scheme of four plus two years. Keeping in view the earlier scheme the petitioners are entitled to be promoted to the M.Sc. Classes without being required to qualify the N.T.S. test. In this regard the petitioners had moved an application with Respondent No. 1 on 26.4.2007 but the same has been declined and they were refused to be promoted in M.Sc. Honours with reference to the advertisement made on 8.7.2007 on open merits.
The Respondents No. 4 & 5 submitted their report and parawise wherein the respondents have submitted that the petitioners have not approached this Court with clean hands. The petitioners themselves chose to appear in the National Testing Service and when the petitioners had failed to qualify they have approached this Court, as such the writ petition deserves to be dismissed.
When confronted with the policy adopted by the University, the respondents produced a letter dated 30.5.2006 in which it is stated that before admission in M.Phil programme a test equivalent to GRE (General) is to be taken by all students for admission into M. Phil/ equivalent degrees. The test will be organized by the Higher Education Commination through a testing service such as NTS and all students seeking admission in M. Phil after 30.6.2006 should pass this test before admission. As is apparent from the above said letter dated 30.5.2006 which is for M. Phil classes, therefore, it does not apply to the petitioners. Further when the students in two faculties namely Chemistry and Environmental Sciences have been given admission following the admission policy of three plus two years propounded in the year 2002 in which the petitioners had taken admission and as such are now qualified to be promoted to the M.Sc. Classes. In this regard, learned counsel for the respondents presented a certificate of the Registrar that the applicants can apply to take admission in MS Programme, if eligible as per university advertisement. The other students of the University were given admission in MS Chemistry and MS Earth and Environmental Sciences on the basis of the admission scheme of 2002 and were promoted to M.Sc. classes, as such the learned counsel for the respondents could not controvert that the University is not following a unified policy with regard to the admission. The petitioners are being discriminated by refused to be promoted to M.Sc. Classes on the basis of the same policy although they had obtained their admission under the policy of 2002 and the other students i.e. Chemistry Department and Environmental Sciences, who are batch-mate of the petitioners under the principle that after having passed their B.Sc. Honours Examination they had not been put with reference to the admission to N.T.S. test under the latest advertisement dated 8.7.2007 rather they had been promoted straightaway after passing B.Sc. Honours Examination as they had also been given admission and have been registered with Respondent No. 1 for five years and after having passed B.Sc. Honours Examination they have joined M.Sc. Honours and they had almost completed their first midterm Semester whereas the petitioners are being treated discriminately whereas the permission has been made accordingly to the students of the above said two departments but the same is not being allowed to the petitioners as such, discriminatory treatment is being meted out to the petitioners, who have been refused to be promoted in M.Sc. Honours on 13.7.2007, in violation of the Constitutional right.
In view of the above circumstances, these writ petitions are accepted and the respondents are directed to allow the petitioners to be promoted to the M.sc. (Honours) Classes on the basis of the same criteria as has been done in the Chemistry Department and Environmental Sciences Department.
(N.F.) Petitions accepted.
PLJ 2008 Lahore 140
[Bahawalpur Bench Bahawalpur]
Present: Sh. Hakim Ali, J.
MUHAMMAD SAEED BHATTI--Petitioner
versus
PRESIDING OFFICER LABOUR COURT NO. 8, BAHAWALPUR and 3 others--Respondents
W.P. No. 2833 of 2006/BWP, heard on 12.2.2007.
Constitution of Pakistan, (1973)—
----Art. 199--Employer--Constitutional petition--Employer must be a factory, industrial establishment or commercial establishment--If all these three essentials are not present the employer would not fall within the definition of employer and employee/workman would not be able to file grievance petition against his employer. [P. 145] A
West Pakistan (Standing Orders) Ordinance, 1960 (VI of 1960)—
----S. 4(a)--Payment of Wages Act, 1936, S. 1(4) & Scope of--Termination from service--Approached the authority--Allowed the claims to the extent of payment of salary plus three time compensation--Refused to grant other allowances--Challenge to--Constitutional petition--Jurisdiction--Validity--Determination--Applicability--Every industrial or commercial establishment wherein 20 or more workmen are not employed, or the Government has not notified any such establishment to be as such establishment, Ordinance of 1978 is not applicable--Petitioners have failed to prove on the record that 20 or more workmen were employed--Therefore, keeping in view, definition of "factory" "commercial establishment" and "industrial establishment" the Government employees co-operative Housing Society Ltd., is not covered with the definition clauses of Acts and Ordinance--Decision of Presiding Officer, therefore, cannot be held illegal or unlawful--Petitions were dismissed. [P. 146] B
Mr. M. Shamshir Iqbal Chughtai, Advocate for Petitioner.
Ch. Muhammad Amjad Khan, Advocate for Respondents No. 3 and 4.
Date of hearing: 12.2.2007.
Judgment
Common questions of law and facts have been raised in both these writ petitions i.e. W.P. No. 2833-2006/BWP (Muhammad Saeed Bhatti versus Presiding Officer and three others) and W.P. No. 2835-2006/BWP (Muhammad Fayyaz Bhatti versus Presiding Officer and three others). Therefore, I have decided to pass a single order for the disposal of both these writ petitions. Main order shall be considered to have been passed in W.P. No. 2833-2006/BWP.
W.P. No. 2833-2006/BWP.
(i) One month notice pay Rs. 2300.00
(ii) 18 days salary for the month of January & February 2005. Rs. 4600.00
(iii) Encashment leave wages for 280 days. Rs. 23000.00
(iv) Gratuity Total Service 6 years one month. Rs. 13800.00
(v) Special Dearness Allowance 15% & Special Relief Allowance 15% Rs. 50370.00
(vi) Conveyance Allowances. Rs. 10220.00
(vii) Medical Allowance. Rs. 15320.00
W.P. No. 2835-2006/BWP.
(i) One month notice pay Rs. 3700.00
(ii) 18 days salary for the month of February 2005. Rs. 2232.00
(iii) Encashment leave wages for 456 days. Rs. 55500.00
(iv) Gratuity Total Service 6 years 5 months. Rs. 35100.00
(v) Special Dearness Allowance 15% & Special Relief Allowance
15% Rs. 125430.00
(vi) Conveyance Allowance. Rs. 23730.00
(vii) Medical Allowance. Rs. 38420.00
The authority under Payment of Wages Act, 1936 had allowed the claims of writ petitioners to the extent of payment of salary plus three times compensation, while the authority refused to grant encashment, leave, gratuity, special dearness allowance, conveyance allowance and medical allowance. This order passed on 16.9.2006 was challenged before the learned Presiding Officer, Punjab Labour Court No. 8, Bahawalpur by both the parties through filing of appeals. The appeals of both these appellants were decided by the aforementioned Presiding Officer of the Court on 3.11.2006. Learned Presiding Officer held that authority under the Payment of Wages Act, 1936, had no jurisdiction to entertain applications, therefore Appeal Nos. 8 and 9-2006 were dismissed while Appeal Nos. 10 and 11-2006 were granted and authority was directed to return application of both present writ petitioners to return the claim for its due presentation before competent forum. Hence these writ petitions.
Learned counsel for the petitioners submits that Government Employees Co-operative Housing Society Limited, Bahawalpur is an "Establishment" according to Section 2(xi) of Industrial Relations Ordinance, 2001, because in "Establishment" the word "Society" is also found included therein. Therefore, the authority for Payment of Wages Act was competent to pass order and grant the above noted claims of the writ petitioners. He has also referred to Section 3(e) and, sub-section (4) of aforesaid Section 3 of the Co-operative Societies Act, 1925, to contend that "Society" means .... a Society registered or deemed to have been registered under this Act and a "Housing Society" means .... a Society formed with the objet of proving its members with dwelling houses on conditions to be determined by its bye-laws. By this definition of "Society" and also of "Housing Society contained in sub-section (4) of Section 3 of the Co-operative Housing Society Act, 1925 the Government Employees Housing Society formed under the Co-operative Societies Act, 1925 has to be governed by the provisions of Industrial Relations Ordinance, 2002 also. And the proceedings before the authority of Payment of Wages Act, 1936 were rightly undertaken by writ petitioners. Learned counsel has also supported his arguments by referring to PLJ 1978 Bahawalpur 568 (Project Director, Cooperative Karkhana, Alat-e-Zari, Bahawalpur vs. Presiding Officer, PB, Labour Court, No. 4 Multan and 6 others). He has also placed reliance upon decisions reported in NLR 1981 Labour 1 (Islamabad Club vs. Muhammad Aslam, etc.) and 1995 PLC 655 (The Cooperative Model Town Society vs. Punjab Labour Appellate Tribunal and 3 others). Accordingly, the version adopted by the petitioners is that they were to be governed by the provisions of Industrial Relations Ordinance, 2002 read with the Payment of Wages Act, 1936 and the West Pakistan (Standing Orders), Ordinance No. VI of 1968. The refusal to accept the claim by the authority and thereafter decision of Punjab Labour Court that the case of petitioners was not falling within the parameters of Industrial Relations Ordinance, 2002 was, therefore, illegal and unlawful.
Conversely, learned counsel appearing on behalf of Respondents No. 3 and 4 submits that to gain success for the acceptance of their claims, writ petitioners are bound to prove that the Society in-question has fallen within the definitions of Section 2 clauses (b) and (f) provided for "Commercial Establishment" and "Industrial Establishment" by West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. As per learned counsel for respondents, the Government Employees Co-operative Housing Society Limited, Bahawalpur is not an industrial or commercial establishment because twenty or more workmen are not employed therein. Moreover, it cannot be considered as commercial establishment as its business is not of advertising commission or forwarding or a commercial agency or including therein a clerical department of a factory or of any industrial or commercial undertaking. It cannot fall within the definition of "Industrial Establishment" as it is not an industry, factory, railway, establishment of a contractor or establishment of person, who directly or indirectly employees workman in connection with any construction. Therefore, the writ petitioners are not entitled to obtain benefits of these Act and Ordinance.
Arguments heard, record and provisions of the law minutely examined as referred to by both the parties. Before dealing with the legal position of the case, I would like to discuss the decisions referred to by the learned counsel for the petitioners PLJ 1978 Bahawalpur 568 (Project Director, Cooperative Karkhana, Alat-e-Zari, bahawalpur vs. Presiding Officer, PB, Labour Court, No. 4 Mutean and 6 others) admittedly has dealt with a case of employees of co-operative Karkhana, Alat-e-Zari (Agricultural implements), Bahawalpur and was admittedly an industrial establishment, whose purpose has been summarized in Para No. 13 of the aforementioned judgment, which is reproduced as follows:-
"Thus it will be seen that in their operating technique and organizational structure, cooperatives closely resemble other types of business and have similar motives. They are not charitable institutions. They may manufacture goods and sell the same for profits. They may render better and cheaper service to the consumers than other producers of the same article. But they retain their essential features of industrial or commercial establishment."
"4(a) every industrial establishment or commercial establishment wherein twenty or more workmen are employed, directly or through any other person whether on behalf of himself or any other person, or were so employed on any day during the preceding twelve moths; and]
(c) such classes of the industrial and commercial establishment as Government may, from time to time, by notification in the official Gazette, specify in this behalf."
From this section, it is apparent that every "industrial or commercial establishment wherein 20 or more workmen are not employed, or the Government has not notified any such establishment to be as such establishment, the above mentioned Ordinance of 1978 is not applicable. Seen from this angle also, the petitioners have failed to prove on the record that 20 or more workmen were employed by the Government Employees Co-operative Housing Society Limited, Bahawalpur.
Therefore, keeping in view the definitions of "factory" "commercial establishment" and "industrial establishment", the Government Employees Co-operative Housing Society Ltd., Bahawalpur is not covered with the above definition clauses of the above mentioned Acts and the Ordinance. The decision of Presiding Officer, Punjab Labour Court No. 8 dated 3.11.2006, therefore, cannot be held illegal or unlawful. The writ petitions are accordingly dismissed witn no order as to costs.
(N.F.) Petitions dismissed.
PLJ 2008 Lahore 147
Present: Mian Saqib Nisar, J.
MUHAMMAD AKRAM--Petitioner
versus
Mst. HAJRA BIBI and 2 others--Respondents
W.P. No. 10626 of 2006, heard on 11.4.2007.
West Pakistan Family Courts Act, 1964--
----S. 5 & Sched.--Civil Procedure Code, (V of 1908), S. 115--Suit for recovery of specific amount qua of sour relation between spouses or divorce--Suit was dismissed--Suit was not maintainable before Family Courts and was liable to file ordinary civil suit for recovery of amount--Validity--Suit was competent and matter falls within the purview of Entry No. 9 of Schedule to S. 5 of Family Courts Act, 1964--Held: As the divorce has taken place between the parties but for reasons, the petitioner became liable to pay the amount because of the condition in Column No. 17 of Nikahnama. [P. 148] A
Transfer of Property Act, 1882--
----Ss. 3 & 130--West Pakistan Family Courts Act, 1964, S. 5 & Sched.--Personal property and belonging of wife--Suit for recovery of amount qua of sour relation between spouses or divorce--Entitlement of amount--Suit was not maintainable before Family Court--Question of--Determination of the issue is sought from the proper forum--Special condition incorporated in Nikahnama--Rules of actionable--The term "actionable claim" in general means, a claim for which an action will be, furnishing a legal ground for an action and according to S. 3 of Family Courts Act, a claim towards a debt--Such claim cannot be equated as a personnel property and belonging of the wife--Held: Family Court has no jurisdiction in the matter and the suit before the Family Court was not competent--Petition was allowed.
[P. 148] B
Mr. Muhammad Khan Ranjha, Advocate for Petitioner.
Mr. Mehmood-ul-Hassan Bhatti, Advocate for Respondents.
Date of hearing: 11.4.2007.
Judgment
The petitioner and Respondent No. 1 were married and it is mentioned in Column No. 17 of the Nikahnama that in case of sour relation between the spouses or divorce by the petitioner, a sum of Rs. 1,00,000/- shall be paid to Respondent No. 1. Respondent No. 1 filed a suit for the dissolution of marriage, which was decreed, where after she brought the present suit for the recovery of the amount of Rs. 1,00,000/-, which has been dismissed by the learned Family Court vide judgment and decree dated 22.3.2006 holding that her suit was not maintainable before the Family Court; she was liable to file ordinary civil suit for the recovery of the said amount. Aggrieved of the above, Respondent No. 1 preferred an appeal; which has been accepted by the learned Additional District Judge, who is of the view that the suit of Respondent No. 1 is competent and the matter falls within the purview of Entry No. 9 of the Schedule to Section 5 of the Family Courts Act, 1964. It is also stated that as the divorce has taken place between the parties, but for whatever reasons, the petitioner became liable to pay the amount because of the condition in Column No. 17 of the Nikahnama.
Heard. As regards the question, whether the suit is competent before the Family Court, it is the case of Respondent No. 1, and also held by the learned Additional District Judge that the matter falls within the Entry No. 9 of the Schedule to Section 5, i.e. "personal property and belonging of the wife". I feel amazed to note as to how the amount of Rs. 1,00,000/- allegedly payable by the petitioner on account of the divorce or bad relations between the parties, is the personal property or belonging of Respondent No. 1, so as to bring the case within the jurisdiction of the Family Court. Such personal property or belonging referred to in Entry No. 9, in my considered view, is a residuary provision, which enables the wife to recover through the process of the Family Courts Act 1964, whatever property she has acquired during the subsistence of the marriage, which is not the part of her dowry, through her own independent means or even through the means provided by the husband, such as her clothes, ornaments and items of personal use and nature; this may also include any thing which has been gifted to the wife by the husband or any of his or her relatives or the friends; such property and belonging may be the one acquired by the wife out of the money given to her by the husband, her saving from household allowance, or pocket money, from the money provided by her parents and relatives. But definitely the aforesaid entry does not cover any amount which is not yet the property of the wife and she only has a claim to recover from the husband on the basis of any special condition incorporated in the Nikahnama. I am not convinced by the argument that the amount in-question is covered under the rules of actionable claims as envisaged by Section 130 of the Transfer of Property Act, 1882. The term "actionable claim" in general means, a claim for which an action will lie, furnishing a legal ground for an action and according to Section 3 of the Transfer of Property Act, a claim towards a debt. On account of both the means such claim cannot be equated as a "personal property and belonging of the wife." Resultantly, in my considered view, the Family Court has no jurisdiction in the matter and the suit in this behalf before the said Court was not competent.
As regards the question, whether the amount of Rs. 1,00,000/- can be recovered by Respondent No. 1, I do not want to dilate upon this aspect of the matter, because it may not cause prejudice to the case of either party, when the determination of the issue is sought from the proper forum.
In the light of above, the judgment and decree of the learned Court of appeal is without jurisdiction, which cannot be sustained and is hereby set aside. The writ petition is accordingly allowed.
(N.F.) Petition allowed
PLJ 2008 Lahore 149
Present: Muhammad Muzammal Khan, J.
MUHAMMAD HUSSAIN and others--Petitioners
versus
MUKHTAR AHMAD and 2 others--Respondents
C.R. No. 1093 of 2006, heard on 19.4.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Specific Relief Act, (I of 1877), S. 42--Civil revision--Suit for declaration to effect of suit land to extent of 1/2 share on the basis of an agreement of exchange--Respondents denied the transaction of exchange, execution of agreement--Plea of--Locus standi--Maintainability--Controversial pleadings of the parties--Concurrent findings--Validity--Transaction of exchange/agreement was neither proved nor was implemented, the same was correctly attested by revenue authorities and the petitioners have no locus standi to challenge the same--Controversy was correctly put to rest without committing any error of law or any illegality, irregularity in terms of S. 115 of CPC--Held: No case for interference in revisional jurisdiction--Petition dismissed. [P. 152] D
Limitation Act, 1908 (IX of 1908)--
----Arts. 113 & 120--Suit for declaration to extent of 1/2 share on basis of agreement of exchange--Laps of six years--Validity--Suit for declaration under Art. 120 of Limitation Act, 1908 could be filed within a period of six years, whereas one for specific performance could be filed within a period of three years from the date of denial of performance of contract by defaulting party as per Art. 113 of Limitation Act, 1908. [P. 152] C
Registration Act, 1908 (XVI of 1908)--
----S. 17--Agreement of exchange--Un-registred document--Entitlement--Provisions of--Mere agreement to exchange does not create any title, right or interest in the property agreed to be exchanged, when such document was not reported to revenue officials including any of Patwaris of the villeges. [P. 151] A
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Suit for declaration on basis of an agreement of exchange--Maintainability--Bar of--Petitioner never opted to sue for specific performance of the agreement and at the same time, they never bothered to convert their suit from declaration to one maintainable at law. [P. 152] B
Rai Muhammad Tufail Khan Kharal, Advocate for Petitioners.
Malik Riaz Khalid Awan, Advocate for Respondents.
Date of hearing: 19.4.2007.
Judgment
Instant civil revision assailed judgments/decrees dated 3.1.2000 and 10.2.2006 passed by the learned Civil Judge and learned Additional District Judge, Samundri, District Faisalabad, whereby petitioners' suit and appeal were dismissed respectively.
Succinctly, relevant facts are that petitioners filed a suit for declaration to the effect that they are owners in possession of suit land to the extent of « share on the basis of an agreement of exchange dated 13.10.1977, executed by deceased Abdul Karim predecessor-in-interest of the respondents, in favour of his brother Allah Bakhsh to whom they succeeded as heirs/legal representatives. Petitioners also challenged sanctioning of inheritance Mutation No. 260 dated 23.5.1983 of Abdul Karim deceased, being opposed to the exchange reflected in the agreement relied by them. They further asserted in the plaint that since Abdul Karim deceased was not owner of the land exchanged at the time of his death, mutation under attack was result of fraud/ misrepresentation and being contrary to the facts, is liable to be declared as prayed.
Respondents being defendants in the suit, opposed the same by filing their written statement, wherein they denied the transaction of exchange; execution of the agreement dated 13.10.1977 and pleaded that petitioners had no cause of action/locus standi to file the suit which was not maintainable in its present form. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Learned Civil Judge seized of the matter, after doing the needful, dismissed the suit of the petitioners vide his judgment/decree dated 3.1.2000.
Petitioners aggrieved of dismissal of their suit by the trial Court, filed an appeal before the learned Additional District Judge but remained unsuccessful as the same was also dismissed on 10.2.2006. They thereafter filed instant revision petition for adjudgment of concurrent judgments/decrees passed by the two Courts below. Respondents in response to notice by this Court have appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, agreement of exchange dated 13.10.1977 (Exh. P. 1) on the basis of which petitioners filed their suit, was not registered under the provisions of Registration Act, 1908 and narrations therein depicts that parties thereto only agreed to exchange their respective share of land situated at Samundri and Shakargarh District Narowal. Under law, a mere agreement to exchange does not create any title, right or interest in the property agreed to be exchanged, especially when this document was not reported to the revenue officials, including any of the Patwaris of the concerned villages/revenue estates. On the basis of this agreement neither any Rapat in daily Roznamcha of revenue Patwari of the Circle was incorporated nor any mutation of exchange was entered at any of the two places. Parties to this agreement were real brothers and agreement relied by the petitioners was never sought to be implemented inspite of the fact that deceased Abdul Karim lived for a period of five years after its alleged execution. Petitioners did not produce any evidence showing their exclusive possession over the land coming to their share under this agreement, as they are recorded in the revenue record, as co-sharers in possession.
Respondents have specifically denied execution of Exh. P.1 and the petitioners being plaintiffs were obliged to prove not only the negotiations of exchange inter parties but also the transaction and the due execution of agreement. They in order to discharge this onus, examined Khushi Muhammad PW. 1 and Ghulam Ghaus PW. 2, the marginal witnesses of the agreement. They admitted that they were not present at the time of negotiations or execution of the agreement of exchange. In presence of such evidence on behalf of the petitioners, there was hardly any room to hold that the agreement relied by them was duly executed and really came into being. It goes without saying that petitioners never opted to have thumb impressions of deceased Abdul Karim compared with his admitted thumb-impressions but this Court has examined thumb-impression of Abdul Karim over Exh. P. 1 which appears to have been marked twice in order to loose its identification/comparison, negatively reflecting on their stance.
Suit for declaration on the basis of an agreement of exchange was not maintainable in view of bar contained in Section 42 of the Specific Relief Act, 1877, as petitioners were in a position to seek further relief of specific performance. Petitioners never opted to sue for specific performance of the agreement and at the same time, they never bothered to convert their suit from declaration to the one maintainable at law. The asserted agreement was statedly prepared on 13.10.1977 and came to the light only when the suit in hand was filed on 15.1.1984, after lapse of six years. Suit for declaration under Article 120 of the Limitation Act, 1908 could be filed within a period of six years, whereas one for specific performance could be filed within a period of three years from the date of denial of performance of contract by the defaulting party as per Article 113 of the Limitation Act, 1908. In the given circumstances of this case, either of the two cases, suit was beyond period of limitation and interference was correctly declined by the two Courts below. As regards sanctioning of Mutation No. 260 dated 25.5.1983 on death of Abdul Karim in favour of his heirs, since transaction of exchange/agreement (Exh. P.1) was neither proved nor was implemented, the same was correctly attested by the revenue authorities and the petitioners have no locus standi to challenge the same. Scan of record and the impugned judgment revealed that controversy was correctly put to rest without committing any error of law/facts or any illegality/irregularity in terms of Section 115 CPC.
For the reasons noted above, no case for interference in revisional jurisdiction of this Court could be made out and consequently, instant petition, being devoid of any merit, is dismissed with no order as to costs.
(R.A.) Petition dismissed
PLJ 2008 Lahore 153
Present: Syed Asghar Haider, J.
MUHAMMAD RAFIQ--Petitioner
versus
CHIEF ELECTION COMMISSIONER OF PAKISTAN and 4 others--Respondents
W.P. No. 9694 of 2007, decided on 3.10.2007.
Constitution of Pakistan, 1973—
----Art. 199--Punjab Local Government Ordinance, (XIII of 2001), Ss. 85 & 89--Constitutional petition--Recall of motion was moved--Notification for proceeding with recall motion--Controversy--Challenge to--Entitlement of relief--Specific date, place and time was incorporated and parties were directed to appear at specified time--Petitioner did not care to appear--Objection--Petitioner was not served and was not in knowledge of proceedings was not tenable--Held: Rather it amounts to disobedience of the order of High Court, as a clear direction to appear and address the house by High Court was disobeyed--Petitioner was not entitled to any discretionary relief.
[P. 157] B
Constitution of Pakistan, 1973—
----Art. 199--Punjab Local Government Ordinance (XIII of 2001), Ss. 85 & 89--Constitutional petition--Election matter--Recall motion--Notification for proceeding with recall motion--Petitioner did not appear and requested for adjournment--Proceeding was adjourned--On that day put an application seeking adjournment--Ground of ailment--Request was declined--Adjournment on the ground of ailment was sought to delay and frustrated the proceedings only--Conduct, manner and mode adopted by Nazim, in this context is deplorable and unbecoming of an individual holding such a responsible position, his request, therefore, was rightly declined by the Returning Officer--As far the request for adjournment on ground of pendency of I.C.A. is concerned, Returning Officer again is correct to hold that there was no injunctive order, therefore, he was bound to follow the direction passed by High Court made in writ petition, thus on such ground the proceedings could not be adjourned. [P. 158] C
Punjab Local Government Ordinance, 2001 (XIII of 2001)—
----S. 85--Principles of--Pleadings--Establishes beyond doubt--Petitioner is bound to make detailed assertions in such respect and state reasons in this behalf, non-adherence in such contents clearly reflects upon the conduct of petitioner and establishes beyond doubt that he did not attend the meeting of his own choice to plead his case--Petition was dismissed. [P. 159] E
Punjab Local Government Ordinance, 2001 (XIII of 2001)—
----Ss. 85 & 89--Civil Procedure Code, (V of 1908), S. 11--Constitution of Pakistan, 1973, Art. 199--Recall motion was moved-Notification for proceeding--Assailed--Remedial action for their removal and the recall motions a counterblast in the context--Constitutional petition to extent is barred, as the principle of resjudicata is also applicable to Constitutional petition. [P. 157] A
Punjab Local Government Ordinance, 2001 (XIII of 2001)—
----S. 84(4)--Constitution of Pakistan 1973, Art. 199--Recall motion--Notification for proceeding with recall motion--Conduct secret ballot as ordained by law--Proceedings of recount ballot--Requirement of 2/3rd majority--Petitioner had lost the confidence of the house--No electorate--Will of electorate rules supreme and cannot be frustrated--Question of--Entitlement to relief--Proceedings were conducted by Returning officer and it clearly emerges that electoral college for vote against Nazim assembled thrice, in same number (10) against Nazim, they clearly expressed their will, in these circumstances the petition is nothing but a ploy to further protract, prolong and perpetuate his tenure as Nazim, this cannot be permitted and, therefore, petitioner is not entitled to grant of any relief on such account as well.
[P. 158] D
Punjab Local Government Ordinance, 2001 (XIII of 2001)—
----S. 85--Constitution of Pakistan, 1973 Art. 199--Constitutional petition--Recall motion--Proceedings of recount ballot--Petitioner was provided, adequated opportunity to address the Union Council--Not a word stating any reason as to why he did not address such meeting--Principle of pleadings--Frustrate the proceedings--Non-availing of adequate opportunity--Right of hearing is qualified with attendance, and cannot be made an excuse to perpetuate an illegality and frustrate the will of the electorate--Petitioner was bound to disclose it in his pleadings, complete silence, in this respect clearly establishes, that there was not such threat, thus the privilege granted to address and explain his position was abused to perpetuate his stay--Adequate opportunity was offered in such behalf and non-availing it, cannot be permitted to frustrate the proceedings. [P. 159] F
Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003—
----R. 14(1)(2)--Punjab Local Government Ordinance, (XIII of 2001), S. 63--Constitution of Pakistan, 1973, Art. 199--Question of--Recall motion--Recall motion against petitioner was carried by majority--Question of--Mala fides--Failed to prove--Remain absent and silent--Dismissed--Further the moot point under discussion in such precedent was that could the petitioner (Nazim) be restrained by the Provincial Election Authority from performing his functions as Nazim till a recall motion against him was carried by majority, as ordained by law--Proposition urged in present matter is entirely different--Recall motion was carried with thumping majority and no such restraint order was issued by Election Authority--As far as question of mala fides is concerned, it was for the petitioner (Nazim) to prove that he has miserably failed on this score as well, there is no material on record to effect in such petition--Petitioner had no defence to offer qua the assertions made by the movers of recall motion and, therefore, he chose to remain absent and silent--Petition dismissed. [Pp. 159 & 160] G
2005 SCMR 186, PLD 1987 SC 145, PLD 1982 SC 146 and
2005 SCMR 186, ref.
Mr. Ali Akbar Qureshi, Advocate for Petitioner.
Date of hearing: 3.10.2007.
Order
Through this petition, the petitioner assails the order dated 28.9.2007 passed by Respondent No. 2 whereby a recall motion against him, was carried.
The dispute pertains to Union Council No. 92, Jamke Cheema, Tehsil Daska, District Sialkot. A recall motion was moved by one Allah Rakha Kadri, and seconded by Inayat Masih, levelling certain allegations against the Nazim concerned. Pursuant thereto, the Chief Election Commissioner, issued a notification and appointed the Additional District Judge, Daska, to act as the Returning Officer and proceed with the recall motion.
The petitioner aggrieved of this order, alleged, inter alia, deviation in procedural requirements as contained in Sections 85 and 89 of the Punjab Local Government Ordinance, 2001 and, therefore, assailed this order by filing Writ Petition No. 7889 of 2007.
After hearing the counsel for the parties at length, this petition was allowed in the following manner:-
"Resultantly, this petition is allowed, the proceedings of the council dated 22.8.2007 are set aside. The recall proceedings under Section 85 of the Ordinance, against the petitioner would deemed to be pending, the Naib Nazim shall summon the session of Union Council No. 92 Jamke Cheema, Tehsil Daska, District Sialkot, on Monday, 10th of September, 2007 at 10 a.m., at the premises of the Union Council, whereafter the parties to the lis and all concerned shall strictly adhere to the procedure ordained in Sections 85 and 89 of the Ordinance. The petitioner shall make available the premises of the Union Council for this purpose, without any hindrance or interference. A copy of this order shall also be sent to the D.P.O. concerned who shall ensure that no law and order situation or un-toward incident takes place."
Pursuant thereto the parties were required to hold a meeting as directed. It was held and presided by Abdul Majeed Meer, General Councilor on the said date. Despite service the petitioner did not attend the proceedings, although he stood notified in this context by the order of this Court. Thereafter the movers of the recall motion made out their grievance in detail and the motion was carried with 10 votes in favour, 3 absenti, and none against.
As the motion was carried by 2/3rd majority therefore, a request was made under Section 84(4) of the Punjab Local Government Ordinance, 2001 to the Election Commission of Pakistan to depute a Returning Officer to conduct secret ballot as ordained by law. The Election Commission appointed, Mr. Muhammad Zafar Iqbal, Additional District Judge, as Returning Officer, who conducted the proceedings on 21.9.2007. But the exercise could not take place, as the Nazim made a request that he was indisposed and hospitalized in Tehsil Headquarters Hospital, Daska, the proceedings therefore were adjourned to 28.9.2007. On this date against the house assembled as before, but the Nazim, again made a request for adjournment, pleading that he was indisposed. The request was declined by the Returning Officer, after giving reasons. According to the result declared in the secret ballot the total number of voters was thirteen; ten members voted for the resolution while three abstained. Therefore, the motion was carried. The petitioner is aggrieved of this order and hence the present petition.
The learned counsel for the petitioner contended that the direction passed by this Court in Writ Petition No. 7889 of 2007 was not adhered to by Respondent No. 2, the manner and mode in which the vote count was made and the exercise conducted was also not in consonance with the direction contained in the stated petition. The requirement of Section 85(7) was not complied with as the petitioner was not granted right of audience as contained therein. To fortify his contention the learned counsel relied on "Khawaja Ahmad Hassan and others vs. Government of Punjab" (2005 SCMR 186). He, thereafter also contended that the allegations moved against the petitioner are without substance, there was absolutely no material to substantiate these allegations. The proceedings were conducted in a mala fide manner, rather no proceedings were conducted at all and the entire record is fabricated. He also alleged harassment, political temptations, motivations, etc. He lastly stated that the petitioner has been condemned unheard, the proceedings are coram-non-judice, therefore, they may be set aside.
I have heard learned counsel for the petitioner at length and perused the record.
The arguments made by the learned counsel today firstly related to the filing of the motion for recall and the reasons contained therein. He adverted to the background in this context and alleged harassment, political motivation etc. He specifically alleged that Allah Rakha and Inayat Masih, Councillors were not in attendance of meetings as ordained by law, therefore, the Nazim intended to take remedial action for their removal and, the present recall motions a counterblast in this context. Before venturing further it is clarified that in the earlier Writ Petition No. 7889-2007 all these points were raised, argued and thereafter the petition was allowed only on the ground of non-adherence of procedural formalities as contained in Sections 85 and 89 of the Ordinance (ibid). Therefore, these matters have substantially been in issue in former petition and cannot be now urged again. Reference "Pir Bakhsh vs. Chairman Allotment Committee and others" (PLD 1987 SC 145). Therefore, this petition to this extent is barred, as the principle of res-judicata (Section 11 of CPC) is also fully applicable to constitutional petitions. Reference "Abdul Majeed and others vs. Abdul Ghafoor Khan and others" (PLD 1982 SC 146).
Now adverting to the present controversy, whereby the order dated 28.9.2007 has been challenged by the petitioner. While allowing Writ Petition No. 7889 of 2007, a specific date, place and time was incorporated in the order and the parties and all concerned were directed to appear in the Union Council at the stated time. This order was in the knowledge of both the parties (including the petitioner). Despite that, the petitioner did not care to appear, therefore, the objection that the petitioner was not served and was not in the knowledge of the proceedings held on 10.9.2007 is not tenable. Rather it amounts to disobedience of the order of this Court, as a clear direction to him to appear and address the house, by this Court was disobeyed. Therefore, on this ground alone he is not entitled to any discretionary relief.
Anyhow the matter does not end here. The proceedings, however, were held on 10.9.2007 as directed, the recall motion carried, a request was made to the Election Commission of Pakistan to appoint a Returning Officer to conduct secret ballot, a formal Notification No. F.3(3)/2007 Elec. (1) dated 15.9.2007 was issued by the Election Commission of Pakistan. Pursuant thereto Mr. Zafar Iqbal, Additional District and Sessions Judge, Daska was appointed as Returning Officer. He conducted the proceedings in the Union Council Office on 21.9.2007, but the petitioner did not appear in person and sought adjournment of the proceedings pleading that he was hospitalized in Tehsil Headquarters Hospital Daska. On this request the proceedings were adjourned to 28.9.2007. On this date, Mr. Tariq Mehmood Janjua, Advocate, appeared on behalf of the petitioner and put an application identical and similar to the previous one, seeking adjournment again, pleading ground of ailment and also stating that I.C.A. No. 230-2007 has been filed in this Court against the order dated 7.9.2007, which is pending adjudication and, therefore, the session be adjourned. The request was declined by the Returning Officer, for the sake of brevity, the detailed reasons for refusal of adjournment are not reproduced, but suffice it to say, it is clear, evident and explicit, that adjournment on ground of ailment was sought to delay and frustrate the proceedings only. The conduct, manner and mode adopted by the Nazim, in this context is deplorable and unbecoming of an individual holding such a responsible position, his request, therefore, was rightly declined by the Returning Officer. As far the request for adjournment on ground of pendency of I.C.A. is concerned, the Returning Officer again is correct to hold that there was no injunctive order, therefore, he was bound to follow the direction passed by this Court in order dated 9.7.2007 made in Writ Petition No. 7889/2007, thus on this ground also the proceedings could not be adjourned.
Now adverting to the contents of the order which is under challenge. It is an admitted position on record that the motion for recall was carried by a majority of ten votes to none. Therefore, the requirement of 2/3rd majority as ordained by Section 84(4) of the Ordinance was fulfilled. In these circumstances, it is clear that the petitioner had lost confidence of the house, and therefore, had absolutely no mandate or authority to continue as Nazim, against the will of the electorate, because will of the electorate rules supreme and cannot be frustrated. The perusal of the contents of the proceedings of recount ballot reflect that proceedings were conducted by the Returning Officer on 21.9.2007 and 28.9.2007, it clearly emerges that the electoral college for vote against Nazim assembled thrice, in same number (10) against the Nazim, they clearly expressed their will, in these circumstances the present petition is nothing but a ploy to further protract, prolong and perpetuate his tenure as Nazim, this cannot be permitted and, therefore, the petitioner is not entitled to grant of any relief on this account as well.
Finally adverting to the fact that whether the petitioner was provided, adequate opportunity to address the Union Council, in his defence, as contemplated by Section 85 of the Punjab Local Government Ordinance, 2001. Although the question has been raised in ground (viii) of the instant petition, but there is not a word stating any reason as to why he did not address the said meeting. Under the principles of pleadings, the petitioner is bound to make detailed assertions in this respect and state reasons in this behalf, non-adherence in this context, clearly reflects upon the conduct of the petitioner and establishes beyond doubt, that he did not attend the meeting of his own choice to plea his cause but, to delay the matter made a passing reference in ground (viii) of petition "that he has been condemned unheard". The right of hearing is qualified with attendance, and cannot be made an excuse to perpetuate an illegality and frustrate the will of the electorate, in case there was any restraint the petitioner was bound to disclose it in his pleadings, complete silence, in this respect clearly establishes, that there was no such threat, thus, the privilege granted to address and explain his position was absurd to perpetuate his stay. Lastly, adequate opportunity was offered in this behalf and non-availing it, cannot be permitted to frustrate the proceedings.
The learned counsel for the petitioner relied heavily on "Khawaja Ahmad Hassan vs. Government of Punjab and others" (2005 SCMR 186). The facts and narrations made in this precedent are entirely different and distinguishable on facts. Primarily the provisions of Rule 14(1)(2) of Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003 and Section 63 of the Local Government Ordinance, 2001 were examined and found to be intra views and not ultra vires of the Constitution of Islamic Republic of Pakistan, 1973. Further the moot point under discussion in this precedent was that could be Nazim be restrained by the Provincial Election Authority from performing his functions as Nazim till a recall motion against him was carried by majority, as ordained by law. The proposition urged in the present matter is entirely different. Here the recall motion was carried with thumping majority and no such restraint order was issued by the Election Authority. As far as question of mala fides is concerned, it was for the petitioner (Nazim) to prove that. He has miserably failed on this score as well, there is no material on record to this effect in the present petition, the earlier writ petition or even on record. From the perusal of record it clearly reflects that petitioner had no defence to offer qua the assertions made by the movers of the recall motion and, therefore, he chose to remain absent and silent. Thus on this ground also the petitioner has no case.
Resultantly this petition has no merits and is accordingly dismissed.
(N.F.) Petition dismissed.
PLJ 2008 Lahore 160
[Multan Bench Multan]
Present: Main Hameed Farooq, J.
ABDUL REHMAN and another--Petitioners
versus
Mst. SALEEM BIBI--Respondent
C.R. No. 802 of 2006, decided on 6.12.2006.
Administration of Justice--
----Application had been allowed on the ground that every relevant document should be on record for the interest of justice--First Appellate Court, while admitting that the application had been filed at a belated stage, had granted permission to lead additional evidence that too without assigning any reason. [P. 162] B
Additional Evidence--
----No ground to allow a litigant to lead additional evidence--It had neither been explained in the application nor by the counsel as to why the petitioner did not earlier agitate the matter since the inception of the suit--The application had been filed at a belated stage--Held: Unsuccessful party is not to be granted opportunity to fill up weaker points of its case--Revision was allowed. [P. 162] A & C
Mr. Fazal Muhammad, Advocate for Petitioners.
Malik Javed Akhtar Wains, Advocate for Respondent.
Date of hearing: 6.12.2006.
Order
The respondent/plaintiff filed the suit for possession through a pre-emption, against the petitioner/defendant, qua the suit land measuring 15 Marlas, described in the plaint, claiming her preferential right on the basis of co-sharer, in addition to other rights such as roads and watercourse, while the petitioner was labeled as stranger. It was further pleaded that she has fulfilled the requirements of all the "Talabs", as envisaged under the law, and upon refusal of the petitioner to receive the sale price and restore the land to the respondent, necessitated filing of the suit. The suit was contended by the petitioner through written statement, also raising preliminary legal objections. The learned trial Court framed as many as ten issues, recorded the oral as well as documentary evidence of the parties and dismissed respondent's suit, vide judgment and decree dated 12.4.2006. The respondent challenged the said decree through the appeal and during its pendency filed the application seeking permission to produce copy of inheritance mutation in additional evidence. The application was opposed by the petitioner, however, the learned appellate Court accepted the said application and allowed the respondent to produce copy of inheritance mutation, vide impugned order dated 16.10.2006, hence the present revision petition.
Learned counsel for the petitioners contends that respondent's application for permission to lead additional evidence was illegally allowed and it would amount to fill up the lacunas in the case of the respondent. He has relied upon Sher Baz Khan and others vs. Mst. Malkani Sahibzadi Tiwana and others (PLD 2003 SC 849), Shaikh Ghous Bakhsh (through legal heirs) vs. K.S. Muhammad Abdul Naeem and (PLD 1976 Karachi 169), Muhammad Qasim, etc. vs. Muhammad Hussain, etc. (NLR 2001 Civil 172). Conversely, the learned counsel for the respondent while relying upon Zar Wali Shah vs. Yousaf Ali Shah and 9 others (1992 SCMR 1778), Mst.Fazal Jan vs. Roshan Din and 2 others (PLD 1992 SC 811), and Ghulam Muhammad and another vs. Muhammad Aslam and others (PLD 1993 SC 336), has supported the impugned order.
I have heard the learned counsel and examined the available record. Upon perusing respondent's application for permission to lead additional evidence. I find that the respondent failed to give any reasons, what to talk of cogent reasons, entitling her to produce document in additional evidence. The stance of the respondent in his application was that in order to decide Issue No. 1, it is essential to produce inheritance mutation in additional evidence and that it could not inadvertently be produced before the learned trial Court. No explanation is forthcoming either from respondent's application or from the available record as to why the document sought to be produced now, in additional evidence, was not produced before the lower forums.
Alleged "inadvertence" is no ground to allow a litigant to lead additional evidence. Admittedly, this document was not relied upon by the respondent before the learned trial Court. The suit, instituted on 10.10.2003, was dismissed on 12.4.2006, the respondent filed the appeal on 12.5.2006, and the application was filed on 16.5.2006. It has neither been explained in the application nor by the learned counsel as to why the petitioner did not earlier agitate the matter since the inception of the has been filed at a belated stage. It is settled law that an unsuccessful party is not to be granted opportunity to fill up weaker parts of its case. In view of the principle of law laid down by the Hon'ble Supreme Court of Pakistan in the cases of Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana (PLD 2003 SC 849), Muhammad Yousaf vs. Mst. Maqsooda Anjum (2004 SCMR 1049) and Shtamand and others vs. Zahir Shah and others (2005 SCMR 348), which are completely applicable to this case, I feel that the impugned order deserves to be set aside.
There is another aspect of the case. The learned appellate Court, while admitting that the application has been filed at a belated stage, has granted permission to the respondent to lead additional evidence that too without assigning any reasons. The application has been allowed on the ground that "every relevant documents should be on record for the interest of justice without going into technicalities". The said findings are against the principle of law/laid down in the aforesaid judgments. The learned appellate Court while allowing the application has completely misdirected itself and the impugned order was passed in complete oblivion of the facts of the case and law on the subject and I am persuaded to allow the appeal and constrained to dismiss respondent's application.
In the above perspective, the present revision petition is allowed and the impugned order dated 16.10.2006, whereby respondent's application for permission to lead additional evidence was allowed, is set aside with no order as to costs. Resultantly, respondent's said application stands dismissed.
(R.A.) Petition allowed.
PLJ 2008 Lahore 162
[Bahawalpur Bench Bahawalpur]
Present: Sh. Hakim Ali, J.
MAUJ ALI--Petitioner
versus
GHULAM SARWAR & another--Respondents
C.R. No. 202 of 2007/BWP, decided on 16.4.2007.
Civil Procedure Code, 1898 (V of 1898)—
----O. XXXIX, R. 1 & 2--Temporary injunction to maintain status quo--To avoid multiplicity of litigation--Concurrent findings can not be disturbed--Declined to grant temporary injunction--Assailed--Temporary injunction to maintain status quo, to restrain inclusion of strangers, or to avoid multiplicity of litigation is issued by Courts below--Alleged document of agreement is dubious document from its own face, the execution of which is denied by alleged executant--No cogent proof of payment of consideration usually refusal of issuance of interim injunction becomes the rule of the day--It would be a great injustice to restrain a lawful owner to exercise his lawful rights of ownership and to grant benefit to a blackmailer, cheater imposture, impersonator or defaulter who after obtaining an injunction may prolong and protract the litigation and gain its beneficial repercussions--Revision dismissed. [P. 164] B
Transfer Property Act, 1882 (IV of 1882)—
----S. 52--Civil Procedure Code, (V of 1908)--O.XXXIX, Rr. 1 & 2--Rule of lis pendens--Temporary injunction--Scope--Principle--Rule of lis pendens cannot be used as a tool and bar for refusal to grant temporary injunction yet it is also correct principle that each case has to be examined and dealt with in accordance with its own given facts and circumstances. [P. 164] A
Mr. Nadeem Iqbal Chaudhry, Advocate for Petitioner.
Date of hearing: 16.4.2007.
Order
Through this civil revision, order dated 28.3.2007, passed by learned Additional District Judge, Sadiqabad sustaining the order dated 21.12.2006 of learned Civil Judge, Sadiqabad, declining to grant temporary injunction in a suit for specific performance of contract, filed by present petitioner/plaintiff against Ghulam Sarwar and another, defendants/respondents, has been challenged.
Learned counsel appearing on behalf of petitioner submits that petitioner had purchased the property in dispute through agreement to sell dated 10.8.1991 from Ghulam Sarwar, Respondent No. 1 for Rs. 19,200/-, but thereafter Respondent No. 1 Ghulam Sarwar executed a registered sale-deed dated 20.12.2005 in favour of Hussain Bakhsh, Respondent No. 2 which was illegal and the result of fraud. As the petitioner was holding agreement to sell executed by Ghulam Sarwar, Respondent No. 1 in his favour, so he was entitled for grant of temporary injunction. Applicability of rule of lis pendens could not be made a ground by the learned Courts below to refuse the grant of temporary injunction. He has referred to PLD 1975 Lahore 492 (Sardar Wali Muhammad vs. Sardar Muhammad Iqbal Khan Mokal and 7 others) to support his contention.
After considering the arguments of learned counsel and from the perusal of the record, I have found that execution of alleged agreement to sell dated 10.8.1991 was not admitted by Respondent No. 1 to have written in favour of petitioner. Moreover, the alleged sale amount was also denied to have been received by the owner. This agreement to sell was termed by him as a fake and fictitious document, having no worth and value in law and in fact. In these circumstances, when agreement to sell in question was not admitted to have been executed and the payment of money to have been paid to the vendor, was also not supported through any cogent evidence, the dismissal of temporary injunction application cannot be taken to any exception. There is no independent documentary proof for the payment of alleged sale amount and the delivery of possession under the above noted document, whereas on the other hand, Respondent No. 2 has purchased the property through registered sale-deed. Therefore, purchaser through lawful means and executed admitted document why should be restrained from exercising his right of ownership. The petitioner, if succeeded finally in the case, would become entitled to get the possession of the property in dispute on the basis of that decree and for the completion and execution of sale-deed in his favour. Therefore, concurrent findings of the learned Courts below cannot be disturbed.
Before parting from this judgment, I would like to note that there is no doubt in the correctness of the version of learned counsel that rule of lis pendens cannot be used as a too and bar for refusal to grant temporary injunction yet it is also a correct principle that each case has to be examined and dealt with in accordance with its own given facts and circumstances. Generally, where the execution of agreement to sell is admitted, and dispute has arisen with regard to fulfillment of its terms and conditions of contract, in such an event, temporary injunction to maintain status quo, to restrain inclusion of strangers, or to avoid the multiplicity of litigation, is issued by the Courts below. But where alleged document of agreement is a dubious document from its own face, the execution of which is denied by the alleged executant, there is no other supportive or corroborative evidence, and there is no cogent proof of payment of consideration, in such like cases, usually refusal of issuance of interim injunction becomes the rule of the day. Because it would be a great injustice to restrain a lawful owner to exercise his lawful rights of ownership, and to grant benefit to a blackmailer, cheater, imposture, impersonator or defaulter, who after obtaining an injunction may prolong and protract the litigation and thereby gain its beneficial repercussions. In such case, how temporary injunction can be granted to such a person? The civil revision is dismissed in limine.
(R.A.) Revision dismissed.
PLJ 2008 Lahore 165
Present: Hasnat Ahmad Khan, J.
Sheikh ABDUL KARIM--Petitioner
versus
ATTA MANSOOR, LEARNED JUDGE FAMILY COURT, LAHORE and another--Respondent
W.P. No. 7144 of 2007, decided on 20.7.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, Rr. 10 & 11--West Pakistan Family Courts Act, 1964, S. 17--Constitution of Pakistan, 1973, Art. 199-Question of--Cause of action--Application was rejected--Assailed--No illegality--Cause of action had arisen in favour of respondent/plaintiff--Maintainability of suit--Provisions of CPC are not applicable before Judge Family Court which functions under West Pakistan Family Court Act, 1964--Section 17 of this Act specifically bars the application of provisions of CPC except Section 10 and 11 of CPC--Judge Family Court functions as a tribunal and a wisdom of a legislators to oust the provisions of CPC is to provide speedy mechanism to decide the matrimonial disputes--Therefore, application under Order 7 Rule 11 of CPC filed by petitioner was not maintainable--Constitutional petition is not competent against the rejection of application under Order 7, Rule 11 of CPC. [P. 166] A, B & C
Sh. Muhammad Babur Riaz, Advocate for Petitioner.
Date of hearing: 20.7.2007.
Order
The petitioner has challenged the order dated 29.6.2007 passed by the learned Judge Family Court Lahore, whereby the application under Order 7 Rule 11 CPC filed by him, has been dismissed.
Brief facts of the case are that Huma Naseem, Respondent No. 2/plaintiff filed a suit for recovery of dower and dowery articles against the petitioner. During the pendency of the said suit, the petitioner instead of filing written statement submitted an application under Order 7, Rule 11 CPC for rejection of the plaint (copy of which has not been attached with this petition).
Learned counsel has contended that the application under Order 7, Rule 11 CPC filed by the petitioner had illegally been dismissed by the Judge Family Court, Lahore; that mere perusal of the plaint would show that gold ornaments weighing 25-tollas delivered to the Respondent No. 2 by the petitioner at the time of marriage were in possession of the said respondent and that during a dacoity ornaments of gold were robbed. Lastly learned counsel argued that the suit filed by the Respondent No. 1/plaintiff was without any cause of action.
I have heard the learned counsel and perused the record annexed with this petition. Para No. 1 of the plaint shows that the gold ornaments of the Respondent No. 1/plaintiff were deposited in a locker of UBL (jointly operatable by the parties) which statedly was in possession of the defendant/petitioner. It is a case of the petitioners that said ornaments had been burgled by some bandits. In the exercise of Constitutional jurisdiction of this Court it cannot be determined as to in whose possession was the key of the locker or whether any party had drawn the said articles from the locker, as it requires recording of evidence. Similarly, an FIR whose lodger is petitioner himself, cannot furnish a ground for rejection of plaint at initial stage.
The contention of the learned counsel that the plaint does not disclose any cause of action, prima facie, does not hold ground. The very perusal of the plaint clearly discloses that cause of action had arisen in favour of the Respondent No. 2/plaintiff. For the correct decision of application under Order 7, Rule 11 CPC normally assertions/averments contained in the plaint are to be seen and unless proved otherwise are to be presumed to be correct. Reliance is placed on Prince Aziz-ur-Rashied Abbasi vs. Begum Katherine Abbasi and 4 others; (2005 MLD 1940). Besides, the provisions of CPC are not applicable before the Judge Family Court which functions under West Pakistan Family Court Act, 1964. Section 17 of said Act specifically bars the application of provisions of CPC except Sections 10 and 11 of CPC. The Judge Family Court functions as a Tribunal and the wisdom of the legislators to oust the provisions of CPC is to provide speedy mechanism to decide the matrimonial disputes. Therefore, application under Order 7, Rule 11 CPC filed by the petitioner was not maintainable. See Ghulam Murtaza vs. Additional District Judge (II), D.G. Khan and 2 others; (1999 CLC 81). Apart from it, constitutional petition is not competent against the rejection of application under Order 7, Rule 11 CPC. In this regard, reliance is placed on a case of Mirza Allah Ditta alias Mirza Javed Akhtar vs. Amna Bibi and 2 others; (2005 CLC 1478). Even otherwise writ petition is not maintainable against an interim order. To fortify my view reliance is placed upon Khan Muhammad vs. Khizer Hayat and others; (2005 MLD 67) and Muhammad Naveed vs. Deputy District Officer (Revenue) and 4 others; (2005 PLC (C.S.) 129). No illegality or procedural irregularity in the impugned order has been pointed out. This petition has no merit and is dismissed in limine.
(N.F.) Petition dismissed.
PLJ 2008 Lahore 167
[Multan Bench Multan]
Present: Mian Hamid Farooq, J.
KHUDA BUKHSH--Petitioner
versus
MUHAMMAD RAMZAN--Respondent
C.R. No. 56 of 2007, decided on 6.2.2007.
Administration of Law--
----An unsuccessful party is not to be granted opportunity to fill up weaker parts of its case. [P. 168] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 85--Civil Procedure Code, (V of 1908)--S. 115 & O. XXXVII, Rr. 1 & 2--Private document--Photograph--Part of public record--Application for producing photograph in additional evidence, dismissed--Assailed--If photographs were lost, the petitioner at least could have mentioned and relied upon in list of reliance and also could get fresh photographs from negative--It cannot be conceived under any stretch of imagination that private photographs could be considered as part of public record--Held: Private photograph cannot be acquainted with certified copy of Jama Bandi--Petition was dismissed. [P. 168] B & C
Mian Anwar Mubeen Ansari, Advocate for Petitioner.
Date of hearing: 6.2.2007.
Order
Facts of the case, in brief, are that the petitioner/plaintiff filed the suit for recovery of Rs. 6,50,000/- against the respondent/defendant, before the learned District Judge under the summary procedure provided under Order XXXVII CPC on the basis of pronote and receipt both dated 19.4.2002, which was resisted by the respondent, who filed the written statement. The learned trial Court framed the issues and both the parties produced their respective evidence. On 6.12.2005, the petitioner filed the application seeking permission to produce three photographs of the parties, in additional evidence, pleading therein that these photographs show that the defendant received the suit amount. The respondent resisted the said application. Ultimately, the learned trial Court dismissed the application, vide impugned order dated 20.1.2007, hence the present petition.
Learned counsel states that since the photographs show that the respondent received the suit amount from the petitioner in the presence of the witnesses, therefore, it is in the interest of justice that those photographs may be produced in additional evidence. He has added that the photographs are the public documents. He has relied upon the case reported as Iqbal Ahmad and others vs. Khurshid Ahmad and others (1987 SCMR 744). Learned counsel, on a Court question, admitted that the petitioner neither mentioned about those photographs in his pleadings nor entered the same in the list of reliance.
I have heard the learned counsel and examined the available record. It is settled law that an unsuccessful party is not to be granted opportunity to fill up weaker parts of its case. In view of the principles of law laid down by the Hon'ble Supreme Court of Pakistan in the cases of Sher Baz Khan and others vs. Mst. Malkani Sahibzadi Tiwana (PLD 2003 SC 849), Muhammad Yousaf vs. Mst. Maqsooda Anjum (2004 SCMR 1049) and Shtamand and others vs. Zahir Shah and others (2005 SCMR 348), which are completely applicable to the facts of this case, I feel that the impugned order deserves to be sustained.
Coming to the plea of the petitioner raised before the learned trial Court, that photographs could not be produced as those were stolen, cannot be believed under any stretch of imagination. If the photographs were lost, the petitioner, at least, could have mentioned and relied upon in the list of reliance and also could get fresh photographs from the negatives. The learned counsel could not demonstrate from the case law that the photographs are part of public record. It cannot be conceived under any stretch of imagination that a private photograph could be considered as a part of public record. Article 85 of Qanun-e-Shahadat, 1984, shows that the photograph is not one of the documents, which are public documents.
As regards the reliance of the learned counsel on the case of Iqbal Ahmad and others, ibid, the same is misconceived. Suffice it to say that the Hon'ble Supreme Court of Pakistan in the said case allowed the certified copy of "Jama Bandi" to be tendered in evidence which is part of the record of the rights and was beyond dispute. To my mind, a private photograph cannot be acquainted with the certified copy of Jama Bandi. The said judgment is of no avail to the petitioner.
In view of the above, the present petition is devoid of merits, hence stands dismissed in limine.
(R.A.) Petition dismissed
PLJ 2008 Lahore 169
Present: Muhammad Muzammal Khan, J.
M. BASHIR--Petitioner
versus
ZUBAIDA BEGUM etc.--Respondents
W.P. No. 18509 of 2005, decided on 7.12.2006.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 10(3), (4)--Constitution of Pakistan, (1973), Art. 199--Suit for dissolution of marriage--In the failure of compromise between the parties, Court was the frame issues in the suit and the fix the same for recording of evidence but being oblivious of this procedure, statement of respondent was recorded in absence of the petitioner--No pre-trial hearing was done--No effort for reconciliation was made--The parties married to each other about three decades ago and he out of his stroke of pen dissolved the relations inter parties without following the law--Respondent was awarded decree for dissolution of marriage in an illegal exercise and unwarranted haste at the back of the petitioner--Petition was accepted. [Pp. 170 & 171] A
Malik Abdul Wahid, Advocate for Petitioner.
Mehr Atta-ur-Rehman, Advocate for Respondent No. 1.
Date of hearing: 7.12.2006.
Order
Instant Constitutional petition prayed judgment/decree dated 26.9.2005 passed by the learned Judge Family Court (Respondent No. 2) to be declared illegal, void and of no legal consequence, whereby suit for dissolution of marriage filed by Respondent No. 1 was decreed.
Precisely, relevant facts are that Respondent No. 1 was married with the petitioner on 19.5.1978, according to Muslim rites through a registered Nikahnama. Relations between the spouses did not remain cordial and ultimately resulted in separation. Respondent No. 1 during her desertion, filed a suit for dissolution of her marriage with the allegations, inter alia, that petitioner had been treating her with habitual cruelty and had been attributing to her unfounded allegations of immorality. She also prayed a decree for dissolution of marriage on the basis of "Khula" in lieu of her unpaid dower of Rs. 32.62.
Petitioner being defendant in the suit, contested the same by filing his written statement wherein he refuted the allegations of Respondent No. 1. The written statement was filed by the petitioner on 14.9.2005 and case was adjourned to 21.9.2005 for pre-trial reconciliation proceedings. Case was not taken up on 21.9.2005 and instead it was taken up on 22.9.2005 when counsel for Respondent No. 1 only appeared and accordingly Notice Pervi was directed to be issued to the learned counsel representing the petitioner/defendant for 26.9.2005. On this adjourned date, learned Judge Family Court, cognizant of the suit, without noticing service or non-service of the learned counsel representing the petitioner/defendant, recorded statement of Respondent No. 1 and in latter part of the day, decreed her suit on the basis of "Khula" in lieu of Rs. 100/-. Decree dated 26.9.2005 was granted to Respondent No. 1 by invoking provisions of Section 10(4) of the Family Courts Act, 1964. Petitioner being aggrieved of the judgment/decree dated 26.9.2005 filed instant constitutional petition, with the relief noted above. Respondent No. 1 in response to notice by this Court, appeared and was represented through her counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, after filing of written statement by the petitioner on 14.9.2005 case was adjourned to 21.9.2005 for pre-trial reconciliation proceedings but the same was not taken up for hearing on the said date. Case though appeared to have been taken up on 22.9.2005 but the date written by the learned Judge Family Court on the interim order, is interpolated. Explanation by the learned counsel for the respondent was that on 21.9.2005 the file was misplaced and was put up before the Presiding Officer on the next day but no such fact has been mentioned in any of the interim orders on the file. Learned Judge Family Court on 22.9.2005 directed a Notice Pervi to the learned counsel for the defendant/petitioner but there is not proof that his service was really effected, enabling the petitioner to make appearance on 26.9.2005. Impugned proceedings also revealed that inspite of absence of the petitioner, he was not proceeded against ex parte.
Under Section 10 of the Family Courts Act, 1964, after filing of written statement, the Judge Family Court was obliged to fix an early date for pre-trial hearing when the parties were to be examined, besides examination of narrations in the plaint/documents produced by the parties, by virtue of sub-sections (3) & (4) of Section 10 of the Act (ibid). In case of failure of compromise/reconciliation between the parties, Court was to frame issues in the suit and to fix the same for recording of evidence but being oblivious of this procedure, statement of Respondent No. 1 was recorded in absence of the petitioner/defendant. It is clear from the record that no pre-trial hearing was done and at the same time, no effort for reconciliation was made. Respondent No. 2 absolutely noted that parties married to each other on 19.5.1978 i.e. about three decades ago and he out of his stroke of pen dissolved the relations inter parties and that too, without following the law. Scan of record and impugned judgment/decree revealed that Respondent No. 1 was awarded decree for dissolution of marriage in an illegal exercise and unwarranted haste, at the back of the petitioner/defendant.
For the reasons noted above, impugned judgment/decree is not lawful and is accordingly not sustainable, thus by accepting the instant petition, the same is declared to be void and non-existent in the eye of law, with the result that suit of Respondent No. 1 shall be deemed to be pending before the learned Judge Family Court for its fresh decision in accordance with law, parties are directed to appear before the learned Judge Family Court, Sialkot on 22.1.2007. There will be no order as to costs.
(R.A) Petition accepted
PLJ 2008 Lahore 171 (DB)
Present: Sayed Zahid Hussain & Jawwad S. Khawaja, JJ.
GHULAM RASUL and 2 others--Appellants
versus
AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN--Respondent
R.F.A. No. 311 of 2003, heard on 9.1.2007.
Financial Institutions (Recovery of Finances) Ordinance, 2001--
----S. 10--Suit for recovery of amount was filed by Bank--Lave to defend--Dismissed by Banking Court--Challenge to--Appellants had been defrauded by the mobile credit officer of the respondent--Held: Appellants had made out a good case for grant of leave to defend the suit in respect of the third loan--As to the other two loans, no defence had been made out on behalf of the appellant/defendants--Held: Impugned judgment and decree set aside--Application allowed and leave granted to defend the suit as regards the third loan--Leave would be subject to the deposit with the respondent--Bank within 60 days of the two sums which admittedly were received by the appellant/defendants by way of loan from the respondent Bank--Appeal allowed. [P. 173] A
Malik Sajid Naveed, Advocate for Appellants.
Malik Karamat Ali Awan, Advocate for Respondent.
Date of hearing: 9.1.2007.
Judgment
Jawwad S. Khawaja, J.--The appellants-defendants impugn the judgment and decree dated 27.1.2003 passed by the learned Banking Court, Gujranwala, whereby a suit filed by the respondent-Bank for recovery of Rs. 3,17,079/- was decreed against the appellants-defendants jointly and severally with costs and cost of funds. An application filed by the appellants-defendants seeking leave to defend the suit was dismissed by the learned Banking Court.
Learned counsel for the appellants has taken us through the aforesaid application for leave to defend and the lower Court record. One of the material grounds urged by the appellants in defence was that they had been defrauded by the Mobile Credit Officer of the respondent-Bank namely Zahir Ahmad Sipra. According to the leave application they had filed complaints against the Bank functionaries which were addressed to the Wafaqi Mohtasib and also to the senior functionaries of the respondent-Bank. The appellants-defendants also brought on the record the report of an inquiry conducted against the above named Mobile Credit Officer. We have gone through the said report wherein it has been noted that the record of the Bank relating to the last loan allegedly advanced to the appellants reflects foul play on the part of the Manager, Sub-Manager, Accounts Officer and Cashier of the Bank Branch. It was contended on behalf of the appellants with justification that this finding recorded by a functionary of the Bank was by itself sufficient for granting unconditional leave to the appellants to defend the suit. The learned Banking Court has, however, brushed aside the aforesaid inquiry report by observing that "it is very difficult for me to say that bank employees ever committed any sort of fraud with petitioners/defendants". This observation in our opinion itself recognized the fact that the allegations of fraud leveled by the appellants-defendants require evidence.
Learned counsel for the respondent-Bank was not in a position to argue that in the given circumstances the appellants-defendants had not made out a case for grant of leave to defend the suit. He did, however, point out that the appellants had obtained three loans, out of which fraud was alleged only in respect of the third loan amounting to Rs. 77,150/- allegedly disbursed by the Bank to the appellants on 27.5.1995. As to the two earlier loans of Rs. 68,100/- disbursed on 12.1.1995 and Rs. 61,925/-advanced on 26.3.1995, it was submitted that there was no dispute. Learned counsel for the appellants also conceded that the first two loans had been availed by the appellants defendants. He also acknowledged that the appellants had expressed their willingness to replay the first two loans under an incentive scheme issued by the respondent-Bank for the benefit of defaulting borrowers, but the respondent-Bank had refused to receive the application of the appellants due to the pendency of the present litigation.
In view of the foregoing discussion, we are of the opinion that the appellants had made out a good case for grant of leave to defend the suit in respect of the third loan amounting out Rs. 77,150/-. As to the other two loans, no defence has been made out or urged before us on behalf of the appellants-defendants. In the circumstances, the impugned judgment and decree are set aside. The application of the appellants is allowed and leave is granted to them to defend the suit as regards the third loan amounting to Rs. 77,150/-. This leave shall be subject to the deposit with the respondent-Bank within 60 days from today, of the two sums of Rs. 68,100/- and Rs. 61,925/-which admittedly were received by the appellants-defendants by way of loan from the respondent-Bank.
This appeal is allowed in the above terms. The lower Court record shall be sent back forthwith.
(A.S.) Appeal allowed
PLJ 2008 Cr.C. (Lahore) 173 (DB)
[Multan Bench Multan]
Present: Asif Saeed Khan Khosa and Hasnat Ahmad Khan, JJ.
MUHAMMAD ABBAS and 2 others--Appellants
versus
STATE--Respondent
Crl. A. No. 714 of 2004, decided on 20.2.2007.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 497 & 426--Pakistan Penal Code, (V of 1860) Ss. 302 & 34--Bail, grant of--Prayer for--Suspension of sentence and release on bail during pendency of appeal--Empty handed--Conviction and sentence--Challenge to--Vicarious liability--Question of--Petitioner was empty handed during the alleged of occurrence and he had not caused any injury to any person--Held: Question regarding spreading the net wide by the complainant party to extent of accused as also the question regarding vicarious liability of petitioner shall require serious reconsideration at the time of hearing of main appeal--No prospect of an early hearing of main appeal--Bail was allowed and sentence was suspended. [P. 174] A
Mr. Altaf Ibrahim Qureshi, Advocate for Appellants.
Mian Bashir Ahmad Bhatti, Deputy Prosecutor-General for State.
Qari Abdul Karim Shahab, Advocate for Complainant.
Date of hearing: 20.2.2007.
Order
Criminal MISCELLAneous No. 1 of 2006
Through this miscellaneous petition Zahoor Hussain petitioner-appellant has sought suspension of his sentence and release on bail during the pendency of his appeal before this Court.
(N.F.) Petition allowed.
PLJ 2008 Lahore 188
Present: Ali Nawaz Chowhan, J.
LAHORE STOCK EXCHANGE (GUARANTEE) LIMITED through its Director--Appellant
versus
APPELLATE BENCH No. 1, SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN and 2 others--Respondents
Commercial Appeal No. 9 of 2004, heard on 18.5.2006.
Securities and Exchange Ordinance, 1969--
----S. 9(6)--Securities and Exchange Commission of Pakistan Act, 1997, S. 34--Application for voluntary delisting of securities--Refused by Lahore Stock Exchange--Appellate Bench of Commission ordered de-listing--Challenge to--Validity--Once a company is listed with Stock Exchange and asks for voluntary de-listing, the Securities & Exchange Commission in view of Regulation No. 32-A, approved by it, is also bound to follow the same and as such it cannot allow de-listing without meeting the requirement with respect to protection of the interest of the investors or without notice to them--Held: The order of de-listing, therefore, is not only improper but is bad in law--Appeal accepted and impugned order set aside in circumstances.
[P. 195] B & C
Securities and Exchange Ordinance, 1969--
----S. 9(6)--Aim of Ordinance--Purpose for creation of the commission--Held: Protection of investors appears to be the main aim of the Ordinance, the rationale of the Ordinance and the purpose for creation of the commission--Therefore, whereas a regulation sets conditions for a stock exchange for de-listing--Commission cannot bypass that requirement merely because it has a higher concurrent jurisdiction regarding de-listing. [P. 194] A
Mr. Jawad Hassan and Mr. Arif Saeed, Advocates for the Appellant.
Khawaja Saeed-ud-Zafar, Advocate for S.E.C.P.
Mr. Sohail Ahmad and Javed Iqbal, Advocates for Respondents No. 2 & 3.
Dates of hearing: 17.5.2006 & 18.5.2006.
Judgment
This appeal under Section 34 of the Securities and Exchange Commission of Pakistan Act, 1997, is against the order dated 30th July, 2004, passed by an Appellate Bench of the Securities and Exchange Commission of Pakistan, Islamabad.
"One of the basic functions of an exchange is to provide secondary market trading platform while protecting the rights of the stakeholders which includes the issuers as well and ensuring that market is fair, efficient and transparent.
In the present case I am fully convinced that there is nothing available on record which could justify forcing a company to remain listed with the respondents as, I am of the opinion, that the respondents have failed to show as to how delisting of the petitioners would in any manner adversely effect the rights of the investors. The SEC is concerned only with the fact that an adequate trading platform is available to the investors and, if this is ensured, as a matter of public policy, the Stock Exchanges and the SEC should not interfere and insist on listing of a particular company. In this regard it is, however, relevant to note that the petitioners admittedly published in the prospectus that the shares of the respective companies would be listed at the LSE and ISE. Therefore, any variation in the terms referred to in the prospectus or a statement in lieu of the prospectus pursuance to Section 58 of the Companies Ordinance, 1984 can only be made subject to the approval of or authority given by the company in general meeting. Accordingly, subject to the compliance of Section 58 of the Companies Ordinance, 1984, the respondents are hereby directed to de-list the petitioners from their respective exchanges within 15 days from the date of the approval by its shareholders."
"Where a Stock Exchange refuses to delist a security the Commission may on petition by the applicant made within the prescribed time, direct the Stock Exchange to delist the security."
"The representative of the Lahore Stock Exchange stated that LSE does not have any objection to the De-listing of the petitioner from its Exchange provided that it complies with the Regulation for Voluntary De-listing currently in place at the Exchange and follows the procedure laid down therein."
"(1) Any company intending to seek voluntary de-listing from the Exchange shall intimate to the Exchange, immediately, of the intention of the majority security holder/sponsors to purchase all securities, without exception, from all the security holders with the purpose to de-list the security alongwith the reasons thereof. Such intimation shall also include minimum price at which the securities are proposed to be purchased:
Provided that the minimum purchase price proposed by the sponsors will be the highest of the benchmark price based on any of the following:--
(a) Current Market Price as of the date the exchange receives the sponsors/majority security holders intimation under 32-A (i).
(b) Average Market Price (Annualized).
(c) Break-up Value based on historical cost.
(d) Earnings Multiplier approach (for profitable companies).
(e) The maximum price at which the Sponsors had purchased these shares from the open market in the preceding one year."
It is said that the purpose of this regulation is to protect the rights of the investors in the securities.
The question is whether the operative part of the order under reference and impugned which does not provide any protection to the investors is a befitting order in law.
It was argued that the shares of the respondent-company were not only listed with the Lahore Stock Exchange but were also listed with the Karachi Stock Exchange and elsewhere and these remained listed and transactions could be carried on by the security holders through the other Stock Exchanges.
On the other hand, it is said that the security holders required immediate information about the securities they were holding for taking any steps with convenient despatch and, therefore, referrals to the other Stock Exchanges could cause delay and thus irreparable loss to them.
It was stated that making the security holders dependent upon the far-flung Stock Exchanges, only reflects a motive on the part of the company to remain dependent on the company and its agent in the matters of sale and purchase transactions of the securities disadvantageously.
That the Securities & Exchange Commission is also bound to follow its approved regulations meant for the Lahore Stock Exchange (Regulation No. 32-A). Otherwise, different types of working at the end of the Securities & Exchange Commission and the Stock Exchange would only give rise to anomalies, contradictions and paradoxes detrimental for trade and commerce.
There is no cavil with the proposition that when a Stock Exchange refuses to de-list a security, the same powers can be exercised by the Commission. But should the de-listing order handed down by the Commission in respect of a security by without laying of safeguards for protection of the rights of the investors? The answer is in the negative.
The 1969 Ordinance of Securities & Exchange Commission of Pakistan follows the model of the Securities & Exchange Commission in the United States created through the Stock Exchange Act of 1933.
The purpose of creating the Commission as given in the preamble says:--
"The following Ordinance made by the President is hereby published for general information:--
Whereas it is expedient to provide for the protection of investors, regulation of markets and dealings in securities and for matters ancillary thereto;
And whereas the national interest of Pakistan in relation to the achievement of uniformity requires Federal legislation in the matter."
"To provide for the regulation of securities exchanges and of over-the-counter markets operating in interstate and foreign commence and through the mails, to prevent inequitable and unfair practices on such exchanges and markets, and for other purposes."
The problems at which modern securities regulation is directed area as old as the cupidity of sellers and gullibility of buyers.
The Harvard Professor Louis Loss, who also inspired the 1969 Securities and Exchange Commission Law in Pakistan, in his famous treaties on security regulation, makes the following observations:
"Although listing and registration are entirely discretionary with the issuer in the first instance, the issuer has no unqualified right to delist. Section 12(d) of the act provides:
A security registered with a national securities exchange may be withdrawn or stricken from listing and registration in accordance with the rules of the exchange and, upon such terms as the Commission may deem necessary to impose for the protection of investors, upon application by the issuer or the exchange to the Commission; whereupon the issuer shall be relieved from further compliance with the provisions of this section and Section 13 of this title and any rules or regulations under such sections as to the securities so withdrawn or stricken.
The procedure for voluntary delisting is prescribed in the Commission's rules. There must be a verified application, by either the issuer or the exchange, indicating the steps taken to satisfy the applicable rules of the exchanges. There must also be a statement of the reasons for the application, "together with all material facts relating thereto and such facts as in the opinion of the applicant have a bearing on whether the Commission should impose any terms for the protection of investors." If the application is made by the issuer and the Commission so directs, the issuer must promptly notify all known holders of the security in question of the hearing on the application, and advise them of their right to present their views on appropriate terms by appearing at the hearing or writing to the Commission. If the applicant offers the application in evidence as proof of the allegations it contains, the application constitutes the entire record unless objection is made either by counsel for the Commission or by a security holder or the issuer or exchange or any interested person.
Applications by exchanges normally raise no particular problem, because for obvious reasons they are occasioned almost invariably by an event which has virtually terminated any public interest in the security. The grounds cited most frequently in applications by exchanges are that most of the issue has been exchanged for securities of another issuer, or that the issuer is in the last stages of liquidation, or that the amount of the security outstanding (or at any rate the amount of exchange trading) has become greatly reduced, or that the security has become nearly worthless. Sometimes, however, the specific reasons given in the delisting application under these circumstances is that the issuer has failed to file reports required by its registration or the listing agreement, or has discontinued transfer and registrar facilities, or faces insolvency proceedings.
Some exchanges accommodate issuers which have determined to delist inactively traded securities by filing the delisting applications on their behalf as a matter of good public relations. And the New York Stock Exchange has developed and published criteria on the basis of which it will consider the initiation of delisting proceedings."
"Most of the exchanges themselves have rules requiring a vote of security holders. On the New York Stock Exchange, for example, in the absence of "special circumstances" the proposed delisting must be "approved by the security holders at a meeting at which a substantial percentage of the outstanding amount of the particular security is represented, without objection to the proposed withdrawal from a substantial number of individual holders of the particulars security"; and it is the Exchange's announced policy to consider as a minimum requirement approval by holders of two-thirds of the security without disapproval by as much as 10 percent of the individual holders."
He also gives the following illustrations:
"The applicant was Shawmut Association, a closed-end investment company organized as a Massachusetts trust, and its shares had been listed on the Boston Stock Exchange since its organization in 1928. The stated reason for delisting was that the trustees believed it would improve the marketability of the shares and lessen the discrepancy between their asset value and their quoted market value. As is not infrequently the case with listed securities, there had been more trading over the counter than on the exchange: 27, 703 shares as against 7285 during the first six months of 1943. The Commission first of all found that a portion of the apparent discrepancy between asset and market value was due to the applicant's method of determining asset value. It then set forth the result of a study which showed that the discrepancy was not large in relation to comparable companies whose stocks were traded solely over the counter. The Commission's opinion also summarized a study of the over-the-counter trading in the applicant's stock, which "revealed that members of the public usually were obliged to pay more for the shares when purchasing from or through dealers over the counter than current exchange parties; and that in selling, they received less." "In some of the over-the-counter transactions where members of the public sold, it was found that in the course of 1 day the shares passed through the hands of two, three, or four dealers (at successive profits) before being finally sold to other members of the public."
In view primarily of the "grave questions as to whether the proposed withdrawal of the trust shares from listing and registration would deprive the shareholders of substantial advantages without giving them or the trust itself compensatory benefits," the Commission imposed two substantive terms in granting the application. One was that the delisting proposal be submitted to the shareholders through solicitations which complied with the Commissions and a summary of its findings. The other term was that assents be obtained not only from holders of a majority of the shares but also from a majority of the holders-in other words, that there be a vote per capita as well as by shares."
So protection of investors appears to be the main aim of the Ordinance, the rational of the Ordinance and the purpose for creation of the Commission. Therefore, whereas a regulation sets conditions for a Stock Exchange for de-listing, this is to be observed by the Commission. The Commission cannot bypass that requirement merely because it has a higher concurrent jurisdiction regarding de-listing.
The only argument advanced before this Court is that the security holdings pertaining to Lahore Stock Exchange were minuscule as compared to the dealings in Karachi and about Rs. 24,000/- fee was being paid to the Lahore Stock Exchange for purposes of listing which was a waste of money.
In rebuttal, it was said that this company is doing transactions of a high magnitude and payment of Rs. 24,000/- was not a burden at all.
This Court was further told that unlike the Bombay Stock Exchange which has its terminals spread over in various cities of India imparting instantaneous information to the shareholders enabling them to take quick decisions, there was no such facility available here. It was alleged that the voluntary de-listing was manoeuvred by the company only to benefit the security holders of Karachi and to exploit the shareholders of Punjab dealing at Lahore Stock Exchange this way.
Once a company is listed with the Stock Exchange and asks for voluntary de-listing, the Securities & Exchange Commission in view of Regulation No. 32-A approved by it, is also bound to follow the same and as such it cannot allow de-listing without meeting the requirement with respect to protection of the interest of the investors or without notice to them.
As the order impugned does not protect the interest of the security holders, he order of de-listing without advertence to this requirement will not be deemed correct in law and the Securities and Exchange Commission of Pakistan shall be bound to follow the requirement while directly dealing with the question of de-listing of a company. The order of de-listing therefore, is not only improper but is bad in law. It is set aside and the appeal allowed, with no order as to costs.
(R.A) Appeal accepted
PLJ 2008 Lahore 195
[Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
EHSAN ADEEL and others--Petitioners
versus
GOVERNMENT OF PAKISTAN through Secretary Ministry of Finance Islamabad and 2 others--Respondents
C.R. No. 657 of 1996, heard on 5.6.2006.
Nominee--
----Effect of a nomination--Nominee for the purposes of convenience is authorized to collect the amount from bank and then disburse the same to the actual legal heirs of deceased under Muslim Law.
[P. 198] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Obtaining succession certificate in respect of assets--Question of--Nominee--Deceased father is legal heir--Nominee could not claim with regard of ownership--Except father of deceased, no other living heir was present at the time of death of deceased--Only person entitled to claim ownership with regard to the amount deposited was deceased's father and despite the alleged nomination could not clay any claim with regard to ownership of the amount in dispute--Revision was allowed. [P. 198] B & C
Mr. Ehsan Raza Hashmi, Advocate for Petitioners.
Mr. Tahir Mehmood, Advocate for Respondents.
Date of hearing: 5.6.2006.
Judgment
This Civil Revision is directed against the judgment dated 8.4.1996 passed by learned Additional District Judge, Layyah whereby the learned Additional District Judge while reversing findings of the learned trial Court dated 4.10.1991 on Issues No. 1, 8 and 9 dismissed the application filed by Muhammad Ibrahim processor-in-interest of the petitioners for obtaining Succession Certificate of his son Muhammad Sharif alias Malang in respect of the assets left by him.
ISSUES:
Whether this Court has no jurisdiction to entertain this petition? OPR.
Whether the petitioner has no locus standi and cause of action? OPR.
Whether the petition is not maintainable in its present form? OPR.
Whether no notice under Section 80 CPC was served? If so, its effect? OPR.
Whether the petition is bad for non-joinder of a necessary party? OPR.
Whether the petitioner is estopped by his words and conduct to bring this petition? OPR.
Whether the petition is mala fide? OPR.
What is the effect of nomination in favour of Respondent No. 3? OP-Parties.
Whether the petitioner, the father of the deceased Muhammad Sharif is entitled to inherit and receive the disputed amount as an exclusive heir of his deceased son? OPA.
Relief
On the conclusion of the trial, the learned Senior Civil Judge vide order dated 9.10.1991 ignored the claim of Respondent No. 3 as nominee and by accepting the application directed the grant of Succession Certification in favour of Muhammad Ibrahim, the present petitioner, being father of the deceased. Against said judgment/order of the learned trial Court, Muhammad Shafiq Respondent No. 3 filed an appeal which was accepted by learned Additional District Judge vide impugned order dated 8.1.1996 holding Muhammad Shafiq as entitled for receipt of the amount deposited in the Account of Muhammad Sharif deceased, being his nominee. Hence, this civil revision.
It is argued by learned counsel for the petitioner that firstly the respondent failed to establish his alleged nomination and secondly in view of the law declared by Hon'ble Supreme Court of Pakistan in the case "Mst. Amtul Habib and others vs. Mst. Musarrat Parveen and others" (PLD 1974 Supreme Court 185) and "Malik Safdar Ali Khan and another vs. Public-at-Large and others" (2004 S.C.M.R. 1219) a nomination can neither operate as gift under Muslim Law nor nominee becomes owner of the property/assets for which he is allegedly nominated and the only right conferred on the nominee is to collect the amount and disburse the same to the legal heirs and since Muhammad Ibrahim being father of Muhammad Sharif was the only legal heir lived at the time of death of said Muhammad Sharif, hence the learned trial Court had rightly granted/issued Succession Certificate in his favour.
On the other hand, Mr. Tahir Mehmood, Advocate learned counsel for Respondent No. 3 has supported the findings of the learned Additional District Judge by arguing that from the evidence available on record it is established that Muhammad Sharif deceased appointed Respondent No. 3 as his nominee and that his nomination conferred an exclusive right on Muhammad Shafiq to collect the amount and retain the same as its owner, hence the findings of the learned trial Court were correct reversed by the learned Additional District Judge.
Arguments considered. Record perused.
There is no disputed about the fact that Muhammad Ibrahim predecessor-in-interest of the petitioner, the original claimant, was the real father and only living legal heir of Muhammad Sharif deceased under the Muslim Law at the time of his death. Without commenting or analysing the evidence on the question whether Muhammad Shafiq Respondent No. 3 was nominated as a nominee or not, suffice it to say that in view of the following observations of the Hon'ble Supreme Court of Pakistan in the case "Mst. Amtul Habib and others vs. Mst. Musarrat Parveen and others" (PLD 1974 Supreme Court 185) at page 191 (followed in the case "Malik Safdar Ali Khan and another vs. Public-at-Large and others" (2004 S.C.M.R. 1219):
"Apart from this, it appears to us that, unless a nomination can amount to a valid gift inter vivos, it cannot pass title to the nominee in respect of immovable property, nor can the making of a nomination give the right to the nominator at his own choice to change the law of succession which would otherwise be applicable in the case of his death. Obviously, the nomination cannot operate as a valid gift under the Muhammadan Law because, such a gift, in order to confer title on the donee, must be accompanied by delivery of possession of the property gifted. In the case of plots allotted to Muhammad Yakub, there could be no delivery of possession at the time of nomination was made, for, at that time, no plot had been allotted to him."
The only effect of a nomination is that a nominee for the purposes of convenience is authorized to collect the amount from the Bank and then disburse the same to the actual legal heirs of the deceased under Muslin Law. Since it is admitted between the parties that except Muhammad Ibrahim father of the deceased, no other living heir was present at the time of death of Muhammad Sharif deceased, hence the only person entitled to claim ownership with regard to the amount deposited was Muhammad Ibrahim and despite the alleged nomination in favour of Muhammad Shafiq Respondent No. 3 he could not lay any claim with regard to ownership of the amount in dispute. I am therefore, satisfied that the learned trial Court on true application of law and facts correctly passed the order dated 9.10.1991 granting Succession Certificate to the petitioner and same was illegally and without jurisdiction interfered with by the learned Additional District Judge. This Civil Revision therefore, is allowed, the judgment of the learned Additional District Judge dated 8.4.1996 is set aside and that of the learned trial Court dated 9.10.1991 is restored, with no order as to costs.
(N.F.) Revision allowed
PLJ 2008 Lahore 199
Present: Fazal-e-Miran Chauhan, J.
ASMAT ULLAH BUTT--Petitioner
versus
KAMRAN JAVAID etc.--Respondents
W.P. No. 7413 of 2007, decided on 5.11.2007.
Punjab Urban Rent Restriction Ordinance, 1959—
----S. 13--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Ejectment petition personal need--Landlord of the property in-question--Default in payment of rent--Eviction of tenant--Held: Landlord required ejectment of the tenant on the ground of personal need, thus issues of default and damages to the property was not necessary--There was sufficient evidence regarding personal need of landlord and the same was proved and it had been reported from the respondent side--Trial Court proceeded to accept the ejectment petition and passed the ejectment order against respondent to hand over the vacant possession of the same within one month--Petition accepted. [Pp. 205 & 206] A & B
Mrs. Firdous Butt, Advocate for Petitioner.
Mr. Nauman Qureshi, Advocate for Respondent No. 1.
Respondents No. 2 and 3 are proforma respondents.
Date of hearing: 18.10.2007.
Judgment
Through this Constitutional petition, the petitioner has impugned the judgment and decree dated 11.6.2007, passed by learned Additional District Judge, Lahore and restoration of the judgment and decree dated 30.9.2006, passed by the learned Rent Controller, Lahore.
Facts giving rise to the filing of the present writ petition are to the effect that the petitioner being landlord of the property in question filed petition under Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, seeking ejectment of Respondent No. 1 Kamran Javed from the property in question for personal need in good faith for her daughter and her family on the ground of default causing damage to the property lowing his valuation. In support of ejectment petition, affidavit of Asmat Ullah petitioner, AW-1 Shakar Ullah & AW-2 were annexed with the ejectment petition. Reply to the ejectment petition was filed by Respondent No. 1 denying that the property in question is required by the landlord for need of his daughter for the personal use and occupation as both of them are owner-in-possession of the property Bearing No. 232 Kashmir Block, Allama Iqbal Town, Lahore and 666 Kashmir Block, Allama Iqbal Town, Lahore. The daughter of the petitioner is residing in House No 116 Kashmir Block, Allama Iqbal Town, Lahore which is owned by her father-in-law namely Khurshid Ahmad Butt. Also denied that a default in payment of rent has been committed. The rent for the month of September, 2004 was received by the petitioner himself and he also issued receipt of the same. Causing damage to the property was also denied.
On the basis of divergent pleadings of the parties, following issues were framed on 5.1.2006 by the learned Rent Controller, Lahore.
ISSUES:
Whether the respondent is wilful defaulter in payment of rent, if so for what period and for what rate? O.P.A.
Whether the disputed premises is required by the petitioner for his own personal need? O.P.A.
Whether the disputed property has sublet to other person without consent and permission? O.P.A.
Whether the respondent has become a permanent source of nuisance and mental disturbance due to his act and conduct? O.P.A.
Whether the dispute premises has damaged by the respondent? O.P.A.
Relief.
The learned Rent Controller, after recording and appreciating the evidence of the parties, proceeded to accept the ejectment petition deciding Issue No. 2 in favour of the landlord after observing that the property in question is required by the landlord for the use and occupation of his daughter and directed Respondent No. 1 to hand over the vacant possession of the property in dispute to the landlord petitioner, within one month. Respondent No. 1 challenged the eviction order by filing appeal under Section 15 of the Punjab Urban Rent Restriction Ordinance, 1959. The learned lower Appellate Court after hearing the parties accepted the appeal set aside the findings on Issue No. 2 and remanded the case to the learned Rent Controller, to adjudicate upon the issue afresh by hearing arguments and if he thinks some issue is required, frames the same in the line of decision given by the learned lower Appellate Court, hence this writ petition.
Learned counsel for the petitioner argued that, the learned lower Appellate Court erred in law and facts of case and failed to comprehend its true perspective, in making bleak to the crystal clear, pleas, prompting to file the ejectment petition against the tenant. The learned lower Appellate Court while reversing the finding on Issue No. 2 has totally ignored the evidence as well as law laid down by the superior Courts. Further argued that as per Section 3-A(i) (a), there is sufficient evidence available on the record showing that the premises in question are required by the landlord for the personal need of his daughter and the same is covered by law. The learned lower Appellate Court erred in law by holding that the landlord has not mentioned about the property in his possession or in the possession of his daughter in the same locality. Further argued that the daughter in whose need the property in question is required is residing in a rented premises. Further argued that in fact, the property belongs to the daughter of the petitioner landlord but same was rented out by the petitioner to Respondent No. 1 and he being landlord of the property, in question, rightly filed the ejectment petition seeking ejectment for personal need of his daughter, who shifted from abroad to Pakistan and wanted to reside in her house. Further argued that the learned lower Appellate Court had entered into a non-issue regarding nomination of landlord mentioned in the ejectment petition or in the rent-note that tenancy in any case is not denied by Respondent No. 1 and petitioner is accepted as landlord by Respondent No. 1.
Conversely, learned counsel for Respondent No. 1 argued that the petitioner landlord has not come to the Court with clean hands and the petitioner had deliberately not mentioned the other properties in his possession as well as the possession of his daughter in the same locality and by concealing this fact, he has become disentitled to any relief under the law. Further argued that the learned lower Appellate Court had failed to give any finding regarding this aspect of the case and the learned lower Appellate Court rightly having taken note of this fact, dis-agreed with the finding of learned Rent Controller and set aside its findings on Issue No. 2. Further argued that though the property in question was rented out by the petitioner through a rent-note, but since the creation of tenancy, possession of one room was never handed over to Respondent No. 1 and the learned Rent Controller has not given its finding on the same and the learned lower Appellate Court rightly took note of this fact and remanded the case to the learned Rent Controller with the direction to decide this fact after framing issues if required so. Further argued that the landlord miserably failed to prove that the property in question is required by him in good faith for the use and occupation of his daughter. The mere words of the petitioner are not sufficient to prove his contention and it was the duty of the learned Rent Controller to discuss the evidence led by both the parties and gave its findings on the same. It has been brought on the record that the landlord is already in possession of other properties in the same locality and the property, in question, is not required by him for his daughter as she is already residing in a house in the same locality. Further argued that the learned Rent Controller proceeded to pass ejectment order without deciding two Miscellaneous applications filed by Respondent No. 1 tenant and this omission on the part of learned Rent Controller reflects non-application of mind by him and the right of the parties to get a decision on each and every issues, which has arisen before the Court or Tribunal. Finally argued that since the ejectment is with regard to residential portion and no appeal is provided against the order of the learned Rent Controller, hence writ petition is not maintainable.
I have heard the arguments of the learned counsel for the parties and perused the record as well as the affidavit submitted by both the parties and the lengthy cross-examination conducted by Respondent No. 1 tenant on the landlord and AW-1 and AW-2.
From perusal of issues framed by the learned Rent Controller, it is clear that no issue has been framed with regard to not handing over possession of the whole property to Respondent No. 1 tenant. Admittedly, the property was rented out way back in the year 2002 on 21.9.2002. Since then, till filing of ejectment petition, no application has been moved by Respondent No. 1-tenant to the learned Rent Controller seeking redressal of his grievances that the landlord was under obligation to hand over the possession of the whole of the property and none delivery of possession of one room by the landlord was in sheer violation of rent note executed between the parties. This issue for the first time was raised in the written reply submitted to the ejectment petition before the learned Rent Controller. The Respondent No. 1 never moved to the learned Rent Controller for framing of issues on this subject. From the conduct of the parties, it appears that the daughter has in fact never demanded possession of so called master bed room with bath room and store. The landlord denied the suggestion put forth by the learned counsel for Respondent No. 1 that, it was agreed between the parties that the possession of lower portion which consists of one bed room, one store and bath room would be handed over to the tenant. After denial by the landlord that no such agreement exists between the parties for handing over the possession of lower portion consisting of one bed room, store and bath room, the burden shifted upon the tenant that any such agreement existed between the parties, no such clause is found mentioned in the rent note executed between the parties. Thus the finding of the learned lower Appellate Court that learned Rent Controller should have farmed an issue and should have given finding and gave opportunity of producing evidence on the same. However, counsel for Respondent No. 1 had cross-examined AW-1 at length on each and every issue and fact raised in the written reply and this fact that possession of one room, store and bath room was not handed over to the Respondent No. 1 as per agreement was denied by the petitioner and there is no rebuttal of the same from the respondent's side. Thus, the learned Rent Controller was not under obligation to give any finding on the same when no issue was framed or was demanded to be farmed from the respondent-landlord.
The main stress of the case in fact revolved around the personal need of the landlord in the shape of need of his daughter. From the pleadings of the evidence and cross-examination, it appears that the property in question is owned by the daughter of the landlord. Since she was not in the country, the rent-deed was executed between the petitioner and Respondent No. 1 as well as the property was rented out by him, so the ejectment petition was rightly moved by Asmat Ullah Butt-petitioner, father being landlord, seeking ejectment for the personal need of his daughter. Admittedly, it is not mentioned in the ejectment petition that the landlord or his daughter is in possession of some other property in the same area. It has also been brought on the record that the daughter of the landlord is in possession of House No. 116, Kashmir Block, Allama Iqbal Town, Lahore. The house does not belong to the landlord but the same belongs to father-in-law of the daughter of the petitioner landlord. Khurshid Ahmad Butt is the owner of the said house who is father-in-law of the daughter of the petitioner and she was accommodated by her father-in-law and was provided to reside in the said house till she gets the possession of her house after decision of the ejectment petition. The other question that the landlord deliberately did not mention the other properties in their possession in the plaint, thus personal need could not be treated bonafidely. It is a basic principal question that evidence is to be recorded to be mentioned therein, therefore, landlord needs not to detail that he owns and occupies some other properties in the urban area. All that is required that landlord should plead that he needs property in occupation of certain tenant for his own need and he does not occupy any other property in the same urban area. Suitability of the landlord should be preferred and not of tenant. There is sufficient evidence on the record to show from the petitioner's side that the daughter of the petitioner requires the property for her personal need and occupation as she is residing in a rented house and the property in possession of Respondent No. 1 tenant is suitable for his need. The learned was required to prove that certain property was required by him for his personal need and occupation and that he was not in occupation of any property similar in the same urban area. Various ingredients of bona fide personal need being matter of evidence may be proved at the time of by leading evidence and non-mentioning of the same is not fatal to the ejectment petition. The basic law of pleadings is that, evidence could not be mentioned therein, therefore, the landlord was not obliged under the law to mention detail of every property that he owns or occupies the same. It is the prerogative of the landlord to select any one of his properties for his own use and neither the learned Rent Controller nor the learned lower Appellate Court has any right to insist that, he occupy some other property. Here in this case, since the landlord has proved that the property in possession of Respondent No. 1 is required by him for the personal use of his daughter and she is not occupying any property owned by her in the same urban area suitable for her. Presently, she is occupying a rented premises owned by his father-in-law. Since she is owner of this property, she wanted to reside in the same and this choice of the landlord for the personal need of his disputed property is very much in accordance with law. Evidence on the record proved that the learned Rent Controller correctly found on the basis of material on the record that landlord needed premises in possession of the tenant for the personal need and occupation of his daughter. The learned lower Appellate Court reversed the order of learned Rent Controller on the ground that though the words of petitioner-landlord are sufficient to prove his contention and it was essential for learned Rent Controller to discuss the possible objections of the tenants side and to deliver conclusion as it is the necessary requirement of law. I have gone through the findings of both the Courts below. The learned Rent Controller while deciding Issue No. 2 in favour of the petitioner observed that the landlord was cross-examined at length by Respondent No. 1-tenant and the lengthy cross-examination shows that all the details came on the record showing that the disputed property is required by the petitioner for personal use of his daughter. It appears that though the learned Rent Controller has not discussed the evidence in detail but he has gone through the same. I have myself gone through the detail cross-examination on AW-1 and due to this cross-examination all the facts that not mentioned in the ejectment petition are stated in the examination-in-chief and during this cross-examination, each and every detail comes forward that the landlord is residing in a different house while his daughter is residing in a different house owned by her father-in-law. The possession of the upper portion of the property in question was given to Respondent No. 1-tenant on rent. The possession of lower portion was never handed over to the tenant during the period of two years nor raised any objection regarding non-delivery of possession or had moved the learned Rent Controller for the possession of the same. In the lengthy cross-examination, all the questions with regard to the same were put to the petitioner landlord and all the questions were cogently replied by the landlord. Nothing has come out from this cross-examination regarding the tenancy showing that the property is not required by landlord or the property in which the landlord or his daughter is residing is sufficient for their personal need or the property in possession of the tenant is not sufficient for the personal need of his daughter. It appears that the learned lower Appellate Court, entered into a argument of non-issue which practice is not proved by the superior Courts. It has been consistently observed and held by the High Court as well as by the Supreme Court of Pakistan that it is only the choice of the landlord and the prerogative of the landlord to seek ejectment of a property claiming the same to be suitable if used and occupation. The Respondent No. 1 has failed to cross-examine the petitioner as well as any evidence on the record to show that the property in his possession required by the landlord for the use of landlord of his daughter is not suitable for her need and ejectment is being sought simply with mala fide intention to seek ejectment and to rent out the same or the intention of landlord to get the higher rent from the same property.
The other question with regard to the pendency of Miscellaneous application filed by Respondent No. 1 or other authorities to be impleaded as party in the ejectment petition being not decided by the learned Rent Controller was held to be fatal by the learned lower Appellate court. I am afraid, the findings and the observations of the learned lower Appellate Court on this issue is not in consonance with law laid down by the superior Courts. The provisions of C.P.C. are not applicable to the ejectment proceedings. The learned Rent Controller being a Tribunal can proceed and hold any method or procedure to decide the application pending before it. The application filed by Excise & Taxation Department to become party in the ejectment petition has no bearing on the ejectment side by the landlord for his personal use and occupation. The WAPDA Authorities or the Taxation Department's application to be impleaded, if are not decided, are not going adversely affect the case regarding the relationship of landlord and tenant. The function of the Tribunal is to decide the dispute between the landlord and tenant and nothing beyond that. Thus, the findings of learned lower Appellate Court remanding the case to the learned Rent Controller to decide the case is not approved and the same is set-aside.
Since, no application was ever moved by Respondent No. 1 tenant to frame an issue besides those already framed, it appears from the lengthy cross-examination that Respondent No. 1 was satisfied with the issues already framed and the whole case of the parties is covered by these issues and he was given all possible time for producing the evidence. Thus framing of additional issues or deciding the matter regarding non-mentioning of the premises or non-handing over one bed room, store and bath room to Respondent No. 1 tenant will not be fatal in this case. The main issue in this case is that landlord required ejectment of the tenant on the ground of personal need, thus issues of default and damages to the property is not necessary. There is sufficient evidence regarding personal need of landlord and the same is proved and it has been reported from the Respondent No. 1 side. Thus the learned trial Court proceeded to accept the ejectment petition and passed the ejectment order against Respondent No. 1 to hand over the vacant possession of the same within one month.
For the foregoing reasons, this writ petition is accepted, the order of remand dated 11.6.2007 passed by learned lower Appellate Court is set-aside and the ejectment order passed by learned Rent Controller is upheld. Respondent No. 1-tenant is directed to hand over the vacant possession of the property, in question, to petitioner landlord within a period of one month, from the announcement of this judgment.
(A.S.) Petitions accepted.
PLJ 2008 Lahore 206
Present: Sayed Zahid Hussain, J.
Mirza RIZWAN AHMED--Petitioner
versus
CHAIRMAN, TECHNICAL EDUCATION AND VOCATIONAL TRAINING AUTHORITY GOVERNMENT OF PUNJAB, LAHORE and another--Respondent
W.P. No. 10018 of 2006, heard on 17.9.2007.
Words and Phrases--
----"Every person"--Extensive scope--Person without limitation--"Every person" is that it comprehends all person without limitation and irrespective of nationality, allegiance, rank, status caste, colour or creed. [P. 209] A
Words and Phrases--
----"Every"--Extensive--According to "Black's Law Dictionary--Sixth Edition 555--"Every" means, each one of all; all the separate individuals who constitute the whole, regarded one beyond--Term is sometimes equivalent to "all", and sometimes to "each". [P. 209] B
Punjab Removal from Service (Special Powers) Ordinance, 2000 (Ordinance IV of 2000)--
----S. 2(d)(c)--Constitution of Pakistan, 1973 Art. 199--Misconduct--Remedy of appeal--Misconception and a wrong law--If the authority concerned acts under misconception and under a wrong law the proceedings are liable to be declared as the one not sustainable in law. [P. 210] D
Constitution of Pakistan, 1973--
----Art. 199--Punjab Removal from Service (Special Powers) Ordinance, 2000, S. 2(d)(c)--Service matter--Appointment on contractual basis--Termination made on ground of misconduct--Violation of contract of his appointment--Without proper inquiry--Allegations were not proved--Show-cause notice without approval of competent authority--Misconception of law--Reinstated in service--Oblivious of the legal position respondent proceeded against the petitioner and terminated him on the ground of misconduct without even holding proper inquiry--Through initially in the pleadings of parties this aspect was not highlighted, yet at the time of admitting the case to regular hearing--Such aspect was noted and the counsel for the parties have also addressed arguments--High Court has only noticed and applied a law then in force, which was ignored or overlooked by respondent--Punjab Removal from Service (Special Powers) Ordinance, (IV of 2000) undoubtedly was a special law, the provisions of which required to be followed before termination of petitioner--High Court respectfully obliged to follow the law declared by the Apex Court and to declare the order as illegal and of no legal effect--As a result petitioner will be reinstated into service--Petition accepted.
[P. 209 & 210] C & E
PLD 1974 SC 393; PLD 1969 Dacca 930; PLD 1965 SC 208; PLD 1967 Lahore 491; PLD 1956 SC (Pak.) 331; PLD 1958 SC (Ind.) 115, 2002 PLC (CS) 442, 2007 SCMR 229, ref.
Mr. Muhammad Zaman Qureshi, Advocate for the Petitioner.
Mr. Aamer Rehman, Additional Advocate General Punjab with Amanullah, Assistant Manager, Punjab Technical Education and Vocational Training Authority.
Date of hearing: 17.9.2007.
Judgment
On 13.12.2003, the petitioner was appointed as Manager, Government Polytechnic Institute (Glass & Ceramics) Shahdara, Lahore on contract basis initially for a period of one year. He continued as such till 17.6.2006 when was "terminated with immediate effect on account of misconduct, in accordance with Condition No. 5 of the terms and conditions of the appointment". This is petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 for declaring the same as illegal and of no legal effect and for reinstatement with all benefits.
The learned counsel contends that since no inquiry was held against him, he could not be removed in such a manner by attributing misconduct to him. It is contended that regular inquiry was necessary in view of Muhammad Siddiq Javaid Chaudhry v. The Govt. of West Pakistan and other (PLD 1974 S.C. 393), Government of Pakistan v. Aquil Ahmad (PLD 1969 Dacca 930), Abdul Majid Sheikh v. Mushaffe Ahmad, Section Officer, Government of Pakistan, Ministry of Defence, Karachi and another (PLD 1965 S.C. 208), Riaz Ali Khan v. Pakistan (PLD 1967 Lahore 491) and Noorul Hassan and others v. The Federation of Pakistan (PLD 1956 S.C. (Pak.) 331). It is further contended that the show-cause notice was issued by the Secretary, Punjab Technical Education and Vocational Training Authority who was not the appointing authority or competent to initiate such proceedings.
The learned Law Officer while opposing the petition contends that since the appointment of the petitioner was on contract basis, the petitioner was proceeded against strictly in accordance with the terms and conditions of his appointment and that the writ petition does not lie in view of judgments in W.P. No. 4506/2004 (Multan) and W.P. No. 103/2006 (BWP).
The petitioner alongwith one Jawad Ali Shah had made a complaint against Tanvir Akhtar Cheema, District Manager, Technical Education and Vocational Training Authority, Lahore for a probe into his conduct. In the inquiry held therein the allegations were not proved and it was recommended that "complainants may either by warned or any punitive action may be exercised to avoid from such practices". Afterwards on 7.4.2006, the petitioner was called upon by Secretary, Technical Education and Vocational Training Authority to show-cause as to why his services may not be terminated "on account of misconduct arising out of making false allegations against a senior officer". The said notice does not state or evince the approval of competent authority i.e. Chairman. It was replied by the petitioner urging to withdraw the same and that he may be given proper chance of defence. Eventually order dated 17.6.2006 referred to above was passed. It may be noted at this juncture that Jawad Ali Shah was also proceeded against but proceedings were later dropped against him. In W.P. No. 4506/2004 (Multan), a District Manager of Technical Education and Vocational Training Authority had filed writ petition assailing his termination made on the ground of misconduct and it was observed that such a termination on the ground of misconduct was in violation of the contract of his appointment. Relief was, however, declined that the appointment being on contract basis, the same could not be enforced in constitutional jurisdiction. It was observed that the petitioner could file a suit for appropraite relief. The said judgment was followed in W.P. No. 103/2006 (BWP). In the instant case there are few apparent infirmities in the proceedings initiated and ultimate action against the petitioner. The petitioner though was issued show-cause notice yet it was by an authority not competent to proceed against him. His appointing authority was Chairman, Technical Education and Vocational Training Authority and not Secretary, Technical Education and Vocational Training Authority. Even no inquiry was held despite his demand to this effect. The facts of the precedent cases relied by the respondents and of the instant case are distinct. Another important aspect about existence of Punjab Removal from Service (Special Powers) Ordinance 2000, was also not brought to the notice of the learned Judge. The action in the present case was initiated and taken against the petitioner in the year 2006 when Punjab Removal from Service (Special Powers) Ordinance, 2000 (repealed later by the Punjab Employees Efficiency, Discipline and Accountability Act, 2006) was in force having overriding effect, which applied to "persons in Government service" and "Corporation service". Clause (c) of Section 2 defines the "person in corporation service" as "every person in the service of corporation, corporate body, authority, statutory body or other organization or institution set up, established, owned, managed or controlled by the Punjab Government, or under any law for the time being in force or a body or organization in which the Punjab Government has a controlling share or interest and includes the Chairman and the Managing Director, and the holder of any other office therein". Technical Education and Vocational Training Authority (TEVTA) is creation of, Punjab Technical Education and Vocational Training Authority Ordinance, 1999 (Ordinance XXIV of 1999). By virtue of sub-section (2) of Section 2, it is an Authority, body corporate having perpetual succession, the constitution whereof is dependent upon the appointments made by the Government of Punjab. The petitioner admittedly is an employee of the said Authority, though his status is being described as one of contractual employee. Even if it be so assumed, the same will not make any difference so far as applicability of the Punjab Removal from Service (Special Powers) Ordinance, 2000 is concerned. The phrase "every person" is of extensive scope and brings within its ambit all persons covered by clause (c) of Section 2 of the Punjab Removal from Service (Special Powers) Ordinance, 2000. Such a phrase "Every person" was considered in Mobarik Ali Ahmad v. The State of Bombay (PLD 1958 S.C. (Ind.) 115) as follows "The plain meaning of the phrase "every person" is that it comprehends all persons without limitation and irrespective of nationality, allegiance, rank, status, caste, colour or creed". According to `Black's Law Dictionary Sixth Edition 555 "Every" means, Each one of all; all the separate individuals who constitute the whole, regarded one by one. The term is sometimes equivalent to "all"; and something to "each". It is so extensive and comprehensive that the petitioner was covered by the same. If at all any action was warranted against him, the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000 were to be invoked. It appears that oblivious of the legal position, the respondent proceeded against the petitioner and terminated him on the ground of misconduct without even holding proper inquiry. In Muzaffar Hussain v. The Superintendent of Police, District Sialkot (2002 PLC (C.S.) 442), the Full Bench of this Court explored the implications of Punjab Removal from Service (Special Powers) Ordinance, 2000. Paragraph 54 of the judgment may be reproduced for read reference:
"54. A perusal of Ordinance No. IV shows that it applied to persons in Government service (which includes a civil servant) and a person in Corporation service by virtue respectively of clauses (d) and (c) of Section 2 of the Ordinance. To our reading this in fact is a beneficial provisions for the employees of the corporations because in case of the petitioners before us i.e. employees of WAPDA, FDA or the Social Security institute their services are not governed by any statutory rules and in case any action was taken against them, they could not invoke the constitutional jurisdiction because their services are governed by the rule of master and servant. In fact the remedy provided under Ordinance, IV of 2000 is in the nature of an inroad in the aforesaid principle." Had the respondent proceeded against the petitioner under the Punjab Removal from Service (Special Powers) Ordinance, 2000 (Ordinance, IV of 2000), he could have availed the remedy of appeal provided by the said law. It is settled law that if the authority concerned acts under misconstruction and under a wrong law, the proceedings are liable to be declared as the one not sustainable in law. Reference in this context may be made to Azizullah Memon v. Province of Sindh and another (2007 SCMR 229).
In the case of Azizullah Memon (Supra), the conclusion drawn by the Hon'ble Supreme Court of was "In the presence of express and specific language employed in the Ordinance neither the departmental authorities nor the Tribunal bothered to notice that after the date of promulgation of the Ordinance all disciplinary proceedings should have been initiated under Ordinance rather than the old Rules enforced in 1973. This Court has already ruled in a number of judgments that this Ordinance has the overriding effect over all other laws on the subject except in case of proceedings, which were already pending before promulgation of the Ordinance. since the impugned action was initiated and taken to its logical conclusion under a misconception of law and under a wrong law, it has vitiated the entire proceedings including the final order, which cannot be sustained under the law. The proceedings as well as final order is, therefore, liable to be set aside."
As a result of the above, the petition is accepted to the extent indicated above. No order as to costs.
(N.F.) Petition accepted.
PLJ 2008 Lahore 211 (DB)
Present: Maulvi Anwar-ul-Haq and Syed Asghar Haider, JJ.
Mst. FATIMA BIBI etc.--Appellant
versus
IMDAD ULLAH KHAN, etc.--Respondents
RFA No. 580 of 2001, on 21.11.2006.
Partition--
----Suit for separate possession of 1/2 share by partition--Cloase relationship--Document was not got executed--Respondents sought a decree of separate possession 1/2 share by partition and also share in the rent of the said property--In writen statement plea of estoppel by rule of acquiescence taken that plaintiff remained silent spectators which constructions being raised in suit property and that adverse possession matured into ownership further pleaded that predecesor of plaintiff sold away his share in the suit property to predecessor of defendants--Held: Proceeded to take pleas which are mutually destruction on the claim that they are in adverse possession on the other hand they say that predecessor of respondent had sold away his share in the house for a consideration of specified amount--Further held: High Court afraided such part of the statement cannot be looked into simple reason that it was not at all the plea in the written statement. [Pp. 214 & 215] A & B
Possession of Co-owner--
----Possession of respondent or their predecessor in interest was that of co-owner and inured also for the benefit and then the respondents--RFA dismissed. [P. 215] C
Mr. Taqi Ahmad Khan, Advocate for Appellants.
Mr. Anwar Akhtar, Advocate for Respondent No. 1.
Respondent No. 2 deleted vide Order dated 8.9.2005.
Mr. Muhammad Sultan Qasuri, Advocate for Respondent No. 3 to 6.
Date of hearing: 21.11.2006.
Judgment
Maulvi Anwar-ul-Haq, J.--On 19.9.1994, the respondents filed a suit against the appellant. We may state in the very beginning that the appellants are the L.Rs of Inayatullah Khan while the respondents are LRs of Muhammad Tufail Khan who were real brothers and sons of Ahmad Shah. In the plaint it was stated that the house described in Para 2 of the plaint was an evacuee property and was allotted to said two brothers in equal shares. At that time, Inayatullah Khan was the special attorney of Muhammad Tufail Khan. He got only his name entered in the records. Proceedings were initiated and the settlement authorities ordered that the name of Muhammad Tufail Khan be also included. Inayatullah Khan agitated the matter upto the Ho'ble apex Court who remained unsuccessful. The matter was decided by the Hon'ble Supreme Court of Pakistan on 2.4.1980. The result is that the house is owned in equal share by the said plaintiffs on the one hand and the defendants on the other. It was then stated that M. Tufail was forcibly ejected on 9.7.1969. About three years ago, Inayatullah converted two verandas on either side of the main gate into eight shops while the first floor was converted into two flats and had been receiving rents. With these averments the respondents sought a decree of separate possession of « share by partition and also their share in the rent of the said property. The appellants in their written statement proceeded to state that the respondents are estopped by the rule of acquiescence as they had been accepting the appellants as owner in possession of the property and no proceedings were initiated after dispossessing of Inayatullah on 9.7.1969. It was then stated that the respondents are estopped from filing the suit as they had been silent spectators to the construction being raised in the suit property by Inayatullah. It was then stated that the appellants are in adverse possession and their predecessor had matured his title on 31.8.1991. In the same breath it was stated that the predecessor of the respondents after a long drawn litigation sold away his share in the suit property to Inayatullah and received Rs. 25000/- as consideration. Because of close relationship a document was not got executed. The suit was stated to be time barred. On merits also the same pleas were raised. The following issues were farmed by the learned trial Court:--
Whether the plaintiffs have got no cause of action and locus standi? OPP.
Whether the suit is without legal authority and therefore not maintainable? OPD.
Whether the plaintiffs are estopped by their conduct and words to bring the present suit? OPD.
Whether the defendants have become owners by virtue of adverse possession? OPD.
Whether the predecessor of the plaintiffs has sold the property to the defendants? OPD.
Whether the property is partitionable? OPD.
Whether the suit is time barred? OPD.
Whether the plaintiffs are the owners of 1/2 share in the property? OPP.
Whether the plaintiffs are entitled to get the exclusive possession of the property up to the extent of their share? OPP.
Whether the plaintiffs are also entitled to recover mesne profit, if so to what extent? OPP.
Relief.
Evidence of the parties was recorded. All the issues were answered in favour of the respondents. A preliminary decree was passed on 23.7.2001 by the learned trial Court. The respondents were further held to be entitled to recover rent at the rate of Rs. 500/- per month per shop with effect from the date of filing of the suit till the actual partition.
Mr. Taqi Ahmad Khan, Advocate, learned counsel for the appellants contends that Inayatullah Khan having admittedly been forcibly dispossessed on 9.7.1969, the suit for possession filed in the year 1994 was barred by time. Further contends that the petitioners have been watching the predecessor of the respondents raising construction and remaining silent are estoppal of their conduct from filing the suit. Urges with vehemence that it stood proved on record that Inayatullah Khan had paid off Muhammad Tufail who had accordingly given up his right in the suit property. Further contents that there is inconsistency interse Paras 20 and 21 of the impugned judgment qua the right of rent payable to the respondents. Learned counsel for the respondents, on the other hand, support the impugned judgment and decree. According to them Inayatullah had managed to get the property recorded in the settlement records in his own name exclusively. This led to a long drawn litigation which was ultimately finalized in the Ho'ble Supreme Court of Pakistan in the year 1980 and they were declared ultimately to be co-owners and the suit for partition accordingly was within time. Further contention is that the appellants being fully aware that the property is joint and construction done by their predecessor would be entirely at his own risk and there is no question of estoppel. Regarding the said inconsistency, learned counsel for the respondents concede that the amount of Rs. 500/- in Para-21 has to be read as Rs. 400/-as stated in Para-20 of the impugned judgment.
We have gone through the trial Court records with the assistance of the learned counsel for the parties. The pleadings have already been reproduced above. Upon a reading of the same, a denial of entitlement of the respondents of ½ share in the suit property is not to be read into written statement filed by the appellants. They have however proceeded to take pleas which, to our mind, are mutually destructive. On the one hand they claim that they are in adverse possession on the other they say that predecessor of the respondents had sold away his share in the house to Inayatullah for a consideration of
Rs. 250000/. Be that as it may, we have examined the evidence Ex. P1 is the judgment dated 2.4.1980 of Hon'ble Supreme Court in CPLA No. 1093/76 ultimately upholding the order passed by the DSC, Sialkot dated 13.11.1968 allowing insertion of name of Muhammad Tufail alongwith Inayatullah Khan in the transfer document in respect of the suit property. Ex. P. 3 is a copy of PTD incorporating the said order dated 13.11.1968. There is no manner of doubt in our mind that Muhammad Tufail was owner of « share in the suit property which has devolved upon the respondents.
Now coming to the said contention of the learned counsel the only relevant piece of evidence is statement of Habibullah Khan, appellant as D.W. 7. Now we have already reproduced above the relevant portion of the written statement. Precise plea taken is that after a long drawn litigation Muhammad Tufail sold away his share to Inayatullah for a consideration of Rs. 25000/- which was paid to him. Now in his statement Habibullah proceeded to state that a joint claim of two brothers was value at Rs. 16000/- price of the house was fixed at Rs. 9000/- which was adjusted against the claim of Inayatullah and he gave balance Rs. 7000/- and Rs. 1000/- in cash to Muhammad Tufail and thus the matter was settled. We are afraid this part of the statement cannot be looked into for the simple reason that it was not at all the plea in the written statement. Then he proceeded to state that from time to time Inayatullah gave Rs. 25000/- to Muhammad Tufail. Then he stated that in 1969 Muhammad Tufail claimed that « share of the house belongs to him whereupon he was told that the matter stands settled and they kicked him out. Proceedings under Section 145 Cr.P.C. were initiated which were decided in their favour and thereafter Muhammad Tufail has been accepting them as owner till 1983 when he died. Now we may refer here to the statement of Imdadullah Khan, respondent as PW-1. Now said Imdadullah Khan, respondents as PW. 1 denied that their father ever sold his share. Now it was suggested to him and he denied that Inayatullah Khan has paid Rs. 25000/- to the said witness or his brothers. It was never suggested to him that his father received Rs. 25000/- and sold the house to Inayatullah.
Now a perusal of the judgment Ex. P 1 and the order Ex. P. 2 shows that the two brothers remained in litigation from 1968 to 1980 when the matter was finally decided by the Hon'ble Supreme Court of Pakistan. We, therefore, affirm the findings recorded by the learned trial Court that there is no evidence that Muhammad Tufail sold his share to Inayatullah Khan as alleged by the appellants. We also called upon the learned counsel to demonstrate as to whether any such settlement or factum of sale was brought to the notice of any settlement authorities or this Court or the Hon'ble Supreme Court. The answer, of course, is in negative.
Learned counsel have vehemently urged that since admittedly Muhammad Tufail was forcibly dispossessed, the suit became barred by time. We are afraid nothing turns on the said fact in favour of the appellants. The reason being that the question of title remained sub-judice and ultimately it was held that Inayatullah is a joint owner of the suit house to the extent of « share. This being so, the possession of the respondent or their predecessor-in-interest was that of a co-owner and inured also for the benefit of Muhammad Tufail and then the respondents. It also appears upon reading of Ex. P1 and P. 2 that the two brothers had inherited the property from their uncle Din Muhammad who had died issueless. This being so, rule laid down in the case "Ghulam Ali and others vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) became fully applicable to the facts and circumstance of this case. It is further to be noted that earlier ouster is being alleged not on the basis of said factum of forcible dispossession but on the allegation that Inayatullah Khan had purchased the share of Muhammad Tufail and paid him consideration, which allegation has not been proved on record. There is thus no question of any ouster and the possession of the appellant being adverse to the respondents.
The inconsistency pointed out stands resolved by concession shown by the learned counsel for the respondents. The RFA is accordingly dismissed with costs through out. However the impugned judgment is corrected inasmuch as in para-21 of the judgment date 23.7.2001 of the trial Court in the last but 3rd line Rs. 500/- shall be read as Rs. 400/-. The records of the learned trial Court be remitted back immediately.
(M.S.A.) RFA dismissed.
PLJ 2008 Lahore 216
Present: Muhammad Akhtar Shabbir, J.
MUHAMMAD AKHTAR--Petitioner
versus
SENIOR MEMBER BOARD OF REVENU, PUNJAB, LAHORE and another--Respondents
W.P. No. 19478 of 2005, heard on 30.3.2007.
Civil Procedure Code, 1908 (V of 1908)—
----S. 12(2)--Colonization of Government Lands (Punjab) Act, 1912, S. 30(1)(b)--Constitution of Pakistan, 1973, Art. 199--Banjar Qadeem and uncultivable land--Proprietary rights and sale-deed issued in petitioner's favour--Prohibitory zone--On the application of his rival, he cannot be deprived of his properties, which had already come out of the ambit of the revenue functionaries--Property at the time of allotment was lying beyond the prohibitory zone and the Board of Revenue had itself issued Memo which indicates the allottees, whose allotted land was situated outside the prohibitory zone at the time of making a provision of proprietary right cannot be excluded from the operation of concession on account of subsequent change in the limits of Municipalities--Petition was accepted. [Pp. 218 & 219] A & C
Colonization of Government Lands (Punjab) Act, 1912, (V of 1912)—
----S. 30(1)(b)--Civil Procedure Code, (V of 1908), S. 12(2)--Constitution of Pakistan 1973, Art. 199--Cancellation of allotment--Validity--Board of Revenue is competent to cancel the land provided the tenant has acquired the land by means of fraud or misrepresentation or was not eligible to have such rights from any reason. [P. 218] B
Mr. M.A. Ghaffar-ul-Haq, Advocate for Petitioner.
A.A.G. for Respondents.
Date of hearing: 30.3.2007.
Judgment
This writ petition has been filed to call in question the order dated 27.6.2005 passed by Respondent No. 1. Senior Member Board of Revenue.
The petitioner also applied for proprietary rights and his case was decided by the District Collector vide order dated 16.6.1987, in compliance whereof, the price of land was deposited by the petitioner. Thereafter, the sale-deed was got prepared and registered in the name of the petitioner. The dispute started when one Zafar Iqbal son of Muhammad Siddique a retired Patwari filed a suit for specific performance of contract with regard to the property in dispute alleging therein that his son Zafar Iqbal has made an agreement to sell the same with the petitioner, which was dismissed by the trial Court vide judgment and decree dated 12.10.1994 and the appeal filed against the said order also met with the same fate. Thereafter, the said Patwari filed numerous applications before the revenue functionaries but in vain. Lastly the grievance of the petitioner starts when the Senior Member Board of Revenue on the application of the said Patwari referred the matter to Member Colonies to exercise the jurisdiction under Section 12(2) C.P.C., hence this writ petition.
Learned counsel for the petitioner contends that the proprietary rights have already been issued in favour of the petitioner and the sale-deed issued in his favour and in this way, the petitioner has become absolute and full owner of the land. Further that the right of ownership of the petitioner cannot be rescinded and cancelled even under Section 30(2) of Colonization of Government Lands Act. Further that under the said Act, the provision of Section 12(2) C.P.C. is not applicable particularly when the remedy of Section 30(2) have already been exercised against the petitioner. Further that the Senior Member Board of Revenue is neither Appellate Authority against the order of the Member Colonies nor has any jurisdiction to re-open the closed and past transaction.
On the other hand, learned Assistant Advocate General has vehemently opposed the arguments of the learned counsel for the petitioner and supported the impugned order.
I have heard the arguments of the learned counsel for the parties and perused the record.
The complaint filed by Muhammad Siddique against the petitioner for cancellation of the land was entrusted to the District Collector on 31.5.2000 by the Member Board of Revenue. On 7.3.2000, the Deputy Commissioner, Jhang addressed the letter to the Under Secretary (Petitions), Governor's Secretariat, Punjab, Lahore, wherein it is stated that the land allotted to the petitioner at the time of allotment was situated outside the prohibited zone. Thereafter, the limits of the Municipal Committee was extended. It has been laid down in the case of Province of Punjab through District Collector, Vehari vs. Ghulam Muhammad (1994 S.C.M.R. 975) that:
"Tenant was not found entitled to proprietary rights on ground that his allotted land fell within prohibited zone and that such land was excluded from allotment on basis of being a part of "Khusk Bias" river--High Court directing Authorities for conferring of proprietary rights to tenants. Board of Revenue, on question of prohibited zone, had issued instructions that distance should be measured as required when allotment was made and not as and when proprietary rights were conferred--Allotment of tenants, however, was beyond three miles limits which was applicable to him when he got the allotment but within five miles when he was given proprietary rights."
After the allotment of the land and issuance of the proprietary rights in favour of the petitioner, he has spent hard labour and colossal amount to bring the land under plough. On the application of his rival, he cannot be deprived of his properties, which has already come out of the ambit of the revenue functionaries.
The Board of Revenue is competent to cancel the land provided the tenant has acquired the land by means of fraud or misrepresentation or was not eligible to have such rights from any reason. The case of the petitioner is not covered within the ambit of provision of Section 30 (1) (b) of the Colonization of Government Lands Act.
Through the impugned order, the Senior Member Board of Revenue had asked the Member Board of Revenue for action under Section 12(2) C.P.C. I am afraid how the provisions of Section 12(2) are attracted to the present case. It has been opined by the District Collector that the property at the time of allotment was lying beyond the prohibitory zone and the Board of Revenue has itself has issued Memo No. 3040-78/1816-LIII dated 29.6.1978 which indicates that the allottees, whose allotted land was situated outside the prohibited zone at the time of making a provision of proprietary rights, cannot be excluded from the operation of this concession on account of subsequent change in the limits of Municipalities.
From perusal and minute scrutiny of the record and reading of the orders, I find no case for interference under Section 30(1)(b) of the Colonization of Government Lands Act.
For the foregoing reasons, this writ petition is accepted as prayed for and the impugned order dated 27.6.2005 passed by Senior Member Board of Revenue is declared to have been passed illegally, without lawful authority and of no legal effect, hence quashed.
(N.F.) Petition accepted.
PLJ 2008 Lahore 219
Present: Maulvi Anwar-ul-Haq, J.
Haji MUHAMMAD HANIF--Appellant
versus
STATE LIFE INSURANCE CORPORATION OF PAKISTAN, through its CHAIRMAN and others--Respondents
FAO No. 382 of 2006, decided on 20.12.2006.
Civil Procedure Code, 1908 (V of 1908)—
----S. 9--Insurance Ordinance, 2000, S. 122--Suit for recovery of death claim on basis of insurance policy--Notification issued--Insurance Tribunal--Jurisdiction of the Civil Court--Suit cannot proceed in the Civil Court--All suits of civil nature shall be tried by the Courts established under S. 9 of CPC excepting the suits regarding which their jurisdiction is either expressly or impliedly barred. [P. 221] B
Insurance Ordinance, 2000 (XXXIX of 2000)--
----Ss. 122(3), 123 & 124--Civil Procedure Code, (V of 1908), S. 9--Jurisdiction--Question of--Determination--Recovery of death claim--No Courts other than a tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a tribunal extends under Ordinance--District Judge, has been constituted as an Insurance Tribunal by Federal Government vide notification--S. 122 of Insurance Ordinance, 2000 expressly barred the jurisdiction of Courts including Civil Courts other than a Tribunal in the matter of claims under Insurance Policy--Civil Judge had correctly refused to stay his hands in the matter for reason that tribunal had not been constituted by that time--Tribunals now having been constituted, the jurisdiction in the matter vested in them under the provision of Insurance Ordinance, 2000--F.A.O. was dismissed. [P. 221] A & C
Mian Israr-ul-Haq, Advocate for Appellant.
Date of hearing: 20.12.2006.
Order
On 2.9.2005 the appellant filed a suit against the respondents challenging the decisions of the Zonal, Regional and Central Claim Committees respectively and for recovery of the death claim on the basis of an Insurance Policy. The respondents were served and a written statement was filed. An objection was taken to the jurisdiction of the Civil Court with reference to Section 122 of the Insurance Ordinance 2000. Issues were framed. Issue No. 4 pertains to the said objection of the respondents. It was taken up first and decided on 15.12.2005 aginst the respondents. The reason was that no tribunal had been appointed by the Federal Government till then. Thereafter an application under Order 7, Rule 11 C.P.C. was filed by the respondents bringing it to the notice of the learned Civil Judge that a notification had been issued by the Federal Government appointing the learned District Judge, Lahore as the Insurance Tribunal and further stated that the suit cannot proceed in the Civil Court. This application was allowed by the learned trial Court on 25.11.2006 inasmuch as the plaint was ordered to be returned for presentation before the learned District Judge, Lahore as an Insurance tribunal.
Learned counsel for the appellant contends that the notification having been issued on 20.6.2006 and the suit having been filed at a point of time prior thereto, the same could not take retrospective effect.
I have already noted above the proceedings that had taken place before the learned trial Court with reference to the copies of the record appended with this FAO. I have already stated above the claim made in the suit filed by the appellant.
Section 121 of the said Ordinance makes it mandatory for the Federal Government to constitute a tribunal or tribunals in consultation with the Security and Exchange Commission of Pakistan and to specify its territorial limitation. Section 121(2) provides for the composition and constitution of the tribunal. Section 122 lays down the powers and Section 123 provides for the procedure of the tribunal. Section 124 provides the remedy of an appeal against the decisions of the tribunal in this Court. It is Section 122(3) of the said Ordinance which provides that no Court other than a tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a tribunal extends under the said Ordinance. Admittedly the learned District Judge, Lahore has been constituted as an Insurance Tribunal by the Federal Government vide notification dated 20.6.2006 and conveyed to the learned District Judge Lahore by the Registrar of this Court on 7.7.2006. The suit was obviously filed under Section 9 C.P.C. This section itself lays down that all suits of civil nature shall be tried by the Courts established under the said law excepting the suits regarding which their jurisdiction is either expressly or impliedly barred. The said Section 122(3) of Insurance Ordinance 2000 expressly barred the jurisdiction of Courts including Civil Court other than a tribunal in the matter of claims under Insurance Policy. The bar was already operative when the suit was filed in the year 2005. Thus learned Civil Judge on the earlier occassion had correctly refused to stay his hands in the matter for the reason that the tribunal had not been constituted by that time. The tribunals now having been constituted, the jurisdiction in the matter vested in them under the said provisions of Insurance Ordinance, 2000.
The learned counsel then contends that the pleadings are complete and some evidence has also been recorded. If this is so then while presenting the plaint a request may be made to the learned District Judge/Tribunal to requisition the record of the suit and if he deems proper, after hearing the opposite party to continue from the stage where the suit was. With this observation the F.A.O. in hand is dismissed in limine.
(N.F.) F.A.O. dismissed.
PLJ 2008 Lahore 222
Present: Syed Hamid Ali Shah, J.
Mst. FAIZ BIBI (WIDOW)--Petitioner
versus
L.D.A. through DIRECTOR GENERAL, L.D.A., LAHORE and 2 others--Respondents
W.P. No. 6184 of 2005, decided on 22.3.2007.
Lahore Development Authority Act, 1975 (XXX of 1975)—
----Ss. 6(3)(iv) & 17--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Allotment of plot in L.D.A. scheme by Chief Minister out of quota for widows--Non-deposit of cost of plot by petitioner-widow--Conversation of allotment from widow quota to destitute quota for which no cost was payable--Declaring quota for destitute to be illegal--Cancellation of allottment of plot by L.D.A. for non-deposit of its cost by petitioner--Validity--Petitioner being widow was entitled to claim allotment on quota for destitute--L.D.A. had refused allotment of plot on destitute quota much before passing of such order by High Court--Petitioner's allotment on quota for widows had remained intact even after passing the order by High Court--Petitioner had been ready to pay cost of plot, but L.D.A. had not issued her challan for its payment--High Court declared impugned order as illegal and directed L.D.A. to issue fresh challan to petitioner for deposit of cost of plot at prevalent rate, but not at the rate, which prevailed on date of its initial allotment. [P. 224] A
Mr. Waqar Anjum, Advocate for Petitioner.
Mian Qamar-uz-Zaman, Advocate/Legal Advisor for L.D.A.
Date of hearing: 22.3.2007.
Order
Concise facts of the case necessary for the decision of the instant petition are that out of discretionary quota of the Chief Minister of Punjab, Faiz Bibi petitioner was allotted Plot No. 1220 Q Block measuring 3 marlas in M.A. Johar Town, Lahore. According to the allotment letter dated 22.1.1992, petitioner was to deposit a sum of 16,457/- within two weeks from the date of issuance of allotment letter. Petitioner exchanged her plot with another Plot No. 114/H-2 on the same terms and conditions. A letter to this effect was issued on 4.2.1992. The petitioner was under an obligation to deposit an amount of Rs. 16,457/- within a period of six weeks from the date of second letter (04.2.1992). Petitioner instead of depositing tentative cost of plot, applied to the Chief Minister for conversion from widow quota to destitute quota. No amount is payable towards allotment, if allotment is made on destitute quota. Request of the petitioner was approved and conveyed to her through letter dated 14.3.1992. Respondents, however, cancelled the allotment of Plot No. 114-H/2 for non-deposit of tentative cost of Rs. 16,457/- and letter dated 18.3.2004 was issued wherein the request of the petitioner was turned down on the plea that the quota for destitute persons, has been declared as illegal in Writ Petition No. 14966 of 1995 titled "Mst. Jameela Akhtar vs. L.D.A." Petitioner assailed the letter dated 18.3.2004 through Writ Petition No. 6160 of 2004, which was decided with the direction that the petitioner be allowed an opportunity of being heard, in case she files a fresh application. Petitioner moved another application, which was decided through order dated 5.1.2005 passed by Director Estate Management, Lahore Development Authority. The order of Director Estate Management, is now assailed in the instant petition.
Learned counsel for the petitioner has submitted that by virtue of letter dated 14.3.1992 the Director has admitted that the petitioner has been allotted Plot No. 114/H-2 M.A. Johar Town against the destitute quota. He further argued that the letter dated 24.02.1992 does not stipulate any penal consequences that in case of non-deposit of the tentative cost, allotment shall stand cancelled. It was contended that by issuance of the second letter, Plot No. 114-H/2 was allotted in exchange of Plot No. 1220 Block Q, consequently period for payment of the deposit towards the tentative cost started afresh. Learned counsel went on the argue that the Chief Minister allotted the plot to the petitioner under the destitute quota before the expiry of six weeks from the issuance of second letter. Thereafter the petitioner asked time and again for issuance of the allotment letter as no amount was liable to be paid towards allotment, under destitute quota. Learned counsel while referring to Annexure E has submitted that as per noting 64 of LDA, the petitioner showed her willingness to make the payment of the tentative cost but no demand notice was issued in response to the assent of the petitioner. Learned counsel for the petitioner contended that denial for issuance of the allotment letter under destitute quota on the plea of ban imposed, is factually incorrect. The writ petition wherein vide order dated 26.3.1997, direction for imposition of ban on destitute quota was passed, was later in time, petitioner was allotted plot on destitute quota earlier in time. He added the petitioner was not a party to Writ Petition No. 14966 of 1995 (supra) therefore, the order passed therein is not binding upon him.
Learned counsel for the respondent has fully supported the impugned action of the respondent. He has submitted that allotment to the petitioner, on quota for widows, was cancelled consequent upon her failure to deposit tentative cost within the prescribed period. He argued further that claim of the petitioner qua the allotment on quota for destitute, was denied on the basis of ban imposed on such allotments, in view of decision dated 26.3.1997 passed in Writ Petition No. 14966 of 1995. He added that cost of rupees two crores was not paid by the then Chief Minister, for price of land allocated for destitute quota. No allotment under the said quota was possible.
Heard learned counsel for the parties and record perused.
The petitioner being widow was entitled to claim allotment on quota for destitute. She was denied the allotment of plot on the quota for destitute, much earlier than order dated 29.4.1997 passed in Writ Petition No. 14966 of 1995. Respondent refused the allotment on destitute quota, thus allotment on quota for widows remained in tact through this period. Allotment of Plot No. 114/H-2 MA Johar Town was never cancelled until 18.3.2004. Noting Nos. 72 to 80 further reveals that petitioner remained willing to pay the tentative cost of the plot. No challan for payment of cost was issued by the respondent. It is evident from the record that petitioner was called by the respondent. Her case was discussed in detail. Noting No. 64 dated 21.9.1993 is relevant, which is reproduced hereunder:-
"64. This case was discussed in presence of the allottee. He agreed to pay the cost of plot. Demand may be raised pl."
It is admitted fact that no demand was raised as per Noting 64 (supra). The respondents were liable to issue challan, but they delayed the matter without any fault on the part of the petitioner. The petitioner, therefore, cannot be penalized for act of omission on the part of respondents.
Respondents have failed to comply with the terms of order dated 29.4.2004, passed in Writ Petition No. 6160 of 2004. No inquiry has been conducted nor a remedial step has been taken in the instant matter. Director Estate Management, while passing impugned order dated 5.1.2005, has totally ignored para (noting) No. 64 dated 21.09.1993. The impugned act of the respondents is thus not legally sustainable and is accordingly set aside. The respondents are directed to issue fresh challan as per their decision according to Noting No. 64 (Annex-E). It is, however, clarified that petitioner shall pay the tentative cost of plot according to the prevalent rate and not at rate as it prevailed on the date of initial allotment i.e. 4.2.1992.
Disposed of with the above observations.
(R.A.) Petition disposed of.
PLJ 2008 Lahore 225
Present: Mian Hamid Farooq, J.
RAZAI MUSTAFA--Petitioner
versus
MUHAMMAD SIDDIQUE--Respondent
C.R. No. 1907 of 2007, decided on 11.10.2007.
Civil Procedure Code, 1908 (V of 1908)—
----S. 115--Punjab Pre-emption Act, (IX of 1991) Ss. 13(2) & (3)--Suit for possession through pre-emption--Dismissed by Courts below--Civil revision--No misreading or non-reading of evidence--No justification to interfere in the judgments in exercise of revisional jurisdiction--Based on proper appreciation of evidence--Neither any infirmity, nor illegal exercise of jurisdiction--Concurrent findings of facts were recorded by Courts below which are based on proper appreciation of evidence, oral and documentary, produced by the parties before trial Court--No case of mis-reading and non-reading of evidence has been made out neither any legal infirmity has been pointed out by counsel even during the arguments, nor illegal exercise of jurisdiction nor failure of exercise of jurisdiction by Courts below has been attributed--Held: Concurrent findings of facts based on evidence, are not liable to be interfered in exercise jurisdiction under S. 115 of CPC--Revision dismissed. [P. 229] F & G
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13(2) & (3)--Suit for possession through pre-emption--Talab-e-muwathibat--Right of pre-emption--Plaintiff failed to perform such talabs as required by law--Date mentioned but place and time of performance of Talab-e-Muwathibat were not mentioned in plaint--Question of--Validity--Mandatory for plaintiff--Registered sale-deed--Although petitioner has narrated the date of performance of "Talab-e-Muwathibat", yet he did not mention the place and time of performance of "Talab-e-Muwathibat" in as much as he did not state that as to how and from whom the plaintiff came to know about sale--Petitioner has comprehensively failed to mention that in which manner and from where he came to know about the sale--It would be mandatory to mention in plaint of "Talab-i-Muwathibat"--After one or two days of sale, it came to the notice of plaintiff and other witnesses--Even otherwise it has not been proved on record that petitioner, in fact came to know about the sale after 51 days--On such count too, petitioner failed to perform talab-i-muwathibat as required by law.
[Pp. 227 & 228] A, C & D
Revisional Jurisdiction--
----Question of fact or law recorded by Courts of competent jurisdiction--Findings on question of fact or law recorded by Court of competent jurisdiction cannot be interferred in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. [P. 229] E
Talab-e-Muwathibat--
----Mandatory for plaintiff--It would be mandatory for a plaintiff to mention in plaint the date, place and time of performance of talab-e-muwathibat. [P. 227] B
PLD 2007 SC 302, PLJ 2000 Lahore 157, 2000 SCMR 346, 2000 SCMR 431, 2000 SCMR 1647, 2000 SCMR 314, 2000 SCMR 329, PLD 1994 SC 291 and PLD 2002 SC 293.
Mr. Zulfiqar Ali Dhuddi, Advocate for Petitioner.
Date of hearing: 11.10.2007.
Order
One Riasat Ali sold land measuring 10 Marlas (suit land) to the respondent against a consideration of Rs. 50,000/-, vide registered sale-deed dated 25.4.2000. The petitioner, on 3.7.200, filed the suit for possession through pre-emption, inter alia, pleading that the sale favouring respondent qua the land was kept secret from him; on 16.6.2000, he came to know about the sale and he then and there announced to exercise right of pre-emption; later on he sent notice to the respondent on 23.6.2000, which was attested by witnesses, and that he has a superior right of pre-emption. The respondent/defendant resisted the suit through the written statement thereby raising preliminary objections and asserting that the sale was known to everybody and that the petitioner failed to perform requisite "Talabs". The learned trial Court initially framed certain issues and recorded the evidence of the parties, however, later on Issue No. 1-A, 1-B, 1-C and 1-D were reframed and the parties were called upon to produce additional evidence, which opportunity was availed. The learned trial Court admitted petitioner's superior right of pre-emption and decided Issue No. 5 in his favour, however, decided Issue No. 1-A (regarding performance of Talabs) against the petitioner and on the basis of findings on the said issue, dismissed petitioner's suit, vide judgment and decree dated 24.3.2006. Petitioner's appeal also failed, when the learned Addl. District Judge maintained the findings of the learned trial Court and dismissed his appeal, vide impugned judgment and decreed dated 7.9.2006, hence the present revision petition.
Learned counsel for the petitioner states that the sale-deed was registered on 25.4.2000, it was kept secret, the petitioner came to know about the sale on 16.6.2000 and he immediately made jumping demand and thereafter the registered notice was issued to the respondent on 23.6.2000, which was attested by two truthful witnesses, therefore, Talab-e-Ishhad was performed and the suit was filed on 3.7.2000, and in this matter the petitioner performed all the Talabs as required under the law.
I have heard the learned counsel and perused the available record. I have deeply examined the plaint and find that the petitioner, in para 3 of the plaint, has simply stated that he came to known about the sale qua the suit land on 16.6.2000 and then in the same "Majlis", he announced to exercise his right of pre-emption. Para-3 of the plaint is reproduced below:
It is evident from the said reproduction of para 3 of the plaint that although the petitioner has narrated the date of performance of "Talab-e-Muwathibat", yet he did not mention the place and time of performance of "Talab-e-Muwathibat" inasmuch as he did not state that as to how and from whom the plaintiff came to know about the sale. He has comprehensively failed to mention that in which manner and from where he came to know about the sale. It is now settled law that it would be mandatory for a plaintiff to mention in the plaint the date, place and time of performance of "Talab-e-Muwathibat". The Hon'ble Supreme Court of Pakistan in a case reported as Mian Pir Muhammad and another vs. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302) has held that to give full effect to the provisions of Section 13(2) and (3) of Punjab Pre-emption Act, 1991, it would be mandatory to mention in plaint the date, place, and time of performance of "Talab-e-Muwathibat". Here it appears appropriate to reproduce a portion of para-4 of the judgment, which really clinches the matter and reads as follows:-
"It is observed that great emphasis and importance is to be given to this word in making of Talab-e-Muwathibat and it is necessary as soon as the pre-emptor acquired knowledge of the sale of pre-empted property he should make immediate demand for his desire and intention to assert his right of pre-emption without the slightest loss of time. According to the dispensation which has been reproduced hereinabove after performing Talab-e-Muwathibat, in terms of Section 13(2) of the Act, the pre-emptor has another legal obligation to perform i.e. making of Talab-i-Ishhad as soon as possible after making Talab-e-Muwathibat but not later than two weeks from the date of knowledge of performing Talab-e-Muwathibat, therefore, the question can conveniently be answered by holding that to give full effect to the provisions of sub-section (2) and (3) of Section 13 of the Act, it would be mandatory to mention in the plaint date, place and time of performance of Talab-e-Muwathibat because from such date, the time provided by the statute, i.e. 14 days under sub-section (3) of Section 13 of the Act shall be calculated. Supposing that there is no mention of the date, place and time of Talab-e-Muwathibat then it would be very difficult to give effect fully to sub-section (3) of Section 13 of the ACt, and there is every possibility that instead of allowing the letter of law to remain in force fully the pre-emptor may attempt to get a latitude by claiming any date of performance of Talab-e-Muwathibat in his statement in Court and then in the basis of the same would try to justify the delay if any, occurring in the performance of Talab-e-Ishhad. It is now a well-settled law that performance of both these Talabs successfully is sine qua non for getting a decree in a pre-emption suit...........
As the petitioner, admittedly, did not mention time and place of performance of Talab-e-Muwathibat in the plaint, therefore, in view of the latest law on the subject, as noted above, petitioner's suit deserves to be dismissed on this short ground.
Even according to the stance of the petitioner, the land was sold to the respondent, on 25.4.2000, through a registered sale-deed and he came to know on 16.6.2000, on which date, he statedly performed Talab-e-Muwathibat. It may be noted that it has not been explained as to how and by which manner the sale was kept secret, when it was a registered sale-deed, which is presumed to be a notice to the public-at-large. Additionally PW1, in his cross-examination, has deposed that the sale took place 7/8 days prior to 16.6.2000 and that after one or two days the sale came to their knowledge. It has also been stated that after one or two days of the sale, it came to the notice of the plaintiff and other witnesses. Even otherwise it has not been proved on record that the petitioner, in fact, came to known about the sale on 16.6.2000. On this count too, the petitioner failed to perform Talab-e-Muwathibat as required under the law.
I have examined both the judgments and find that both the Courts, after adverting to the evidence on record, both oral as well as documentary, rightly came to the conclusion that the petitioner failed to make Talab-e-Muwathibat, as required under the law, and Talab-e-Muwathibat statedly made on 16.6.2000 regarding the sale held on 25.6.2000 cannot be held to be valid and legal Talab-e-Muwathibat. Although this Court, in exercise of its revisional jurisdiction, when the findings of facts are concurrent, is not required to re-appraise the evidence on record, yet in the interest of justice, I have examined the evidence on record and find that the findings rendered and conclusions arrived at by both the Courts are not only in accordance with the record of the case but also in consonance with the law on the subject. No misreading or non-reading has either been urged or pointed out by the learned counsel. I feel that both the Courts while deciding the matter did not commit any illegality or material irregularity, therefore, there is no justification to interfere in the judgments in exercise of the revisional jurisdiction of this Court. Both the judgments are maintained.
It is settled law that the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. Reliance is placed on Muhammad Rafique vs. Aamer Shahzad and others (PLJ 2000 Lahore 157).
The concurrent findings of facts were recorded by both the Courts below which are based on proper appreciation of evidence, oral and documentary, produced by the respective parties before the learned trial Court. No case of mis-reading and non-reading of evidence has been made out, neither any legal infirmity has been pointed out by the learned counsel even during the arguments, nor illegal exercise of jurisdiction nor failure of exercise of jurisdiction by both the Courts below has been attributed.
It is settled law that concurrent findings of facts, based on evidence, are not liable to be interfered in the exercise of jurisdiction under Section 115 C.P.C. Reliance is placed on Abdul Rahim and another vs. Mst. Janatay Bibi and others (2000 SCMR 346), Anwar Zaman and 5 others vs. Bahadur Sher and others (2000 SCMR 431), Aziz Ullah Khan and others vs. Gul Muhammad Khan (2000 SCMR 1647), Altaf Hussain vs. Abdul Hameed and Abdul Majeed through legal heirs and another (2000 SCMR 314), Haji Noor Muhammad vs. Abdul Ghani and 2 others (2000 SCMR 329), Haji Muhammad Din vs. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rashid Ahmad vs. Muhammad Siddique (PLD 2002 SC 293).
In view of the above the present revision petition is devoid of merits, hence stands dismissed in limine.
(N.F.) Revision dismissed.
PLJ 2008 Lahore 230
Present: Syed Hamid Ali Shah, J.
Syed SHAHID ABBAS, LIBRARIAN, CHENAB CLUB (GUARANTEE) LTD., FAISALABAD and 36 others--Appellants
versus
CHENAB CLUB (GUARRANTEE) LTD. FAISALABAD through its President and another--Respondents
L.A. No. 49 of 2005, decided on 12.9.2006.
National Industrial Relations Ordinance, 2002—
----Ss. 22-A(8)(g) & 46--Termination--Employees of Punjab Club--Question of--Maintainability--Barred by time--Petitioners have approached the Labour Court, for the second time, against their termination, after the elapse of four years--Employees were terminated on 23.5.2001 and grievance notice was issued on 17.1.2005--Such grievance was barred by limitation--Order passed by Labour Court is neither illegal nor perverse--So, it does not call for interference--Appeals dismissed. [P. 232] A
Mr. Asmat Kamal Khan, Advocate for Appellants.
Mr. Tauseef Ejaz Malik, Advocate for Respondents.
Date of hearing: 12.9.2006.
Order
This single order will dispose of Labour Appeal No. 49 of 2005 titled "Syed Shahid Abbas etc. vs. the Chenab Club and another" and Labour Appeal No. 264 of 2005 titled "Syed Shahid Abbas etc. vs. the Chenab Club and another" as common questions of law and fact are involved in both these appeals.
The appellants herein were employees of Punjab Club (Guarantee) Limited who were retrenched from their employment through order passed in the month of May, 2001. The appellants challenged their retrenched from employment through a petition before the National Industrial Relations Commission by invoking the provisions of Section 22A viii(g). Member NIRC passed an order under Section 22A resultantly transferred the petition to the learned Labour Court. An objection was raised among other objections by the respondents that the Punjab Club Guarantee Limited Faisalabad is neither an industry as defined in Industrial Relations Ordinance, 2002 nor an establishment under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Learned Labour Court vide order dated 22.12.2004 observed that no union was registered with the Registrar Trade Union and also found that appellants have failed to prove that appellants were victimized for their trade union activities. Learned Labour Court reached the conclusion that the petitioners/appellants have failed to prove that the order of their termination was on account of their trade union activities, resultantly dismissed the petition, hence this appeal. Besides the petition under Section 22-A (8)(g), the appellant also assailed the order of their termination through petition under Section 46 of Industrial Relations Ordinance, 2002. Respondent moved an application under Order VII Rule 11 CPC, for dismissal of petition on the questions of maintainability and limitation. Learned Labour Court vide order dated 23.5.2005, dismissed the petition being barred by time. Appellants have challenged through filing these appeals, the orders dated 22.12.2004 and 23.5.2005.
Learned counsel for the appellants has contended that the learned Labour Court has failed to take into consideration the evidence available on record. The respondent has failed to prove that retrenchment was justified and that vires of Standing Order 13 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 have not been violated. Learned counsel has then submitted that act of the respondents amounted to unfair labour practice.
Learned counsel for the respondents, on the other hand, has fully supported the impugned order.
Heard learned counsels for the parties and examined the record.
Respondent is a club duly registered as a company limited by guarantee. Such company (Club) does not fall within the definition of Commercial or Industrial entity, as defined in Section 2 is neither an industry nor private service, therefore, the provisions of Industrial Relations Ordinance, 2002 are not applicable to the case of the employees of the club. Case of "Managing Committee, the Punjab Club Lahore vs. the Registrar Trade Union" (1993 PLC 543) and "Rawalpindi Club Rawalpindi vs. Registrar Trade Union and two others" (1993 PLC 760) in this respect can be referred.
Provisions of West Pakistan Standing Orders Ordinance are not applicable to the employees of the club. While holding so, I am fortified by the dictum of law laid down in the case "Islamabad Club vs. Punjab Labour Court No. 2 etc." (PLD 1980 SC 307). The application filed by the petitioner under Section 22-A(8)(g) of Industrial Relations Ordinance, 2002, before Labour Court was not competent and learned Labour Court has rightly held so. The order of Labour Court in this respect is not open to exception. Additionally the petitioners have approached the Labour Court, for the second time, against their termination, after the elapse of four years. They were terminated on 23.5.2001 and grievance notice was issued on 17.1.2005. Such grievance was barred by limitation. The order passed by the learned Labour Court is neither illegal nor perverse. The same does not call for interference.
For the foregoing, these appeals are without any merit and are dismissed as such.
(N.F.) Appeals dismissed.
PLJ 2008 Lahore 232 (DB)
Present: Sardar Muhammad Aslam & Sh. Hakim Ali, JJ.
RASHEED AHMAD and 2 others--Appellants
versus
ADDL. COMMISSIONER (REV.) NOTIFIED OFFICER, GUJRANWALA and another--Respondents
ICA No. 77 of 2005, decided on 28.6.2007.
Displaced Persons (Land Settlement) Act, 1958 (XXVIII of 1958)—
----Ss. 10 & 11--Evacuee Displaced Persons Law (Repeal) Act, 1975, S. 3(1)--Transfer of Property Act, (IV of 1882), S. 41--Law Reforms Ordinance, 1972, S. 3--Intra Court Appeal--Question of judgment--Entitlement to retain the excess land on payment of price determination--Displaced claimant--Allottee obtained excess land by making wrong and fraudulent calculation his index units--Allotment was cancelled--No notice to allottee or vendee--Assailed--Matter was remitted for decision afresh--Allotment to the informers--Challenge to--Question of--Whether vendees were entitled to transfer of land in their favour--Section 3 of Evacuee Property and Displaced Persons (Repeal) Act, provides that all properties both urban and rural including agricultural which may be available for disposal immediately after such repeal shall stand transferred to Provincial Govt.--Held: Appellants who are applicants u/Ss. 10 & 11 of the Displaced and Settlement Act against their unutilized claim having not succeeded in securing the land before Repeal Act, are not entitled to claimed relief--Appeal was disposed of. [P. 236] A & B
S.M. Tayyab, Advocate for Appellants.
Ch. Muhammad Akbar, Advocate for Respondent No. 2.
Ch. Naeem Masood, AAG for Respondent No. 1.
Date of hearing: 30.5.2007.
Judgment
Sardar Muhammad Aslam, J.--Rasheed Ahmad and others have called in question the judgment dated 19.9.2001 passed by a learned Single Judge on Chamber whereby while accepting the writ petition, it was held that Abdul Sattar respondent will be entitled to retain the excess land on payment of price to be determined by the Notified Officer in accordance with law.
Briefly the facts of the appeal are that the land in dispute was originally allotted to Abdul Baqi Khan, a displaced claimant, on 20.2.1954. Abdul Sattar claimed to be a vendee from Abdul Baqi through registered sale-deed dated 30.1.1962 and Mutation No. 334 was attested on 17.3.1962. On 15.2.1973, appellants filed a mukhbari application under Sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958 that the allottee had obtained excess land by making wrong and fraudulent calculation concerning his produce index units. The allotment was cancelled by Addl. Settlement Commissioner (Land) Gujranwala on 25.7.1977 without notice to the allottee or the vendee. It was challenged through Writ Petition No. 347-R/1977 which was accepted on 4.6.1986 and the matter was remitted to the Notified Officer for decision afresh in accordance with law. This time the Notified Officer vide order dated 23.1.1988 cancelled the allotment to the extent of 1424 units and ordered the same to be allotted to the informers/petitioners. This again was challenged through Writ Petition No. 34-R/1988 which was accepted through the impugned order.
Learned counsel for the appellants contends that application of the appellants under Sections 10 and 11 of Displaced Persons (Land Settlement) Act, 1958 was pending disposal at the time of Repeal of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975; hence the land in dispute was not available for disposal under Section 3(i) of the Act and the respondents-vendees were not entitled to protection under Section 41 of the Transfer of Property Act, once a finding has been recorded that the vendor has obtained the land through a bogus claim fraudulently. He relied on the case of Hakim Ali and 2 others s. Ghulam Muhammad and 2 others (1995 SCMR 459).
On the other hand, learned counsel for the respondents argued that the respondents, being bona fide purchasers without notice of defect of title, could not be deprived of the land purchased by them on payment of prevailing market price.
We have heard the learned counsel for the parties and have perused the record with their able assistance.
Learned Judge in Chamber placed reliance on the cases of Inayat Ullah vs. Addl. Settlement Commissioner (Lands) with powers of Chief Settlement Commissioner Gujranwala and 21 others (1991 MLD 2549) and Muhammad Shafiq Khan and others vs. Settlement Commissioner (Land) and others) (1992 CLC 372) in holding that informers are not entitled to allotment of land found in excess of the entitlement of the allottee and a bona fide purchaser was entitled to protection under Section 41 of Transfer of Property Act.
Judgment rendered in Muhammad Shafiq Khan's case (1992 CLC 372) was assailed before the Hon'ble Supreme Court. The view taken by High Court was not approved in the case of Abdul Sattar through legal heirs and others vs. Muhammad Shafiq Khan and others (1994 SCMR 2021), wherein it was held that excess allotment was rightly cancelled by the Settlement Commissioner and directed its allotment to informant under Sections 10 and 11 of the Act for adjustment of their outstanding valid claim. The protection under Section 41 of the Transfer of Property Act was found not available in the case of fraudulent allotment. Vendees were held to service or sink with the vendor as fraudulent transaction vitiates the most solemn proceedings. Reference can be had to the case of Talib Hussain and others vs. Member, Board of Revenue and others (2003 SCMR 549).
Abdul Baqi is the original allottee. His claim was found bogus. Sale in favour of respondents will not confer better title to them. They will sink or swim with him and thus, are not protected under Section 41 of the Transfer of Property Act. We respectfully follow the above view. After holding so, the next question which crops us as to whether allotment of the land can be made in favour of informants against their un-utilized produce index units. The Hon'ble Supreme Court in the case of Muhammad Ramzan and others vs. Member (Rev.)/CSS and others (1997 SCMR 1635) held as under:-
"It may be seen that after repeal of evacuee laws, no provisions were made for allotment of land against any pending verified P.I.Us. Therefore, this Court while examining effect of above referred notification and repealing Act ruled that any allotment order for adjustment against P.I.U. procured by private persons was completely devoid of lawful authority. Relevant observation supporting this view appear in case of Syed Saifullah v. Board of Revenue, Balochistan through its Member (RJT) and 4 others (1991 SCMR 1255) and are reproduced here under:-
"8. With the repeal of the Evacuee Laws in 1975, the un-allotted agricultural land vested in the Provincial Government against price paid for it. Thereafter, its disposal had to take place according to the Scheme to be framed by the Provincial Government. The Scheme framed by the Provincial Government made no provisions for allotments to be made against the pending verified produce index units. For this reason the allotment made after 1975 in favour of the persons from whom the appellant was claiming was wholly without jurisdiction and lacking in authority. Notwithstanding that it was made on the direction of the Board of Revenue, it could not be recognized in law nor could it be allowed to stand on record. It was void ab initio. Consequently, its removal even by an illegal order would not suffer from any infirmity but would rather re-establish the legal and the correct status of the property. On this view of the matter the decree of the Civil Court could also not remain intact.
We find, therefore, though for reasons somewhat different recorded by the High Court that the dismissal of the two writ petitions and the acceptance of the revision petition was the requirement of law and justified in the circumstances of the case. The appeals have no merit and are dismissed with no order as to costs."
Reference can also be had to the observations recorded by the Hon'ble Supreme Court in the case of Member, Board of Revenue, Punjab (Settlement and Rehabilitation Wing)/Chief Settlement Commissioner Punjab, Lahore vs. Muhammad Mustafa and 74 others (1993 SCMR 732). It was held that informer having not succeeded at any stage have been able to secure a direction from the High Court for settlement of the pending units from anywhere in the Province. Such direction was manifestly against law, it cannot be allowed to remain. Reliance can also be placed on the case of Ali Muhammad (deceased) through legal representatives and others vs. Chief Settlement Commissioner and others (PLJ 2002 SC 540) wherein provision of Section 2(2) of Evacuee Property and Displaced Persons Law (Repeal) Act, 1975 was considered. It was held that claimants who had not succeeded in getting evacuee agricultural land confirmed/satisfied in their favour in terms of Sections 10 and 11 of the Act till first of July, 1974, when Evacuee Laws and Regulations were repealed, their cases could not be deemed to be pending for the reasons that produce index units possessed by them had not been adjusted. Such claimants could however, invoke other remedy if available under law for claiming compensation from the Government against their unutilized produce index units.
In view of above, we are fortified in our view that appellants/informers cannot press their claim for allotment after repeal of evacuee laws.
Now, when the sale in favour of respondents is not protected, whether the respondents-vendees were entitled to transfer of land in their favour in view of Section 3(i) of the Evacuee Property and Displaced Persons (Repeal) Act, 1975. We notice that Section 3 provides that all properties both urban and rural including agricultural, which may be available for disposal immediately before the repeal of aforesaid Acts and Regulations or which may become available for disposal after such repeal shall stand transferred to the Provincial Government. The word `immediately before the repeal' of the aforesaid Acts and Regulations is meaningful. The land vests with the Provincial Government. It shall dispose of the same in terms of Section 3.
For what has been discused above, with profound respect, we are not persuaded to follow the view expressed in the judgment of learned Judge in Chamber giving protection to sale secured by their vendor through fraudulent and bogus claim. At the same time, appellants who are applicants under Sections 10 and 11 of the Displaced and Settlement Act against their unutilized claim, having not succeeded in securing the land before the repeal of Act, are not entitled to claimed relief. The land in dispute vests with the Provincial Government which may see its disposal in accordance with provision of Section 3 of the Repeal Act. The respondents may approach the concerned authority under Section 3 of the Evacuee Displaced Persons Laws (Repeal) Act, 1975, if so advised.
The appeal is disposed of in the above terms.
(R.A.) Appeal disposed of.
PLJ 2008 Lahore 237
Present: Syed Shabbar Raza Rizvi, J.
AKBAR ALI--Petitioner
versus
ADDITIONAL SESSIONS JUDGE, FAISALABAD and 7 others--Respondents
W.P. No. 4140 of 2007, decided on 3.5.2007.
Criminal Procedure Code, 1898 (V of 1898)—
----S. 156(2)--Constitution of Pakistan, 1973--Art. 199--F.I.R.--Investigation was stopped--Justice of Peace--Question of--Application was dismissed--Assailed--Criminal proceedings cannot take place in presence of pendency of civil suit--Police statutory right to investigate--Validity--No proceedings of a police officer in any case shall at any stage be called in-question on the ground that the case was one which such officer was not empowerd u/S. 156 of Cr.P.C. to investigate--Held: Order of Justice of Peace was set aside--Police departments were directed to complete investigation in accordance with law and submit final report before the competent Court within stipulated period--Petition was allowed. [Pp. 238 & 239] A & B
PLJ 2007 SC 101 & 1992 SCMR 988.
Hafiz Khalil Ahmad, Advocate for Petitioner.
Date of hearing: 3.5.2007.
Order
The learned counsel submits that investigation in FIR No. 123/07 was stopped by the DIG, Faisalabad Range on the legal advice of DSP (Legal) dated 26.3.2007. The order of the DIG was called in-question before the learned ASJ, Faisalabad, who agreed with the opinion of the DSP (Legal) and dismissed the application of the petitioner vide his order dated 23.4.2007. The same order has been challenged before this Court through the instant writ petition. Opinion of the DSP (Legal) is based on the fact that regarding the same property civil suit is pending before a Civil Court, therefore, criminal proceedings cannot take place in the presence of the pendency of a civil suit. In this regard, DSP as well as the learned ASJ has referred to PLJ 2007 SC 101 and 1982 SCMR 988.
Learned counsel submits that opinion of the police officers as well as order of the learned ASJ are contrary to the law. Learned counsel referred to Muhammad Dildar Hussain vs. Civil Judge/Judicial Magistrate, 2000 P.Cr. L.J 43, wherein it has been held that under Section 156 Cr.P.C., Police has a statutory right to investigate the circumstances of an alleged cognizable crime without requiring any permission from the Judicial Authorities. Briefly in the said case, the remand was refused by the learned Judicial Magistrate and the accused was discharged from the case registered under Section 302/34 PPC. The said Act was declared by the Court as beyond learned Magistrate's jurisdiction and also interference in the investigation which is a statutory right of the police under Section 156, Cr.P.C. Similar view is expressed in PLD 2003, Karachi 309. Likewise, learned counsel for the petitioner has also relied upon a view expressed by a learned Division Bench of the Karachi High Court, published in PLD 2005 Karachi 125. In the said judgment validity of investigation was challenged on the ground that the I.O. was not competent to investigate the case under the relevant law. The contention was brushed aside by the learned Division Bench on the ground that incompetence of the Investigating Officer by itself would not invalidate the entire proceedings of investigation including that of recovery of narcotics. The learned Division Bench relied upon provisions of Section 156(2), Cr.P.C. wherein it is provided that no proceedings of a police officer in any case shall at any stage be called in-question on the ground that the case was one which such officer was not empowered under Section 156 Cr.P.C. to investigate.
In 1982 SCMR 988, proceedings in a complaint case before the competent Court were stopped in view of the pendency of the same matter before a Civil Court. Similarly in PLJ 2007 SC 101, proceedings before the Court were stopped in view of pendency of the same matter before a Civil Court.
The case law cited by the learned counsel for the petitioner is not relevant. As noted above, 2000 P.Cr. LJ 43 relates to controversy where during the course of investigation an accused person was discharged. In PLD 2005 Karachi 125, the controversy related to the illegal or irregular investigation and its legal effect. The subject matter in the instant case is refusal of the investigation whether to allow or not to allow investigation during the pendency of civil litigation between the parties on the same subject matter? In the same way, case law relied upon by the learned ASJ is also distinguishable. The expression "proceedings" used in PLJ 2007 SC 101 and 1982 SCMR 988 relates to judicial "proceedings" or proceedings before a Criminal Court not proceeding of investigation before an Investigating Officer.
Investigation of a case is not synonymous or interchangeable with the "proceedings" before a competent Criminal Court. In Nawaz-ul-Haq Chohan vs. The State, 2003 SCMR 1597 at page 1610, the Court categorically held that word "proceeding" mentioned in the proviso of Section 3(1) of Law Reforms Ordinance, 1972 does not include FIR. Similarly, in Ch. Zahoor Elahi vs. The State, PLD 1977 SC 273, the Hon'ble Supreme Court held that "proceedings" includes all matters connected with and ancillary to the trial of a person charged before a Special Tribunal including the matter relating to grant of bail. In Mst. Karim Bibi vs. Hussain Bakhsh, PLD 1984 SC 344 it was held as under:
"The term proceedings' is a very comprehensive term, and, generally speaking, means a prescribed course of action for enforcing the legal right, and hence it necessarily embrace the requisite steps by which judicial action is invoked. Aproceeding' would include every step taken towards the further progress of a cause in Court or before a tribunal, where it may be pending."
"The undersigned is of the considered opinion that keeping in view the observations of the Superior Court i.e. Hon'ble Supreme Court of Pakistan, the criminal proceedings should remain stayed during the pendency of civil litigation between parties on the same subject matter."
The above view was accepted by the DIG as well as the learned ASJ hence passed the impugned order which is erroneous in law.
(R.A) Petition allowed.
PLJ 2008 Lahore 240
Present: M. Bilal Khan, J.
Mst. NUSRAT JABEEN--Petitioner
versus
STATION HOUSE OFFICER, POLICE STATION SAMANABAD, LAHORE and 3 others--Respondents
W.P. No. 7413/Q of 2006, heard on 18.12.2006.
Quashment of F.I.R.--
----In the absence of any worth while material against petitioner--Investigation proceeded to challan her placing in Column No. 2--Total lack of any inculpatory material coupled with complainant's persistent failure to join investigation--Investigation Officer ought to have presented a report for cancellation--After examining material available on record proceeding any further with the trial would be nothing but a blatant abuse of process of Court no likelihood of petitioner being convicted--F.I.R. was quashed. [P. 242] A
Mr. Sher Afgan Asadi, Advocate for Petitioner.
Mr. Tahir Mehmood Gondal, Assistant Advocate General for State.
Date of hearing: 18.12.2006.
Judgment
Mst. Nusrat Jabeen daughter of Hafeezullah Cheema, the petitioner, has filed this petition under Art. 199 of the Constitution of Islamic Republic of Pakistan, 1973 for quashing of FIR No. 105/06 dated 10.3.2006, registered with Police Station Samanabad, Lahore for offences under Sections 148, 324,452, 149/34 P.P.C. and the subsequent proceedings emanating therefrom. The said FIR had been registered on the statement of Farrukh Rasheed son of Haji Rashid wherein it was stated that he ran a jewellery shop at Ichhra Bazar; on 9.3.2006 about 9.30 p.m. he went to his friend's house situated at 668/N, Samanabad, Lahore; Mehmood Zafar and Zia Ullah son of Nazar Ullah while sitting in the said house were engaged in conversation and the main door of the house was ajar; all of a sudden a female by the name of Mst. Nusrat Jabeen who happened to be a paternal aunt of Mehmood Zafar alongwith four of her unknown companions entered the house; she raised a lalkara that they be fired at, on which two of the accused persons grappled with the complainant and Muhammad Zafar; Mst. Nusrat again urged them to fire, on which all four of them started firing with their respective weapons; one of the fire shots hit the complainant at his right calf causing him to fall down; on observing that the complainant had fallen down the accused persons made good their escape.
The motive according to the complainant was that Mehmood Zafar's father and paternal uncle were locked in litigation with their sister Mst. Nusrat Jabeen. Resultantly the aforesaid FIR had been recorded.
In support of this petition, it was argued that the petitioner who is a female was residing in Islamabad for the last more than two decades whereas her father and step-mother lived at Lahore; Zafar Ullah Cheema and Nasrullah Cheema both sons of Hafiz Ullah Cheema, Respondents No. 5 and 6 respectively, are real brothers of the petitioner; that the father of the petitioner, who was a landlord hailing from Sargodha was also renowned contractor of WAPDA having a factory at Ravi Road, Lahore, was murdered alongwith his wife by Shehzad and Masood both sons of Respondents No. 5 and 6; in this behalf a criminal case registered regarding the said murders was spoiled by the police on account of the pressure and clout of Respondents No. 5 and 6; this prompted the petitioner to file a private complaint in the year 1997; the said complaint remained pending for seven long years and after hectic efforts by the petitioner, the learned Addl. Sessions Judge at Lahore vide judgment dated 28.2.2006 convicted and sentenced Shehzad alias Kaka son of Nasrullah Cheema and Masood alias Munna son of Zafarullah Cheema under Section 302(b) P.P.C. and awarded life sentence to both of them on two counts; during all these years the petitioner had been travelling between Islamabad and Lahore on all important dates of hearing; that the instant FIR had been manoeuvred by her brothers Nasrullah Cheema and Zafarullah Cheema through Farrukh Rashid (Respondent No. 3) with a view to preventing her from pursuing the above said murder case; the appeals whereof are pending in the High Court. He argued that FIR is absolutely false and fabricated; the purpose for which the same has been got registered, as already stated, is to preclude and prevent the petitioner from pursuing the murder case mentioned hereinabove.
This petition for the first time came up for hearing before this Court on 20.11.2006. No one appeared for the private respondents notice. Resultantly the private respondent, were proceeded against ex parte.
I have heard the learned counsel for the petitioner as also the learned Assistant Advocate-General and have perused the record brought by Muhammad Shafi S.I., Police Station Samanabad, Lahore as also the certified copy of the report under Section 173 Cr.P.C. on the basis of which the trial is pending before the learned trial Court. It has been observed that the assertion made by the learned counsel for the petitioner regarding the conviction and sentence of Shehzad alias Kaka son of Nasrullah Cheema and Masood alias Munna son of Zafarullah Cheema who happen to be the nephews (brothers' sons) of the petitioner in a charge under Section 302 P.P.C., is borne out from the record. The said conviction and sentence had been recorded by the learned Addl. Sessions Judge at Lahore on 28.2.2006 whereas the instant FIR had been lodged on 10.3.2006 i.e. exactly ten days after the said conviction and sentence. After having lodged the case the complainant of the instant case made himself absolutely scarce and neither appeared before the Investigating Officer nor did he present himself before the Medical Board, which had been constituted to
re-examine the fire shot injury allegedly suffered by him, despite repeated notices issued to him by the said Medical Board. It is no record that the Medical Officer who had initially examined Farrukh Rasheed Ahmad injured had observed that there was blackening around the injury whereas according to the FIR the fire shot was made from some distance. In the report under Section 173 Cr.P.C., SHO had stated that despite his best efforts he could not procure the attendance of the complainant for his medically examination by a board headed by M.S. Mayo Hospital, Lahore. The said Medical Board had assembled on 5.4.2006 and 7.4.2006 but no progress could be made because of the absence of the complainant. Muhammad Shafi SI/Investigating Officer had verified the plea of alibi raised by the petitioner to the effect that on the crucial date she was in Islamabad; he recorded the statements of various witnesses and confirmed the said plea. It was due to this reason that the petitioner's pre-arrest bail had been confirmed by a learned Addl. Sessions Judge at Lahore. According to SHO, the prosecution case was prima facie suspect, as according to him, there was a property dispute between the parties and the FIR appeared to him to have been registered with a view to humbling and humiliating the complainant.
It is surprising that in the absence of any worthwhile material against the petitioner the Investigating Officer proceeded to challan her although placing her in Column No. 2 therefore. In view of this total lack of any inculpatory material against the petitioner coupled with the complainant's persistent failure to joint investigation, the Investigating Officer ought to have presented a report for cancellation of the case which was not done and the petitioner was left at the mercy of the Court. After analysing the facts and circumstances of the case and examining the material available on record it is felt that proceeding any further with the trial would be nothing but a blatant abuse of the process of the Court. There is no likelihood of the petitioner being convicted of any offence.
Resultantly this petition is allowed and FIR No. 105/06 dated 10.3.2006, registered with Police Station Samanabad, Lahore for offences under Sections 148, 324, 452, 149/34 P.P.C. and the proceedings which culminated out of the said FIR in the shape of trial before the learned Magistrate are hereby quashed.
There will be no order as to costs.
(M.S.A.) Petition allowed.
PLJ 2008 Lahore 243
[Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
NADIR MANZOOR DUGGAL--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, VEHARI and 4 others--Respondents
W.P. No. 1836 of 2007, heard on 5.6.2007.
Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 24(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Direction to deposit of zar-e-soim till 20.9.2006--Voluntarily deposited specific amount on 28.2.2006--Barred by time--Petitioner had failed to deposit of zar-e-soim within a period of thirty days from the date of institution of the suit--Held: Suit was liable to be dismissed having become barred by time. [P. 244] A
Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 24(e)--Limitation Act, (IX of 1908), S. 4--Suit for pre-emption--Direction for depositing zar-e-soim within thirty days--Voluntarily deposited after stipulated time--Public holding--Where period of limitation prescribed for a suit, expires on the day when Court is closed, the suit may be instituted, preferred or made on very day when Court reopens--Held: When certain thing is to be done or act is to be performed on a day which is public holiday--Thing can be done or act can be performed on the day next to public holiday. [P. 246] B
Act of Court--
----Act of the Court should not prejudice any party. [P. 246] C
2007 SCMR 399 rel.
Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 24--Suit for pre-emption--Direction for depositing of zar-e-soim--Voluntarily deposited after stipulated date--Validity--Whether amount would have been deposited on 21.8.2006 or was deposited on 28.8.2006--Petitioner acted strictly in accordance with law--Amount so deposited by him was a lawful compliance of provision of law--Held: Suit of the petitioner cannot sustain being without lawful authority and of no legal effect--Petition was allowed. [P. 246] D
Principle--
----Distinguishable of judgment--Neither the headnote of a specific provision of law covers the provision nor even the headnotes of a judgment prepared by the law reporter would change the basic spirit of judgment passed on its legal and factual plan. [Pp. 246 & 247] E
2006 CLC 1455, rel.
Rana A.D. Kamran, Advocate for Petitioner.
Ch. Abdul Ghafoor, Advocate for Respondents No. 3 to 5.
Date of hearing: 5.6.2007.
Judgment
This writ petition calls in question the order dated 2.3.2007 passed by learned Additional District Judge, Vehari, whereby revision petition filed by Respondents No. 3 to 5 against the order of the learned trial Court dated 23.11.2006 refusing to dismiss the pre-emption suit of the petitioner, was allowed and by accepting the said application the pre-emption suit filed by the petitioner was dismissed in terms of Section 24(2) of the Punjab Pre-emption Act, 1991.
The facts in brief are that against the sale of land measuring 27 Kanals 17 Marlas situated in Chak No. 37/W.B evidenced through Mutation No. 1026 dated 30.3.2006 in favour of Respondents No. 3 to 5, the petitioner filed a pre-emption suit before the trial Court on 29.7.2006 and on the same day i.e. 29.7.2006 the learned trial Court directed the petitioner to deposit 1/3rd (zar-e-soim) of the sale price till 20.9.2006. However, the petitioner being an Advocate knowing the legal consequences of the said order voluntarily deposited the said amount on 28.8.2006. Respondents No. 3 to 5 after entering appearance before the trial Court filed an application on 12.10.2006 stating therein that as the petitioner had failed to deposit 1/3rd of the sale price within a period of thirty days from the date of institution of the suit, therefore, his suit was liable to be dismissed having become barred by time. The learned trial Court, however, through order dated 23.11.2006 dismissed the said application holding that prima facie the pre-emption suit was within time. Said order of the learned trial Court was challenged through revision by Respondents No. 3 to 5 before the learned District Judge, Vehari and the learned Additional District Judge to whom said revision was entrusted, vide order dated 2.3.2007 accepted the revision and dismissed the suit holding that 1/3rd of the sale price was not deposited within the stipulated period of thirty days. Hence, this constitutional petition.
It is contended by learned counsel for the petitioner that in Para 2 of their application seeking dismissal of the suit, it is admitted by respondents themselves that petitioner could deposit the said amount till 28.8.2006 which the petitioner rightly deposited although through the order dated 29.7.2006 the petitioner was granted time for deposit of the said amount till 20.9.2006 yet the petitioner being himself an Advocate knowing the consequences of said deposit beyond a period of thirty days as stipulated under Section 24 of the Punjab Pre-emption Act, 1991 thought it appropriate to make the deposit of said amount on 28.8.2006, therefore, the learned Additional District Judge was not right in holding the said deposit beyond thirty days. It is further submitted that if the deposit made by the petitioner is to be considered beyond the period of thirty days including the date of order dated 29.7.2006 even then as on 27.8.2006 it was Sunday when the Courts as well as banks remain closed, therefore, deposit of the amount on 28.8.2006 was within the contemplation of law as contained in Section 4 of the Limitation Act as well as Section 10 of the General Clauses Act and for this reason too the impugned order passed by learned Additional District Judge was without jurisdiction.
On the other hand, learned counsel for Respondents No. 3 to 5 has opposed this writ petition by arguing that as the petitioner failed to deposit the amount within thirty days from the date of filing the suit in terms of Section 24 of the Punjab Pre-emption Act, 1991, therefore, the learned Additional District Judge rightly passed the impugned order dismissing petitioner's suit. It is further submitted by learned counsel for the respondents that as held by this Court in the case "Raja vs. Tanvir Riaz and others" (2006 CLC 1455), in view of specific provisions contained in Section 24 of the Punjab Pre-emption Act, 1991 neither the provisions of General Clauses Act nor the Limitation Act would govern the period of limitation in a suit under the Punjab Pre-emption Act, 1991 and thus the petitioner is not entitled to any benefit either under General Clauses Act or the Limitation Act.
I have considered the arguments of learned counsel for the parties and have also gone through the available record.
Before discussing the above noted arguments of learned counsel for the parties, I would like to hold that admittedly 27.8.2006 was Sunday as such public holiday when Courts as well as the banks were closed. Although this Court can take judicial notice of the fact as to whether 27.8.2006 was Sunday or not yet learned counsel for the petitioner has placed on record copy of the Diary showing 27.8.2006 as Sunday. Even otherwise, learned counsel for the respondents has not disputed this fact, therefore, this question requires no further detailed examination. Further it is provided in Section 4 of the Limitation Act that where the period of limitation prescribed for a suit, etc. expires on the day when the Court is closed, the suit may be instituted, preferred or make on the very day when the Court reopens. Similarly, it is an established principle of law that when certain thing is to be done or act is to be performed on a day which is public holiday, the said thing can be done or act can be performed on the day next to the public holiday. Reliance is placed on Section 10 of the General Clauses Act as well as the case of "Nur Muhammad vs. Sachul" (PLD 1957 Kar. 843). Further it is also not disputed either by learned counsel for the respondents nor by the learned revisional Court that said amount was not deposited on 28.7.2006 although the learned trial Court had fixed the said date as 20.9.2006 and to me if the petitioner had deposited the amount on 20.9.2006 even then the same would have been sufficient compliance of the order because it is an established principle of law that act of the Court should not prejudice any party, as held in the case "Maqsood Ahmad and others vs. Member, Board of Revenue, Punjab, Lahore and others (2007 S.C.M.R 399).
Even in para-2 of their application seeking dismissal of the suit, the respondents have admitted that amount in question could have been deposited till 28.8.2006, therefore, in both eventualities whether the amount would have been deposited on 27.8.2006 or same was in fact deposited 28.8.2006 the petitioner acted strictly in accordance with law as contained in Section 24 of the Punjab Pre-emption Act, 1991 and the amount so deposited by him was a lawful compliance of provisions of law, therefore, the impugned order passed by learned Additional District Judge dismissing the suit of the petitioner cannot sustain being without lawful authority and of no legal effect, as such this writ petition is allowed, the impugned order of learned Additional District Judge dated 2.3.2007 is set aside and the plaint filed by the petitioner shall be deemed pending before the learned trial Court who will proceed with the suit after notice to the parties strictly in accordance with law.
Before parting with this judgment I would like to point out that the above cited judgment of this Court (2006 C.L.C. 1455) and relied upon by learned counsel for the respondents in no way advances their case, as the point raised in the said judgment is distinguishable. Further perusal of the said judgment does not give an impression as visualised in its headnote, whereas, it is an established principle of law that neither the headnote of a specific provision of law covers the said provision nor even the headnote of a judgment prepared by the law reporter would change the basic spirit of the said judgment passed on its own legal and factual plan.
(R.A.) Petition allowed.
PLJ 2008 Lahore 247
Present: Syed Hamid Ali Shah, J.
Mirza ILYAS BAIG and another--Petitioners
versus
DISTRICT & SESSIONS JUDGE, TOBA TEK SINGH/ELECTION TRIBUNAL, FAISALABAD and 2 others--Respondents
W.P. No. 2433 of 2006, decided on 18.1.2007.
(i) Punjab Local Government Election Rules, 2005—
----R. 71(1)(b)--Civil Procedure Code, (V of 1908), O. XVI, Rr. 1 & 2--Procedure Special Law--Applicability--Normal procedure ousted--Held: When a special law provides its own procedure for the proceeding provisions of Code of Civil Procedure, 1908 are ousted to that extent--In view of Rule 71 Punjab Local Government Election Rules, provisions of Order XVI, Rule 1 are not applicable to the proceedings before Election Tribunal. [P. 248] A
Mr. Muhammad Khalid Sajjad Khan, Advocate for Petitioners.
Ch. Abdul Salam, Advocate for Respondents No. 2 and 3.
Date of hearing: 2.11.2006.
Order
Election of the petitioners was called in question by Respondents No. 2 and 3. During the course of proceedings, learned tribunal framed four issues on 15.2.2006. Respondents No. 2 and 3 filed an application on 21.2.2006, under Order XVI, Rule 1, with the prayer to allow the applicant to deposit process fee for summoning the witness. The petitioners (herein) filed application on 11.3.2006, for dismissal of application of Respondents No. 2 and 3, moved for permission to deposit process fee. Learned Tribunal vide order dated 11.3.2006, allowed the application directed the summoning of witnesses. Petitioner have assailed order dated 11.3.2006 in the instant petition.
Learned counsel for the petitioners has contended that the provisions of Order XVI, Rule 1 have not been complied with, that provisions of Order XVI, Rule 2 are attracted only when Rule 1 of Order XVI is complied; that provisions of Rule 2 are subservient to Rule 1 and; that the direction for deposit of expenses and for summoning of witnesses, without filing of list of witnesses and certificate of readiness to produce witness, is not legally permissible. Such order is not sustainable in the eyes of law.
Learned counsel for the Respondents No. 2 and 3 on the other hand has fully supported the impugned order. Learned counsel has referred to Rule 71(1)(b) of Punjab Local Government Election Rules 2005, which provides for filing of the list of witnesses within 15 days. Learned counsel has submitted that issues in the instant case were framed on 15.2.2006 and list of witnesses was filed on 21.2.2006, well within a time.
Heard learned counsel for the parties and record perused.
Procedure before the Election Tribunal is governed under the special statute i.e.. Punjab Local Government Ordinance, 2005. A special procedure has been provided under Punjab Local Government (Election Rules) 2005. Rule 71(b) reads as:
Procedure before tribunal.--
(1) .......................................
(a) .......................................
(b) require the parties to file within fifteen days of the date on which the case is fixed for evidence, a list of witnesses whom they propose to produce to give evidence or to produce documents, mentioning against the name of each witness a precise of the evidence that each witness is expected to give;"
By now it is well settled principal of law that when a special law provides its own procedure for proceedings, provisions of Code of Civil Procedure, 1908 are ousted to that extent. In view of Rule 71(ibid), provisions of Order XVI Rule 1 are not applicable to the proceedings before Election Tribunal. Petitioner in the instant case filed list of witnesses on 21.2.2006, within 6 days of framing of issues, which were framed on 15.2.2006. The order impugned is thus devoid of any illegality or legal infirmity.
Order passed by learned Tribunal dated 2.3.2006 reflects that petitioners conveyed to the learned Tribunal that proceedings before it, were stopped by this Court, through order dated 2.3.2006. Conversely the proceedings were specifically allowed to be continued and injunctive order was to the extent of passing of final order. This shows that petitioners are bent upon to delay the matter by hook or crook. Such conduct is not appreciated.
In view of the above, no illegality or infirmity is seen in the impugned order, to call for interference in the writ jurisdiction. The petition is devoid of any force and is dismissed as such with costs of
Rs. 10,000/ (rupees ten thousand only).
(W.I.) Petition dismissed.
PLJ 2008 Lahore 249
[Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
Mst. SAMINA NAWAZ--Petitioner
versus
STATION HOUSE OFFICER OF POLICE STATION KUHNA KHANEWAL DISTRICT KHANEWAL and 5 others--Respondents
W.P. No. 3763 of 2007, decided on 27.8.2007.
Constitution of Pakistan, 1973—
----Arts. 10, 14 & 15--Prayer for releasing of the petitioner from darul-aman--Fundamental right--Violation of--Jactitation of marriage--Validity of nikah--Being sui juris muslim girl is entitled to be set at free--Family suit is pending--Inquiry--Specimen signatures of petitioner--Verified from Handwriting Expert--Approach the Court of competent jurisdiction--Inquiry stands concluded--No useful purpose would be served by keeping her detained in darul-aman--Petitioner cannot be compelled to resident with her second husband or with her mother against her wishes--Held: If first nikah is found incorrect, she will be exposed to the consequences under the law and if Family Court ultimately finds her first nikah as forged or her second nikah as genuine, the trial Court apart from throwing out her suit, would also be at liberty to direct her, or for that matter any of the two under the law--C.M. was disposed of. [P. 252] A
PLD 1984 SC 95; PLD 2004 SC 219 & PLD 1976 Lahore 670 ref.
Malik Muhammad Latif Khokhar, with Mst. Samina Naz Petitioner.
Syed Muhammad Asad Abbas & Mst. Khurshid Begum and Muhammad Azam.
Mr. Mubashir Latif Gill, AAG with Aftab Ahmad, DSP (Investigation), Muhammad Saleem, S.I. and Tahir Nasir, Constable No. 3194.
Date of hearing: 27.8.2007.
Order
C.M. NO. 1307/2007 IN W.P. NO. 3763/07
Through this C.M. prayer for release of the petitioner from darul-aman sent by this Court in terms of order dated 17.7.2007, has been made, on the ground that as the inquiry as directed through the said order stands concluded, the petitioner being sui juris muslim girl is entitled to be set at free. The prayer has been opposed by learned counsel for Mst. Khurshid Begum-Respondent No. 3 (petitioner's mother) as well as Muhammad Azam (her alleged husband), on the ground that since as a result of the inquiry conducted by the concerned DSP (Investigation), Headquarters Khanewal, petitioner's Nikah with Muhammad Azam has been found to be valid as against her alleged Nikah with Shehzad Afzal, therefore, she is not entitled to be set free or to be permitted to accompany Shehzad Afzal till the decision of the suit for jactitation of marriage filed by the petitioner titled "Mst. Samina Naz vs. Muhammad Azam" in the Court of Mr. Adnan Mehdi, Civil Judge/Judge Family Court, Multan.
Before proceeding further, the narration of brief facts of the case appears essential for the proper understanding of the dispute. Mst. Samina Nawaz filed W.P. No. 3763/2007 praying that she had contracted marriage with Shehzad Afzal being sui juris muslim girl with her free will and consent and her father had died, but her mother Mst. Khurshid Begum alongwith other relatives in connivance with local police, were causing harassment to her through the concerned police, therefore, a direction was sought to be issued to the respondent police restraining them from causing illegal harassment and humilitation to her or her husband Shehzad Afzal and to act in accordance with law. On the other hand, Mst. Khurshid Begum mother of the petitioner, filed a Crl. Misc. No. 208-H/2007 alleging that as Mst. Samina Nawaz had been abducted by Shehzad Afzal and was being kept in illegal confinement, therefore, she be got recovered from illegal custody and be dealt with in accordance with law.
On 17.7.2007, both the above referred matters came up before my learned brother Ijaz Ahmad Chaudhry, J. As both the parties were claiming their respective Nikahs to be valid i.e. Nikah claimed by Mst. Samina Nawaz with Shehzad Afzal which according to her took place on 22.11.2006 and the second alleged Nikah by Mst. Khurshid Begum petitioner's mother having taken place between the petitioner and Muhammad Azam on 5.1.2007, therefore, my learned brother, directed the District Police Officer, Khanewal to get verified both the Nikahs from concerned Union Councils and also to get the specimen signatures of Mst. Samina Nawaz visible on her Nikah Nama with Muhammad Azam, verified from Handwriting Expert. In the meanwhile, however, my learned brother ordered Mst. Samina Nawaz to be lodged in darul-aman and issued a further direction that after completion of the inquiry; Mst. Samina Nawaz petitioner could move this Court for her release from darul-aman on her option. It was in the above circumstances, that this C.M. has been filed.
The report submitted by D.S.P. in terms of this Court order, has been perused and indicates that petitioner's signatures obtained from the Court of learned Senior Civil Judge, Multan have been got verified from Forensic Science Laboratory Punjab, and according to the report signatures of the petitioner on Nikah Nama with Muhammad Azam carried points of similarity and this alone is sufficient to make the case open to further inquiry as to this effect the final findings can only be recorded by learned Judge Family Court before whom the above mentioned family suit is pending, as held by the Hon'ble Supreme Court of Pakistan in the case "Muhammad Azam vs. Muhammad Iqbal and others" (PLD 1984 Supreme Court 95-Shariat Bench), holding that findings recorded by Family Court are not only binding up to the apex Court but also finally determine the legality/validity of Nikah in case of dispute. The Hon'ble Supreme Court in the cited judgment also, directed the release of the parties, if behind the bars in some criminal case, so as to afford them opportunity to approach the Court of competent jurisdiction viz. Judge Family Court for obtaining a verdict about genuineness of the Nikah.
The record further indicates that the alleged Nikah between the petitioner and Muhammad Azam took place on 5.1.2007, whereas, according to the petitioner her Nikah with Shehzad Afzal took place on 22.11.2006. Although, the D.S.P. on the basis of the available record has come to the tentative assessment that Nikah between the petitioner and Muhammad Azam was valid, yet the fact remains that such findings cannot be considered as conclusive and validity/legality of Nikah can only be determined by learned Judge Family Court after a proper inquiry/trial and recording of evidence. Since Mst. Samina Nawaz, petitioner has admitted her Nikah with Shehzad Afzal from the date of 22.11.2006 and has also denied her alleged Nikah with Muhammad Azam which took place on 5.1.2007 and that admittedly no Rukhsati or cohabitation between the petitioner and Muhammad Azam ever took place; and further that Mst. Samina Nawaz has already filed a suit seeking annulment of her alleged Nikah with Azam, therefore, without recording any findings or commenting upon the merits of the case, lest the same may prejudice the case of either side, this C.M. is disposed of with a direction to the learned Judge Family Court, Multan to decide the suit of the petitioner as early as possible preferably till 15.10.2007. Copy of this petition shall immediately be remitted to the learned Judge Family Court (Adnan Mehdi) for information and compliance report to the Additional Registrar of this Bench.
So far as the question of release of the petitioner is concerned, since in terms of above said order of this Court, the inquiry stands concluded, therefore, no useful purpose would be served be keeping her detained in darul-aman either aginst her wishes or on the mere desire of her mother Mst. Khurshid Begum, till the decision of the family suit. Even otherwise , keeping the petitioner in darul-aman any further would also be violation of her fundamental right of freedom and liberty provided by Articles 14 and 15 of the Constitution of the Islamic Republic of Pakistan, 1973, rather the same shall also be in violation of Article 10 of the Constitution. Admittedly, Mst. Samina Nawaz is sui juris muslim girl and as held by Hon'ble Supreme Court of Pakistan in "Hafiz Abdul Waheed vs. Mrs. Asma Jehangir and another" (P.L.D. 2004 Supreme Court 219) she has an inalienable right to decide with whom and to whom either to marry or reside and that even if her alleged Nikah with Muhammad Azam is taken as correct, even then, in the light of judgment of this Court in "Mst. Bibi Khatoon vs. Faiz and another" (PLD 1976 Lah 670), she cannot be compelled to resident with Muhammad Azam or with her mother Mst. Khurshid Begum against her wishes. In case her alleged Nikah with Shehzad Afzal is found incorrect, she will definitely be exposed to the consequences under the law and if the learned Judge Family Court ultimately finds her Nikah with Shehzad Afzal as forged or her Nikah with Muhammad Azam as genuine, the trial Court apart from throwing out her said suit, would also be at liberty to direct her, or for that matter, any of the two Muhammad Azam or Shehzad Afzal's prosecution under the law. According, this C.M., is disposed of in the light of earlier order of this Court dated 17.7.2007 mentioned above, and the petitioner is set at liberty and would be free to move wherever she may, subject to the above observations and directions. The A.S.I. (Muhammad Saleem), present in Court, shall ensure that petitioner safely reaches her destination unhindered.
Before parting with this order, I would like to make it clear that whatever is observed above is purely tentative in nature and shall have no bearing on the ultimate decision of the learned Judge Family Court, who shall give his verdict purely on merits and in the light of the evidence produced before him by the parties. The report of the D.S.P. shall also be allowed to be produced in evidence per law, in case, any parties so intends.
(N.F.) C.M. disposed of.
PLJ 2008 Lahore 253
Present: Muhammad Jehangir Arshad, J.
KHURRAM IYAZ--Petitioner
versus
DISTIRCT SESSIONS JUDGE, HAFIZABAD and 2 others--Respondents
W.P. No. 8541 of 2007, decided on 13.9.2007.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Laches--Question of--Suit for return of articles of dowry, decreed on the basis of special oath on the Holy Quran--Petitioner filed an appeal--Petitioner did not contest the decree and only requested for modification of the decree by reducing the decretal amount--Amount was reduced as per agreement between the parties--Assailed--Petitioner did not challenge the same and kept mum till date when he suddenly woke up and filed the present Constitutional petition--Judgments of the Courts below were without jurisdiction, therefore, the question of laches on the part of the petitioner would not arise and even if petitioner remained silent the date of decision by First Appellate Court--Constitutional petition can still be decided on merits. [P. 255] A
Laches--
----Period of limitation--Question of--Question of delay in filing would have to be examined with reference to the facts of each case, the question of delay in filing Constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation was forth coming for delay in filing the Constitutional petition, the same cannot be ignored subjects to facts and circumstances of each case. [P. 255] B
Constitution of Pakistan, 1973—
----Art. 199--Suit for the return of articles of dowry--Decreed on the basis of special oath on the Holy Quran--Assailed--Request for modification of the decree by reducing the decretal amount--Amount was reduced as per agreement between the parties--Constitutional petition--Counsel has implied authority to make offer for the decision of a case through of course legal manner and in case the petitioner feels that his counsel had given any consent for the decision of the suit without having authority even then the offer given by counsel is binding on the petitioner and the petitioner cannot wriggle out by asserting that the offer was neither with his consent nor with his authority.
[P. 256] C
Mr. Nisar Ahmad Gondhal, Advocate for Petitioner.
Date of hearing: 13.9.2007.
Order
The petitioner is aggrieved of the order dated 8.9.2006 passed by the learned Judge Family Court, Hafizabad whereby the suit for the return of articles of dowry filed by Mst. Zahida Perveen Respondent No. 3 on the basis of special Oath on the Holy Quran by her brother, namely, Muhammad Ashraf P.W. 2 as offered by the petitioner was decreed in the sum of Rs. 2,87,950/-and the judgment of the learned Distt. Judge Hafizabad dated 6.12.2006 reducing the decretal amount as determined by the learned Judge Family Court from Rs. 2,87,950/- to Rs. 2,00,000/-.
The facts in brief that Mst. Zahida Perveen alongwith her minor children filed a joint suit against the petitioner for dissolution of marriage, return of her dowry articles valuing Rs. 2,87,950/- and also for recovery of maintenance for her as well as her minor children. The petitioner contested the suit and the learned trial Court on the basis of the pleadings of the parties framed as man as 4 issues and directed the parties to lead their evidence. However, during the trial when the statement of Muhammad Ashraf (P.W.2) brother of Mst. Zahida Perveen was being recorded, an offer was made on behalf of the petitioner that if the said P.W. brother of Respondent No. 3 stated on Oath that the ornaments and dowry articles had not been returned to Mst. Zahida Parveen Respondent No. 3 through him, then the suit to the extent of recovery of dowry articles be decreed. This offer was accepted by Muhammad Ashraf P.W. 2 who took special Oath as per offer, therefore, the learned Judge Family Court on 8.9.2006 decreed the suit in favour of Mst. Zahida Parveen for Rs. 2,87,950/-. Feeling aggrieved of the said decree, the petitioner filed an appeal in the Court of learned Distt. Judge Hafizabad. During the hearing of the appeal the petitioner did not contest the decree and only requested for modification of the decree of the learned trial Court by reducing the decretal amount from Rs. 2,87,950/- to the tune of Rs. 2,00,000/-. The learned Appellate Court after obtaining the signatures of the petitioner as well as the signatures of his learned counsel, namely, Mr. Dost Muhammad Bhatti, Advocate, on the order sheet disposed of the said appeal vide order dated 6.12.2006 and reduced the decretal amount as per agreement between the parties. The above-mentioned orders/judgments and decrees have now been challenged through this constitutional petition.
It is submitted by the learned counsel for the petitioner that on 8.9.2006 when Muhammad Ashraf P.W. 2 was offered to make a statement on oath neither the petitioner himself was present before the learned Judge Family Court nor had he imparted instructions to his learned counsel for the purpose, therefore, offer made by his learned counsel was not binding upon the petitioner and the decision of the suit to the extent of recovery of dowry articles on the basis of special Oath was illegal and without lawful authority. Further submits that the learned Distt. Judge while deciding the appeal on the basis of the agreement and reducing the decretal amount from Rs. 2,87,950/- to Rs. 2,00,000/- did not record the statement of the petitioner, and the signatures of the petitioner were not taken with his free consent. He has also submitted that one would be at a loss to understand that the petitioner would request for reduction of Rs. 87,950/- only, which does not appeal to reason, whereas, the petitioner was challenging the very decrees of the learned Judge Family Court, therefore, both the orders/ judgments and decrees of the learned Courts below were not binding on the petitioner which need to be set aside and the case be remanded to the learned trial Court for its decision on merits.
Arguments heard and record perused. Before proceeding in the matter, it may be noted that the impugned order was passed by the learned Distt. Judge, Hafizabad on 6.12.2006 and the petitioner did not challenge the same and kept mum till date when he suddenly woke up and filed the present constitutional petition. When questioned about this unexplained delay the learned counsel for the petitioner submits that since both the judgments of the Courts below were without jurisdiction, therefore, the question of laches on the part of the petitioner would not arise and even if the petitioner remained silent from 6.12.2006 till date, this constitutional petition can still be decided on merits.
Although writ jurisdiction is not covered by any period of limitation and the question of laches as held by Jawad Mir Muhammad and others vs. Haroon Mirza, and others (PLD 2007 S.C. 472) per se is not a bar to the constitutional jurisdiction and question of delay in filing would have to be examined with reference to the facts of each case, but in the view of said judgment the question of delay in filing constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation was forthcoming for delay in filing the constitutional petition, the same cannot be ignored subject to facts and circumstances of each case. Since as indicated above the trial Court proceeded to decide the suit of Respondent No. 3 in the light of the offer made by the counsel for the petitioner and accepted by the respondent, therefore, the petitioner from this conduct is estopped to file the present constitutional petition. It is established principle of law that a duly constituted attorney/counsel has the implied authority to make offer for the decision of a case through of course legal manner and in case the petitioner feels that his learned counsel had given any consent for the decision of the suit without having authority even then the said offer given by the learned counsel is binding on the petitioner and the petitioner cannot wriggle out by asserting that the said offer was neither with his consent nor with his authority. The judgment of the learned Additional District Judge reducing the decretal amount from Rs. 2,87,950/- to Rs. 2,00,000/- was passed in presence of the petitioner as also his counsel and that too after obtaining the signatures on the order sheet, therefore, the same can also not be brushed aside on the mere assertion that the said agreement was not made by the petitioner or he agreed to the decision of the appeal in the manner in which the same was decided by the learned Additional District Judge. Besides the above discussion one still wonders as to why the petitioner remained silent from 6.12.2006 till date and did not challenge the same before this Court. This conduct of the petitioner amounts to acquiescence as well as laches on his part and in the light of the above said judgments of the learned lower Courts, mere assertion of the petitioner cannot be given much weight which even otherwise goes against the record carrying presumption of truth. I am therefore of the view that this petition not only on merits but also on the basis of laches merits to be dismissed in limine. Order accordingly.
(R.A.) Petition dismissed.
PLJ 2008 Lahore 256
Present: Muhammad Muzammal Khan, J.
MUHAMMAD alias MAHAMAND--Petitioner
versus
RANA ABDUL QAYYUM ADDITIONAL SESSIONS JUDGE, KAMALIA, DISTT. T.T. SINGH and 2 others--Respondents
W.P. No. 329 of 2007, decided on 19.2.2007.
Illegal Dispossession Act, 2005—
----Ss. 3, 5 & 7--Constitution of Pakistan 1973, Art. 199--Property grabber or Qabza Group--Armed with lethal weapons occupied the land forcibly--Assailed--Assailants were property grabbers--Resort to law of land is not applicable--Respondent had neither asserted that petitioner is a property grabber or belongs to Qabza Group/Land Mafia nor he produced any proof that petitioner was earlier involved in any such activity--Owners/occupiers of immovable properties dispossessed by persons having no antecedents of their involvement in property grabbing, must have resort to ordinary law of land as Illegal Dispossession Act, 2005 is not applicable to their complained dispossession--Possession of suit land was being controlled by the Civil Court cognizant of petitioner's suit for possession through pre-emption by issuing a "status-quo" order and during currency of such order, the impugned order could not have been passed--Held: Provisions of Illegal Dispossession Act were not attracted to such case but inspite of it, those were invoked and an unwarranted order of restoration of possession was passed--Petition accordingly accepted.
[P. 258] A & C
Illegal Dispossession Act, 2005—
----Preamble--Qabza Group--Land Mafia--Where as it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession there from by the Property Grabbers". [P. 258] B
Rana Muhammad Arif, Advocate for Petitioner.
Malik Ghulam Siddique Awan, Advocate for Respondent.
Date of hearing: 19.2.2007.
Order
Instant constitutional petition assailed the judgment dated 9.1.2007 passed by the learned Additional District Judge, Kamalia District Toba Tak Singh, to be declared illegal, void and of no legal consequence, whereby complaint filed by Respondent No. 2 under Section 3 of the Illegal Dispossession Act, 2005 was accepted and petitioner was directed to hand over possession of the disputed property falling in Square No. 6 Killas No. 3 and 4 of Chak No. 666/7-G.B. Tehsil Kamila District Toba Tak Singh to the complainant forthwith.
Precise relevant facts, as deciphered from the record, are that Respondent No. 2 in his complaint under Section 3 of the Act (ibid) asserted that on 22.6.2006 at about 11/11 a.m. all the 8 named accused respondents while armed with lethal weapons, entered into his land and in order to occupy it, ploughed the same and occupied it, forcibly. Respondent No. 2 did not allege in his complaint that the assailants were property grabbers or they belonged to "Qabza Group"/"Land Mafia" or they have such antecedents.
Case of the writ petitioner was that he had filed a suit for possession through pre-emption against the sale of a part of joint holding in his possession and the Court cognizant of it, had required status quo to be maintained but Respondent No. 2 just to overawe, filed his complaint under Sections 3, 5 and 7 of the Illegal Dispossession Act, 2005. According to him, he was in actual cultivating possession of the land since before filing of the suit and complaint, which was also reflected in the revenue record in form of Khasra Girdawari. Writ petitioner further asserted that he did not dispossess Respondent No. 2 and allegations in this behalf, were unfounded.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, Respondents No. 2 had neither asserted that the petitioner is a Property Grabber or belongs to some Qabza Group/Land Mafia nor he produced any proof that the petitioner was earlier involved in any such activity. "Preamble" of the Illegal Dispossession Act, 2005 clearly explicits that this legislation was made to bring to book the Property Grabbers who illegally or forcibly dispossess the owners/occupiers of immovable properties. The preamble of Act (ibid) reads as under:
"Where as it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession there from by the Property Grabbers".
Besides it, a Full Bench of this Court in the case of Zahoor Ahmad and 5 others vs. The State and 3 others (2007 P.Cr. R. 201) has not only propounded the view that owners/occupiers of immovable properties, dispossessed by persons having no antecedents of their involvement in property grabbing must have resort to ordinary law of the land, as Act 2005 is not applicable to their complained dispossession. Even otherwise, possession of the suit land was being controlled by the Civil Court cognizant of petitioner's suit for possession through pre-emption by issuing a "status quo" order and during currency of this order, the impugned order could not have been passed. Scan of record and impugned order revealed that provisions of the Illegal Dispossession Act, 2005 were not attracted to the case in hand but inspite of it, those were invoked and an unwarranted order of restoration of possession was passed.
(N.F.) Petition accepted.
PLJ 2008 Lahore 259
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rehman, J.
MUHAMMAD SAMI ULLAH KHAN--Petitioner
versus
--Respondents
W.P. No. 625 of 2006, heard on 18.12.2006.
Police Rules--
----R. 12.1--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Entitlement for appointment as ASI on "Shaheed's claim" basis--Application was kept pending till completing his study--Applied for enlistment as ASI on shaheed claim basis--Question of waiver--Nine posts of ASIs were taken out of the purview of PPSC for appointment on shaheed's claim basis--Case of the petitioner was similar to nine persons who have been appointed as ASIs on Shaheed Claim Basis--On such principal the petitioner's also entitled for relaxation of Rules and to be appointed as ASI--Petition accepted.
[P. 261] A & B
Khawaja Qaisar Butt, Advocate for Petitioner.
Mr. Muhammad Qasim Khan, AAG for Respondent.
Date of hearing: 18.12.2007.
Judgment
Through the instant writ petition, the petitioner seeks appointment as Assistant Sub-Inspector in the Police Department on "Shaheed's claim" basis.
Brief facts of the case are that the petitioner's father namely Muhammad Khan was working as Sub-inspector in the Police Department and was posted at Police Station. Sarray Sidhu Tehsil Kabirwala District Khanewal. He was martyred in a police encounter. The petitioner filed an application before Respondent No. 2 for his enlistment in Police Department in the rank of ASI. He at that time was studying in class 10th and was about 16 years of age. He was informed by the respondents that his case had been kept pending till completion of his studies and becoming 18 years of age vide letter dated 13.12.2004. After clearing his F.A. examination the petitioner again filed an application for enlistment as ASI on "Shaheed's claim" basis. The same was recommended by Respondents No. 2 and 4, but was not taken into consideration by Respondent No. 1. The petitioner then moved to Chief Minister, who vide Letter dated 14th June, 2005 directed Respondent No. 2 to take necessary action. He also approached to Prime Minister and his application was directed to be look into on priority for appropriate action. Respondent No. 1 referred the matter to Respondent No. 3. After that the petitioner was recruited on Shaheed's claim basis as constable and posted at Police Station City Mian Channu District Khanewal, Multan Range, Multan. Presently, the petitioner is working as Constable and posted at Police Station, Police Lines, Khanewal. The petitioner being aggrieved with his appointment as constable instead of ASI approached Respondent No. 1, but in this regard his application was not accepted. Hence the petitioner has filed this writ petition.
It is argued that the petitioner's claim for appointment as ASI was accepted vide Letter No. 34941 dated 3.11.2000; that however it was kept pending till the petitioner attains requisite qualification of F.A. According to the learned counsel the Government now cannot refuse the already accepted claim of petitioner. The learned counsel for petitioner has also placed on record a copy of Summary submitted to the Governor of Punjab alongwith a letter written to Inspector General of Police, Punjab whereby the Inspector General of Police was informed that the Governor had been pleased to accord relaxation of Police Rules 12.1 and nine posts of ASIs were taken out of purview of PPSC for appointment on Shaheed Claim Basis.
On the other hand it is contended by the learned AAG that after acceptance of the post of constable the principle of waiver shall apply and the petitioner has waived his claim for his enlistment as ASI on Shaheed Claim Basis while accepting the position of Constable. It is further contended that after passing of Police Order, 2002 the appointment of ASI has come within the purview of Punjab Public Service Commission and the respondents are not empowered to make any appointment in the cadre of ASI.
Arguments heard and record perused. The petitioner from the very start had applied for the post of ASI under Shaheed Claim Policy on 1.11.2000. At that time he was studying in class 10th and was 16 years of age. His application was kept pending till he completed his study and came up to the age of 18 years. His application was considered by the DIG, Multan Range, Multan. It was held by him that after passing of the Matriculation Certificate the petitioner would be recruited as Constable and thereafter if he passed F.A. examination his case would be forwarded to the Range Office Multan for enlistment of ASI. After passing of F.A. examination by the petitioner the DPO, Khanewal recommended the case of petitioner for his petitioner as ASI. Then the DIG, Multan Range, Multan vide Letter No. 37979/E-1 dated 13.11.2004 recommended the case of petitioner and said that his case had been considered and kept pending till the completion of his studies and coming to the age of 18 years and then he had passed F.A. and applied for petitioner as ASI on Shaheed Claim Basis. Subsequently, the case of petitioner was also recommended by the Chief Minister and the Prime Minister's Secretariat.
The case of petitioner seems to be genuine, in which the respondents after considering the same had given assurance that on completion of studies and coming to the age he would be appointed as ASI under Shaheed Claim Basis. Thus he is entitled for appointment to the said rank. The question of waiver does not arise in the case in hand. The petitioner accepted the post of Constable on the assurance of respondents that he would be enlisted as ASI. The other question that after promulgation of Police Order 2002 for enlisting as ASI recommendation of PPSC is required, therefore, the appointment of petitioner cannot be made, it has been noticed from the Letter No. II/12- 21/2002 Government of Punjab Home Department dated 12.4.2002 that a summary duly approved by the Governor, Punjab was sent to Inspector General of Police, Punjab. Vide this summary the Governor of Punjab was pleased to relax Police Rules 12.1 and nine posts of ASIs were taken out of the purview of PPSC for appointment on Shaheed Claim Basis. The case of the petitioner is similar to the nine persons who have been appointed as ASIs on Shaheed Claim Basis. On the same principle the petitioner is also entitled for relaxation of Rules and to be appointed as ASI. This writ petition is, therefore, accepted.
(N.F.) Petition accepted.
PLJ 2008 Lahore 262
Present: Muhammad Muzammal Khan, J.
AMIR SARDAR--Petitioner
versus
STATE and 3 others--Respondents
W.P. No. 1696 of 2007, decided on 23.2.2007.
Foreign Exchange Regulation Act, 1947 (VII of 1947)—
----Ss. 3 & 23--Constitution of Pakistan, 199--Constitutional petition--Business of export under title IFTI Enterprises--Not involved in sale or purchase of foreign currency--Declared un-Islamic by Federal Shariat Court--Determination--Not licence holer--Quashment--Discharging jurisdiction cannot be undertaken--Foreign currency recovered--Held: Petitioner was a foreign currency account holder and to keep such currency was not an offence, shall be determined by the trial Court after recording of evidence--On the basis of disputed factual controversy, a lawful registered case cannot be quashed in view of judgment by Supreme Court--Accused were licence holders and were dealing in foreign exchange in violation of the Act of 1947 thus, are of no help to the case of petitioner--Petition was dismissed.
[Pp. 263 & 264] A & B
2006 SCMR 1957 rel.
Mr. Muhammad Irfan Malik, Advocate for Petitioner.
Date of hearing: 23.2.2007.
Order
Petitioner being accused of a criminal case vide FIR No. C. 42 dated 21.12.2006 under Section 23 of the Foreign Exchange Regulation Act 4 (1) 1947 registered with police station FIA/CC/Lahore, prayed its quashment on the ground that petitioner is doing business of Export under the title of IFTI ENTERPRISES and is not involved in sale/purchase of foreign currency etc. and that offence charged is not made out from a bare perusal of the FIR. According to the learned counsel for the petitioner since sending of decay witnesses to trap the accused, has been declared un-Islamic by the Hon'ble Federal Shariat Court, all the proceedings conducted by the police stood vitiated. In support of relief prayed, reliance was placed on the judgments in the cases of Muhammad Ashraf vs. Rizwan Nazir, Executive Magistrate Ist Class, Daska and another (2000 P.Cr. LJ 1324) and Muhammad Saleem vs. Deputy Director, FIA/CBC Multan and others (2002 P.Cr. R. 681).
"4. Restrictions on dealing in Foreign Exchange, (i) Except with the previous general or special permission of the State Bank, no person other than an authorized dealer shall in Pakistan, and no person resident in Pakistan other than an authorized dealer shall outside Pakistan buy or borrow from, or sell or lend to, or exchange with, any person not being an authorized dealer, any foreign exchange."
Petitioner was undisputedly, not a license holder or authorized dealer to deal with Foreign Exchange in terms of Section 3 of the said Act and the complained action was fully covered by its Section 23.
Petitioner's stance that he was a Foreign Currency Account holder and to keep such currency was not an offence, shall be determined by the trial Court after recording of evidence. On the basis of disputed factual controversy, a lawful registered case cannot be quashed in view of the judgment by the Honourable Supreme Court in the case of Muhammad Saleem Bhutti vs. Syed Safdar Ali Rizvi and 2 others (2006 SCMR 1957). Judgments relied by the learned counsel for the petitioner proceeded on altogether different facts/circumstances, as in those cases the accused were licence holders and were dealing in foreign exchange in violation of the Act of 1947 thus are of no help to the case of the petitioner. 5. For the reasons noted above, no case for issuance of writ prayed, was made out and consequently this petition being devoid of any merit, is dismissed in limine.
(N.F.) Petition dismissed.
PLJ 2008 Lahore 264
Present: Mian Hamid Farooq, J.
GHULAM MUHAMMAD--Appellant
versus
ABDUL GHAFFAR--Respondent
F.A.O. No. 39 of 2005, decided on 13.9.2007.
Civil Procedure Code, 1908 (V of 1908)—
----O.XXXVII, R. 2(1) O. V, R.20--Suit for recovery--Summary procedure on the basis of promissory note--Ex-parte decree--Application for setting aside ex-parte decree was dismissed--No information about institution of the suit and no registered envelope was ever received--Assailed--Summon was not legally published in newspaper and appellant was not properly served--All subsequent proceedings have no value, as super structure made on a void order falls to the ground--Held: Trial Court should not have passed the ex-parte decree on account of grave legal infirmity and if he had passed the decree, then on being filing the application for setting aside exparte decree, he ought to have acceded to the request of the appellant as it was legal and justified--Appeal was allowed. [P. 266] A & B
Hafiz Khalil Ahmed, Advocate for Appellant.
Ch. Ijaz Akbar, Advocate for Respondent.
Date of hearing: 13.9.2007.
Order
The respondent instituted the suit for recovery of Rs. 2,00,000/-, against the appellant/defendant, before the learned Division Judge, under the summary procedure provided under Order XXXVII CPC on the basis of promissory note dated 22.5.2002. The learned trial Court issued summons to the defendant, however, he could not be served. Resultantly, proclamation in the newspaper i.e. daily "Surat-e-Hal" Faisalabad, was effected for the service of the defendant and as he did not appear, therefore, he was proceeded exparte on 29.4.2004. The learned Additional District Judge recorded evidence of the respondent and proceeded to pass an exparte decree against the defendant with costs, vide judgment and decree dated 2.7.2004. The appellant, then, filed the application for setting aside the aforenoted exparte decree, inter alia, pleading that he was never served in the suit, he had no information about the institution of the suit and that no registered envelope was ever received by him. The application was opposed by the respondent through the reply, thereby asserting that the appellant was served in accordance with law, therefore, the decree be maintained. The learned trial Court, after hearing the parties, dismissed the said application, vide impugned order dated 18.2.2004, hence the present appeal.
Learned counsel for the appellant contends that the appellant was never served and summons were sent and proclamation was made on the wrong address, therefore, there is no service in the eye of law. Contrarily, the learned counsel for the respondent submits that many notices, as required under Order XXXVII CPC, through ordinary process and by registered post were issued to the appellant, but he refused to accept the same and then the learned trial Court ordered for the publication of the summons in the newspaper and thereafter exparte decree was passed. He adds that as the appellant deliberately avoided to appear in the suit, therefore, the learned trial Court rightly passed the exparte order and decree impugned in this appeal.
I have heard the learned counsel and examined both the records. Record of the suit manifests that though requisite notices were issued to the appellant as provided under Order XXXVII CPC, however, none was served upon the appellant. It was reported on the summon issued on 23.2.2004 that the appellant was not available, therefore, the summon could not be served. Report on the summon issued
on 15.3.2004 shows that the appellant refused to receive the summon and it was reported that the notices have been served on refusal ( ). Summons by registered post, were also not served and registered envelops were returned to the Court. The learned trial Court on 5.4.2004, after finding that the appellant refused to receive the summons, directed that he be served through publication in the newspaper, i.e. daily "Surat-e-Hal" Faisalabad. The publication was made in the newspaper on 19.4.2004 and the learned trial Court on the basis of said publication, on 29.4.2004, proceeded to pass an exparte decree against the appellant.
I have thoroughly examined the proclamation made in the newspaper and find that the summons were not published as required under Order XXXVII Rule 2(1) CPC, as they are not in Form-4, Appendix-B to the Code of Civil Procedure, 1908. The said publication was made under the provisions of Order V Rule 20 and not under Order XXXVII Rule 2(1) CPC. It is pertinent to note here that in the said summons, it was neither indicated that summary suit has been filed by the respondent nor the appellant was called upon to file the application for leave to appear and defend the suit within a period of ten days as prescribed under the law. In view whereof, to my mind, the summon was not published in the newspaper as prescribed in Form-4, Appendix-B to the Code of Civil Procedure, 1908 and therefore all the ensuring proceedings based on the said publication are of little consequence. It cannot be held on the basis of the proclamation in the newspaper that either the summons were validly published as per the requirement of law or the appellant was legally served. The learned Additional District Judge, on 29.4.2004, while proceeding exparte against the appellant, did not advert to this crucial aspect of the case and failed to take notice that the summons were not published as required under the law. It appears that the learned Court, after finding that the publication was made, proceeded to pass the exparte order in routine and without application of judicial mind. The appellant could not have been proceeded exparte on the basis of the publication in the newspaper neither any decree could be passed against him. It may be noted that even when the appellant filed the application for setting aside exparte decree, the learned Additional District Judge ignored to consider this legal proposition and hasten to dismiss appellant's application only on the ground that "despite substituted service by way of proclamation in the newspaper the petitioner/defendant/judgment debtor did not bother to give appearance in the Court". He was oblivious of the fact that the summon was neither duly published nor served and thus he failed to apply judicial mind.
It has been held above that the summon was not legally published in the newspaper and the appellant was not properly served, therefore, all the subsequent proceedings have no value, as the superstructure made on a void order falls to the ground. In find support from the principle of law laid down in the case of Yousanf Ali vs. Muhammad Aslam Zia and 2 others (PLD 1958 SC 104) that:-
"And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, that whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, fall to the ground because such orders have as little legal foundation as the void order on which they are founded."
In the above prospective, I have examined the impugned order dated 18.12.2004 and find that the same is not sustainable in law. The learned Additional District Judge, in the first instance, should not have passed the exparte decree on account of aforenoted grave legal infirmity and if he had passed the decree, then, on being filing the application for setting aside exparte decree, he ought to have acceded to the request of the appellant, as it was legal and justified.
In view of the above, the present appeal is decided in the following terms manner:--
(i) The appeal is allowed.
(ii) Impugned order dated 18.12.2004 is set aside.
(iii) Appellant's application for setting aside exparte decree is also accepted and resultantly, exparte decree dated 2.7.2004 is also set aside.
(iv) Respondent's suit for recovery shall be deemed to be pending before the learned District Judge, Jhang.
(v) The appellant is allowed to file application for leave to appear and defend the suit within a period of 10 days from today before the learned District Judge.
(vi) If the said application is filed by the appellant, as noted above, the learned District Judge shall decide the same after hearing the parties and of course in accordance with law.
(vii) The learned District Judge, after deciding the leave application, shall decide the suit in accordance with law, if need arises.
(viii) If the appellant chooses not to file the said application within the prescribed period, needless to add that law will take its own course.
(ix) No order as to costs.
(R.A.) (Appeal allowed)
PLJ 2008 Lahore 267
Present: Muhammad Jehangir Arshad, J.
MUHAMMAD IQBAL and another--Petitioners
versus
HUSNAIN RAZA CIVIL JUDGE, IST CLASS SARGODHA and 4 others--Respondents
W.P. No. 749 of 2007, heard on 22.10.2007.
(i) Civil Procedure Code, 1908 (V of 1908)—
----S. 92 & O. VII, R. 13--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Concealment of fact--Non-mentioning in subsequent suit--Disentitled to seek relief--Provisions of--Application for becoming party in suit, dismissed--Revision was also dismissed--In the second suit, the application was again moved which was also dismissed--Rejection of plaint in earlier suit and its non-mentioning in subsequent suit would either amount to concealment of fact or subsequent suit after dismissal of the first suit for non-prosecution--Validity--Rejection of plaint is no bar for filing a fresh plaint in view of expressed provisions of O.VII, R. 13 of CPC--Non-mentioning of rejection of plaint of earlier suit by petitioners cannot be considered as concealment of fact nor has any material bearing on the issue--Held: Plaint of petitioners was rejected for non-compliance of provisions of S. 92 of CPC and not on merits--Petition was allowed.
[P. 270] A
(ii) Constitution of Pakistan, 1973—
----Art. 199--Civil Procedure Code, (V of 1908)--S. 92 & O. VII, R. 13--Constitutional petition--Rejection of revision and dismissal of the suit for non-prosecution is indicative of the fact that second suit was filed by respondent in personal capacity although claiming some right on behalf of Trust, for the purpose of obtaining an ex-parte or uncontested decree with regard to property which was reserved for public purpose--Validity--Reasoning given by trial Court for non-suiting the petitioners is not only highly improbable but also against the provisions of law. [P. 270] B
(iii) Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Property was reserved for public purpose--Petitioners moved an application with prayer that they be allowed to defend the suit as defendants but their application was dismissed by Courts below--Determination--Whether the property was reserved for public purpose and could be allotted to private persons for any other purpose--Held: Presence of the petitioners before trial Court in array of defendants was essential and Courts below acted illegally and with material irregularity by throwing down their request--Petition was allowed. [P. 271] C
Mr. Mohy-ud-Din Qazi, Advocate for Petitioners.
Mr. Ghulam Farid Sanotra, Advocate for Respondent No. 2.
Malik Imtiaz Hussain Baluch, Advocate for Respondent No. 3 and 4.
Date of hearing: 22.10.2007.
Judgment
Through this Constitutional Petition, petitioners assail the order dated 21.2.2006 passed by learned trial Court/Civil Judge Ist Class, Sargodah, whereby their applicant for becoming party in the suit titled "Mufti Abdul Aziz vs. Tehsil Municipal Administration", was dismissed and also the order dated 21.6.2006 of the learned Additional District Judge, Sargodah dismissing the petitioners' revision against the abovementioned order of the learned trial Court.
The facts in brief are that earlier a civil suit titled "Jamia Islamia Trust vs. Municipal Corporation, etc." was filed with regard to the disputed property. In the said suit the petitioners moved an application praying that they be joined as defendants in the suit and be allowed to contest it, as the property in dispute was reserved for the public purpose. The said application of the petitioner was allowed by the then learned trial Court namely Civil Judge 1st Class, Sargodah on 3.10.1997. Against the above mentioned order of the learned trial Court, a civil revision tilted "Jamia Islamia Trust vs. Municipal Corporation, Sargodha" was filed but the same was also dismissed by the learned Additional District Judge on 12.3.2001. After the abovementioned order the said suit was allowed to be dismissed for non-prosecution on 21.6.2004. It appears that after the dismissal of the abovementioned suit, a fresh suit on behalf of Mufti Abdul Aziz claiming himself to be the Chairman of Anjuman Jamia Islamia trust, was filed seeking almost the same relief as was sought in the earlier suit, mentioned above. In this second suit the petitioners again moved an application with the prayer that they be allowed to defend the suit as defendants but their application was dismissed by the learned trial Court on 21.2.2006 and the revision petition filed against the said order was also dismissed by the learned Additional District Judge on 21.6.2006.
It is submitted by learned counsel for the petitioners that in view of the findings of the learned Civil Court recorded in the earlier suit on 3.10.1997 holding the petitioners as necessary party, there was no justification left with the learned trial Court to dismiss their applicantion in the subsequent suit which was in fact go filed by the respondents to obtain uncontested decree in respect of the property reserved for public purpose. It is further argued that the learned trial Court in the impugned order dated 21.2.2006 dismissed petitioners' application on the short ground that as earlier in some suit filed by the petitioners their plaint was rejected under Order VII Rule 11 CPC, therefore, they could not be impleaded as party, notwithstanding the fact that rejection of plaint was no bar for the petitioners to defend the suit filed with regard to the property reserved for public purpose and the fact as to whether the property was rightly allotted to the respondent Trust or it was reserved for the public purpose could only by determined after recording of evidence. Further argued that the learned revisional Court in its order dated 21.6.2006 on the one hand dismissed the revision petition of the petitioners but on the other hand allowed the petitioners to join proceedings before the commission to prove that the property in dispute was reserved for public purpose, whereas, without properly impleading the petitioners as defendants, they could neither joint proceedings before the commission nor could produce evidence or raise objections against the report of the commission if the same was not favourable to them, therefore, according to the learned counsel the petitioners should have been impleaded as defendants to contest the suit of the respondents.
On the other hand, learned counsel for the respondents has argued that in fact the petitioners are guilty of concealment of facts, inasmuch as, they have not mentioned the filing of the suit and rejection of plaint of the said suit, therefore, they could not be impleaded as party in the suit as held in PLJ 2003 Lahore 1942. Further contends that rejection of plaint in the suit filed by them would lead to a presumption that the property in dispute was properly allotted to the contesting respondents and that petitioners had no right to challenge the same as the contesting respondents were seeking relief against Municipal Administration only, therefore, the petitioners being strangers to the dispute could not be impleaded as party and their prayer was rightly dismissed firstly by the learned trial Court and consequently by the learned revisional Court.
I have considered the arguments of learned counsel for the parties and perused the record.
I am afraid that contention of learned counsel for the respondents that rejection of plaint in some earlier suit filed by the petitioner and its non-mentioning in the subsequent suit would either amount to concealment of fact or disentitle them to seek the relief through the subsequent suit after dismissal of the first suit for non-prosecution in respect of the same subject-matter. It is an established principle of law that rejection of plaint is no bar for filing a fresh plaint in view of expressed provisions of Order VII Rule 13 CPC, therefore, non-mentioning of rejection of plaint of the earlier suit by the petitioners, cannot be considered as concealment of fact nor the same has any material bearing on the issue. Moreover, admittedly the plaint of the petitioners was rejected for non-compliance of provisions of Section 92 CPC and not on merits. Earlier the findings recorded by the learned Civil Court in suit titled "Jamia Islamia vs. Municipal Corporation, etc." holding the petitioner as necessary party and rejection of revision by the learned Additional District Judge and afterwards dismissal of the said suit for non-prosecution is indicative of the fact that second suit was filed by respondent Mufti Abdul Aziz in his personal capacity although claiming some right on behalf of some Trust, for the purpose of obtaining an ex-parte or uncontested decree with regard to the property which according to the petitioners was reserved for public purpose. The reasoning given by the learned trial Court for non-suiting the petitioners is not only highly improbable but also against the provisions of law. When after rejection of plaint a fresh plaint can be filed how the suit could not be contested. Similarly, the learned Additional District Judge allowed the petitioners to join the proceedings before the Commission without their being party to the suit. All the above facts when read together lead to an irresistible conclusion that in order to determine the exact nature of the property i.e. whether the same was reserved for public purpose and could be allotted to the private respondents for any other purpose, the presence of the petitioners before the learned trial Court in the array of defendants was essential and the two Courts below acted illegally and with material irregularity by throwing down their request. This writ petition, resultantly, is allowed and after declaring the orders of the learned trial Court as well as of the learned revisional Court mentioned above, as without lawful authority, the petitioners are allowed to be impleaded as defendants in the said suit. The learned trial Court would, therefore, direct Mufti Abdul Aziz plaintiff/respondent to file amended plaint after impleading the petitioners as defendants and then to proceed with the trial of the suit in accordance with law.
(R.A.) (Petition allowed)
PLJ 2008 Lahore 271 (DB)
Present: Hasnat Ahmad Khan and Fazal-e-Miran Chauhan, JJ.
FAYYAZ AHMED and anothers--Petitioners
versus
STATE and others--Respondents
W.P. Nos. 804 & 1686 of 2007, heardon 13.9.2007.
Anti Terrorism Act, 1997 (XXVII of 1997)—
----Ss. 7 & 9(5)(a)--Criminal Procedure Code, (V of 1898)--S. 173--Punjab Criminal Prosecution Services (Constitution Function and Powers) Act, 2006--S. 9--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Applicability--Allegation of causing panic in public--Criminal proceedings were triggered of--Offence u/S. 7 of ATA was invoked in FIR--Challenging the invocation--During pendency of the writ petition, report u/S. 173 of Cr.P.C. was forwarded to public prosecutor, Anti-Terrorism Court, who after holding that facts of the case did not attract the provisions of S. 7 of ATA directed to SHO to submit the challan to District Prosecutor after deleting the offence of S. 7 of ATA--Challenge to--Competent jurisdiction--Validity--Public Prosecutor has the authority to scrutinise the report u/S. 173 of Cr.P.C. and in case of finding to be defective, he can return within three days to investigating officer for removal of such defect--After finding report u/S. 173, Cr.P.C. fit for submission, Public Prosecutor is duty bound to file the same before the Court of competent jurisdiction--Held: Investigating Officer is directed to withdraw the challan from the Court of Sessions Judge within fifteen days and submit the same before Court of Anti Terrorism Court, who on receipt of challan would consider the report and decide the question of jurisdiction as well as applicability of S. 7 of Anti Terrorism Act within thirteen day of receipt of the order.
[Pp. 275 & 276] A & F
PLD 2005 SC 530, 2007 SCMR 142, rel.
Criminal Procedure Code, 1898 (V of 1898)—
----S. 173--Punjab Criminal Prosecution Service (Constitution Function and Powers) Act, 2006, S. 9--Anti-Terrorism Act, 1997, Ss. 7 & 9--Constitution of Pakistan, 1973--Art. 199--Power of Prosecutor--Applicability--Prosecutor has authority to submit to the Court the result of the scrutiny in writing as to available evidence and applicability of the offences against all or any of the accused. [P. 275] B
Anti-Terrorism Act, 1997 (XXVII of 1997)—
----S. 10--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Delete the offence--Power of Prosecutor--Criminal proceedings were triggered off--Challenging the invocation of S. 7 of ATA--Challan was forwarded to public prosecutor--Direction to submit the challan after deleting the offence of S. 7 of Anti Terrorism Act--Challenge to--Question of jurisdiction--Applicability--Prosecutor has no authority to delete the offence--Validity--Public Prosecutor had no authority to assume and abdicate the function, authority and jurisdiction of trial Court to decide the question of jurisdiction or applicability of Section 7 of Anti-Terrorism Act--Held: Public Prosecutor of Anti-Terrorism Court surely travelled beyond his jurisdiction and authority and committed a grave illegality--Direction being without jurisdiction and legal authority is hereby quashed and set aside. [Pp. 275 & 276] C & E
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 7--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Question of jurisdiction--Applicability--It is exclusive prerogative and function of trial Court to decide the question of jurisdiction and applicability of offence u/S. 7 of Anti Terrorism Act.
[P. 275] D
Mr. Muhammad Khalid Ashraf Khan, Advocate for Petitioners.
Mian Bashir Ahmed Bhatti, DPG & Mr. Saghir Ahmed Bhatti, Advocate for Respondents.
Date of hearing: 13.9.2007.
Judgment
Hasnat Ahmad Khan, J.--Through this single order we intend to dispose of two writ petitions Bearing W.P. No. 804 of 2007 and W.P. No. 1686 of 2007, as the same have stemmed from one and the same FIR.
Briefly the facts of the case are that criminal proceedings were triggered off at the instance of Bashir Ahmad complainant with the allegations that on 6.2.2007 at 12.30 p.m. 13 known and two unknown gun-toting accused alongwith a club/sota wielding accused launched an assault upon the complainant party. As a result of said attack Shahid Mahmood received a single fire-arm injury. An effort was, statedly, made to rush him (Shahid Mehmood) to the hospital but he died on his way to the hospital. The occurrence took place at Chicha Watni Bus Stand, Burewala. The motivating factor behind the occurrence was stated to be an alteration, which had taken place between the members of the staff of a bus owned by a transporter namely Muhammad Ahmad on the one side and Abdul Rashid alias Somi etc., co-accused on the other side, on the allotment of time for running the buses. According to the complainant, he had visited said bus-stand to approach afore-mentioned Muhammad Ahmad, transporter for getting his son, Shahid Mehmood (deceased) employed as a conductor. The accused party, according to the complainant, suspecting that the complainant and his son had reached to support said Muhammad Ahmad, their opponent, started reckless firing, which caused an injury to Shahid Mehmood, who kicked the bucket as a result of said injury. On the basis of allegation of causing panic in the public, offence under Section 7 ATA was also invoked by the police in the FIR. One of the accused namely Fayyaz Ahmad petitioner filed W.P. No. 804 of 2007, challenging the invocation of Section 7 Anti-Terrorism Act, 1997. The said writ petition was admitted to regular hearing by this Court vide order dated 20.2.2007. However, during the pendency of the said writ petition, report under Section 173, Cr.P.C. was forwarded to the Public Prosecutor, Anti-Terrorism Court-1, who after holding that facts of the case did not attract the provisions of Section 7 Anti-Terrorism Act, 1997 directed the Station House Officer to submit the challan to the District Prosecutor after deleting the offence of Section 7 of said Act. The said order was challenged by Bashir Ahmad complainant before this Court vide W.P. No. 1686 of 2007.
In support of W.P. No. 804 of 2007, the learned counsel appearing on behalf of the Fayyaz Ahmad writ petitioner/accused has contended that in the case in hand, even according to the FIR itself, the object, design or purpose behind the actions of the accused party was not to create terror but only to satisfy a private vendetta. It has, thus, been maintained by him that Section 7 of the Anti-Terrorism Act, 1997 was wrongly invoked in the FIR and therefore, the Public Prosecutor, Anti-Terrorism Court-1 was quite justified to order for deletion of Section 7 of Anti-Terrorism Act, 1997. He has further submitted that under the provisions of the Punjab Criminal Prosecution Service (Constitution, Function and Powers) Act, 2006, the Public Prosecutor was fully authorised to pass the impugned order dated 26.3.2007, challenged vide W.P. No. 1686 of 2007. While explaining his contention, he has referred to Section 9 of the said Act, which read as under:-
Conduct of Prosecution.--(1) The Prosecutors shall be responsible for the conduct of prosecution on behalf of the Government.
(2) The Prosecutor General or if so authorised by him, an Additional Prosecutor General shall distribute work to the Prosecutors in the Supreme Court, the High Court, the Federal Shariat Court or a Special Court established under any law for the time being in force.
(3) A District Public Prosecutor shall distribute work to the Prosecutors with respect of the Courts of Session and Courts of Magistrates within a District.
(4) A police report under Section 173 of the Code including a report of cancellation of the first information report or a request for discharge of a suspect or an accused shall be submitted to a Court through the Prosecutor appointed under this Act.
(5) The Prosecutor shall scrutinize the report or the request and may--
(a) return the same within three days to the officer incharge of police station or investigation officer, as the case may be, if he finds the same to be defective, for removal of such defects as may be identified by him; or
(b) if it is fit for submission, file it before the Court of competent jurisdiction.
(6) On receipt of an interim police report under Section 173 of the Code, the Prosecutor shall--
(a) examine the reasons assigned for the delay in the completion of investigation and if he considers the reasons compelling request the Court for the postponement of trial and in case investigation is not completed within reasonable time, request the Court for commencement of trial; and
(b) In cases where reasons assigned for delay in the completion of investigation are not compelling, request the Court for commencement of trial on the basis of the evidence available on record.
(7) A Prosecutor may submit to the Court results of his scrutiny in writing as to the available evidence and applicability of offences against all or any of the accused as per facts and circumstances of the case.
(4) In support of W.P. No. 1686 of 2007, learned counsel for Bashir Ahmad complainant has contended that the order passed by the Public Prosecutor is without jurisdiction. Adds that the Public Prosecutor could not assume and abdicate the function and jurisdiction of the learned Anti-Terrorism Court; and therefore, direction passed by him is not sustainable.
(5) After hearing the parties, we have concluded that Section 9 of the ibid Act did not authorise the Public Prosecutor to delete the offence under Section 7 ATA. Under sub-section (5) (a) of Section 9 the Public Prosecutor has the authority to scrutinise the report under Section 173 Cr.P.C. and in case of finding the same to be defective, he can return the same, within three days, to the Officer Incharge of Police Station or Investigating Officer for the removal of such defects and under sub-section (5) (b) of said section, after finding report under Section 173 Cr.P.C. fit for submission, the Public Prosecutor is duty bound to file the same before the Court of competent jurisdiction. A perusal of sub-section (7) of Section 9 of said Act indicates that the Prosecutor has the authority to submit to the Court the result of his scrutiny in writing as to the available evidence and applicability of the offences against all or any of the accused. A further perusal of Section 10 of the said Act, which provides the powers of the Prosecutor, also makes it clear that the Public-Prosecutor has no authority to delete the offence himself. To put in a nutshell we have concluded that the Public Prosecutor Anti-Terrorism Court No. 1 had no authority to assume and abdicate the function, authority and jurisdiction of the trial Court to decide the question of jurisdiction or applicability of the relevant section, therefore, in this case while passing the impugned direction dated 26.3.2007, the Public Prosecutor, Anti-Terrorism Court No. 1, Multan surely levelled beyond his jurisdiction and authority and committed a grave illegality. Therefore, the said direction being without jurisdiction and legal authority is hereby quashed and set aside.
(6) Coming to Writ Petition No. 804 of 2007, filed by Fayyaz Ahmad petitioner, we are constrained to hold that initially it is the exclusive prerogative and function of the learned trial Court to decide the question of jurisdiction and applicability of offence under Section 7 Anti-Terrorism Act, of 1997. The said question has not been attended to and dealt with by the learned trial Court i.e. Judge Anti-Terrorism Court No. 1. Rather the report under Section 173 Cr.P.C. was returned to the ordinary Court by the Public Prosecutor of the said Court himself. In the preceding paragraph of this judgment we have already held that order/direction dated 26.3.2007 passed by the said Prosecutor was without any legal authority. Thus W.P. No. 804 of 2007 is hereby dismised. Said order/direction passed by the afore-mentioned Public Prosecutor would be treated by the Judge Anti-Terrorism Court No. 1 as a report under sub-section (7) of Section 9 of ibid Act.
(7) In view of the decision of W.P. No. 1686 of 2007, the Investigating Officer is directed to withdraw the challan from the Court of learned Sessions judge within fifteen days and submit the same before the Court of learned Judge, Anti-Terrorism Court No. 1, who on the receipt of challan would consider the report dated 26.3.2007 submitted by the Public Prosecutor and decide the question of his jurisdiction as well as the applicability of Section 7 of the Anti-Terrorism Act, 1997, within thirty days of receipt of this order, in the light of the judgments of the Hon'ble Supreme Court of Pakistan rendered in the cases of Mirza Shaukat Baig and others vs. Shahid Jamil and others (PLD 2005 SC 530) and Muhababt Ali another v. The State (2007 SCMR 142).
(R.A.) Petition accepted.
PLJ 2008 Lahore 276 (DB)
Present: Ijaz Ahmad Chaudhry and Mian Muhammad Najam-uz-Zaman, JJ.
ZAKAULLAH KHAN SHERWANI--Petitioner
versus
STATE and 2 others--Respondents
W.P. No. 13532 of 2006, decided on 18.9.2007.
Constitution of Pakistan, 1973—
----Art. 199--Criminal Procedure Code, (V of 1898), S. 497--Constitutional petition for releasing on bail--Allegation of--Misappropriation--NAB Authorities have not collected direct evidence against petitioner--Out of 910 witnesses only statements of four witnesses have been recorded--Further inquiry--Petitioner was employee of the company and Chief Executive had transferred who subsequently withdrew such amount and he being employee of company was not in a position to refuse the transfer of amount and withdrawal of it by the Chief Executive of Company--For the time being there is nothing on record to controvert the assertion of the petitioner--Petitioner has been roped in the instant case merely on surmises and conjectures, who cannot be detained in jail for indefinite period when there is no likelihood of conclusion of the trial in the near future as the prosecution has cited many PWs in calendar of witnesses and only four PWs have been recorded--On the other hand the case to the extent of petitioner has become one of further inquiry--Petitioner was admitted to bail subject to his furnishing bail bonds. [P. 278] A
M/s M.A. Malik and Sitar Sahil, Advocates for Petitioner.
Qazi Misbah-ul-Hassan, Special Prosecutor for NAB.
Date of hearing: 18.9.2007.
Order
Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for his release on bail in Reference No. 35/2005, titled as State vs. Shahid Hassan Awan etc., pending before the learned Judge Accountability Court No. 3, Lahore.
"e. The accused Zakaullah Khan Sherwani frontman of Accused No. 1 was responsible for maintaining different bank accounts. Accused No. 5 received approximately Rs. 95 million directly into his accounts from the account of Accused No. 1 and entire amount so received in his accounts was withdrawn and misappropriated. The details are as under:--
i. He received approximately Rs. 42 million directly in his account from the accounts of Shahid Hassan Awan accused and all the money was embezzled by the accused person.
ii. From the account in First Standard Chartered Bank Gulberg, Lahore fixed deposit certificates worth Rs. 30 million were purchased and encashed.
iii. He opened account in UBL, Liberty Market Lahore with transfer balance of Rs. 23 million from the account of Accused No. 1. Further, an amount of Rs. 7,50,00/- was received by accused from the saving account of Accused No. 1. He also received Rs. 5 million in this account from the father of Accused No. 1 and the entire amount was withdrawn in two days.
iv. The accused as benamidar of Accused No. 1 purchased two kanal Plot No. 116 Block A Phase-II Scheme II in Ravian Cooperative Housing Society Lahore. He sold this property before his arrest and misappropriated the sale price.
v. The accused purchased Property No. 668/1 Block Z Phase-III DHA Lahore that was disposed of and its proceeds were misappropriated.
vi. On 2.9.2003 accused withdrew Rs. 3.5 million from Stranded Chartered Bank Lahore in violation of the orders of the Honourable Lahore High Court Lahore, whereupon his warrants of arrest were issued.
The learned counsel for the petitioner contends that there is no likelihood of the conclusion of the trial in the near future as the prosecution has cited 910 witnesses which the NAB Authorities intend to produce to prove the case; that out of 910 witnesses only statements of four witnesses have been recorded so far in six months; that the petitioner was not the Director and the allegation against him is that Shahid Hussain Awan, Chief Executive of the Company had transferred some amount in the account of the petitioner which was subsequently withdrawn; that the said transaction does not fall within the affair of the company and the principal accused Shahid Hussain Awan had already raised plea bargain at the initial stage and voluntarily accepted the whole liability, who also intended to return the entire amount.
On the other hand, the learned Prosecutor on behalf of the NAB opposes this petition on the ground that the petitioner remained present when the witnesses had gone to deposit the amount alongwith Shahid Hassan Awan; that he had also filed C.M. in the Lahore High Court, Lahore for withdrawal of the amount and also got withdrawn the amount in violation of the orders passed by the company.
We have heard the learned counsel for the parties and also perused the record with due care and caution.
It is admitted fact that the petitioner was not Director of the company. It is also admitted fact that so far the NAB Authorities have not collected any direct evidence against the petitioner that he had instigated anybody for depositing the amount or any person at his instance had deposited the amount in the company. It is also not denied that the amount of 95 millions which was deposited in the account of the petitioner was transferred from the account of Shahid Hassan Awan Chief Executive. It is claimed that he was employee of the said company and Chief Executive had transferred the said amount, who subsequently withdrew the said amount and he being employee of the company was not in a position to refuse the transfer of the amount and withdrawal of the same by the Chief Executive of the Company. For the time being there is nothing on the record to controvert the assertion of the petitioner. It seems that the petitioner has been roped in the present case merely on surmises and conjectures, who cannot be detained in jail for indefinite period when there is no likelihood of conclusion of the trial in the near future as the prosecution has cited 910 PWs in the calendar of witnesses and only four PWs have been recorded so far. On the other hand the case to the extent of the petitioner has become one of further inquiry.
For the foregoing discussion, this petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs. one million with two sureties each in the like amount to the satisfaction of D.R. (J) of this Court.
(N.F.) (Petition accepted)
PLJ 2008 Lahore 279
Present: Sayed Zahid Hussain, J.
Dr. FARRAH ATTA--Petitioner
versus
DISTRICT AND SESSIONS JUDGE/CHAIRMAN HUMAN RIGHTS BHAKHAR and 3 others--Respondents
W.P. No. 5846 of 2007, heard on 5.9.2007.
Constitution of Pakistan, 1973—
----Arts. 175(2) & 199--Constitutional petitions--Appointment of two females in health departments--Appointed as a woman medical officer on contract basis--Offer of the appointment was non transferable and had to undergo an essential training program--On completion of Postgraduate Health Training and repatriation the posted at Rural Health Centre--Entitled to be posted at original Rural Health Centre--Representation was accepted--Agitated before Chairman Human Rights--Complaint was disposed of--Assailed--Assumption and exercise of jurisdiction--Litigation with terms and conditions of service--Validity--Proceedings taken and ultimate order passed by Chairman Human Rights is liable to be declared as one without lawful authority and of no legal effect--Civil servants may agitate the matter before departmental authority/proper forum, who may consider grievance in accordance with law and extent policy--Held: Time consumed in litigation will not stand in the way of proper forum in considering the matter strictly on merits--Petitions were accepted. [Pp. 281 & 282] A & B
Mr. Zafar Iqbal Chohan, Advocate for Petitioner.
Mr. Rizwan Mushtaq, Assistant Advocate General, Punjab with Dr. Muhammad Mushtaq Anwar-ul-Hassan Khan Niazi, SMO/Litigation Officer, Office of the EDO (Health), Bhakkar and Malik Muhammad Anwar, Assistant, Health Department, Punjab, Lahore.
Mr. Mobeen-ud-Din Qazi, Advocate for Respondent No. 4.
Date of hearing: 5.9.2007.
Judgment
The two ladies belonging to the noble profession of medicine have invoked the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 through two separate petitions. W.P. No. 5846/2007 is by Dr. Farrah Atta, who was appointed as a Woman Medical Officer on contract basis at Rural Health Centre, Darya Khan, Bhakkar vide letter dated 11.6.2003. The salient feature of this offer of appointment was that it was non-transferable and she had to undergo an essential training programme as prescribed by the Department. She was recommended for such a training and proceeded to King Edward Medical College University, Lahore, as it evident from letter dated 2.6.2006 and 19.6.2006. She was required to submit a surety bond which she did. On completion of her postgraduate training and repatriation, she was posted at Rural Health Centre, Dullewala, Bhakkar vide order dated 5.4.2007. She made a representation against such posting as, according to her, she was entitled to be posted at her original Rural Health Centre, Darya Khan from where she had proceeded for training. Her representation was accepted by the Government of the Punjab, Health Department on 20.4.2007 observing that she had to be posted back to her original Rural Health Centre (Daray Khan). Accordingly, order dated 30.4.2007 was issued by the Executive District Officer (Health), Bhakkar adjusting her as Woman Medical Officer at Rural Health Centre, Darya Khan against her original post from where she proceeded for postgraduate course. It was agitated by Dr. Imra Sabahat Khan before the learned District and Sessions Judge/Chairman Human Rights, Bhakkar which complaint was processed and disposed of vide order dated 30.5.2007. The sum and substance whereof was the interference with the posting order of the petitioner. This petition has been filed by Dr. Farrah Atta in this context.
W.P. No. 6509/2007 is a petition by Dr. Imra Sabahat Khan, who was appointed as Woman Medical Officer at Rural Health Centre, Darya Khan on 30.10.2006. She had been performing duty at that Centre. However, on 30.4.2007 the posting order of Dr. Farrah Atta was made on completion of her training and repatriation for Rural Health Centre, Darya Khan. It was on her move that order dated 30.5.2007 was passed by the learned District & Sessions Judge, Bhakkar and is subject matter of the petitioner filed by Dr. Farrah Atta. After the interim order dated 11.6.2007 was passed by this Court, an order dated 16.6.2007 was issued allowing Dr. Farrah Atta to continue at Rural Health Centre, DarayaKhan. The same is sought to be assailed through this petition.
Report and parawise comments have been received in both the petitions whereas the contesting parties are also represented.
An important issue as to the assumption and exercise of jurisdiction by the learned District and Sessions Judge in a matter of posting and transfer of the parties has arisen. There is no doubt whatsoever that the Courts assume and exercise jurisdiction as is "conferred on it by the Constitution or by or under any law". This is the mandate of Article 175(2) of the Constitution of the Islamic Republic of Pakistan, 1973. This aspect has elaborately been dealt with by Justice (R) Fazal Karim in "Judicial Review of Public Actions" Volume-1, the relevant discussion at page 366 is as follows:-
`Jurisdiction' imports the power to hear and determine a cause.
In the context of a written Constitution. "Jurisdiction" expresses the concept of the particular res or subject-matter over which the judicial power is to be exercised and the manner of its exercise. It denotes the authority for the Courts to exercise judicial power. It is the legal authority which a Court has to decide matters that are litigated before it.
Thus, considered with reference to the sources from which it is derived, `jurisdiction' may be defined as the authority conferred by the Constitution or by or under any law upon a Court to hear and determine causes between parties, that is to say, exercise the judicial power of the State in relation to them."
The subject-matter of the instant litigation concerned with the terms and conditions of service of the two contesting parties. By no stretch of imagination, it could fall within the ambit of jurisdiction of the learned District and Sessions Judge to interfere in such a matter. His interference in such a matter was unwarranted. Thus the proceedings taken and ultimate order passed by him on 30.5.2007 is liable to be declared as the one without lawful authority and of no legal effect. Reference, in this context, may be made to Sindh Employee's Social Security Institution vs. Dr. Mumtaz Ali Taj and another (PLD 1975 Supreme Court 450).
The operation of order dated 30.5.2007 was suspended by this Court on 11.6.2007 whereafter order dated 16.6.2007 was issued by the Executive District Officer (Health), Bhakkar allowing Dr. Farrah Atta Qazi to continue working at Rural Health Centre, DarayaKhan and Dr. Imra Sabahat Khan was posted at Rural Health Centre, Dullewala. The undeniable fact of he matter is that both the ladies are on the job serving the humanity but at different health centres. Incidentally both of them wish to be posted at Rural Health Centre, DarayaKhan for their own reasons. Be that as it may, since order dated 30.5.2007 passed by the learned District & Sessions Judge, Bhakkar is of no legal efficacy, order dated 30.4.2007 passed by Executive District Officer (Health), Bhakkar revives. If, for any reason, Dr. Imra Sabahat Khan feels aggrieved of the same, she may agitate the matter before the departmental authority/proper forum, who may consider her grievance in accordance with law and the extant policy. Suffice it to observe that the time consumed in the litigation will not stand in the way of the proper forum in considering the matter strictly on merits.
In view of the above, W.P. No. 5846/2007 is accepted whereas W.P. No. 6509/2007 is disposed of in the above terms.
(R.A.) Order accordingly.
PLJ 2008 Lahore 282 (DB)
Present: Asif Saeed Khan Khosa and Kh. Muhammad Sharif, JJ.
NASEER AHMED--Petitioner
versus
JUDGE ANTI TERRORISM COURT-III, LAHORE and 3 others--Respondents
W.P. No. 6459 of 2007, decided on 3.9.2007.
Anti Terrorism Act, 1997 (XXVII of 1997)—
----S. 6(1)(g)(c)(m) & (n)--Constitution of Pakistan, 1973--Art. 199--Blocked road through burnt--Question of jurisdiction of Special Court--Determination--No body was injured--No stone/brick was taken into possession--No vehicle was burnt, none from the public appeared before police to make statement--Act of accused the road was blocked and suffered any sort of trouble and that to support the story coined up in FIR--Question of jurisdiction of special Court can be determined on the basis of FIR and other material produced by prosecution at time of presentation of challan--Held: Investigation is complete and only now challan is to be submitted and there is nothing on record except the statements of police officials--Delay of two days also smacks of mala fide on the part of police--Petition allowed. [P. 283] A & B
Mr. Abdul Razzaq Younas, Advocate for Petitioner.
Mr. Tahir Mehmood Gondal, AAG for Respondents.
Date of hearing: 3.9.2007.
Order
Kh. Muhammad Sharif, J.--In support of this petition, it is submitted that nobody was injured, there is not on record MLR of any of the injured; no stone/brick was taken into possession, no vehicle, scooter or motor-cycle was burnt; none from the public appeared before the Police to make statement that because of the act of the petitioners, the road was blocked and he suffered any sort of trouble and that to support the story coined up in the FIR, statements of only three Police officials were recorded.
On the other hand, learned AAG submits that sub-clause (I) (g) (L) (m) and (n) of Section 6 of the Anti-Terrorism Act are fully attracted. He supports the impugned order of the trial Court.
We have gone through the Police file brought by Inspector Basharat Ahmad, SHO Police Station Bhatti Gate, Lahore. It was alleged in the FIR that the accused of the FIR had blocked the road through burnt tyres and when the Police party tried to remove the hindrances to open the road, apart from firing in the air, stones were also thrown on the Police party by the accused and some of the officials were also injured. After scanning the whole file was have not been able to see MLR of any of the injured person; recovery of any stone/brick, recovery of any of the burnt vehicle or tyres statement of any person from the public to the effect that the road was blocked and because of this act of the petitioner he suffered any trouble except the statements of three Police officials. The question of jurisdiction of Special Court can be determined on the basis of the FIR and the other material produced by the prosecution at the time of presentation of the challan. For this view, we are fortified from a judgment of Apex Court of the country reported as 1994 SCMR 717. In the instant case, the investigation is complete and only now challan is to be submitted and there is nothing on record except the statements of the three Police officials. Moreover, the alleged incident of which the petitioners are accused took place on 25.5.2007 but the FIR was recorded on 27.5.2002. This delay of two days also smacks of mala fide on the part of the police. For what has been observed view, this writ petition is allowed, impugned order of the Special Court is set aside and the police is directed to submit the challan against the petitioner in the ordinary Criminal Court of competent jurisdiction.
(R.A.) Petition allowed.
PLJ 2008 Lahore 283
Present: Tariq Shamim, J.
MEHMOOD KHALID--Petitioner
versus
PRESIDENT, PAKISTAN FOOTBALL FEDERATION, LAHORE and 7 others--Respondents
W.P. No. 7075 of 2007, heard on 14.9.2007.
Constitution of Pakistan, 1973—
----Arts. 23 & 199--Schedule of election of Pakistan Football Federation Congress--Challenged by General Secretary--Violative of fundamental rights--Non-service of notice of election schedule--Not sustainable being contrary to record--Entitlement to contest election--Alternate remedy--Validity--Locus standi--Suspension of--Lack of cause of action--Schedule of election was duly conveyed to Member of Punjab Football Association vide letter and was received by petitioner himself on behalf of Association--Petitioner was not a duly elected General Secretary of Punjab Football Association, therefore, he was not eligible to contest the elections of Pakistan Football Federation Congress--Petitioner not being a duly elected General Secretary of Association, has no lawful authority or right to challenge the schedule of elections announced by Pakistan Football Federation--Petitioner has alternate remedy available to him under the law by way of invoking jurisdiction of Pakistan Football Federation--Petitioner without exhausting the remedy provided under the law and while concealing such aspect has approached High Court through Constitutional petition--Petitioner has not pressed the preliminary objections as to misjoinder of respondents, therefore, there is no need for High Court to give any finding on such issue--Petition was dismissed. [P. 286] A, B, C & D
Rao Munawar Khan, Advocate for Petitioner.
Kh. Haris Ahmed, Advocate for Respondents.
Date of hearing: 14.9.2007.
Judgment
Through this petition the petitioner being the Secretary of Punjab Football Association has challenged the schedule of election of Pakistan Football Federation Congress dated 14th July, 2007 and has prayed for suspension of operation of the impugned schedule till the final disposal of the case.
The brief facts of the case are that the General Secretary, Pakistan Football Federation, Respondent No. 2 issued the election schedule for election of Pakistan Football Federation Congress proposed to be held on 14th of July, 2007 for the election of three Vice-Presidents and 13 Members of the Executive Committee. The petitioner was not served with a notice or provided information about the said schedule of election and had come to know from a news item published in the Daily `Nawa-i-Waqt' in its issue of 4th July, 2007. The petitioner being aggrieved of non-service of notice of the schedule of election has approached this Court through the instant petition.
The main thrust of the argument of Rao Munawar Khan, Advocate, the learned counsel for the petitioner is that the mandatory provisions of Article 23 of the Constitution of the Pakistan Football Federation have been ignored/not acted upon by Respondent No. 2 which requires giving at least 15 days, notice in advance of the meeting to all the Units and circulation with the notice copy of the Agenda etc. Since Respondent No. 2 had failed to comply with the mandatory provisions of Article 23, therefore, the schedule of Pakistan Football Federation Congress is void ab initio, illegal without jurisdiction, being contrary to the Constitution of Pakistan Football Federation as well as violative of the fundamental rights as envisaged in the Constitution of Islamic Republic of Pakistan, 1973.
Khawaja Haris Ahmad, Advocate who represents Respondents No. 1 and 2 has raised preliminary objections as to the maintainability of the writ petition on account of concealment of facts, lack of cause of action, misjoinder of respondents as no relief has been claimed against Respondents No. 3 to 8 and the writ petition being pre-mature as the petitioner has not exhausted the remedy available to him under the law before approaching this Court. On merits the learned Counsel has contended that the schedule for election was duly conveyed to the Members of the Punjab Football Association vide letter dated 4.5.2007 received by the petitioner himself on behalf of the Punjab Football Association on 5.5.2007. Has further maintained that since this Court in its order dated 26.4.2007 passed in Writ Petition No. 3959/2007 had stayed the election of the Punjab Football Association, therefore, the petitioner could not lawfully claim to be an elected office bearer of the Punjab Football Association. While conceding that Article 23 of the Constitution of the Punjab Football Federation required at least 15 days' advance notice of the meeting in terms of Article 23 has, however, controverted the argument that no such notice had been received by the petitioner in terms of the said Article. Also maintained that the petitioner is not qualified to contest the election, therefore, he cannot be termed as an aggrieved person and, consequently, the petitioner has no locus standi to file the present petition. And that even if it be presumed that the petitioner is an aggrieved person, even then under the law he is first required to exhaust the remedies available to him under the Constitution of Pakistan Football Federation or the Asian Football Conference or the Federation International de Football Association (FIFA). Lastly stated that since the election scheduled to take place on 14th of July, 2007 could not be held on account of the injunctive order passed by this Court, therefore the Federation International de Football Association through an e-mail dated 9th of August, 2007 had suggested suspension of membership of the Pakistan Football Federation.
I have heard the learned Counsel and have gone through the documents placed on the record and referred to during the course of arguments.
The argument of the learned Counsel for the petitioner regarding non-service of notice of schedule of the elections as required by Article 23 is not sustainable being contrary to the record. The letter dated 4th of may, 2007 issued by the Pakistan Football Federation Secretariat under the signatures of Respondent No. 2 reveals that a copy of the letter had been received by the petitioner on 5th of May, 2007 which bears his signatures in token of its receipt/acceptance. The learned Counsel representing the petitioner has not denied the signatures of the petitioner on the aforesaid letter. This also negates the stand taken by the petitioner that he had come to know about the schedule of elections through a news item published in the Daily `Nawa-i-Waqt' in its issue of 4th of July, 2007. From the foregoing it is evident that the schedule of the elections was duly conveyed to the Members of the Punjab Football Association vide letter dated 4.5.2007 and was received by the petitioner himself on behalf of the Association.
A writ petition Bearing No. 3959/07 titled `Muhammad Naseem Khan Niazi v. Provincial Election Commission etc.' was filed before this Court in which the schedule of election of the Punjab Football Association due to be held on 26.4.2007 was suspended. The claim of the petitioner that he is a duly elected General Secretary of the Punjab Football Association is, therefore, without any substance as the election was purportedly held on 26.4.2007 when the injunctive order passed by this Court was in effect. Since the petitioner is not a duly elected General Secretary of the Punjab Football Association, therefore, he is not eligible to contest the elections of the Pakistan Football Federation Congress.
This obviously leads to the next question as to whether the petitioner has the locus standi to file the instant petition? In view of what has been discussed above I have no hesitation in holding that the petitioner not being a duly elected General Secretary of the Punjab Football Association, has no lawful authority or right to challenge the schedule of elections announced by the Pakistan Football Federation.
The learned Counsel for the respondents has further drawn the attention of this Court to the relevant Articles of the Pakistan Football Federation Congress which reveal that the petitioner has alternate remedy available to him under the law by way of invoking jurisdiction of the Pakistan Football Federation or Asian Football Conference or Federation International de Football Association (FIFA). The petitioner without exhausting the remedy provided under the law and while concealing this aspects has approached this Court through the instant Constitutional Petition.
Since the learned Counsel for the petitioner has not pressed the preliminary objection as to misjoinder of Respondents No. 3 to 8, therefore, there is no need for this Court to give any finding on the said issue.
Through a short order dated 18.9.2007 the petition had been dismissed as being without merit, the reasons therefor have been provided hereinabove.
(N.F.) Petition dismissed.
PLJ 2008 Lahore 287
Present: Mian Hamid Farooq, J.
KHADIM HUSSAIN--Petitioner
versus
RASHEED AHMAD and another--Respondents
C.R. No. 2048 of 2003, decided on 8.10.2007.
Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 13--Civil Procedure Code, (V of 1908), S. 115--Revision petition--Talab-e-Muwathibat--Petitioner did not fulfill the requirement of "talabs"--Question of--Trial Court recorded evidence in one case and same was copied by the reader in other suit--Examined the memorandum of appeal--A new and different plea--Concurrent finding--Discrepancies in statements--Pronounced his intent to pre-empt the suit land prior to hearing him--Proper appreciation of evidence--Jurisdiction--Not liable to be interfered--High Court has also examined the memorandum of appeal filed before the lower appellate Court that petitioner did not plead such ground in the memorandum of appeal--Admittedly, petitioner did not take the plea, now agitated before High Court, for the first time, before the First Appellate Court--Concurrent findings of facts were recorded by Courts below which are based on proper appreciation of evidence, oral and documentary, produced by the respective parties before trial Court--No case of mis-reading and non-reading of evidence has been made out, neither any legal infirmity has been pointed out by counsel even during the arguments, nor illegal exercise of jurisdiction nor failure to exercise of jurisdiction by Courts below has been attributed--Held: Concurrent findings of facts, based on evidence, are not liable to be interfered in exercise of jurisdiction u/S. 115 of C.P.C.--Petition was dismissed. [Pp. 289 & 291] A & E
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Civil Procedure Code, (V of 1908)--S. 15--Talab-e-Muwathibat and Talab-e-Ishhad--Petitioner did not make "Talab-e-Muwathibat" as soon as he come to know about the sale of land--Competent jurisdiction--Discrepancies in statements of witnesses--Petitioner showed his intention to pre-empt the land before he could hear from him about the sale--Petitioner had already knowledge about sale, which was undertaken through registered sale-deeds, which is presumed to be notice to public--Although petitioner has tried to justify such portion of statement of witness, yet he has not been able to get out from vigor of statement, which is categorical and specific in nature--Even otherwise, the statement of witness, if read together is wavering and untrustworthy inasmuch as he also stated that he could not tell as to when the sale was made--Both the Courts did not commit any illegality while raising adverse inferences from the statement of witness--Both the Courts have rightly held that petitioner has not been able to prove "Talab-e-Muwathibat" therefore, performance of "Talab-e-Ishhad" loses its sanctity. [P. 290] C
Civil Procedure Code, 1908 (V of 1908)—
----S. 115--Revisional jurisdiction--New and different plea before revisional Court--Validity--A litigant cannot be allowed to raise together a new and different plea before appellate/revisional Court, which has not been raised before the lower forums. [P. 290] B
Revisional Jurisdiction--
----Question of fact or law--Competent jurisdiction--Findings on questions of facts or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless such findings suffer from jurisdiction defect, illegality or material irregularities. [P. 290] D
PLJ 2000 Lah. 157 rel.
Civil Procedure Code, 1908 (V of 1908)—
----S. 115--Jurisdiction--Concurrent findings--Concurrent findings of facts, based on evidence, are not liable to be interfered in exercise of jurisdiction u/S. 115 of CPC. [P. 291] E
2004 SCMR 1719; 1996 SCMR 1770; 1998 SCMR 593; PLJ 2000 Lahore; 157; 2000 SCMR 346; 2000 SCMR 431; 2000 SCMR 1647; 2000 SCMR 314; 2000 SCMR 329; PLD 1994 SC 291; PLD 2002 SC 293, ref.
Mr. Zafar Iqbal Mirza, Advocate for Petitioner.
Mr. Arshad Malik Awan, Advocate for Respondents.
Date of hearing: 8.10.2007.
Order
This single judgment shall decide the present revision petition (C.R. No. 2048/2003) and the connected petition (C.R. No. 2049/2003), as common questions of law and facts are involved in both the petitions and they have arisen out of identical judgments.
Ghulam Nabi alias Ghulam Muhammad, son of Suba, was owner of land measuring 27-Kanals 2-Marlas (elaborately mentioned in the plaint) and he, out of the said total holding, sold 13 Kanals 11-Marlas, to the respondents in the present petition, and 13 Kanals 11 Marlas to the respondents in the connected petition, for consideration of Rs. 1,95,000/- each, vide separate registered sale-deeds both dated 20.2.98. The petitioner, claiming his superior right to pre-empt the sale being co-sharers, filed two suits for possession through pre-emption, against the respondents, inter alia, pleading that the questioned land was sold secretly; actual value of the land is Rs. 1,25,000/-, however, ostensible price of Rs. 1,95,000/- was got entered in the sale-deeds in order to defeat right of pre-emption; he came to know about the sale on 21.2.98 through Muhammad Siddique at 7.00 p.m. at his "Bathak" and he pronounced "Talab-e-Muwatabat"; the petitioner went to the respondents alongwith witnesses, namely Muhammad Sadique, Muhammad Salah and Muhammad Khan, and fulfilled "Talab-e-Ishhad" on 26.8.98, but the respondents refused to return the disputed land and the petitioner, on 27.8.1998, sent notices in writing through registered cover, attested by the witnesses but the respondents refused to surrender the land to the petitioner, which necessitated the suits. The respondents contested the suits through separate written statements, thereby raising preliminary objections and controverting contents of the plaints and asserting that the petitioner did not fulfil requirement of "Talabs". The learned trial Court framed as many as seven identical issues in both the cases, recorded oral as well as documentary evidence of the parties and ultimately dismissed both the suits, vide separate judgments and decrees dated 10.5.99. The petitioner filed two appeals, against the said decrees, but those were dismissed by the learned Additional District Judge, vide separate impugned judgments and decrees both dated 26.11.2002, hence the present revision petitions.
Learned counsel for the petitioner states that the learned trial Court rendered its findings only on Issues No. 1 to 3, while no findings were given on the rest of the issues. He further submits that the learned trial Court recorded evidence in one case and same was copied by the Reader in the other suit, which course of action vitiates the impugned judgments. He adds that there is no discrepancy in petitioner's witnesses and his suits deserve to be decreed. He has relied upon the judgment reported as Haji Feroze Khan and another vs. Amir Hussain through L.Rs. and others (2004 SCMR 1719). Learned counsel for the respondents contends that in view of the statement of PW-2, the petitioner did not make "Talab-e-Muwatabat" as soon as he came to known about the sale of the land.
I have heard the learned counsel and examined the available record. First contention of the learned counsel for the petitioner, on the face of it, does not deserve any consideration. The crucial issues are Issues No. 1 to 3, upon which both the Courts in view of the evidence on record rendered their findings. The learned trial Court while deciding Issue No. 6 has held that in view of findings on Issue No. 1, this issue is also disposed of, however, Issues No. 4 and 5, onus of which was on the respondents, were not pressed, thus, decided accordingly. In view whereof, it cannot be urged that the learned trial Court did not give its findings on all the issues.
Now coming to the next contention. The learned counsel for the petitioner, when asked as to whether the petitioner raised the said plea, now agitated before the revisional Court, has frankly conceded that no such plea was urged before the First Appellate Court. I have also examined the memorandum of appeal filed before the lower Appellate Court and find that the petitioner did not plead the said ground in the memorandum of appeal. Admittedly, the petitioner did not take the plea, now agitated before this Court, for the first time, before the First Appellate Court. Additionally, the learned counsel for the petitioner has not been able to demonstrate as to how the petitioner was prejudiced from the said act of the Court. It is settled law that a litigant cannot be allowed to raise altogether a new and different plea before the appellate/revisional Court, which has not been raised before the lower forums. Reference can be made to Anwar Ali and others vs. Manzoor Hussain and another (1996 SCMR 1770) Amir Shah vs. Ziarat Gul (1998 SCMR 593).
As regards other contention of the learned counsel for the petitioner, suffice it to say that the petitioner was non-suited not only on account of discrepancies in the statements of his witnesses but also on the basis of statement of PW-2, who categorically stated that the petitioner pronounced his intent to pre-empt the suit land prior to hearing him and that the petitioner did not fulfil "Talab-e-Muwatabat" in accordance with law. I have also examined statement of PW-2 and find that in his cross-examination, he has deposed as under:
It flows from the above that PW-2 unambiguously, clearly and loudly stated that the petitioner showed his intention to pre-empt the land before he could hear from him about the sale. It shows that the petitioner had already knowledge about the sale, which was undertaken through registered sale-deeds, which is presumed to be notice to the public. Although the learned counsel for the petitioner has tried to justify said portion of the statement of PW-2, yet he has not been able to get out from the vigor of the statement, which is categorical and specific in nature. Even otherwise, the statement of PW-2 if read together is wavering and untrustworthy inasmuch as he also stated that he could not tell as to when the sale was made. Both the Courts did not commit any illegality while raising adverse inferences from the statement of PW-2. Both the Courts have rightly held that the petitioner has not been able to prove "Talab-e-Muwatabat" therefore, performance of "Talab-e-Ishhad loses it sanctity.
It is settled law that the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. Reliance is placed on Muhammad Rafique vs. Aamer Shahzad and others (PLJ 2000 Lahore 157).
The concurrent findings of facts were recorded by both the Courts below which are based on proper appreciation of evidence, oral and documentary, produced by the respective parties before the learnd trial Court. No case of mis-reading and non-reading of evidence has been made out, neither any legal infirmity has been pointed out by the learned counsel even during the arguments, nor illegal exercise of jurisdiction nor failure of exercise of jurisdiction by both the Courts below has been attributed.
It is settled law that concurrent findings of facts, based on evidence, are not liable to be interfered in the exercise of jurisdiction under Section 115 C.P.C. Reliance is placed on Abdul Rahim and another vs. Mst. Janatay Bibi and others (2000 SCMR 346), Anwar Zaman and 5 others vs. Bahadur Sher and others (2000 SCMR 431), Aziz Ullah Khan and others vs. Gul Muhammad Khan (2000 SCMR 1647), Altaf Hussain vs. Abdul Hameed and Abdul Majeed through legal heirs and another (2000 SCMR 314), Haji Noor Muhammad vs. Abdul Ghani and 2 others (2000 SCMR 329), Haji Muhammad Din vs. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rashid Ahmad vs. Muhammad Siddique (PLD 2002 SC 293).
Upshot of the above discussion is that both revision petitions are devoid of merits, thus, the same stand dismissed with no order as to costs.
(R.A.) Petitions dismissed.
PLJ 2008 Lahore 291
Present: Syed Shabbar Raza Rizvi, J.
ZILA NAZIM KASUR--Petitioner
versus
GOVT. OF PUNJAB through Secretary Local Govt. & Rural Development Department, Lahore and 3 others--Respondents
W.P. No. 8000 of 2007, decided on 26.9.2007.
Punjab Local Government Ordinance, 2001 (XIII of 2001)—
----Ss. 42, 112(8) & 132--Budget Rules, 2003--R. 57--District Government and Tehsil Municipal Administration (Budget) Rules, 2003--R. 59--Constitution of Pakistan, 1973--Art. 199-Authentication of budget--Proposals in budget was approved by majority--Demands for grant were rejected--Petition approached on behalf of council for authentication--Remained unheard--Respondents have tried to frustrate the proceedings--Functions of Provincial Local Government--Annaul budget--Budgetary powers reflects sovereignty--Devolution powers--Validity--Functions of Punjab Local Government Commission are of general nature and do not include to decide issues relating annual budget--To approve a budget or to have a budgetary powers reflects sovereignty of an institution--Whole scheme of Punjab Local Government Ordinance, 2001 is based on devolution powers which include financial powers, from the Provincial Government to District Government--Conduct of respondents obviously impinges upon such idea or run counter the whole philosophy of Punjab Local Government Ordinance, 2001. [P. 294] A
Words and Phrases--
----Decentralize--In Section 2(vii) of Punjab Local Government Ordinance, 2001, "Decentralize" means conferment by Government under Punjab Local Government Ordinance of its administrative and financial authority for the management of specified offices of the Provincial Government to the Local Governments. [P. 294] B
District Government and Tehsil Municipal Administration (Budget) Rules, 2003, R. 59--
----S. 112(8)----Constitution of Pakistan, 1973, Arts. 83 & 143--Authentication of budget--Proposals in budget were approved by majority of council--Amendment in current development budget books--Demands for grant which were rejected by petitioner were included--Dispute is pending before the Provincial Local Government Commission--Maintainability of Constitutional petition--Mandatory nature--Budgetary powers reflects sovereignty of an institution--Proceedings of Zila Council are declared void and set-aside--Proceedings took place in a meeting of council convened by Naib Nazim, Zila Council, whereas he was not holding that office in view of the order High Court and order of Supreme Court--Proceedings pending before Provincial Local Government Commission if any are also declared unlawful and repugnant to the provisions of S. 111 and 112 of Punjab Local Government Ordinance, 2001--Respondent is directed to place the proceedings of Zila Council, the approved budget, before the petitioner for the authentication--Petition was allowed. [P. 297] C
Dr. A. Basit, Advocate for assisted by Rana Muhammad Arif Advocate for Petitioner.
Mr. Khurshid Anwar Bhindar, Addl. A.G. and Mr. Mubeen-ud-Din Qazi, Advocate for Respondents.
Date of hearing: 26.9.2007.
Order
The petitioner is a District Nazim of District Kasur. He presented Annual Budget for year 2007-8 for the approval of the Council as required under Rule 57 of Budget Rules, 2003. The budget was duly approved by the Zila Council on the basis of proposals made by him on 28.6.2007.
The meeting of the Council to approve the budget was presided by Respondent No. 4 but during the course of proceedings some members objected that Respondent No. 4 was removed from office by a decision of this Court, therefore, he could not preside budget meeting of the Zila Council in capacity of Naib Zila Nazim. Whereupon Respondent No. 4 left the chair. In his absence senior most member on the panel of the Presiding Officers i.e. Ch. Muhammad Ali, presided the meeting, as provided in Section 42 of the Punjab Local Government Ordinance, 2001. The proposals in the budget were discussed and the same were approved by majority of the council. In this regard proceedings are attached herewith vide Annexure-X. The petitioner wrote a letter to the District Co-ordination Officer, Kasur, etc. asking him to incorporate the amendments in the current development budget books as per proceedings of the house, and submit the same to the petitioner for authentication, as required under Section 112(8) of the Local Government Ordinance and Rule 59 of the District Government and Tehsil Municipal Administration (Budget) Rules, 2003. However, no action was taken by the DCO etc.
Another meeting of the council was called on 30.6.2007. In the said meeting demands for grant which were rejected by the petitioner were also included, whereas, no demand for grant can be submitted to the Council unless approved by the petitioner/Nazim as required under Section 111(4) of the Ordinance to be read with Rule 58(3) of the Budget Rules, 2003. The respondents were noticed.
The learned Addl. Advocate General, Punjab assisted by Qazi Mubeen-ud-Din, Advocate submit that the dispute is pending before the Provincial Local Government Commission, therefore, this writ petition is not maintainable.
I have heard the learned counsel for the petitioner and learned Addl. Advocate General, Punjab assisted by Qazi Mubeen-ud-Din, Advocate at length. I have also examined the documents referred to by both the parties as well as relevant provisions of the Punjab Local Government Ordinance, 2001, Rules 2003. As far as interpretation and requirement of Section 112(8) and Section 111(4) are concerned, the learned Addl. Advocate General, Punjab has not disputed with the contention of the learned counsel for the petitioner. Even otherwise, the provisions are expressly worded. These provisions are also of mandatory nature. No institution of Local Government or Federal/Provincial Government can function unless it has financial independence and sovereignty. The Local Government Ordinance, 2001 is unequivocal in its language as far as these powers of the Local Government Institution are concerned.
The budget which was approved by the council on 28.6.2007, was never challenged before any forum nor the proceedings of the council dated 28.6.2007 were declared void or incompetent by any authority, thus in the presence of approval of the Zila Council proceeding dated 28.6.2007, the subsequent proceedings on the same subject dated 30.6.2007 could not have legally taken place. Moreover, the record as well as 86 affidavits submitted by learned Addl. Advocate General, Punjab show that session of the Council dated 30.6.2007 was called or adjourned on 28.6.2007 to 30.6.2007 by Respondent No. 4, as Naib Nazim. How could he act in that capacity after decision of the Court dated 27.3.2005 in W.P. No. 16703/05?. It is strange that Respondent No. 4 is acting in a manner which might make him liable to face some legal proceedings.
The record, particularly the letter of the petitioner dated 3.7.2007 addressed to the DCO, shows that he approached on behalf of the Council for authentication, but the same remained unheard. Instead the respondents have tried to frustrate the proceedings dated 28.6.2007 by placing the matter before the Provincial Local Government Commission which amounts a devious device. Functions of the Provincial Local Government Commission are given in Section 132 of the Punjab Local Government Ordinance, 2001 which are of general nature and do not include to decide issues relating annual budget. To approve a budget or to have budgetary powers reflects sovereignty of an institution. The whole scheme of the Punjab Local Government Ordinance, 2001 is based on devolution powers which include financial powers, from the Provincial Government to the District Government. The conduct of the respondents obviously impinges upon the above idea or run counter the whole philosophy of the Punjab Local Government Ordinance, 2001.
Preamble of the Punjab Local Government Ordinance, 2001 reads:
"Whereas it is expedient to develop political power and decentralise administrative and financial authority to accountable Local Governments for good governance, effective delivery of services and transparent decision making through institutionalized participation of the people to grass-roots level."
In Section 2(vii) of the Ordinance "Decentralize" means conferment by the Government under this Ordinance of its administrative and financial authority for the management of specified offices of the Provincial Government to the Local Governments. In view of the above legal position how can the subject issue be placed before the Provincial Local Government Commission?
"[(1) The function of the Provincial Local Government Commission shall be as provided in this Ordinance and, in particular, it shall--
(a) conduct annual and special inspections of the Local Governments and submit reports to the Chief Executive of the Province;
(b) conduct, on its own initiative or, whenever, so directed by the Chief Executive of the Province, an inquiry by itself or through District Government into any matter concerning a Local Government;
(c) cause, on its own initiative or, whenever, so directed by the Chief Executive of the Province, a special audit by itself or direct a District Government to arrange a special audit, of any Local Government;
(d) resolve disputes between any Department of the Government and District Government or between two District Governments:
Provided that if the Local Government Commission fails to settle the dispute, the aggrieved party may move the Chief Executive of the Provincial for resolution thereof;
(e) enquire into the matters referred to it by the District Co-ordination Officer under the provisions of sub-section (3) of Section 28 and by the Government under sub-section (4) of Section 30 and give its decision thereon or, as the case may be, submit report to the competent authority;
(f) submit to the Chief Executive of the Province an annual report on the over-all performance of the District and tehsil level Local Governments;
(g) take cognization of violations of laws and rules by a Local Government in performance of its functions;
(h) organize consultative planning meetings of National and Provincial legislators, Zila Tehsil or Town Nazims of a District on a periodic basis to provide their participation in development activities of the District with regard to--
(i) the consultative process of the Annual Development Plan of the District;
(ii) formulating procedure for utilization of the Legislator development grant;
(iii) assessing implementation of decision of these meetings; and
(iv) carrying out review of development schemes; and
(i) facilitate the performance of Provincial Departmental functions of the decentralized offices relating to policy analysis, oversight, checks and balances, capacity- building and co-ordination through the Commission; and
(2) The directions and orders of the Provincial Local Government Commission arising out of its inspections and inquiries under clauses (a), (b) and (c) of sub-section (1) shall be binding on the concerned Local Government failing which the Commission shall report the matter with specific recommendations to the Chief Executive of the Province for decision and appropriate action.
(3) Where the Provincial Local Government Commission is of opinion that suspension of a Nazim is necessary for the fair conduct of the enquiry under clause (b) of sub-section (1) or preventing the Nazim from continuing with any unlawful activity during the pendency of enquiry, it may recommend to the Chief Executive of the Province for making appropriate order for suspension of such Nazim for a maximum period of ninety days.
(4) Where, on an inquiry under clause (b) of sub-section (1), a Nazim, Naib Nazim or a member of a Council is found guilty of misconduct by the Provincial Local Government Commission, it shall recommended appropriate action, including his removal, to the Chief Executive of the Province.
(5) The Provincial Local Government Commission shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Act, V of 1908), in respect of the following matters, namely:--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents;
(c) receiving evidence on affidavits; and
(d) issuing Commission for the examination of witnesses.]
Provisions of Section 112(8) of the Punjab Local Government Ordinance and Rule 59 of the District Government and Tehsil Municipal Administration (Budget) Rules, 2003 are para materia to provision of Articles 83 and 143 of the Constitution of Pakistan, 1973, which require authentication of budget from the Prime Minister and the Chief Minister. The spirit behind these provisions does not admit any interference.
Consequent to the above discussion and grounds, the proceedings of Zila Council, Kasur whereby budget was approved for year 2007-08 on 28.6.2007, are declared valid. The proceedings of Zila Council dated 30.6.2007 are declared void and set aside. Proceedings dated 30.6.2007 took place in a meeting of Council convened by Respondent No. 4 as a Naib Nazim, Zila Council, Kasur, whereas he was not holding the said office on 30.6.2007 in view of order of this Court dated 27.3.2005 in Writ Petition No. 16703/05 and order of the Hon'ble Supreme Court of Pakistan dated 4.5.2007. In Civil Petition No. 340/07. Proceedings pending before the Provincial Local Government Commission, if any, are also declared unlawful and repugnant to the provisions of Sections 111 and 112 of the Punjab Local Government Ordinance, 2001. The Respondent No. 2 is directed to place the proceedings of the Zila Council dated 28.6.2007, the approved budget, before the petitioner for the authentication. This writ petition is allowed in the above terms.
(N.F.) (Petition allowed.)
PLJ 2008 Lahore 297
Present: Syed Asghar Haider, J.
GHULAM MUSTAFA and another--Petitioners
versus
ABDUL MALIK--Respondent
C.R. No. 1670 of 2006, decided on 18.10.2007.
Civil Procedure Code, 1908 (V of 1908)—
----O. XVIII, R. 8--Testimony of witness was got recorded by reader and not by Court--Illegality--Direction to produce witnesses and recorded statement--Suit was decreed and failed by appellate Court--Assailed--If evidence is not taken down in writing by Judge, he shall be bound as examination of each witness proceeds to make a memorandum of substances of what each witness deposes and memorandum shall be written by the Judge and shall form part of record. [P. 299] A
Civil Procedure Code, 1908 (V of 1908)—
----O. XVIII, R. 14--Testimony of witness--Recorded by reader--Inability to be recorded--Chance of misconstruing or misinterpreting--Judge should be cognizant of testimony--Direction to produce their witnesses and their evidence was duly recorded--Statement of witnesses--Evidence was not recorded by trial Court itself but were recorded by reader--Validity--If Judge is unable to make a memorandum as required, he shall cause reasons of such inability to be recorded and shall cause the memorandum to be made in writing from his dictation in open Court. [P. 299] B
(i) Civil Procedure Code, 1908 (V of 1908)—
----O. XVIII, R. 14(2)--Memorandum so made shall from part of record--Unabiguous--Direction to produce their witnesses and evidence was duly recorded--Statement of witnesses were not recorded by trial Court itself but were ordered to be recorded by the Reader--Suit was decreed--Assailed--Illegality--Memorandum so made shall form part of the record--Such provision make it imperative, incumbent and binding upon the Court to record reasons for its inability to make a memorandum and till needful is not done the same cannot be treated to form part of record. [P. 299] C
(ii) Civil Procedure Code, 1908 (V of 1908)—
----O. XVIII, Rr. 8 & 14--Divergent pleadings of the parties issues were framed--Direction to produce their witnesses and their evidence was duly recorded--Statement of witnesses were not recorded by trial Court itself but were ordered to be recorded by Reader--Suit was decreed--Assailed Violative of the provisions--Unambiguous--Provisions of O.XVIII, Rr 8 & 14 of CPC have to be complied with completely and adhered to as mandated, because if needful is not done, the same cannot be treated to be part of record.
[Pp. 299 & 300] D
(v) Testimony of Witnesses--
----Testimony of the witnesses could not have been treated to form part of record--But it was so done, this evidence was misread. [P. 300] E
Malik Mukhtar Ahmad Khokhar, Advocate for Petitioners.
Mr. Anees-ur-Rehman, Advocate for Respondents.
Date of hearing: 18.10.2007.
Order
This single order shall decide Civil Revision No. 1670 of 2006 titled "Ghulam Mustafa and another vs. Abdul Malik", Civil Revision No. 1671 of 2006 titled "Muhammad Saleem vs. Abdul Malik", Civil Revision No. 1672 of 2006 titled "Sabir Ali vs. Abdul Malik" and Civil Revision No. 1673 of 2006 titled "Zulifqar Ali vs. Abdul Malik" wherein facts stated and cause of action are almost similar.
The plaintiff pre-emptor/respondent filed a suit for possession through pre-emption of the disputed land, the suit was contested by the present petitioners/defendants by filing written statement, of the divergent pleadings of the parties issues were framed, whereafter the plaintiff as well as the defendants were directed to produce their witnesses, and their evidence, was duly recorded, however the statement of witnesses (PW-5 and PW-6) and also of DW-1 and DW-2 were not recorded by the trial Court itself but were ordered to be recorded by the Reader. Thereafter the suit was declared by the trial Court. Aggrieved thereof appeal was filed, it was also dismissed. Hence the present petitions.
The learned counsel for the petitioners inter alia contended that the evidence of plaintiff's witnesses PW-5 and PW-6 was recorded by the Reader of the Court and not by the trial Court itself. Likewise the evidence of DW-1 and DW-2 was also recorded by the Reader and not by the Court itself, this is violative of the provisions contained in Order XVIII, Rules 8 and 14 CPC, hence this illegality vitiates the trial.
The learned counsel for the respondent contested the assertions but stated that the evidence of PW-5 and PW-6 and DW-1 and DW-2, was no doubt got recorded by the Reader, but this technical flaw was rectified, when the Court itself gave a certificate to this effect, thus if there was any illegality it stood cured and cannot now be made basis to vitiate the trial.
I have heard the learned counsel for the parties and with their assistance perused the testimony of PW-5, PW-6 and also DW-1 and DW-2.
It stands proved on record that testimony of PW-5 and PW-6 and also of DW-1 and DW-2 was got recorded by the Reader and not by the Court itself. It also has been admitted that evidence was got recorded in one suit only and was thereafter copied in all the other suits. Order XVIII contemplates that if evidence is not taken down in writing by the Judge, he shall be bound as the examination of each witness proceeds to make a memorandum of the substance of what each witness deposes, and such memorandum shall be written by the Judge and shall form part of the record. This provision is mandatory and is required to be strictly adhered to and followed, the enactment has been incorporated, so, that the Judge should be cognizant of the testimony made by the witnesses, to obviate any chance of misconstruing or misinterpreting it. In furtherance thereto Rules 14 of Order XVIII contemplates that if the Judge is unable to make a memorandum as required by this order, he shall cause reasons of such inability to be recorded and shall cause the memorandum to be made in writing from his dictation in open Court. Order XVIII, Rule 14(2) thereafter provides that the memorandum so made shall form part of the record, therefore, this provisions makes it imperative, incumbent and binding upon the Court to record reasons for its inability to make a memorandum and till the needful is not done, the same cannot be treated to form part of record. Thus it is absolutely clear and unambiguous, that provisions of Order XVIII, Rule 8 and Order XVIII, Rule 14 CPC have to be complied with, completely and adhered to as mandated, because if needful is not done, the same cannot be treated to be part of the record. Though the Civil Procedure Code, 1908, contains both substantive and procedural enactments, and the present matter prima facie falls into the ambit of procedural enactments, but the provisions assumes and wears the mantle, of substantive law, because a specific penalty is provided for non-compliance. In the present matter the provisions were not adhered to, therefore, the testimony of these witnesses could not have been treated to form part of record. But it was so done, thus evidence was misread.
The contention of the learned counsel that putting a certificate at the end of testimony of PW-6 by the Court "dictated by me" is substantial compliance of the stated provisions is incorrect, because the order contains no reasons as contemplated by law. It, therefore, is overruled.
Resultantly these petitions are allowed, the impugned judgments and decrees are set aside, the trial Court is directed to record afresh evidence of PW-5 and PW-6 and also DW-1 and DW-2. Thereafter it shall proceed to decide the suit on merits in accordance with law, as expeditiously as possible, but not later than six months from the date, the parties appear before it.
(R.A.) Petition allowed.
PLJ 2008 Lahore 300 (DB)
Present: Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ.
MANSAB ALI--Appellant
versus
SULEMAN and 7 others--Respondents
I.C.A. No. 133 of 2007 in W.P. No. 11549 of 2006, decided on 18.9.2007.
Illegal Dispossession Act, 2005—
----S. 7--Law Reforms Ordinance, 1972--S. 3--Illegality and forcibly demolished the wall and took over possession--Interim relief--Disputed property be handed over to appellant--Complainant was allowed to withdraw complaint--Dismissed as withdrawn--Assailed--Question of interim relief--Validity--Order can be passed for a temporary relief during pendency of the case--If main case was allowed to have been withdrawn, there was no justification for interim order to continue which was granted on the basis of pendency of the complaint. [P. 302] A
Mr. Ghulam Farid Sanotra, Advocate for Appellant.
Mr. Abdul Qadoos Rawal, Advocate for Respondents.
Date of hearing: 18.9.2007.
Order
The appellant has filed this appeal under Section 3 of the Law Reforms Ordinance, 1972 calling in question judgment of the learned Single Bench of this Court dated 22.3.2007.
Briefly, the appellant filed a complaint under Section 3/4 of Illegal Dispossession Act, 2005 against Respondents No. 1 to 5. In the said compliant, the appellant claimed to be owner of one Ihata measuring 9 marlas which he had purchased from one Zulfiqar and Suhail against a consideration of Rs. 25,000/- on 1.5.1998. According to the appellant, he was in possession of the disputed property since 1.5.1998. He had also built a boundary wall and a room on the said plot. Despite above, Respondent No. 1 in league with Respondents No. 2 to 5, illegally and forcibly demolished the wall and room built on the said property and also took over possession of the same on 4.6.2006.
The appellant filed a complaint as mentioned above on 11.8.2006. The learned Addl. Sessions Judge sent for a report from the SHO. The report of the SHO supported the claim of the appellant, the respondents were summoned for 22.9.2006. On 6.10.2006, copies of the statements were distributed to the respondent. The case was adjourned to 13.10.2006 for framing of charge. However, an application under Section 265-K, Cr.P.C. was submitted by Respondents No. 1 to 5. Notice was issued to the appellant in the said application. In the meanwhile, vide order dated 28.10.2006, the learned Addl. Sessions Judge directed that as interim relief the disputed property be handed over to the appellant. The SHO P.S. Faizabad was also directed to make sure that the order of the Court was complied with. On 31.10.2006, Respondents No. 1 to 5 made a statement before the trial Court that they had delivered the possession to the appellant/complainant. On the same date, in the light of the statements of Respondents No. 1 to 5, the appellant/complainant was allowed to withdraw the complaint, thus, the compliant was dismissed as withdrawn.
Respondents No. 1 to 5 filed a Writ Petition No. 11549/06 on 30.10.2006 challenging the orders of the learned Addl. Sessions Judge, dated 28.10.2006, whereby, the learned Addl. Sessions Judge had passed the interim order under Section 7 of the Act for handing over the disputed property to the appellant. The learned Single Bench suspended the operation of order dated 28.10.2006 on 31.10.2006.
Another Writ Petition No. 12329/06 was filed challenging order dated 31.10.2006 of the learned Addl. Sessions Judge whereby the learned Addl. Sessions Judge had allowed withdrawal of the complaint.
The learned Single Bench allowed both the writ petitions vide order dated 22.3.2007 which is impugned before us.
According to the impugned order, the disputed Ihata is a part of Abadi Deh which was neither sold through a registered sale-deed nor the possession thereof was delivered to Respondent No. 2 (present appellant). The learned Addl. Sessions Judge without recording any evidence or seeing record, merely perusing the parawise comments furnished by the SHO directed the respondents to hand over the possession of the property to the present appellant in terms of sub-section (1) of Section 7 of the Illegal Dispossession Act, 2005 (to be referred hereafter, the Act). According to Section 7 of the Act, during the trial, the trial Court, as an interim relief, can direct that the owner or occupier may be put in possession. According to learned Single Bench trial commences after framing the charge. Therefore, the learned Addl. Sessions Judge could not have passed order dated 28.10.2006 under Section 7 of the Act without framing the charge.
Thus, the learned Single Bench set aside the impugned order challenged in Writ Petition No. 11549/06.
The learned Single Bench noted that after passing order under Section 7(1) of the Act on application of the present appellant, the learned Addl. Sessions Judge allowed withdrawal of the complaint. At this point, it may be spotlighted that Writ Petition No. 12329/06 was filed by the present appellant, whereas, Writ Petition No. 11549/06 was filed by the present respondents.
According to the learned Single Bench, after having passed the order dated 28.10.2006 and putting the present appellant into possession, the learned A.S.J. should have decided the complaint on its merit. According to the learned Single Bench, once the Court had formed an opinion that prima facie case of illegal dispossession was made out, he should have proceeded with the trial of the case to take it to its logical conclusion.
We agree with the learned Single Bench. Under Section 7 of the Act order can be passed for a temporary relief during the pendency of the main case. If the main case was allowed to have been withdrawn, there was no justification for the interim order/relief to continue which was granted only on the basis of pendency of the main case/complaint. We also agree with the observation of the learned Single Bench orders dated 28.10.2006 and 31.10.2006 of the learned A.S.J. prejudiced the case of the respondents of proving their right, hence they suffered for an act of the Court/Addl. Sessions Judge. Even otherwise in the presence of the order the learned Single Bench dated 30.10.2006 how the learned A.S.J. could pass order dated 31.10.2006?. For the reasons, noted above, this appeal is dismissed and the impugned order of the learned Single Bench dated 22.3.2007 is upheld.
(R.A.) Appeal dismissed.
PLJ 2008 Lahore 303
Present: Maulvi Anwar-ul-Haq, J.
SHABBIR HUSSAIN SHAH--Petitioner
versus
FAZAL DIN and 4 others--Respondents
C.R. No. 1832 of 2007, decided on 4.10.2007.
Limitation Act, 1908—
----S. 113--Barred by time--Suit was filed twelve years after expiry of the period of three months--In order to attract the first part of Art. 113 of Limitation Act, 1908, the date fixed for performance in agreement has to be date by calendar i.e. it has to be a particular date. [P. 304] B
Court Fee--
----Rejection of the plaint--Plaint does not bear the Court fee on value fixed--Validity--Trial Court proceeded to reject the plaint vis-a-vis Court fee without availing the conditions precedent i.e. assessment of Court fee and a direction to plaintiff to pay the same and his consequent failure to do so. [P. 304] A
Sh. Naveed Shahryar, Advocate.
Date of hearing: 4.10.2007.
Order
On 15.6.2005 the Respondent No. 1 filed a suit against the petitioner and the other respondents. I will be referring to this plaint later. On 27.6.2006 the petitioner filed an application for rejection of the plaint stating that the suit is barred by time. The application was resisted. However, the learned trial Court proceeded to reject the plaint on 24.2.2007. A learned ADJ, Faisalabad, has allowed the first appeal filed by the Respondent No. 1 and had remanded back the suit to the learned trial Court. Vide order dated 27.8.2007 for trial on merits.
Learned counsel for the petitioner contends that the failure to pay Court fee was contumacious and further upon a plain reading of the plaint, the suit was barred by time as the agreement was to be performed within three months of the date of its execution i.e. 14.12.1993.
I have gone through the copies of the records. The learned trial Court proceeded to reject the plaint on the ground that the plaint does not bear the Court fee on the value fixed i.e. Rs. 60,000/-. The second reason given was that the suit had been filed twelve (12) years after the expiry of the said period of three months and it was barred by time.
It is but apparent on the face of the record that the learned trial Court proceeded to reject the plaint vis-a-vis Court-fee without availing the conditions precedent i.e. assessment of the Court-fee and a direction thereafter to the plaintiff to pay the same and his consequent failure to do so.
So far as the question of limitation is concerned, by now it is well settled that in order to attract the first Part of Article 113 of the Limitation Act, 1908, the date fixed for performance in the agreement has to be a date by calendar i.e. it has to be a particular date. Reference be made to the case of Inam Naqshbandi vs. Haji Sheikh Ijaz Ahmad (PLD 1985 SC 314) where it was thus observed at pages 318 and 319 of the report:
"The words "date fixed" in the first clause of the third column of Article 113 of the Limitation Act are of great significance. The "date fixed" means a particular date fixed expressly by the parties for the performance of the agreement. In the instant case, no particular date was expressly fixed by the parties. No doubt, the agreement was to be performed within one week from the date of agreement but this did not tantamount fixing a date for the performance of the agreement.
So, it can safely be said that in the instant case no date was fixed for the performance of the contract within the meaning of first clause of the third column of Article 113 of the Limitation Act. So, the case was not governed by first clause of the third column of the Article ."
The suit could not have been declared to be barred by time for the reasons stated by the learned trial Court. The learned ASDJ has very correctly exercised his appellate jurisdiction in correcting the wrong done by the learned trial Court. The civil revision accordingly is dismissed in limine.
(R.A.) Revision dismissed.
PLJ 2008 Lahore 308 (DB)
Present: Maulvi Anwar-ul-Haq & Syed Asghar Haider, JJ.
Mst. SAKINA BEGUM (Widow) and others--Petitioners
versus
KHALID MUSTAFA and 11 others--Respondents
ICA No. 42 of 2006, heard on 5.9.2007.
(i) Civil Procedure Code, 1908 (V of 1908)—
----S. 12(2) O. IX, R. 13 & O. XLI, R. 21--Law Reforms Ordinance, 1972--S. 3(2)--Original jurisdiction--Intra Court Appeal--Maintainability--Application was purportedly filed for setting aside the ex-parte judgment which was dismissed--ICA was filed and having been dismissed--Application u/S. 12(2) of CPC could be competently filed only before Appellate forum--Applicability to writ proceeding--Application for setting aside of the ex-parte judgment and prayed for a re-hearing on the grounds stated within the meaning of O. IX, R. 13, CPC which provision is applicable to writ proceedings--Application was accordingly to be treated as such. [P. 309] A
(ii) Law Reforms Ordinance, 1972—
----S. 3(2)--Civil Procedure Code, (V of 1908), S. 96--Constitution of Pakistan, 1973--Art. 199--Jurisdiction--Order has been passed by single judge in exercise of the jurisdiction vesting under Art. 199 of the Constitution while deciding an application containing the prayer vis-a-vis a judgment pronouncement under the provision of law--Held: In case of Amin-ud-Din Khan, the ICA was not held maintainable as the appellant had availed remedy of review against the judgment. [Pp. 309 & 310] B & C
Mr. Muhammad Asif Bhatti, Advocate for Appellants.
Mr. A.R. Shaukat, Advocate for Respondents.
Date of hearing: 5.9.2007.
Judgment
Maulvi Anwar-ul-Haq, J.--This ICA proceeds against order dated 14.11.2005 passed by a learned Single Judge, in Chamber, of this Court, whereby C.M. No. 2297/04 filed by the appellants for setting aside of judgment dated 9.7.2002 passed in W.P. No. 117-R/98 has been dismissed.
Learned counsel for the appellants contends that the impugned judgment fails to take note of the entire contents of the said C.M. which, in fact, was filed for setting aside of an ex-prate judgment primarily on the ground that the appellants had not been served in the case. Learned counsel for the contesting respondents, on the other hand, argues that the order having been passed in a miscellaneous application cannot be said to have been passed in exercise of original jurisdiction and as such the ICA is not competent. He relies on the cases of Maqsood Ahmed Siddique v. Nisar Ahmad and others (2003 SCMR 1552) and Amin-ud-Din Khan v. Water and Power Development Authority and others (2004 CLC 382).
We have gone through the writ petition records, with the assistance of the learned counsel for the parties. The appellants before us are stated to be the LRs of Muhammad Siddique and Muhammad Sardar who were impleaded as Respondents No. 4 and 5 respectively in the writ petition filed by contesting Respondents No. 1 to 7. The writ petition was heard on 9.7.2002 and the judgment of the even date narrates that the said predecessors of the appellants had been proceeded against ex parte as none had appeared on their behalf despite an intimation to their learned counsel practicing at Kasur. On 12.7.2004 C.M. No. 2297/04 was filed by the appellants for re-hearing of the writ petition. The application was purportedly filed under Section 12(2) CPC read with Order XLI Rule 21 CPC for setting aside the ex parte judgment. It was dismissed vide the impugned order for the reason that since an ICA was filed against the said judgment and the same having been dismised, the application under Section 12(2) CPC could be competently filed only before the said appellate forum.
Learned counsel for the appellants has filed a certified copy of order dated 15.1.2003 passed in ICA No. 620/02 filed by the Respondents No. 1 to 3 and 7 in the writ petition. We have examined the same and found that the ICA was dismissed on a short ground that the said appellants had no locus standi to file the same. The merits of the judgment were not referred to at all. To our mind, in the said circumstances the doctrine of merger would not be applicable and an application under Section 12(2) CPC was competent before the original Court.
We have also examined the said application filed by the appellants and we find that for all intents and purposes it was an application for setting aside of the ex parte judgment and prayed for a re-hearing on the grounds stated therein within the meaning of Order IX Rule 13 CPC which provision is applicable to writ proceedings. The application is accordingly to be treated as such.
So far as the said contention of Mr. A.R. Shaukat Advocate, is concerned, the same is not tenable at all. Present ICA is governed by Section 3(2) of the Law Reforms Ordinance, 1972. For all purposes the impugned order has been passed by the learned Single Judge in exercise of the jurisdiction vesting under Article 199 of the Constitution while deciding an application containing the said prayer vis-a-vis a judgment pronounced under the said provision of law. It is also not an interim order as the said application for grant of the said substantive prayer stands decided finally. The judgments cited by the learned counsel as noted are not at all attracted to the facts of the present case. In the case of Maqsood Ahmed Siddique, ICA filed against an order passed by this Court dismissing an application under Section 12(2) CPC for setting aside of a judgment passed in exercise of appellate jurisdiction under Section 96 CPC was held to be not maintainable while in the said case of Amin-ud-Din Khan, the ICA was not held maintainable as the appellant had vailed a remedy of review against the judgment impugned.
This ICA is accordingly allowed. The result would be that C.M. No. 2297/04 shall be deemed to be pending and decided accordingly in the light of the observations made above. No orders as to costs.
(R.A.) ICA allowed.
PLJ 2008 Lahore 310 (DB)
Present: M. Bilal Khan and Tariq Shamim, JJ.
MUHAMMAD PERVAIZ--Petitioner
versus
STATE and 3 others--Respondents
W.P. No. 6874 of 2007, decided on 4.9.2007.
(i) Pakistan Penal Code, 1860 (XLV of 1860)—
----Ss. 363 & 365-A--Anti Terrorism Act, 1997--S. 23--Constitution of Pakistan, 1973--Art. 199--Plenary jurisdiction--Question of--Case was registered u/Ss. 363 & 365-A of PPC added by virtue of which the case became triable by Special Court established under Anti-Terrorism Act--Application u/S. 23 of Anti-Terrorism Act, questioning his jurisdiction to try the case on premise that the case did not attract the provision of Act, 1997 and prayed for transfer to ordinary Court of plenary jurisdiction--Application was dismissed--Fact of--Minor was kidnapped by three unknown persons--FIR disclosed the ages and physical description of the accused who participated in occurrence--Prosecution nominated the accused through supplementary statement and two co-accused--Legality--Prima facie the offence u/S. 365-A of PPC is made out which is a schedule offence and is exclusively triable by Special Court established under Anti-Terrorism Act--No plausible reason or motive discernible from the facts and circumstances of the case other than kidnapping of the minor for ransom--Held: Impugned orders of Special Trial Judge and have not been able to detect any factual or legal infirmity therein. [Pp. 312 & 313] A, B & D
(ii) Two Different Versions--
----Benefit to accused--Prosecution had narrated two different stories in F.I.R. and application submitted with D.I.G. (Investigation) suffice it to say that any contradiction in two can be of benefit to accused at the trial which can then be validly utilized and exploited by the defence.
[P. 313] C
Mr. Muhammad Arshad Khan, Advocate for Petitioner.
Mr. Khalid Sayeed Akhtar, Advocate for Complainant.
Rai Tariq Saleem, Assistant Advocate General for Respondent.
Date of hearing: 4.9.2007.
Order
The occurrence in the case took place on 1.3.2007 at about 5.00 p.m. in which the son of complainant Tayyab was alleged to have been kidnapped by three unknown persons. A case bearing F.I.R. No. 136 of 2007, dated 1.3.2007 was consequently registered at Police Station Kahna Lahore under Section 363 P.P.C. As per the record, offence under Section 365-A P.P.C. was subsequently added by virtue of which the case became triable by Special Court established under the Anti-Terrorism Act of 1997. After nomination of the accused through a supplementary statement recorded on 2.3.2007, the police arrested the accused including the petitioner and recovered the abductee on their pointation on 6.3.2007.
The petitioner, who is also an accused of the said case, submitted an application under Section 23 of the Act before the learned Special Judge, Anti-Terrorism Court No. IV, Lahore questioning his jurisdiction to try the case on the premise that the case did not attract the provisions of Anti-Terrorism Act of 1997 and, therefore, prayed for the transfer of the case to the ordinary Court of plenary jurisdiction. The learned judge, after hearing the parties, dismissed the application on 23.6.2007 which has led to the filing of the instant petition.
The learned counsel for the petitioner contended that the facts and circumstances of the case do not attract the provisions of Section 365-A P.P.C. It has been argued that initially the police prepared a challan on 12.3.2007 under Section 363 P.P.C. but on an application moved by the complainant before the D.I.G. (Investigation) for proper investigation of the case, statement of the victim as well as supplementary statements of the prosecution witnesses were recorded on 16.4.2007 and consequently Section 365-A P.P.C. had been added. The application submitted by the complainant contained a different version regarding the occurrence and recovery of the abductee, minor son of the complainant. It has also been argued that the wording constituting an offence under Section 365-A P.P.C. was an afterthought and had been brought on the record through supplementary statement of the complainant and witnesses at a belated stage. Therefore, the same was of no significance and the accused could not be charged on the basis thereof.
On the other hand, the learned Assistant Advocate General as well as the learned counsel representing Respondent No. 4, the complainant, argued that sufficient material was available on the record to charge the accused with an offence under Section 365-A P.P.C. The witnesses as well as the victim had levelled and supported the allegation of kidnapping for ransom and that the contention raised by the petitioner pertained to the merits of the case which could not be adjudicated upon without recording of evidence by the learned trial Court.
We have heard the learned counsel as well as the Assistant Advocate General and have gone through the documents placed on the file.
Minor son of the complainant was kidnapped by three persons on 1.3.2007 at about 5.00 p.m. and the F.I.R. regarding the concurrence was promptly lodged with the police. The F.I.R. discloses the ages and physical description of the accused who had participated in the occurrence. On the very next day, the Complainant-Respondent No. 4 through a supplementary statement nominated the petitioner and two others as accused who had kidnapped his son. We have noticed that in the said statement the complainant had mentioned that his son had definitely been kidnapped for ransom; that he had no enmity with any one and that he was financially in a position to pay the kidnappers Rs. 5 to 10 lacs. On 6.3.2007 i.e. after five days of the occurrence, the police succeeded in apprehending the accused including the petitioner and recovered the minor son of the complainant at their pointation. Since the F.I.R. had been initially registered under Section 363 P.P.C., therefore, the police without adverting to facts disclosed in the supplementary statement and without recording the statement of the victim proceeded to prepare the challan under Section 363 P.P.C. The complainant submitted an application with the D.I.G. (Investigation) seeking proper investigation of the case, in consequence whereof the statement of the victim as well as the supplementary statements of the witnesses were recorded and based thereon, Section 365-A P.P.C. was added. The minor son of the complainant in his statement had fully implicated the petitioner and others with the offence of kidnapping for ransom. Challan in terms of the said offence has been submitted in the trial Court.
In view of the above, we have no hesitation in holding that prima facie the offence under Section 365-A P.P.C. is made out which is a scheduled offence and is exclusively triable by the learned Special Court established under the Anti-Terrorism Act of 1997. Even otherwise, no other plausible reason or motive is discernible from the
facts and circumstances of the case other than kidnapping of the minor for ransom. Insofar as the other contention of the petitioner that the complainant had narrated two different stories in the F.I.R. and the application submitted with the D.I.G. (Investigation), Lahore, suffice it to say that any contradiction in the two can be of benefit to the petitioner at the trial which can then be validly utilized and exploited by the defence.
We have minutely examined the impugned orders of the learned Special Trial Judge and have not been able to detect any factual or legal infirmity therein.
For what has been discused above, we find no merit in this petition which is accordingly dismissed.
(R.A.) Petition dismissed.
PLJ 2008 Lahore 313
Present: Sayed Zahid Hussain, J.
ALLAH BAKHSH and another--Petitioners
versus
ZIA ULLAH and another--Respondents
C.R. No. 573 of 2000, heard on 25.9.2007.
(i) Punjab Pre-emption Act, 1991—
----S. 13--Performance of talbs--Date, place and time was not mentioned in plaint--Validity--No doubt that to maintain and succeed in a pre-emption suit the plaintiff is bound to perform talbs as prescribed by S. 13 of Punjab Pre-emption Act, 1991 otherwise his right stand extinguished. [P. 315] A
(ii) Talb-i-Muwathibat--
----Performance--Particulars as to performance of talb-i-muwathibat with reference to the date, place and timing should necessarily be mentioned in the plaint. [P. 315] B
PLD 2007 SC 302.
(ii) Punjab Pre-emption Act, 1991—
----S. 13--Superior right of pre-emption--Non-performance of talbs--Due to no-performance of talbs, the superior right to pre-empt the suit land, if any, stood extinguished in terms of S. 13 of Punjab Pre-emption Act. [P. 315] C
2007 SCMR 1, 2007 SCMR 401, 2007 SCMR 515, 2007 SCMR 1193 & 2007 SCMR 1491, ref.
Mr. Zulfiqar Ali Khan Saifi, Advocate for Petitioners.
Mr. Ihsan-ul-Haq Bhalli, Advocate for Respondents.
Date of hearing: 25.9.2007.
Judgment
Suit for possession through pre-emption instituted by the petitioners claiming superiority was contested by the respondents. It was tried and was dismissed by the trial Court on 24.1.1996. On appeal the judgment was set aside and case was remanded to the trial Court on 18.2.1997. After remand, the trial Court decreed the suit on 10.12.1999 but the said judgment was reversed by the first Appellate Court on 8.3.2000 resulting in dismissal of the suit. This is revision petition by the pre-emptor/plaintiff.
The crucial issue is about performance or otherwise of Talbs. It was Issue No. 6.
The learned counsel have been heard and the material on record has been perused.
The sale of the suit land as per contents of the plaint took place on 21.11.1991. As to performance of Talbs, paragraph 3 of the plaint is of relevance which reads as follows:-
It is evident from the perusal of the consents of the plaint that essential particulars as to performance of Talbs i.e. date, place and time had not been mentioned. According to the plaintiff when he got knowledge of sale, he performed Talab-i-Muwathibat. It is vague, uncertain expres-sion, lacking precision and does not fulfill the statutory requirements. Similarly was the position of alleged notice which also was silent about these particulars. There is no doubt that to maintain and succeed in a pre-emption suit the plaintiff is bound to perform Talbs as prescribed by Section 13 of Punjab Pre-emption Act, 1991, otherwise his right stand extinguished. It is now settled law that particulars as to performance of Talab-i-Muwathibat with reference to the date, place and timing should necessarily be mentioned in the plaint. If at all there had been any obscurity about the legal position, the same stand cleared and settled by a larger Bench of the Hon'ble Supreme Court of Pakistan in Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302). By reiterating the view taken in Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315) and Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977), it was held that "a plaint wherein the date, place and time of Talb-e-Muwathibat and date of issuing the notice of performance of Talab-i-Ishhad in terms of Section 13 of the Act is not provided it would be fatal for the pre-emption suit." Similar view is found in Fazal Din through L.Rs. v. Muhammad Anayat through L.Rs. (2007 SCMR 1), Nawab Din through L.Rs. v. Faqir Sain (2007 SCMR 401), Mst. Kharia Bibi v. Mst. Zakia Begum and 2 others (2007 SCMR 515), Mst. Lalan Bibi and others v. Muhammad Khan and others (2007 SCMR 1193) and Abdul Rehman v. Haji Ghazan Khan (2007 SCMR 1491). Clearly, therefore, the plaintiff/petitioner in this case had failed to fulfill the requisite conditionalities of making Talb-i-Muwathibat whose mere assertion as to performance of Talbs and making of some improvements in evidence was not enough. Due to non-performance of Talbs, the superior right to pre-empt the suit land, if any, stood extinguished in terms of Section 13 of Punjab Pre-emption Act, 1991.
In view of the above, no exception can be taken to the findings of the Appellate Court. The revision petition is dismissed. No order as to costs.
(R.A.) Petition dismissed.
PLJ 2008 Lahore 315
Present: M. Bilal Khan, J.
NINA--Petitioner
versus
STATE and another--Respondents
W.P. No. 10296 of 2007, decided on 23.10.2007.
Constitution of Pakistan, 1973—
----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 371-A, 372-B--Foreigners Act, 1951, S. 14--Criminal Procedure Code, (V of 1898), S. 497--Bail was granted--Robkar for releasing of accused could not be issued--Validity--S. 14 of Foreigners Act, 1951 had been invoked by investigating officer--Non-acceptance of bail bonds in offences u/S. 371-A & 372-B of PPC was not warranted--Held: If Section 14 of Foreigners Act, 1951 has been added in array of offences, the accused can make an application to Special Judge for bail--However, bail bonds could not have been refused for the reason that S. 14 of Foreigners Act, has been invoked, as offences in which bail had been allowed remain triable by magistrate--Magistrate is directed to entertain bail/surety bonds of the accused u/Ss. 371-A & 372-B of PPC and to deal with the same strictly in accordance with law.
[P. 317] A & B
Ch. Abdul Waheed, Advocate for Petitioner.
Mr. Muhammad Iqbal Chaudhry, Deputy Prosecutor-General for State on Court's call.
Date of hearing: 23.10.2007.
Order
The petitioner had been allowed post-arrest bail by the learned Judicial Magistrate, Section 30, Model town, Lahore vide order dated 17.9.2007, in case FIR No. 726/07 registered at Police Station Sattokatla District Lahore on 12.9.2007, for offences under Sections 371-A, 372-B, PPC.
It appears that during the course of investigation the Investigating Officer also invoked Section 14 of the Foreigners Act, 1951 and when the petitioner submitted her bail bonds the same were not accepted by the learned trial Court for the reason that after Section 14 of the Foreigners Act, 1951 had been invoked, Robkar for release of the accused only under Section 371-A, 372-B, PPC could not be issued. Another ground which prevailed with the learned Judicial Magistrate for not accepting the bail bonds was that bail had been granted under Sections 371-A and 372--B, PPC subject to petitioner's legal entry and stay in Pakistan and that according to visa entry on the passport she had already overstayed in the country.
I had asked Mr. Muhammad Iqbal Chaudhry, the learned Deputy Prosecutor-General who was around in some other case to be of assistance. After examining the file he was of the view that non-acceptance of bail bonds in offences under Sections 371-A, 372-B, PPC was not warranted.
I have heard the learned counsel for the parties and have perused the documents appended with this petition.
If Section 14 of the Foreigners Act, 1951 has been added in the array of offences, the petitioner can make an application to the Special Judge (Central), Lahore for her bail. However, bail bonds could not have been refused merely for the reason that the aforesaid section had been invoked, as offences in which bail had been allowed remain triable by the learned Magistrate. Likewise if the petitioner has already overstayed in Pakistan against the visa stipulations, the law will take care of that circumstance itself.
In this backdrop the learned Judicial Magistrate is directed to entertain the bail/surety bonds of the petitioner under Sections 371-A, 372-B PPC and to deal with the same strictly in accordance with law.
Disposed of in the terms noted hereinabove.
(R.A.) Petition disposed of.
PLJ 2008 Lahore 317
Present: Tariq Shamim, J.
FIDA HUSSAIN--Petitioner
versus
DISTRICT POLICE OFFICER, BHAKKAR and 7 others--Respondents
W.P. No. 8157 of 2007, decided on 6.9.2007.
Constitution of Pakistan, 1973—
----Art. 199--Criminal Procedure Code, (V of 1898) S. 561-A--Two Nikahnamas--Request for cancellation of FIR--Challenge to--During investigation two nikahnamas were produced before police--Nikahnamas were sent for verification--Report revealed that nikahnama with son of the petitioner was found to be fictitious--Validity--If there was any Nikahnama pertaining to the marriage the same was false and fictitious and was therefore, liable to be cancelled--Discharge report had been contested by complainant leading to logical inference that complainant had been afforded full opportunity to put forth his point of view as well--Impugned order are based on logical reasons and cannot by any stretch of imagination be termed as arbitrary fanciful or contrary to evidence on the record.
[Pp. 318 & 319] A & B
Mian Shah Abbas, Advocate for Petitioner.
Date of hearing: 6.9.2007.
Order
Through this petition, the petitioner has challenged the order dated 14.7.2007 passed by the learned Judicial Magistrate, Bhakkar, whereby he concurred with the request of the police for cancellation of case F.I.R.. No. 511 of 2006 dated 2.10.2006, registered at Police Station Saddar Bhakkar, as being illegal, void ab initio, without jurisdiction and against the law and fact.
The brief facts of the case are that the petitioner lodged the aforesaid F.I.R. which was investigated by the police and a discharge report was prepared which was placed before the learned Magistrate who while concurring with the request made by the police cancelled the aforesaid F.I.R. vide the impugned order.
The learned counsel for the petitioner contended that the petitioner proved the contents of the F.I.R. through oral as well as documentary evidence which was not considered by Respondent No. 2, SHO Police Station Saddar Bahkkar while preparing the discharge report; that the learned Magistrate at the time of passing the impugned order failed to consider the evidence produced by the petitioner before the police and that if the impugned order was not set aside and the F.I.R. was not restored, the petitioner would suffer irreparable loss and injury.
I have heard the learned counsel for the petitioner and gone through the documents placed on the record. During investigation two Nikahnamas were produced before the police showing that Mst. Shagufta Parveen daughter of Muhammad Afzal had solemnized marriage with Shahid Iqbal as well as Aqeel Abbas son of the complainant-petitioner. Both the Nikahnams were sent for verification to the Finger Expert Bureau. The report tendered by the Bureau dated 18.11.2006 reveals that the specimen signatures of Mst. Shagufta on the Nikahnama dated 20th of September, 2006 with Shahid Iqbal was found to be correct and genuine and the alleged Nikahnama with Aqeel Abbas son of the petitioner was found to be fictitious. Further, Mst. Shagufta Parveen had appeared before the Illaqa Magistrate and got her statement recorded under Section 164 Cr.P.C. in which she had stated that she had contracted marriage with Shahid Iqbal with her free consent and being his legally wedded wife was residing with him. She denied having entered into a marriage contract with Aqeel Abbas, son of the complainant and further stated that if there was any Nikahnama pertaining to the said marriage the same was false and fictitious and was, therefore, liable to be cancelled. She also stated that she had not been abducted by any person and that being lawfully wedded wife of Shahid Iqbal she had voluntarily gone to his house. The impugned order reveals that the cancellation report which was placed before the learned Magistrate had been verified by the SHO concerned, SDPO, DSP (Legal) as well as the District Police Officer, Bhakkar. Since a number of police officers including the D.P.O. had concurred with the findings of the SHO that the case was false and was liable to be cancelled, therefore, it cannot be said that the police had acted in a mala fide manner or that the police had been in league with the other party. The impugned order is a detailed order in which all aspects of the case have been thoroughly discussed by the learned Magistrate. It has been noticed that the discharge report had been contested by the complainant leading to a logical inference that the complainant had been afforded full opportunity to put forth his point of view as well. The conclusions drawn by the learned Magistrate in the impugned order are based on logical reasons and cannot by any stretch of imagination be termed as arbitrary, fanciful or contrary to the evidence on the record.
For what has been discussed above, I find no merit in this petition which is dismissed accordingly in limine.
(R.A.) Petition dismissed.
PLJ 2008 Lahore 319
Present: Tariq Shamim, J.
MUHAMMAD YASIN--Petitioner
versus
STATION HOUSE OFFICER and 3 others--Respondents
W.P. No. 4023 of 2007, decided on 19.9.2007.
Police Order, 2002—
----Art. 18(6)--Constitution of Pakistan, 1973, Art. 199--Second investigation--Challenge to--Private complaint--Validity--Accused was arrested and sent to jail on the basis of investigation in which all accused named in FIR had been found to be implicated--Incomplete challan was prepared--Second investigation was constituted--Violation of--Investigation of the case was never transferred to sub-Inspector who resumed investigation of the case--Question regarding violation of the provisions of Art. 18(6) of Police Order in the given circumstances does not arise--Further challan has been submitted in the court and trial is in progress--Complainant may, if not satisfied with investigation of the case, prefer a private complaint against accused who have been declared innocent by police or produce convincing evidence against the accused before trial Court which is competent to summon the accused, if sufficient material is available on record to connect with the crime--Petition dismissed. [P. ] A
Rana Muhammad Zahid, Advocate for Petitioner.
Mr. Amjad Ali Chattha, Assistant Advocate General for State.
Date of hearing: 19.9.2007.
Order
Through this petition, the petitioner has challenged the second investigation conducted by Nisar Ahmad Bhatti, S.I. being in violation of Article 18(6) of the Police Order, 2002 in case F.I.R. No. 238 of 2006 for offence under Section 10, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, registered at Police Station Saddar Chicha Watni, District Sahiwal.
The petitioner, who is the complainant, lodged the aforesaid F.I.R. to the effect that his daughter aged 14/15 years was subjected to rape by one Muhammad Riaz with the assistance of Muhammad Sharif, Bilqees Bibi and Zubaida Bibi. After registration of the F.I.R., investigation was entrusted to one Muhammad Amin, S.I. who found all the accused guilty. Subsequent thereto, Nisar Ahmad Bhatti, S.I. conducted the investigation in the case and declared all the accused persons innocent except Muhammad Riaz against whom challan was submitted in the Court of the learned Additional Sessions Judge, Chicha Watni. According to the learned counsel, the second investigation conducted by Nisar Ahmad Bhatti, S.I. was in complete violation of the Police Order, 2002.
The learned Assistant Advocate General on instructions stated that challan in the case had been submitted and the trial had commenced, therefore, the petition was not maintainable as the petitioner had an alternate remedy available to him before the learned trial Court.
I have heard the learned counsel for the petitioner, learned Assistant Advocate General and gone through the documents placed on the file.
Initially the investigation was conducted by Muhammad Amin, S.I. (Investigation), Police Station Saddar Chicha Watni, who inspected the spot and recorded the statements of witnesses as well as the victim Mst. Asima Bibi. The accused Riaz was arrested and sent to Jail on the basis of the investigation in which all the other accused named in the F.I.R. had also been found to be implicated in the crime. The S.H.O. Police Station Saddar Chicha Watni prepared incomplete challan on 4.8.2006 against Muhammad Riaz and initiated proceedings under Section 87 Cr.P.C. against the remaining accused. In the meanwhile, Muhammad Amin was transferred from Police Station and Nisar Ahmed Bhatti, S.I. (Investigation), the new incumbent took over the investigation of the case. He associated both the parties with the investigation as well as respectable of the locality and after a thorough probe found that Mst. Zubaida Bibi and Muhammad Ashraf accused were innocent and subsequently, Mst. Bilqees accused was also declared innocent. The investigation thereafter was taken over by Sub-Inspector Liaqat Ali on transfer of Sub-Inspector Nisar Ahmed.
The investigation conducted by Nisar Ahmed, S.I. has been challenged by the petitioner on the ground that the same has been transferred in violation of the provisions of Article 18(6) of the Police Order, 2002. The contention of the learned counsel for the petitioner is totally baseless as the earlier Investigating Officer was transferred and Nisar Ahmed, S.I. had taken over the investigation on being posted in his place. On transfer of Nisar Ahmad, S.I. the investigation was taken over by Liaqat Ali, S.I., who finalized the same. From the foregoing it is evident that the investigation of the case was never transferred to Sub-Inspector Nisar Ahmed who resumed investigation of the case on being posted in the place of the first investigating officer. Therefore, the question regarding violation of the provisions of Article 18(6) of the Police Order, 2002 in the given circumstances does not arise. Further, challan in the case has been submitted in the Court and the trial is in progress. The complainant may, if not satisfied with the investigation of the case, prefer a private complaint against the accused who have been declared innocent by the police or produce convincing evidence against the said accused before the learned trial Court which is competent to summon the accused if sufficient material is available on the record to connect them with the crime.
For what has been stated above, I find no merit in this petition which is dismissed.
(R.A.) Petition dismissed.
PLJ 2008 Lahore 324
Present: Syed Asghar Haider, J.
TEHSEEN MAZHAR and 24 others--Petitioners
versus
VICE-CHANCELLOR, UNIVERSITY OF PUNJAB, LAHORE and 2 others--Respondents
W.P. No. 7248 of 2007, decided on 1.10.2007.
Interpretation of Syndicate--
----Vice-Chancellor does not have the powers of Syndicate, thus on this analogy the Vice-Chancellor does not have the powers to over ride the advice of Board of Studies. [P. 330] D
University of Punjab Act, 1973--
----Ss. 4(c)(x) & 8(3)--Constitution of Pakistan, 1973, Art. 199--Powers of authority of chancellor--Section 4(c) of Punjab University Act, bestows upon the university a power to hold examinations, award and confer degrees, diplomas, certificates--University also powers to do all acts and things, whether incidental to the powers as may be requisite in order to further the objects of University as a place of education, learning and research. [P. 327] A
University of Punjab Act, 1973--
----Ss. 15(4)(v) & 15(4)(vi)--Constitution of Pakistan, 1973, Arts. 25 & 199--Constitutional petition--Educational institution--Entitlement of compensatory marks--Powers of Chancellor and Vice-Chancellor--Paper set was not from within course--Petitioners agitated the matter before authority who in order to salvage the situation and alleviate the grievance--Agreed to award 30 marks as compensation to students--Question--Whether paper was out of course or not--Determination--Non adherence committed is violative of Constitution--Student were not awarded the marks--Students be awarded 25 marks with discrimination--Board of studies declined to award compensatory grace marks--Assailed--Power of Vice-Chancellor to make arrangement for scrutiny of papers, marks and result as he may consider necessary, while S. 15(4)(vi) deals with his authority to assign powers to teachers to take up such assignments in connection with examinations and other activities of University which he considers necessary--Held: Concession awarded to students by Board of Studies be honoured especially when Vice-Chancellor who is custodian of law and is administrative head of University himself offered such solution and University has been granting such concessions in past--Matter referred to Board of Studies meaning thereby, they also accepted that dispute did not fall within ambit of grace marks rather fall in domain of compassionate marks--Petitions allowed. [Pp. 327 & 331] C, F & G
Words and Phrases--
----Prescribed--The word prescribed used is very significant and is of paramount importance--Webster's Law Dictionary. [P. 327] B
Words and Phrases--
----Compassionate marks and grace marks--These are two different things--Grace marks are always awarded to an individual while compassionate marks are always awarded to a class of individuals.
[P. 331] E
PLD 2006 SC 243 & 1998 SCMR 1863, ref.
Mr. Sarfraz Ahmed Cheema, and Mr. Shahzad Cheema, Advocates for Petitioners.
Raja Muhammad Arif, Legal Advisor and Mr. Shujat Ali Khan, AAG for Respondents.
Date of hearing: 7.9.2007.
Judgment
This judgment shall dispose of the instant petition (W.P. No. 7248 of 2007) as well as W.P. No. 7208 of 2007, emanating of common questions of law and fact.
The petitioners appeared in the examination of Development Journalism Part-II (Annual), 2006, when paper III of Mass Communication (Development Journalism) Part-II, Annual Examination 2006, was circulated, a large part of the paper set, was not from within course. There was commotion by the students, including the petitioners, they agitated the matter before the Superintendent of the Examination Hall, the protest was so strong that the Controller of Examination, Respondent No. 2 had to intervene, he listened to the grievance of the students and agreed to award 30 marks as compensation to all students appearing without discrimination to, off-set the effect of this lapse. The petitioners and other students thereafter agreed to continue with the examination. The result of said Exam. was announced on 11th May, 2007, it then transpired that the promise made by Respondent No. 2 was not adhered to and the agreed 30 marks were not awarded. The petitioners, therefore, agitated the matter before Respondent No. 1, who in order to salvage the situation and alleviate the grievance of the petitioners referred the matter to the Board of Studies, consisting of eight members of faculty, headed by Dr. Moghees-ud-Din Sheikh, to determine, whether the said paper was out of course or not and if set out of course, to how many marks were students entitled. A meeting in this context was held by the Board of Studies on 27.6.2007, it unanimously resolved and decided that the paper was not from course prescribed and, therefore, students be awarded 25 marks without discrimination. The said decision was communicated to Respondent No. 1, but he declined to adhere to the recommendations of the Board of Studies, aggrieved thereof the present petitions.
Learned counsel for the petitioners contended that paper admittedly was not from within course, therefore, the students could not be expected to answer these questions, this lapse and error has played havoc with their career, they were not only traumatized but also had to suffer financially, it is the legal obligation of respondents including the Board of Studies to ensure that papers are set in accordance with syllabus and course, any deviation in this context constitutes a fatal lapse and, therefore, the petitioners are entitled to compensatory marks, he also submitted that respondents had themselves offered a solution to this omission and therefore, they cannot now be permitted to resile from the agreed position. Non-adherence committed is violative of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973, the respondents are obliged in law to discharge their duties and functions in accordance with law and are to set paper from within syllabus prescribed.
The learned Legal Advisor of the respondents, Raja Muhammad Arif, vehemently contested this position and opposed it, according to him the petitioners have no locus standi or cause of action to bring the petitions, the award of compensatory marks as claimed by the petitioners, falls within the ambit of grace marks, which cannot be awarded in view of the judgment of the Apex Court reported as University of the Health Sciences Lahore and others vs. Sh. Nasir Subhani and others (PLD 2006 S.C. 243) and also on account of the fact that the University has not given any guarantee to the students that they shall pass all examinations. Lastly he contended that the writ petitions are not maintainable because no fundamental right has been infringed or violated. On merits, he has frankly conceded that at least two questions, set in the said paper, were not from within the course prescribed.
I have heard the learned counsel for the parties. University of the Punjab is governed by the University of the Punjab Act, 1973, the
Act defines the powers and authority of the Chancellor and Vice-Chancellor. Section 4 of the University of the Punjab Act, 1973, enumerates the powers of the University, Section 4(c) bestows upon the University a power to hold examinations, award and confer degrees, diplomas, certificates etc. While Section 4(x) bestows upon the University also powers to do all acts and things, whether incidental to the powers aforesaid or not, as may be requisite in order to further the objects of the University as a place of education, learning and research. Section 8(3) of the University of the Punjab Act, 1973, deals with the courses and curricula to be taught. Section 8(3) is reproduced for ready reference:
A
"To courses and the curricula shall be such as may be prescribed."
It would be advantageous to state here that the word prescribed used in this section is very significant and is of paramount importance. Prescribed is defined by Webster's Law Dictionary as direction or rule to be followed, ordain; enjoin to order the use of. It, therefore, clearly reflects that the students are required to be taught from the course and curricula which is prescribed and by implication they can be subjected to examination only from within and not out of the curricula and syllabus prescribed. Chapter III of the University of the Punjab Act deals with the office of the University. It is headed by the Chancellor, who has been granted powers of revision and has also been bestowed with authority to examine the propriety; correctness and legality of an order. Section 15(1) of Act (ibid) deals with the powers and duties of the Vice-Chancellor. Section 15(4)(iv) deals with the powers of the Vice-Chancellor to appoint papear setters and examiners for all examinations, after receiving panels of names from the concerned authorities, while Section 15(4)(v) deals with powers of Vice-Chancellor to make arrangement for scrutiny of papers, marks and results as he may consider necessary, while Section 15(4) (vi) deals with his authority to assign powers to teachers, officers and other employees of the University to take up such assignments in connection with examinations and other activities of the University which he considers necessary. Chapter IV of the Act (ibid) deals with the University Authorities. Section 22(v) deals with the Board of Studies, therefore, it is clear that the Board of Studies has been enacted and constituted for a purpose. Schedule attached to the First Statute of the University of the Punjab Act enumerates the members of the Board of Studies and also defines their functions, under Section 4(6), which are--
B
C
(a) to advise the authorities on all academic matters connected instructions, publication, research and examination in the subject or subjects concerned;
(b) to propose curricula and syllabi for all degree, diploma and certificate courses in the subject or subjects concerned;
(c) to suggest a panel of names of paper settlers and examiners in the subject or subjects concerned; and
(d) to perform such other functions as may be prescribed by Regulations".
In Sections 4, 6(a) the word "advise" is again very significant. Likewise Section 6(d) relates to other functions as may be prescribed. It is in this back drop and back ground the present controversy has to be examined.
The learned Legal Advisor of the University has frankly conceded that the paper subject-matter of the dispute, contained two questions which were not from within the course, therefore, the students raised commotion and refused to take examination, the matter was brought to the notice of the Controller of Examinations, he intervened and assured the students that they would be awarded 30 marks as compensation, without discrimination to ward of the impact of this lapse.
The question now arises could be Controller of Examination grant such relief to the aggrieved students/petitioners or not. The administrative powers of the Controller of Examination do not bestow such powers on him, therefore, obviously this concession was without authority. But the matter does not end here. When the result was announced the students were not awarded the marks promised so they raised issue again with the concerned quarters and protested, the protest was so strong that the Vice-Chancellor himself intervened in the matter and thereafter he agreed to refer the matter to the Board of Studies and made a formal reference in this context, directing them, to determine whether the paper was out of course or not and if it was out of course, what was the relief the petitioners were entitled to. It goes without saying that the Board of Studies comprises of renowned educationists, comprising men and women of eminence who are highly qualified and have spent ages in the field of education, they are also well conversant with their functions and authority and are also bestowed with the task of setting papers and appointing paper setters. The question again arises as to whether the Vice-Chancellor was authorized to make such reference to the Board of Studies or not. Section 15(4)(v) of the Act ibid bestows upon him such powers, therefore, reference was rightly made to the Board of Studies. The Board of Studies after examining the dispute and the reference held that two questions were not from within course and, therefore, advised that the students/petitioners be granted 25 compensatory marks, to alleviate their suffering. The Vice-Chancellor instead of adhering to the advise of the Board of Studies refused to accept the recommendations, aggrieved thereof the students approached the Chancellor of the University, he also did not come to their rescue, therefore, they had no remedy but to knock the door of this Court. The objection of the learned Legal Advisor that, there has been no infringement of any fundamental right, therefore, the present remedy is not proper, does not hold water. Because it is the right of each individual to be dealt with in accordance with law and access to law and justice is an unfettered fundamental right, it has so been declared by the Apex Court in Aftab Shahban Mirani vs. President of Pakistan (1998 S.C.M.R. 1863). While interpreting Article 4 of the Constitution.
The pivotal question for adjudication is whether the advice tendered by the Board of Studies is binding upon the Vice-Chancellor or not. The word "advice" has been defined in Black's Law Dictionary:
Advice--Guidance offered by one person, esp. a lawyer, to another.
While Webster defines "advice":
Encouragement or dissuasion; counsel; suggestion. 2. Often pl. Information, notification. 3. Obs. Deliberation; fore-thought; hence, opinion.
Collins defines "advice:-
Suggestions or opinions given to someone about what they should do in a particular situation.
It appears from this definition that the word advice by and large means:
"guidance by someone who has authority over the subject and is well conversant with its implications and can give proper guidance and counsel.
Article 48 of the Constitution of the Islamic Republic of Pakistan, 1973, also deals with the word advice, in this Article the word virtually assumes the meaning of a direction. Article 48 of the Constitution reads:-
48(1) In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet or the Prime Minister:
Provided that the President may require the Cabinet or, as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration."
Therefore, in case the President disagrees with the advice tendered by the Prime Minister he only has power to refer the matter back to the Prime Minister or the Cabinet to reconsider the same and thereafter, if referred back, it is incumbent and mandatory upon him to adhere to and act on this advice. Keeping this principle in mind the Vice-Chancellor only had authority to refer the matter back to the Board of Studies for reconsideration, if he was not satisfied with the recommendations made. The was not done, he proceeded to ignore the advice completely and refused to implement the recommendations made, therefore, he acted beyond his authority and that too without assigning any reason. In the judgment reported as University of the Health Sciences Lahore and others vs. Sh. Nasir Subhani and others (PLD 2006 S.C. 243) it has been held that:
"Upon hearing learned counsel for the parties, we entertain serious doubts whether the Vice-Chancellor of University has statutory powers under the statute of the University or any other law for the time being in force to grant grace marks in each subject and thereby deteriorate the quality of education which has already gone below standard. The Syndicate of a University might have certain discretion but the Vice-Chancellor alone, in our, opinion, would not be competent to exercise all the powers of the Syndicate and benevolently grant grace marks to the failed candidates in theory as well as practical subjects."
A reference has been made to the powers of Vice-Chancellor viz-a-viz the Syndicate of the University which also has been enacted in the statute (ibid) it has been held that the Vice-Chancellor does not have the powers of Syndicate thus on this analogy the Vice-Chancellor does not have the powers to over ride the advice of Board of Studies. It is also worthwhile to mention here that the students are required to be taught from the curricula and courses which are prescribed, thus, if they are subjected to examination beyond the prescribed course the University authorities fail to perform their duty under the University of the Punjab Act, 1973. Therefore, the recommendations made by the Board of Studies were required to be honoured and adhered to by Respondent No. 1 and he had no discretion to override such advice.
Nasir Subhani and others (PLD 2006 SC 243):- The judgment is distinguishable on facts. The petitioners are not seeking grace marks they, in fact, pleaded before the University Authorities that they be awarded compensatory marks to off set, the effect of a paper which admittedly was not from within course. Compassionate marks and grace marks are two different things. Grace marks are always awarded to an individual while compassionate marks are awarded to a class of individuals and it is worthwhile to mention here that the University had earlier entertained such requests and has awarded such marks. (The details were provided by the learned counsel for the petitioners) and are reproduced for ready reference:
E
Sr.No. Subject Year Compensatory
Marks.
M.A. Urdu Part-I 2002/A 37
M.A. English Paper-II 2004 25
M.A. English Paper-I 2005 15
In these circumstances the students/petitioners have only prayed that the a concession awarded to them by the Board of Studies be honoured especially when the Vice-Chancellor who is custodian of law and is administrative head of the University himself offered this solution and University has been granting such concessions in past. Therefore, on equitable grounds he also was required to fulfill his commitment and ward to set an example, that promises are not broken.
F
G
The result of the above discussion is that the petitions are allowed with costs as prayed for.
(N.F.) Petitions allowed.
PLJ 2008 Lahore 332
Present: Nasim Sikandar, J.
M/s. AL-HAJ GHULAM MUHAMMAD & SONS, SIALKOT--Petitioner
versus
CENTRAL BOARD OF REVENUE through its Chairman Government of Pakistan Islamabad and 3 others--Respondents
W.P. No. 19120 of 2002, decided on 9.10.2007.
Income Tax Ordinance, 1979 (XXXI of 1979)--
----Ss. 59 & 80-D--Schedule, clause (32D) in Part-IV--Matter of acquisition--Rent-receiving interests--Notification--No ground to complain of discrimination--Different kinds of assesses--Qualified for self-assessment scheme--Appellant had no ground to complain of discrimination, for they were not in a position to assert that while the rent-receiving interests of certain persons had been acquired, other rent receivers had not been touched--Irrespective of the nature of source of income clause (32D) excluded the provisions of S. 80D to the turn over of different kinds of the assesses who qualified for self assessment scheme--Held: Such provisions are neither appellant specific nor in fact any such case can possibly be made out. [P. 338] C
Constitution of Pakistan, 1973--
----Art. 199--Principles for application of equality--Income tax payers are equally placed with other assesses--Principles for application of equality clause of the Constitution--Held: That equal protection of law meant that all persons equally placed be treated alike both in privileges conferred and liabilities imposed. [P. 339] E
Assam Act, 1961 (10 of 1961)--
----S. 3--Income Tax Ordinance, (XXXI of 1979) Ss. 59 & 80-D--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Petition dismissed--Matter of acquisition--Direct tax system--Levy of minimum tax--Levy of flat rate of taxation was an unreasonable restriction--If a tax is levied at a flat rate, it must be treated as unreasonable--Purpose of levy--Scope of--Self assessment scheme--Violation of Constitution--Entitlement of--No ground to complain of discrimination--Held: Legislature may have considered the requirements of trade and may have thought that a flat rate would be just and fair to the trade as a whole--Therefore, the ground on which the reasonableness of tax levied by S. 3 was impeached cannot be sustained. [P. 339] F
Self Assessment Scheme--
----Availability--Discriminatory--Self-assessment scheme for specified year was available to all such assessees who fulfilled the conditions laid down in the scheme--If for one reason or other petitioners could not avail the scheme on account of failure to answer one or more conditions set out--Held: Scheme as such cannot be held to be discriminatory. [P. 338] D
Income Tax Ordinance, 1979 (XXXI of 1979)--
----S. 80-D--Clause 32-D Part-IV of Second Schedule--Constitution of Pakistan, 1973, Arts. 250 & 199--Direct tax system--Levy of minimum tax--Self Assessment Scheme--Elibility--Aggregate of total turnover was deemed to be income of company to be charged with tax--All cases where tax was not payable or paid for any reason including any loss of income, profits or gains or set off losses of earlier years, exemption from tax--Federal Government not only reduced the rate of minimum tax but also explained nature of total turnover for purpose of levy--Notification--Not eligible to avail Self Assessment Scheme--Effect of enarmouse--Increase in tax liability based upon turnover--Violative of constitution for not equality before law but equal protection of law--Validity--Prohibited discriminatory treatment--Held: Provisions of S. 80-D of Income Tax Ordinance will not be applicable to those who qualify for the Self Assessment Scheme announced for the year--Return may have resulted in a higher tax liability--Issue remains the entitlement or eligibility of the petitioners to Self Assessment Scheme which was applicable to the assessees of Income Tax Department--Petition dismissed.
[P. 337] A
Income Tax Ordinance, 1979 (XXXI of 1979)--
----Ss. 59 & 62--Competency of Central Board of Revenue--Self Assessment Scheme--Provisions provided for competency of Central Board of Revenue to issue schemes for self assessment as also to make orders or instructions--Held: Competency of Central Board of Revenue to select returns for regular assessments u/S. 62 of Income Tax Ordinance. [P. 338] B
PLD 1957 SC (Pak.) 9, PLD 1989 Lahore 554, PLD 1993 SC 341, AIR 1964 SC 925 (V 51 C 122) & (1997) 76 Tax 5, ref.
Dr. Ilyas Zafar, Advocate for Petitioner.
Mr. Muhammad Ilyas Khan, Advocate for Respondents.
Date of hearing: 16.4.2007.
Judgment
Through this single judgment I intend to dispose of W.P. Nos. 19120/2002, 24354/2000, and W.P. Nos. 563 and 566 of 2002.
"Section 80D has been inserted in the Ordinance to provide that where no tax its otherwise payable by any company, body corporate or trust resident in Pakistan for any reason, including tax holiday or accounting concessions or the tax paid by it is less than 0.5% of its declared turn-over, tax equal to 0.5% of the turn over shall be paid and where the tax otherwise payable is less than 0.5% of the said turn-over, the difference between the tax otherwise payable and the amount calculated at the rate of 0.5% of the turn-over shall become payable."
In the very next Finance Act, 1992 the scope of the provision was extended to registered firms. Also an explanation was added to the section with retrospective effect to declare that the expression "where no tax is payable or paid" and "or the tax payable or paid" applied to all cases where tax was not payable or paid for any reason whatsoever including any loss of income, profits or gains or set off losses of earlier years, exemption from tax, credit or rebates in tax and allowances and deductions admissible under any provision of the late Ordinance or any other law for the time being in force. Subsequently in the year 1999 the provision was also made applicable to individuals, association of persons, un-registered firms and Hindu un-divided families.
On representations made by the tax-payers engaged in different trades particularly those selling products on commission basis, the Federal Government not only reduced the rate of minimum of tax but also explained the nature of total turnover to be taken for the purpose of levy. It was notified that in cases of travel agencies and these selling cigarettes the commission charged by them and not the total price of the Air tickets or the cigarettes sold will be taken as their total turnover. That kind of patch work continued till the repeal of the late Ordinance though the concession extended to certain kinds of assessees including the travel agents and cigarettes sellers was never made applicable across the board i.e. all kinds of tax payers engaged in selling products on commission basis.
Two of the four petitioners are AOPs. One is an individual and the fourth one is an un-registered firm. The AOPs are engaged in business of dealership of products made by the Lever Brothers (Pakistan) Ltd. on commission basis. The individual is a dealer of Colgate Palmolive (Pakistan) Ltd. and the un-registered firm receives commission on sale of lubricating oil. All four of them are aggrieved of insertion of clause (32D) in Part-IV of the Second Schedule to the Income Tax Ordinance, 1979 through CBR Notification SRO 773(I)/2000 dated October 31, 2000. The clause so added reads as under:
"32D. The provisions of Section 80-D shall not apply to turnover of an individual an association of persons, an unregistered firm or a Hindu undivided family which qualify for Self Assessment Scheme made under sub-section (1) of Section 59 for the assessment year 2000-2001."
This clause remained on statute book only for about eight months and was omitted by Finance Ordinance, 2001.
It is the case of the petitioners that Self-Assessment Scheme for the assessment year 2000-2001 as originally issued through Circular No. 21/2000 dated 11th September, 2000 was clarified by the Central Board of Revenue on 24.10.2000 that Section 80-D applied to all categories of cases for the assessment year, 2000-2001 whether or not covered by Self-Assessment Scheme. However, subsequently, through the aforesaid notification clause 32-D was added in the Schedule which had the direct effect of denying the benefit of the added provision to the petitioners which were not eligible to avail Self-Assessment Scheme. All the four petitioners on account of some decrease in their income and accordingly the tax paid by them at the rate less than the one paid by them in the previous year stood excluded from the Self-Assessment Scheme. The scheme also did not permit an assessee to make lump sum addition to avail the benefits of the Self-Assessment Scheme. Therefore, the four assessees had to file a regular return which had the effect of enormous increase in their tax liability based upon their turnover as contemplated in Section 80-D. It is the case of the first petitioner, an individual assessee that other individual assessees doing similar business with exactly similar turn over had to pay only Rs. 15000/- under the self-assessment scheme while his liability on filing a regular return pitched at Rs. 206105/-. Likewise one of the two AOPs claims that if its return qualified for Self-Assessment Scheme it had to pay income tax only at Rs. 76,593/- as against its liability to pay turn-over tax under Section 80-D at Rs. 7,16,826/-. The second AOP claims that under Self-Assessment Scheme it was obliged to pay tax only at Rs. 98,666/-, while it was being required to pay turn-over tax at Rs. 7,08,583/. The fourth petitioner, an unregistered firm also claims that under Self-Assessment Scheme its tax liability stood at Rs. 20,538/- as against the turn-over tax which it was required to pay at Rs. 3,56,891/- by filing a regular return.
According to the petitioners the denial of the benefit of clause 32-D only on the basis of meeting the requirement and qualifications settled for acceptance of returns under Self-Assessment Scheme has resulted in discrimination when compared with the persons engaged in exactly the same kind of business and at times rather being the agent of the same principle/manufacture of products. The denial of benefit of the said clause to the petitioners merely for the reason that they did not qualify for filing their returns under Self-Assessment Scheme is claimed to be violative of the Article 25 of the Constitution which provides for not only equality before law but also the equal protection of law. The Self-Assessment Scheme, according to the petitioners, is framed by the executive/revenue and it also provides for wide discretion for the Commissioner/Tax Collector to exclude any return out of the scheme. The exercise of such discretion by the Executive, according to the petitioners, is again discriminative inasmuch as those falling in or found qualified for the scheme will pay much less tax as compared to those who did not qualify or were otherwise excluded out of the scheme at the whim and discretion of the officers of the revenue.
In support of his claim that the treatment being meted out to the petitioners is discriminatory, learned counsel places reliance upon the ratio settled in re: Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and others (PLD 1957 SC (Pak.) 9), re: Zia Ullah Khan and others v. Government of Punjab and others (PLD 1989 Lahore 554), re: Government of Baluchistan v. Azizullah Memon and 16 others (PLD 1993 SC 341) and Khyerbari Tea Co. v. State of Assam (AIR 1964 SC 925 (V 51 C 122).
Learned counsel for the revenue, on the other hand, states that there is no question of any discrimination inasmuch as the provisions of Self-Assessment Scheme for the year under consideration are being made applicable across the board. It is pointed out that the assessee did not file return under Universal Self-Assessment Scheme because he was required to declare income not less than the last income assessed for the year 1999-2000 and to pay tax thereupon. Learned counsel further contends that the assertion that difference of tax under Self-Assessment Scheme and under Section 80-D is discriminatory and unreasonable is not correct inasmuch as the filing of return under the Self-Assessment Scheme or under the normal law was optional. Accordingly since the assessee had not availed the Self-Assessment Scheme as such it was liable to pay minimum tax at the rate of 0.5% under Section 80-D on the total turnover declared. Lastly it is repeated that the Self-Assessment Scheme being not mandatory the assessee could make payment of tax either under Self-Assessment Scheme or under the provisions of Section 80-D of the late Ordinance, 1979. The vires of Section 80-D providing for minimum tax liability under the late Ordinance is supported by making a reference to the judgment of the Hon'ble Supreme Court of Pakistan in re: Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary, Ministry of Finance Islamabad and others (1997) 76 Tax 5). In that judgment the Hon'ble Apex Court while rejecting a number of civil appeals observed:
"57. The upshot of the above discussion is that no exception can be taken to the impugned Sections 80-C, 80-CC and 80-D of the Ordinance as they do not suffer from any constitutional infirmity and, therefore, the above appeals have no merits and are liable to be dismissed....."
A
Learned counsel for the revenue is also correct in pointing out that the Self-Assessment Scheme in question was issued under Section 59 of the late Income Tax Ordinance, 1979. These provisions provided for the competency of the Central Board of Revenue to issue schemes for self-assessment as also to make orders or instructions there under. Sub-clause (1A) also provided for the competency of the Central Board of Revenue to select returns for regular assessments under Section 62. It is, therefore, rightly pointed out that the complaint of the petitioners against insertion of clause (32D) in the schedule is directed against the scheme as the insertion in the schedule was nothing more than an extension of the scheme to provide that Section 80-D shall not apply to those qualifying for Self-Assessment Scheme. In re: Jibendra Kishore Achharyya Chowdhury and 58 others v. The Province of East Pakistan and others (supra) the Hon'ble Supreme Court further held that there was no condition that in matter of acquisition there had in point of fact been any discrimination because all rent-receiving interests through out the Province were acquired by district-wise notifications of the same date. Therefore, in the view of their Lordships the appellant had no ground to complain of discrimination, for they were not in a position to assert that while the rent-receiving interests of certain persons had been acquired, other rent receivers had not been touched. As noted above in the case in hand, irrespective of the nature of source of income, clause (32-D) excluded the provisions of Section 80-D to the turn over of different kinds of the assesses who qualified for Self-Assessment Scheme. These provisions are neither appellant specific nor in fact any such case can possibly be made out.
The ratio settled in the case re: Zia Ullah Khan and others v. Government of Punjab and others (supra) is also distinguishable. In that case a Division Bench of this Court inter alia held that the provisions of Special Courts for Speedy Trials Ordinance, 1987 discriminated between the accused persons tried by the special Courts and those tried by the ordinary Courts under the normal procedure laid down in the Criminal Procedure Code, 1898. In the case in hand as noted above, the Self-Assessment Scheme for the year, 2000-2001 was available to all those assessees who fulfilled the conditions laid down in the scheme. If for one reason or the other the four petitioners could not avail the scheme on account of their failure to answer one or more conditions set out therein, the scheme as such cannot be held to be discriminatory.
In the case re: Government of Baluchistan v. Azizullah Memon and 16 others (supra) the Hon'ble Supreme Court re-iterated the principles of interpretation of the Constitution. In the view of their Lordship the interpretation of Constitution attracted most of the principles employed in interpreting the statutes, but care had to be taken that it was not restrictive, pedantic or limited. The Hon'ble Court while
detaining the principles for application of equality clause of the Constitution held that equal protection of law meant that all persons equally placed be treated alike both in privileges conferred and liabilities imposed. As rightly pointed out by Mr. Muhammad Ilyas Khan, Advocate, the appellants as income tax payers are equally placed with other assessees irrespective of the nature or source of income. Like every other assessee they have been deprived of availing the scheme on account of their having declared loss in the year under consideration. The impugned clause or condition was a rider for every assessee who had declared loss in the year. Their inability to answer all the requirements of the scheme resulting into a higher tax liability does not make the whole of the scheme discriminatory. Nor it can be said that those engaged in similar business of selling products on commission basis had been treated in a better manner.
E
F
(N.F.) Petitions dismissed.
PLJ 2008 Lahore 340
Present: Sh. Hakim Ali, J.
Mst. PARVEEN--Petitioner
versus
JEHANA & 7 others--Respondents
W.P. No. 17298 of 2004, decided on 25.6.2007.
Arbitration Act, 1940 (X of 1940)--
----S. 14--Limitation Act, (IX of 1908) S. 158--Civil Procedure Code, (V of 1908)--S. 12(2)--Constitution of Pakistan, 1973--Art. 199--Award was made a Rule of Court upon the statement of attorney--Objection raised that decree was based on fraud--Assailed--Case remanded--During pendency of proceeding an application was filed--Beyond period of limitation--Validity--Petitioner was bound to file objection petition against award within a period of 30 days from the date of service of notice of filing of award--Held: Petitioner did not mention the date when she had obtained knowledge of the filing of award by arbitrator or filing of it in Court--No source of knowledge and date was mentioned--To get exemption from a period of limitation or its condonation the party who claims such exemption/condonation should mention and explain the date of knowledge when it was obtained by him, if service was not effected upon him or he was prevented due to sufficient cause to apply with prescribed period of limitation--Petition cannot be considered to have been filed within prescribed period of limitation. [Pp. 344 & 345] A
Constitution of Pakistan, 1973--
----Art. 199--Arbitration Act, (X of 1940)--S. 14--Contrary agreement with a minor--Question of minority--Locus standi--Discretion of minor--Validity--Contract/agreement with a minor can be held void if it is executed against the interest of minor, but if agreement/contract has been made by any person for the interest of minor and minor is going to obtain any benefit from it, then it is discretion will of the minor to accept or reject it when he becomes major--Petitioner has got no locus standi to challenge it--Petitioner cannot be allowed to speak on behalf of minor--Petition dismissed. [P. 345] B
Ch. Ghulam Hussain, Advocate for Petitioner.
Mr. Aman Ullah Malik, Advocate for Respondents.
Date of hearing: 25.6.2007.
Order
Jehana and four others had filed an application under Section 14 of the Arbitration Act, 1940, against Mst. Parveen and Ata Muhammad who were impleaded as Respondents No. 1 and 2 before the learned Senior Civil Judge, Sargodha. In that application, prayer of the applicant Jehana and others was that Respondent No. 1 Mst. Parveen was owner of land measuring 239 kanals, situated in Jora Sakesar, Tehsil and District Sargodha, who had sold out the same to the aforementioned applicants and had received the amount of consideration. Afterward, an arbitration agreement was executed as dispute had arisen between the parties. Respondent No. 2, Ata Muhammad son of Allah Din was appointed as Arbitrator through an agreement dated 16.6.1979. The aforementioned Arbitrator namely Ata Muhammad decided the dispute through his award dated 18.6.1979, in favour of Jehana and others, the applicants. So, through the abovementioned application, Jehana and others prayed before the learned Senior Civil Judge, Sargodha for making the above mentioned award dated 18.6.1979, a Rule of the Court and passing a decree upon it. The application was accepted on 11.2.1980, by the learned Civil Judge, and award was made a Rule of the Court. It is pertinent to point out that upon the statement of special attorney namely Muhammad Bashir, the award was made Rule of Court on the above noted date. Afterward, on 7.2.1981, Mst. parveen filed a petition under Section 12(2) of the CPC against the aforementioned decree dated 11.2.1980 by raising the plea that aforesaid decree was based on fraud because arbitration agreement was never executed by her. It was also pleaded in the application that she had not appointed any special attorney for making a conceding statement to make award of arbitration a Rule of Court. This application was contested and was rejected on 7.11.1987. For setting aside of that order, revision was filed by Mst. Parveen before learned Addl. District Judge, Sargodha which was accepted on 2.1.1993. Aggrieved from that order, writ petition Bearing No. 233 of 1993 was filed by Jehana and others, in this Court. On 2.4.1994, the aforesaid writ petition was disposed of with the consent of the parties by this Court. The case was remanded to the learned Civil Judge, with direction to decide the petition under Section 14 of the Arbitration Act 1940, afresh in accordance with law which was filed by Jehana and others after considering it to be pending. That application was accordingly, taken up by learned Senior Civil Judge. During the pendency of proceedings of that petition, an application was filed by Jehana and others, that Mst. Parveen had not filed objections within period of limitation as provided by Article 158 of the Limitation Act, 1908, therefore, petition under Section 14 of the Arbitration Act, by Jehana and others might be accepted. That application was dismissed by learned Senior Civil Judge, on 28.11.2000. Aggrieved from that order, a revision was filed before learned Addl. District Judge, by Jehana and others, who accepted the same on 1.7.2004. Hence, the present writ petition.
(i) Mst. Parveen, the writ petitioner had filed an application under Section 12(2) of the CPC against the decree dated 11.2.1980 (which had made the Award, a Rule of the Court). It was filed on 7.2.1981. This petition under Section 12(2) of the CPC, could be considered as having been filed as an objection petition against the award filed under Section 14 of the Arbitration Act. Therefore, this petition which had not contained the reference to Section 12 (2) of the CPC, could be considered and treated by learned Addl. District Judge, to be an objection petition against the disputed award.
(ii) On 7.4.1994, this Court had decided Writ Petition No. 233 of 1993 in which it was held that evidence which was already brought on record upon above mentioned application under Section 12(2) of the CPC might be considered by the learned Civil Judge while deciding the application of Jehana and others. So, in these circumstances, before further proceedings could be conducted, evidence was to be recorded upon application filed by writ petitioner. Complete evidence was necessary to be taken by the learned Court below.
(iii) Learned trial Court was also directed to decide as to how much stamp duty was payable on the award but this aspect was not taken into consideration while deciding the revision by learned Addl. District Judge on 1.7.2004.
(iv) Learned counsel for the petitioner further argues that Muhammad Yousaf, Respondent No. 5 was minor and on behalf of minor, agreement for appointment of Arbitrator could not be executed, therefore, agreement was void in law.
(i) After Writ Petition No. 233 of 1993 was decided on 2.4.1994, learned counsel for Mst. Parveen had appeared on 15.2.1995 before learned Senior Civil Judge, Sargodha as the file of the case of learned trial Court was received by learned Senior Civil Judge, on 24.1.1995 after remand from this Court. Mst. Parveen had filed objections against award before learned Senior Civil Judge, which were clearly barred by time under Article 158 of the Limitation Act. Learned counsel places reliance on PLD 1996 S.C. 797 (Superintending Engineer Communication and Works Highway Circle, Kohat vs. Faiz Muhammad & Co. Akora Khattak.
(ii) As regard the other petition filed on 7.2.1981, learned counsel submits that this application could not be treated to have been filed against award because that was an application filed against the judgment and decree dated 11.2.1980, which decree was passed by learned Civil Judge, Sargodha, after accepting application filed by Jehana and others under Section 14 of the Arbitration Act. In other words, by elaborating his arguments, learned counsel states that the application was not filed against the award dated 18.6.1979, therefore, that application filed by Mst. Parveen could not be treated objection petition against award.
(ii) Award dated 18.6.1979, was filed before learned Civil Judge, on 11.2.1980 while Mst. Parveen had filed an application for setting aside decree dated 11.2.1980, on 7.2.1981. To further clarify his arguments, learned counsel submits that at least Mst. Parveen had got knowledge of the award on 7.2.1981. But she had filed the petition for setting aside decree dated 11.2.1981, and had not filed any objection against the award at that juncture. The petition which was filed against the award on 28.3.1995, after the remand, was liable to be rejected also because it was filed beyond the period of limitation. Therefore from 7.2.1981, if the knowledge of the petitioner is considered to have accrued to her with regard to making of the award, objection petition filed against that award on 28.3.1995 was also badly time barred. Accordingly, learned Addl. District Judge, had rightly accepted the revision petition because it was incumbent upon the writ petitioner to file objections to the award within 30 days from the date of service or at least from the date of knowledge of the award. Learned counsel has referred for this purpose PLD 1994 Karachi 127 (Messers Shafi Corporation Ltd. vs. Government of Pakistan through Director General of Defence Purchase Ministry of Defence Karachi).
(iv) As regard question of minority, learned counsel submits that no doubt Muhammad Yousaf was minor at the time of execution of arbitration agreement but he was beneficiary from that agreement/contract of arbitration, therefore, it was his option to get award set aside if he was aggrieved to it. As he has not challenged the validity and legality of award, rather is supporting it, therefore, Mst. Parveen, petitioner on his behalf cannot raise any such objection.
Arguments have been heard and record perused.
Article 158 of Limitation Act is re-produced as follow for ready reference:-
"Third Division--Applications"
1 2 3
Thirty days
The date of service of the notice of filing of the award.
According to that Article and keeping in view dictum laid down in PLD 1994 Karachi 127 (Messrs Shafi Corporation Ltd. vs. Government of Pakistan through Director General of Defence Purchase, Ministry of Defence Karachi) and PLD 1996 SC 797 (Superintending Engineer, Communication and Works, Highway Circle, Kohat vs. Mian Faiz Muhammad and Co. Akora Khattak) Mst. Parveen, the writ petitioner was bound to file objection petition against award within a period of 30 days from the date of service of notice of filing of award, or at least from the date of having notice of the filing of the award or gaining the knowledge that award had been filed. Petition filed on 7.2.1981 by Mst. Parveen cannot be considered to have been filed against award because in the prayer of that petition, it was clearly mentioned that judgment and decree which had made the award a Rule of Court might be set aside. Therefore, in that petition, objection could not be considered to have been raised with against the validity or unsoundness of the award or for its setting aside. If I accept the aforementioned application as objection petition against award, even then in that petition, Mst. Parveen had not mentioned the date when she had obtained knowledge of the filing of award by the Arbitrator or the filing of it in Court. In that application, no source of knowledge, and date was mentioned. Application dated 7.6.1981, if it is presumed to have been filed against the award, even then it was barred by limitation because of lack of above noted details and particulars in the application. It is settled principle of law that to get exemption from a period of limitation or its condonation, the party who claims such exemption/condonation should mention and explain the date of knowledge when it was obtained by him, if service was not effected upon him or he was prevented due to any other sufficient cause to apply within prescribed period of limitation. Therefore, this petition dated 7.2.1981 cannot be considered to have been filed within prescribed period of limitation.
There is another aspect of the case. If petition dated 7.2.1981 was an objection petition against award dated 18.6.1979, then what was the need for filing of another objection petition on 28.3.1995 against the award. In other words, writ petitioner was himself aware and conscious of this fact that earlier petition dated 7.2.1981 was not filed against the impugned award dated 18.6.1979, therefore, objection petition against award was filed on 28.3.1995. It is also an admitted fact that Abdul Rashid, learned counsel had appeared on behalf of Mst. Parveen on 15.2.1995, before learned Senior Civil Judge, to contest the proceedings being conducted upon award. So, the award was undisputedly in the knowledge of Mst. Parveen for which she had appointed the learned counsel. In these circumstances, it was the duty of Mst. Parveen to file objections against the award while filing power of attorney on 15.2.1995. But she filed objection petition after more than one month on 28.3.1995 from the filing of power of attorney in the Court. From the date of entering into Court up to the filing of the objections to the award, why this period of more than one month was allowed to pass, no where it has been explained. So, this petition is also barred by limitation.
To support the above noted finding, I have dug out myself the precedent case law i.e. NLR 2001 UC 37 (Airports Development Agency Ltd. vs. M/s. M.Y. Corporation and others), wherein it has been held that when objection to award was filed after prescribed period of limitation and no application for condonation of delay was also filed, those objections were not entertained and it was dismissed, while award was made as rule of Court.
As regards the question of minority of Muhammad Yousaf raised by learned counsel, it is settled law that contract/agreement with a minor can be held void if it is executed against the interest of minor, but if agreement/contract has been made by any person for the interest of minor and minor is going to obtain any benefit from it, then it is the discretion/sweet will of the minor to accept or reject it when he becomes major. Muhammad Yousaf minor was granted land through and in consequence of arbitration agreement/award, therefore, it was his option/choice to ratify or reject it, who had not rejected it rather had accepted it. The writ petitioner has got no locus standi to challenge it. She cannot be allowed to speak on behalf of minor, who had accepted the award having been made in his favour. Therefore, this writ petition has got no merit to be accepted, hence, dismissed.
B
(R.A.) Petition dismissed.
PLJ 2008 Lahore 346 (DB)
Present: Muhammad Muzammal Khan and
Syed Shabbar Raza Rizvi, JJ.
MIR MUHAMMAD ASLAM (LATE) through his Legal Heirs
and others--Appellants
versus
BILQEES BEGUM and others--Respondents
R.F.A. No. 167 of 2005, decided on 12.10.2007.
Agreement--
----Time is essence of contract--Effect of document--Agreement intended to stick to language of agreement--Neither time fixed nor any outstanding sale price was paid--Time was not become essence of contract by merely so mentioning in agreement and mandated that parties to the agreement may make it essence of the contract by so mentioning or using such words which may manifest their intention--Held: Whether time is essence of the contract or not, can be determined from the nature of contract and the attending circumstances. [P. 350] A
Agreement--
----Right of rescission--To rescind or maintain contract--Bound to perform the agreement at due date--Terms of agreement--Failure to perform his part of contract within stipulated period--Even if the plaintiff was conferred with the right either to rescind or maintain contract, he did not exercise the right of rescission thus he was bound to perform the agreement at the due date. [P. 351] D
2004 SCMR 436 ref.
Agreement for Execution--
----Essence of transaction--Fixation of time in the agreement for execution of sale deed of immovable property would not be essence of contract but the parties make the time essence of contract and subsequently demonstrate it by their conducts, it will become essence of the transaction. [P. 351] E
Contract Act, 1872 (IX of 1872)--
----S. 55--Time essence of contract--Sale of immovable property--Time of execution of agreement--Transaction within period of a contract--Specific performance of contract of sale property has to be granted by Court although there has been a failure to keep the dates assigned by it, if justice could be done between the parties--Intention to make time essence of the contract must be expressed in unmistakable language and it may be inferred from what passed between the parties before but not after the contract is made and mere mention of a specific period in an agreement for completion of sale would not make the time essence of the contract--Held: Since the seller at the time of execution of agreement was not vested with full ownership rights which he had to perfect by deposit of Government dues and such fact being in the knowledge of parties, time fixed in the agreement was not intended to be the essence. [Pp. 350 & 351] B & C
2004 SCMR 584.
Contract Act, 1872 (IX of 1872)--
----S. 65--Suit for specific performance--Agreement to sell--Rescission of agreement and forfeiture of earnest money--Appeal--Terms of contract--Barred by two days--Two co-sharers were not present at the time of execution--Conferred right to respondent--Sharer of non-signatory appellants, excluded on account of resumption--Maintainability--Two co-sharers were not present at the time of execution of the admitted document, and had not signed it--Terms of contract conferred right to respondent of getting forcible registration of sale deed but in meanwhile, land, besides the share of non-signatory appellants, stood excluded on account of its resumption and part performance can not be granted to respondent--Respondent is not entitled to specific performance of agreement, but certainly entitled to get back her advanced money--Specific performance of agreement is not maintainable and deserves to be reversed, whereas respondents suit to the extent recovery of her earnest money, is to be decreed--Appeal allowed. [P. 355] K
Limitation Act, 1908 (IX of 1908)--
----S. 113--Limitation for filing the suit--Period of three years--Suit for specific performance of a contract is governed by Art. 113 of Limitation Act, 1908 which prescribed period of three years for filing of such a suit from the date fixed for performance in the agreement and where no such date is fixed then from the time plaintiff gains knowledge/notice of refusal of performance. [P. 354] H
Limitation Act, 1908 (IX of 1908)--
----Art. 113--Suit for specific performance--Agreement to sell--Period of three years--Date fixed for performance in agreement--Beyond the prescribed period of limitation--Barred by two days--Agreement with clear intendment--Lapse of respondent to pay balance sale price--Suit was filed beyond the prescribed period of limitation and barred by two days--Parties entered into agreement with clear intendment that agreement shall be performed within a period of six months and they had given a specific date for such purpose--Held: Appellants successfully proved that they were not obliged to perform their part of contract on account of lapse of respondent to pay the balance sale price within the stipulated time. [P. 354] I & J
Specific Relief Act, 1877 (I of 1877)--
----S. 15--Specific performance--Entitlement of--Where a party to a contract is unable to perform the whole of his part of it and the part which must be left unperformed, forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. [P. 353] F
Specific Relief Act, 1877 (I of 1877)--
----Ss. 14 & 15--Specific performance--Terms of agreement--Single and indivisible transaction--Time stipulated was expressly mentioned--Essence of contract--Entitlement of--Respondent remained unsuccessful in proving her entitlement to the decree granted by the trial Court, as respondent had not expressed her willingness to relinquish her claim to further performance or to compensation of the part of the suit land not given to respondent--Parties had contemplated only a single and indivisible transaction of sale with immediate delivery of possession and for effecting a conveyance the time stipulated was expressly mentioned to be of the essence of contract, thus it could not be said that the part to be specifically enforced, stood on a separate and independent footing from the remaining part of contract--Case of respondent was not covered under any of the exceptions enunciated by any of such provisions.
[P. 353] G
1995 SCMR 1431, PLD 1983 SC 344, PLD 2003 SC 430, 2004 SCMR 584, 2004 SCMR 436, 2005 SCMR 544 & PLD 1995 SC 314, ref.
Mian Sarfraz-ul-Hassan, Advocate for Appellants.
Mr. Shahid Karim, Advocate for Respondents.
Date of hearing: 24.9.2007.
Judgment
Muhammad Muzammal Khan, J.--Instant first appeal assailed judgment/decree dated 16.3.2005 passed by the learned Civil Judge, Gujranwala, whereby suit for specific performance filed by Respondent No. 1 was partly decreed.
Succinctly, relevant facts as deciphered from the record are that Mst. Bilqees Begum Respondent No. 1 filed a suit for specific performance of an agreement to sell dated 20.1.1998 with the averments that appellants being owners in possession of land measuring 48 marlas 8 sarsahis situated at 32-A, Civil Lines, Gill Road, Gujranwala, agreed to sell it in her favour for a total consideration of Rs. 61,35,750/- and after receipt of Rs. 18,00,000/- as earnest money, executed a written agreement to sell on 20.1.1998. It was further pleaded that agreement to sell, arrived at between the parties, was to be performed within a period of six months and she remained willing/ready to discharge her obligation by paying balance sale price but appellants did not come forward to perform their part of contract by execution/registration of sale-deed. Respondent No. 1 further asserted in her plaint that she issued a legal notice besides calling them through publication in press on 1.7.2001 to perform their part of contract but without any success, necessitating institution of suit.
Appellants being defendants in the suit, opposed the same by filing their written statement wherein Defendants No. 1 to 3 and 6 admitted execution of agreement to sell dated 20.1.1998 and receipt of earnest money there-under but they denied that Defendants No. 4 and 5 were parties to the transaction. Appellants pleaded that failure of Respondent No. 1 to pay the outstanding sale price within the time stipulated i.e. till 7.7.1998 resulted in rescission of agreement and forfeiture of earnest money. Suit by Respondent No. 1 was prayed to be dismissed being barred by limitation. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge, seized of the suit, after doing the needful partly decreed the suit of Respondent No. 1 awarding her decree to the extent of land measuring 271/4 marlas subject to deposit of proportionate balance consideration of Rs. 18,78,750/- on or before 16.4.2005, failing which her suit was ordered to be dismissed vide judgment/decree dated 16.3.2005. Appellants being aggrieved of the decree passed in favour of Respondent No. 1 by the trial Court, filed instant first appeal which was admitted to regular hearing and after completion of record, has now been fixed for final hearing.
We have heard the learned counsel for the parties and have examined the record of the trial Court. Bargain of sale of land measuring 48 marlas and 8 sarsahis situated at 32-A, Civil Lines, Gill Road, Gujranwala, for a total consideration of Rs. 61,35,750/- is admitted between the parties and appellants, excluding Naseem Aslam and Salah-ud-Din, do not deny receipt of earnest money of Rs. 18,00,000/-. Terms of sale were reduced to writing through an agreement to sell dated 20.1.1998 which was signed by the appellants except two of them, above noted. This document clearly shows that parties had settled between them that it will be performed within the specified period and there is a specific clause to this effect therein. Time for performance of the agreement was mentioned as six months which was further specified by giving date i.e. till 7.7.1998. Though from the date of execution of agreement (Exh. P.1.) period of six months would have lapsed on 20.7.1998 yet last date for performance being mentioned as 7.7.1998 relates back to oral bargain where-under token/earnest money of Rs. 3,50,000/- was received by the appellants on 13.1.1998. Any way, result of miscalculation of period of six months is immaterial, as intention of the parties was to make the time essence of the contract because they by the end of the agreement, again emphasized that time is essence of the contract, by mentioning that the sale-deed shall be executed according to the settled schedule and with these understanding and prefixed mind to this effect, document Exh.P. 1 was written. The circumstances of the case also suggest that parties to the agreement (Ex. P. 1) intended to stick to the language of the agreement because neither the time fixed therein was subsequently extended nor any part of outstanding sale price was paid/received by any of them. PW. 3 Amjad Ali who is marginal witness of Exh. P. 1 also deposed while in the witness box that the date fixed for execution of sale-deed was 7.7.1998 and at that time, there was no dispute pending in any Court, regarding suit property. Respondent's attorney Sabir Ali appeared as PW. 5 and made statement similar to that of PW. 3. Law on this point is firmly settled by this time, where-under it has repeatedly been held by the Apex Court that generally time is not essence of the contracts concerning immovable properties but in case parties thereto settle between them that time will be essence of the contract and they subsequently stick to it, then it will become operative even in the contracts of immovable properties. The Hon'ble Supreme Court in the case of Sandoz Limited and another vs. Federation of Pakistan and others (1995 SCMR 1431) repeated the earlier view, graciously expressed in Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 S.C. 344) that in cases of sale of immovable property, time does not become essence of the contract by merely so mentioning in the agreement and mandated that the parties to the agreement may make it essence of the contract by so mentioning or using such words which may manifest their intention, in this behalf. It was further observed in this erstwhile judgment that as to whether time is essence of the contract or not, can be determined from the nature of the contract and the attending circumstances etc. The Apex Court, in another case of Mst. Amina Bibi vs. Mudassar Aziz (PLD 2003 S.C. 430) while interpreting provisions of Section 55 of the Contract Act, 1872, graciously held that generally speaking specific performance of a Contract of sale of immovable property has to be granted by the Courts although there has been a failure to keep the dates assigned by it, if justice could be done between the parties and if nothing in (a) the express stipulation of the parties, (b) the nature of the property, or (c) the surrounding circumstances make it inequitable to grant the relief. It was further held in this judgment that intention to make time essence of the contract must be expressed in unmistakable language and it may be inferred from what passed between the parties before but not after the Contract is made and mere mention of a specific period in an agreement for completion of sale would not make the time essence of the Contract.
In another case of Muhammad Yaqoob and others vs. Hakim Ali and others (2004 SCMR 584) it was again held on the basis of provisions of Section 55 of the Contract Act, 1872 that since the seller at the time of execution of the agreement was not vested with full ownership rights which he had to perfect by deposit of Government dues and this fact being in the knowledge of the parties, time fixed in the agreement was not intended to be the essence. In this case, date fixed in the agreement was held to be tentative reflecting desire of the parties to complete the transaction within this period.
In the case of Fazal-ur-Rehman vs. Ahmed Saeed Mughal and others (2004 SCMR 436) parties had intended to make time essence of the contract and they had settled that in case of default in payment of any instalment, earnest money, already paid would stand forfeited. In this case it was held that even if the plaintiff was conferred with the right either to rescind or maintain contract, he did not exercise the right of rescission thus he was bound to perform the agreement at the due date. The Hon'ble Supreme Court in light of terms of agreement; conduct of parties and their behaviour, maintained the judgments of the Courts below to the effect that time was essence of the contract and suit of the plaintiff was dismissed on account of his failure to perform his part of contract within the stipulated period.
The Hon'ble Supreme Court in yet another case of Mst. Batul and others vs. Mst. Razia Fazal and others (2005 SCMR 544) approved earlier view taken in the case of Mst. Amina Bibi (supra) and summarized the issue in hand by holding that an agreement to sell of immovable property, time is not its essence when it stood extended time and again. Ratio of all these judgments is that normally simply fixation of time in the agreement for execution of sale-deed of immovable property simpliciter, would not be essence of the contract but in case the parties with a clear understanding make the time essence of the contract and subsequently demonstrate it by their conduct, it will become essence of the transaction. Applying this principle to the case in hand, one can easily conclude that parties to the agreement dated 20.1.1998 intended to make the time essence of the contract, as they wanted to complete the execution/registration of sale-deed by 7th of July, 1998, for the reasons noted in the foregoing paragraphs.
Now if the time was essence of the contract reduced to writing on 20.1.1998 we will have to examine that as to whether parties thereto were ready/willing to perform their respective part of contract within the time fixed i.e. till 7.7.1998 and in case answer be in negative who out of them was at fault. Respondent herself did not appear in the witness-box to support her case that she was willing/ready to perform her part of contract within the time stipulated in the agreement and instead produced her attorney Sabir Ali son of Atta Muhammad as PW.5. As per statement of PW. 5 respondent lived in Norway and used to visit Pakistan after a year or so. He further deposed that agreement between the parties was to be performed within six months time and earlier to the last date fixed for performance, he had asked 2/3 times to his broker to complete the transaction but did not issue any written notice. This witness further went on to state that his son had contracted the defendants/appellants who undertook to complete the matter earlier to the date fixed in the agreement. Statement of PW. 5 is not only uncorroborated by any other evidence on the file regarding his demand of completion of transaction through broker but his stance is also negated by statement of Mr. Zahid Mirza, Advocate (PW. 4) who deposed that availability of the respondent during the crucial period for performance of agreement, was not known to him. Since the respondent was the purchaser and had to pay the balance price, it was for her to demand execution of sale-deed from the defendants/appellants but there is not an itoa of evidence on the file to this effect. Respondent No. 1 according to our estimation, should have clearly proved that she was available in Pakistan; she was ready/willing to pay the balance sale price and had established contact with the appellants for execution of the sale-deed. Half-hearted statement of PW. 5 that they contacted 2/3 times to the broker for performance, was not enough to prove the issue involved, especially when the same was not supported by any other witness, in whose presence such demand was actually made. Both the witnesses of the respondent i.e. PW. 4 and PW. 5 are unanimous about issuance of the only notice to the appellants for the first time on 29.6.2001 i.e. after lapse of a period of about three years from the last date fixed for performance of the agreement namely 7.7.1998, in itself was proof of the fact that Respondent No. 1 was not ready/willing to have the sale-deed executed till then. Her plea of deferring this matter on account of issuance of injunction by the Civil Court, on a suit by third party, was of no avail because it did not absolve her to discharge her obligations under the agreement, even if the suit was not manoeuvred.
According to the terms of sale incorporated in the agreement dated 20.1.1998, the executants had undertaken responsibility of getting sale-deed executed on behalf of M/s. Naseem Aslam and Salah-ud-Din, as they had not signed the agreement to sell; they were to retain the debris of the structure over the land in question and were to raise wall towards north of the plot. Respondent No. 1 was also supposed to retain in touch with the appellants whether they had arranged due execution of sale-deed on behalf of M/s Naseem Aslam and Salah-ud-Din and removal of debris/construction of wall on northern side but she brought no evidence on the file in this behalf. Asim Aslam Mir one of the appellants appeared as DW.2 and categorically deposed that all of them were ready to perform their part of contract but Respondent No. 1 did not contact them. According to him, time was essence of the contract as they intended to start some business by investing sale proceeds but on account of non-payment of outstanding sale consideration, they could not complete their project. He was also categorical about rescission of the contract that the same stood cancelled on 7.7.1998. This deposition was duly supported by DW. 1 Fasahat Ali. Statements of both these witnesses of the appellants could not be repelled by evidence produced by the respondent and their veracity remained un-shattered inspite of lengthy cross-examination, on her behalf. Scan of evidence on the file proved that appellants were ready and willing to perform their part of contract within the time stipulated in the agreement but Respondent No. 1 was not ready and avoided execution of sale-deed on account of scarcity of funds or her non-availability in the country. Though the trial Court had not discussed this aspect of the case, yet irresistible conclusion out of appraisal of evidence on the file is that Respondent No. 1 defaulted in abiding the terms of agreement and after sleeping over her rights for about three years, got issued unfounded notices through Mr. Zahid Nazir, Advocate and publication in the press when the agreement under its own terms, had come to an end.
As earlier noted, two co-owners of the suit property did not associate the bargain and had not signed Exh. P. 1 thus performance of it cannot be enforced against them. The trial Court has also given a finding in support of this proposition. The entire suit property is joint and share of both the non-signatory appellants is not identified and cannot be separated without resort to partition proceedings by metes and bounds. Besides it, land measuring 16 marlas out of the plot in question was resumed by the Deputy Commissioner for utilization of Kachi Abadi and respondent's suit to this extent was dismissed by the trial Court through the judgment/decree impugned. In this manner, Respondent No. 1 was granted decree for specific performance of a part of the suit land measuring 27¬ marlas subject to deposit of proportionate balance sale consideration of Rs. 18,78,750/- on or before 16.4.2005, without directing removal of structures/debris as per agreement, above referred. Shares of M/s. Naseem Aslam and Salah-ud-Din have not been identified out of the total suit land measuring 48 Kanals 8 Marlas. Under Section 15 o the Specific Relief Act, 1877, where a party to a contract is unable to perform the whole of his part of it and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. Applying the underlying principle of this provision of law to the case under discussion, Respondent No. 1 remained unsuccessful in proving her entitlement to the decree granted by the trial Court, as she had not expressed her willingness to relinquish her claim to further performance or to compensation etc. of the part of the suit land not given to her. It was clear from the terms of the contract that parties had contemplated only a single and indivisible transaction of sale with immediate delivery of possession and for effecting a conveyance the time stipulated was expressly mentioned to be of the essence of the contract, thus it could not be said that the part to be specifically enforced, stood on a separate and independent footing from the remaining part of the contract. In these circumstances, Section 16 of the Act of 1877 had not application but was incorrectly invoked by the trial Court, without giving any finding to this effect. As a matter of fact, this Section identifies an exception to the bar of specific performance of part of contract, in the cases covered by Sections 14 and 15 of the Act (ibid). According to our humble view, case of the respondent was not covered under any of the exceptions enunciated by any of these provisions.
Attending to the objection of the appellants that the suit filed by the Respondent No. 1 was barred by limitation and thus the same could not have been decreed. Suit for specific performance of a contract is governed by Article 113 of the Limitation Act, 1908 which prescribes period of three years for filing of such a suit, from the date fixed for performance in the agreement and where no such date is fixed, then from the time plaintiff gains knowledge/notice of refusal of performance. As a matter of fact, Article 113 of the Act (ibid) has its two parts. Under first part, starting point of three years limitation for filing of suit, is the date given in the agreement itself for its performance, whereas under its second part, case for specific performance can be filed within a period of three years from the date when plaintiff gains notice that performance is refused. Since a specific date for performance of the agreement dated 20.1.1998 has been particularly given, the starting point of limitation in the case in hand will be 7.7.1998, the date so fixed. Respondent filed her suit on 9.7.2001 but three calendar years with 365 days each from 7.7.1998 lapsed on 7.7.2001, meaning thereby that suit was filed beyond the prescribed period of limitation and was barred by two days. Reliance of the learned counsel for the Respondent No. 1 on the judgment by the Apex Court in the case of Inam Naqshband vs. Haji Shaikh Ijaz Ahmad (PLD 1995 S.C. 314) is of no utility to his case, as in this case, no particular date was expressly fixed by the parties for performance of the agreement and they had provided that agreement will be performed within one week from the date of agreement, whereas in the case in hand we have already held that parties entered into the agreement with clear intendment that agreement shall be performed within a period of six months and they had given as specific date for this purpose. Appellants had successfully proved that they were not obliged to perform their part of contract on account of lapse of the Respondent No. 1 to pay the balance sale price within the stipulated time.
We are alive to the fact that appellants have not denied receipt of huge amount of earnest money (Rs. 18,00,000/-), inspite of the fact that two co-sharers namely Naseem Aslam and Salah-ud-Din were not present at the time of execution of the admitted document Exh.P. 1 and had not signed it. Terms of contract conferred right to the Respondent No. 1 of getting forcible registration of sale-deed but in the meanwhile 16 marlas of land, besides the share of non-signatory appellants, stood excluded on account of its resumption as noted above and part performance cannot be granted to Respondent No. 1 thus we are of the view that she is not entitled to as performance of the agreement dated 20.1.1998 in terms of Section 65 of the Contract Act, 1872 but she is certainly entitled to get back her advanced money of Rs. 18,00,-000/- with profit/interest at the bank rate. Scan of record and appraisal of evidence on the file leads to irresistible conclusion that judgment/decree dated 16.3.2005 passed by the trial Court for a performance of the agreement dated 20.1.1998 is not maintainable and deserves to be reserved, whereas respondent's suit to the extent of recovery of her earnest money of Rs. 18,00,-000/- is to be decreed.
For the reasons noted above, instant appeal is partly allowed and judgment/decree dated 16.3.2005 passed by the trial Court is modified into a money decree for Rs. 18,00,000/ with profit/interest at bank rate till its recovery, declining specific performance of the agreement dated 20.1.1998. Parties are left to bear their own costs.
(N.F.) Appeal allowed.
PLJ 2008 Lahore 355
Present: Sayed Zahid Hussain, J.
GHULAM HAIDER CHAUDHRY, INSPECTOR BOILERS, BAHAWALPUR CIRCLE and 4 others--Petitioners
versus
PRINCIPAL SECRETARY TO CHIEF MINISTER PUNJAB
and 4 others--Respondents
W.P. No. 3455 of 2007, decided on 26.9.2007.
Punjab Industries and Mineral Development Department Recruitment Rules, 1989--
----Scope of--Illegal appointment--Contrary to the rules--Post Chief Inspector of Boilers will be filled up by promotion from amongst the eligible persons in accordance with rules--So far as the other relief qua removal of respondent is concerned, his appointment already stand cancelled--Petition disposed of. [P. 358] A
Audi Alteram Partem-
----Principles of natural justice--Audi alteram partem is of immense importance and none should be condemned unheard, but the conduct of civil servant and his maneuvering in seeking appointment cannot be lost sight off. [P. 359] B
Appointment--
----A person who manipulated the things in order to get appointment over and the law, can be allowed to retain such ill gotton gains--Civil servant person, who obtains a gain or benefit by resorting to extra-legal measures, cannot legitimately complain when such a benefit is withdrawn or taken away. [P. 360] C
Discretionary Power--
----Before a person can be permitted to invoke the discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties--If it does not work any injustice to any party rather it cures a manifest illegality, then the extra ordinary jurisdiction ought not to be allowed to be invoked--Held: Court could legitimately refuse to set aside the order of the Officer on Special Duty, even though the letter was clearly without jurisdiction. [P. 361] E
Constitutional Jurisdiction--
----Discretionary matter--Exercise of Constitutional jurisdiction is a discretionary matter and a Court may decline to invoke the same even if an impugned order prima facie may be illegal. [P. 361] F
Constitution of Pakistan, 1973--
----Art. 199--Promotion matter--Appointment as Chief Inspector--Contract for three years--Till the arrival of regular incumbent--Ultimately cancelled after one month--Violation of law--Indirect methodology of promotion--Civil servant either be reverted back to his service in Hospital or he should sever his ties so that Hospital may advertise and make fresh appointment in his place--Conduct of civil servant as is evident from the material on record indeed, does not entitle him to invoke equitable and discretionary jurisdiction of High Court and nor he is entitled to any relief exercise of writ jurisdiction can be declined in appropriate cases even if the order is found to be without lawful authority--Held: Appoitnment was clearly violation of rules/law. [P. 360 & 361] D & G
Syed Zahid Hussain Bokhari, Advocate for Petitioner.
Mr. Aamir Rehman, Additional Advocate General, Punjab.
Hafiz Tariq Nasim, Advocate for Respondent No. 4.
Mr. Imran Aziz, Advocate for Sheikh Zayed Hospital, Lahore.
Date of hearing: 26.9.2007.
Order
The petitioners are Inspectors of Boilers, Industries Department, Government of Punjab, Lahore. Their conditions of service are regulated by Punjab Industries and Mineral Development Department Recruitment Rules, 1989. There is a post of Chief Inspector of Boilers (BS-18) in the said Department. Mr. Farid Iqbal, Deputy Chief Inspector of Boilers was appointed as Chief Inspector of Boilers on current charge basis till 9.3.2007 i.e. date of his retirement. As the said post was becoming vacant, the petitioners made a representation for appointment through promotion for amongst in-service Inspector of Boilers possessing requisite qualifications. The Directorate of Industries, Punjab thus proposed through a working paper "for promotion to one post of Chief Inspector of Boilers (BS-18) and one post of Deputy Chief Inspector of Boilers (BS-17) on regular basis for placing the same before the Departmental Promotion Committee". It is evident from letter dated 24.2.2007 that appointment of Mr. Farid Iqbal was also approved on contract basis with effect form 10.3.2007 for a period of one year in relaxation of the Re-employment Policy, 2003 upon attaining the age of superannuation on 9.3.2007. Order dated 5.3.2007 was issued accordingly as per Chief Minister's Directive dated 24.2.2007. He is said to have assumed charge but could not hold the post for a long as on 24.3.2007 one Muhammad Nawaz, Assistant Engineer (Mechanical) (BS-17), Sheikh Zayed Medical Complex, Lahore, "was appointed as Chief Inspector of Boilers (BS-18), Directorate of Industries, Punjab, Lahore, on deputation basis for a period of three years or till the arrival of a regular incumbent whichever is earlier under the provision of the Deputation Policy". Thus, the contractual appointment of Mr. Farid Iqbal was terminated with immediately effect on the same date. This prompted Farid Iqbal to agitate the matter, who filed W.P. No. 2824/2007 before this Court but in the meantime he succeeded in obtaining another Directive dated 28.3.2007 for continuation of his contract for one year. He accordingly withdraw his petition on 29.3.2007. Order dated 30.4.2007 was then issued cancelling the appointment of Muhammad Nawaz repatriating him to his parent Department. Muhammad Nawaz has filed W.P. No. 2445/2007 qua the same. Since the controversy centers around the post of Chief Inspector of Boilers in both the petitions, the same have been heard together.
W.P. No. 3455/2007
This petition is, thus, disposed of in view of the above.
W.P. No. 4225/2007.
Muhammad Nawaz petitioner was serving as Assistant Engineer (Mechanical) (BS-17) in Sheikh Zayed Medical Complex, Lahore, who appear to have approached the Chief Minister of the Province for his appointment as Chief Inspector of Boilers. A Director for his purpose was issued by the Chief Minister's Secretariat and summary was initiated by Secretary, Industries, Government of Punjab for his appointment till the arrival of the regular incumbent. He, thus, succeeded in seeking the termination of contract of Farid Iqbal and was appointed by order dated 24.3.2007 as Chief Inspector of Boilers on "deputation basis for a period of three years or till the arrival of a regular incumbent whichever is earlier under the provision of the Deputation Policy". Ultimately, his appointment was cancelled vide order dated 30.4.2007 which is sought to be assailed by him primarily on the ground that the same is violative of the law inasmuch as that the said order has been made without hearing him and that before expiry of the period of deputation he could not be reverted to Sheikh Zayed Medical Complex.
It is evident from the material on record that Muhammad Nawaz had sought this appointment by devious means through the intervention of high ups and exertion of extraneous pressures. For his benefit, summary dated 19.2.2007 by the Secretary, Industries was put up as per Directive of the Chief Minister's Secretariat and order issued. The same officer i.e. Secretary, Industries later moved another summary dated 21.4.2007 highlighting the conduct of the petitioner in seeking the said appointment. It was noted that "the Industries Department is of the considered view that in wake of the persistent political pressure the issue of appointment of Chief Inspector of Boilers has unnecessary become controversial". It was urged that the Chief Minister may review his earlier decision. The said proposal was approved by the Chief Minister, resulting in cancellation of appointment of the petitioner on 30.4.2007.
Several precedents have been cited by the learned counsel in support of his contention that the petitioner has been condemned unheard. There can be no cavil that principles of natural justice i.e. audi alteram partem is of immense importance and none should be condemned unheard, but the conduct of the petitioner and his manoeuvering in seeking appointment also cannot be lost sight off. Instant is a case where a person sought appointment by mustering political support and influence into a cadred service regulated by Rules where the appointment can be made either by promotion from amongst Senior Inspectors of Boilers and if none is available for promotion then by initial recruitment. He was able to get himself appointed against a post of BS-18 although he was officer in BS-17. Through this indirect methodology he manoeuvered a promotion.
The record of the case leaves pathetic impression of a Government Department which is supposed to be run strictly in accordance with law/rules. The Supreme Court of Pakistan had taken note of such a situation and laid down principles and guidelines in Zahid Akhtar vs. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others (PLD 1995 Supreme Court 530). A portion from the relevant part of the judgment reads as follows:-
"We need not stress here that a tamed and subservient bureaucracy can neither by helpful to Government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as incharge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is, to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority not it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action."
The Government Departments are bound to follow the same. None appear to have cared to observe the law in this case. For me, it is difficult to reconcile, as to how a person who manipulated the things in order to get appointment over and above the law, can be allowed to retain such ill-gotten gains. Any person, who obtains a gain or benefit by resorting to extra-legal measures, cannot legitimately complain when such a benefit is withdrawn or taken away.
As a result of the above, W.P. No. 3455/2007 stand disposed of in terms of para 3 above whereas W.P. No. 4225/2007 is dismissed.
(N.F.) Order accordingly.
PLJ 2008 Lahore 362
[Multan Bench Multan]
Present: Muhammad Jehangir Arshad, J.
Mst. MISBAH TABASSUM and 2 others--Petitioners
versus
GOVERNMENT OF PUNJAB through The Secretary, Home Department, Lahore and 3 others--Respondents
W.P. Nos. 3064 and 2974 of 2007, decided on 12.6.2007.
Constitution of Pakistan, 1973--
----Arts. 9, 10, 15, 16 & 17--Maintenance of Public Order, (XXXI of 1960), S. 3(i)--Criminal Procedure Code, (V of 1898), S. 491--Detention order--Arrested for period of ninety days--Cyclostyle recommendations--Involvement in anti social and political activities--Violation of such activities--Jurisdiction defect--Either activity of any of the detenue is against the state or any of its organ--Question of--Mere involvement in anti-social or anti-government activities is neither an offence nor can be equated with acting against the interest of the state--Arts. 15, 16 and 17 of Constitution only guarantee such activities but also provide sufficient safeguards/protection against violation of such activities--Held: Detention orders passed in such petitions were declared as without lawful authority and of no legal effect being malafide having been passed in a most in human and reckless manner without application of mind--Petitions allowed.
[Pp. 367 & 368] A & E
Maintenance of Public Order, 1960 (XXXI of 1960)--
----S. 3(i)--General Clauses Act, (X of 1897), S. 24-A--Constitution of Pakistan, 1973, Art. 199--Criminal Procedure Code, (V of 1898), S. 491--Involvement of anti-social or anti-government activities--Violation of law--Constitutional petition--Maintainability--Detention order--Jurisdictional defect--Held: Detaining authority had to satisfy itself about the activities of a person prejudicial to public safety or maintenance of public order--Impugned detention orders do not indicate the scope and extent of satisfaction of detaining authority before passing the impugned order the same on the touchstone of authority of law--Petitions accepted. [P. 367] B
PLJ 2006 SC 564 & PLD 1968 SC 313 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 144--Maintenance of Public Order, (XXXI) 1960, S. 3--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Detention orders--Violation of--Lack of knowledge of the Home Secretary--Ignorance of law--Neither mentioned in detention orders that at the relevant time S. 144 of Cr.P.C. was imposed in the District of the detenus nor any order to such effect has been produced before High Court or any action against any of the detenus for violating the imposition of S. 144 of Cr.P.C. has been brought on record--Held: Any order passed or action taken in violation or ignorance of law is nothing but a malafide order amounting to colourable exercise of jurisdiction and for acting in such like manner the Home Secretary is liable to be used for damages and each detenue--Petitions allowed.
[P. 368
PLJ 2004 Lahore 1221, PLD 2006 Lahore 108, PLD 2005 Lahore 370, PLD 1968 SC 313 & PLD 1962 WP Lahore 411, ref.
Malik Muhammad Rafiq Rajwana, Advocate along with Mazhar Jameel Qureshi, for Petitioners in W.P. No. 3064/2007 and 2974/2007.
M/s. Muhammad Qasim Khan, Zafarullah Khan Khakwani and Mubashir Latif Gill, AAGs with Naveed Rouf, Deputy Secretary, Home Department, Government of Punjab, Lahore.
Date of hearing: 12.6.2007.
Order
Through this single order I propose to decide the following three writ petitions as all carry similar questions of law and facts:--
(i) Mst. Misbah Tabassum, etc. vs. Government of Punjab, etc." (W.P. No .3064/2007); and
(ii) "Rao Abdul Ghaffar vs. Government of Punjab, etc." (W.P. No. 2974/2007) and
In W.P. No. 3064/2007 Munir Ahmad Langah, Rana Muhammad Yousaf, Saeed Alia Moni, Imtiaz Gulzar Chatan, M. Saleem Raja and Asif Mehmood are the detenus and in W.P. No. 2974/2007 Rao Sarfraz Ahmad is detenue. All the above-named detenus have been ordered by the Secretary, Government of the Punjab, Hone Department under Section 3(1) of the Maintenance of Public Order (XXXI), 1960 to be arrested and detained for a period of ninety days with immediate effect. In all the detention orders the grounds of arrest and detention of the detenus are one and the same, rather appear to have been copied in a cyclostyle manner, which are reproduced below:--
"(i) That you have been inviting and holding meeting with different elements of society and instigating them to defy the lawful order of the Government which will result in disruption of peace and may result in serious law and order situation.
(ii) There is credible information that you will deliver inflammatory speeches for instigating the general public in violation of restriction order under Section 144 Cr.P.C.
(iii) That your activities have been found prejudicial to public safety and maintenance of public order.
(iv) That continuance of your above mentioned activities are likely to create unrest in the public and threat to the law & order situation, thus giving rise to a situation prejudicial to the public safety and maintenance of public order, hence this order."
In both the above writ petitions, the learned Law Officer was directed to collect report and parawise comments from the Home Secretary alongwith entire material. Today, Deputy Secretary has appeared and placed on record a report submitted by Muhammad Nawaz Warraich, Senior Superintendent of Police (Operations), Multan dated 5.6.2007 alongwith memorandum of grounds against each detenue and the impugned order passed against respective detenus. Report and parawise comments have also been filed; no other material worth mentioning has been placed on the record.
At the very outset the learned Law Officer with reference to the Full Bench judgment of this Court in Sh. Rashid's case (PLJ 2004 Lahore 1221) has raised a preliminary objection by arguing that as the relevant law provides a representation to the Home Secretary against the impugned detention order, therefore, in the presence of alternate remedy these writ petitions are not maintainable. I am, however, not persuaded to uphold the said objection of the learned Law Officer for the simple reason that under the law representation has been provided to the Home Secretary, Government of the Punjab, who himself has passed the impugned detention orders and thus it is against the principle of natural justice providing "no one should be judge of his own cause" and further in the comments the impugned orders have been tried to be justified through Special Secretary. Even otherwise, the Full Bench judgment relied upon by the learned Law Officer relates to the period when detention orders used to be passed by District Magistrates, therefore, the preliminary objection of the learned Law Officer is overruled. Reliance is placed on the reported judgments in the case "Mulazim Hussain Shah vs. Province of Punjab through Secretary, Home Department, Government of Punjab, Lahore and 2 others" (PLD 2006 Lahore 108) and "Abu Bakar Muhammad Reza vs. Secretary to Government of Punjab, Home Department and 3 others" (PLD 2005 Lahore 370).
So far as merits of the case are concerned, it is submitted by learned counsels for respective petitioners that firstly the impugned orders in all these writ petitions are nothing but cyclostyle reproduction of the one order without application of mind and without any material in support of such orders. Secondly, the impugned orders have been passed on the recommendation of the Senior Superintendent of Police (Operations), Multan dated 5.6.2007 who too prayed for passing the impugned orders without application of mind as well as presence of any material except counting the political activities of the detenus like being office bearers of PML (N), Multan, participation in the functions hosted by PML (N), Multan or their participant in the protest rally against de-functioning of worthy Chief Justice of Pakistan, inasmuch as, for using the following remarks in some meeting of PML (N) held at the residence of some political leader:
It is further argued that superior Courts have repeatedly held that before passing detention order under Section 3 of the Maintenance of Public Order (XXXI), 1960, the detaining authority must be satisfied objectively and not subjectively and not merely on that whims and caprices, without there being any material before them in support of such order and that the detention order cannot be upheld by this Court by mere production of order of detaining authority in proof of satisfaction within the meaning of Section 3 of Maintenance of Public Order (XXXI), 1960. It is next argued that right of life and liberty of a citizen is fully protected by Articles 9 and 10 of the Constitution of the Islamic Republic of Pakistan, 1973, and further Article 10 of the Constitution provides sufficient safeguards in the matters of arrest and detention, whereas, the impugned orders have been passed in clear violation of the above said Article of the Constitution. Lastly, it is argued that the impugned orders are not only mala fide but have been passed in a highly uncalled for manner inasmuch as, most of the detenus have been ordered to be detained in Central Jail, Lahore without following the requirements of Section 3(7) of the said Order.
On the other hand, learned Law Officers appearing on behalf of the respondents have opposed these writ petitions on the ground of availability of alternate remedy of filing representation against the impugned detention orders before the Home Secretary, within the meaning of Section 3(6) of Maintenance of Public Order (XXXI), 1960 and secondly on the ground that impugned orders have been passed in accordance with provisions of the law and after proper application of mind as well as satisfaction of the detaining authority.
I have considered the arguments of learned counsel for the parties and have also perused the available record.
The only material produced by the detaining authority consists of recommendations by the Senior Superintendent of Police (Operations), Multan dated 5.6.2007, which is reproduced below:
"It is submitted that Munir Ahmad Langah s/o Mian Akhtar Hussain r/o Opposite Old Police Station Daulatgate, Multan is Divisional President Labour Wing, PML/N, and Multan. He creates sense of insecurity and harassment by his general violent and terrible conduct. He general conduct and anti-government activities disturb the public peace and tranquility. He instigates the general public against the Government by provocative speeches. His anti-social activities and movements can not otherwise be prevented and checked except by detention u/S. 3/MPO. It is requested that the above said Munir Akhtar Langah may kindly be detained u/S. 3. MPO for a period of 90 days in order to refrain him from acting in a manner prejudicial to public peace and tranquility. Memo of ground for detention is enclosed, please."
Further, a memorandum of grounds has been attached with the same.
Suffice it so say that about authenticity of the report of the Senior Superintendent of Police (Operations), Multan referred to above that in all the cases same cyclostyle recommendations have been repeated to pass the detention order, without referring to any material of evidence collected by the agency. The only impression which one can gather from the abovementioned recommendations of the Senior Superintendent of Police (Operations), Mutlan is that same is nothing except counting of political activities of the detenus and there is not a single word mentioned in the recommendations that either activity of any of the detenue is against the state or any of its organ, whereas, there mere involvement in anti-social or anti-government activities is neither an offence nor can be equated with acting against the interest of the state, whereas, Articles 15, 16 and 17 of the Constitution of the Islamic Republic of Pakistan, 1973 not only guarantee such activities but also provide sufficient safeguards/protection against violation of such activities, of course subject to law imposing reasonable restrictions on such activities which are detrimental to the sovereignty or integrity of Pakistan, public order or morality. Since there is not a remotest reference either in the recommendations made by Senior Superintendent of Police (Operations), Multan dated 5.6.2007 reproduced above, or in the impugned detention orders with regard to involvement of any detenu in any activity detrimental to the sovereignty or integrity of Pakistan, public order or morality, therefore, the impugned orders are not sustainable on this short ground. The impugned orders in all these writ petitions suffer from jurisdictional defect also, inasmuch as, none of the impugned order appears to have been passed after due application of mind about alleged anti-social or anti-Government activities by any of the detenus because the same has become more essential in view of insertion of Section 24-A of the General Clauses Act and the law declared by Hon'ble Supreme Court of Pakistan in the case reported in PLJ 2006 S.C .564. Want of application of mind while passing the impugned detention order is manifest from the fact that in all the writ petitions the detention order is nothing but reproduction of one cyclostyle order in a tele-printer manner without attending to the allegations of anti-social or anti-Government activities of each detenu, respectively. Again before passing the detention orders, the detaining authority had to satisfy itself about the activities of a person prejudicial to public safety or maintenance of public order and as held by Hon'ble Supreme Court of Pakistan in the case "Mie Abdul Baqi Baluch vs. The Government of Pakistan through the Cabinet Secretary, Rawalpindi" (PLD 1968 SC 313), mere production of order of detaining authority in proof of satisfaction is not sufficient to make the order of detention. Since the impugned orders in all these writ petitions do not indicate the scope and extent of satisfaction of the detaining authority before passing the impugned order the same on the touchstone of the authority of law declared by the Hon'ble Supreme Court in the cited judgment, are liable to be declared as without lawful authority and of no legal effect, and same are declared so.
There is also reasonable force in the contention of learned counsel for the petitions that the impugned orders were passed in a most in human, cruel, callous and reckless manner by the Home Secretary, Government of the Punjab inasmuch as, he opted to send most of the detenus to different Districts unmindful of the sizzling weather with 49 celsius in the month of June, without giving any reason for sending them to the Jails situated at a distance of 300 kilometers from the residence of each detenu and this act of the Home Secretary alone is sufficient to hold that he was not passing the detention order bona fide but intention was to show bureaucratic conceit on his part and to punish the detenus for their political activities and for this act alone I while announcing the order had ordered to burden him with costs of
Rs. 20,000/- to be paid by him from his own pocket to each of the detenu but at the request of learned Law Officer giving assurance on behalf of Home Secretary, not to act repeatedly in such a inhuman manner, I have recalled the said order of penalty, however, the Home Secretary, Government of the Punjab, is strictly warned to be careful in future and should refrain from passing such like orders, failing which he would not expect any leniency in this respect.
I am also unable to understand as to how violation of Section 144 Cr.P.C. can attract the provisions of Maintenance of Public Order (XXXI), 1960, whereas commissions of an act in violation of Section 144 Cr.P.C. is an offence punishable under Section 188 PPC. There is neither any mention in the detention orders that at the relevant time Section 144 Cr.P.C. was imposed in the District of the detenus nor any order to this effect has been produced before this Court or any action against any of the detenus for violating the imposition of Section 144 Cr.P.C. has been brought on the record. This ground of detention, therefore, not only shows lack of knowledge of the Home Secretary with regard to application of Section 144 Cr.P.C. but further shows lack of application of conscious mind while passing the impugned orders of detention, and as held by this Court in the case "A.K. Khalid P.C.S., Section Officer, Ministry of Interior, Government of Pakistan, Rawalpindi vs. Khan Ghulam Qadir Khan" (PLD 1962 WP Lahore 411 Division Bench), and order passed or action taken in violation or ignorance of law is nothing but a mala fide order amounting to colourable exercise of jurisdiction and for acting in such like manner the Home Secretary is liable to be sued for damages and each detenu, if so advised, may file suit for damages against Home Secretary (Khusro Pervaiz Khan) for keeping them in false imprisonment.
The upshot of above discussion is that both these writ petitions are allowed and the detention orders passed in these petitions are declared as without lawful authority and of no legal effect being mala fide having been passed in a most in human and reckless manner without application of mind as well as in sheer disregard/violation of Articles 9, 10, 15, 16 and 17 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 3 of the Maintenance of Public Order
PLJ 2008 Lahore 369
Present: Maulvi Anwar-ul-Haq, J.
Ch. MUHAMMAD HANIF--Petitioner
versus
Mst. ASIA--Respondent
C.R. No. 1575 of 2007, heard on 20.9.2007.
Interpretation of law--
----Dispossession--Order XXI, Rule 100 contemplates dispossession of a person other than the judgment debtor. [P. 371] A
Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, Rr. 97, 100 & 103 & S. 115--Dispossession by decree holder or purchasher--Question of title and possession--Application for ejectment--Dismissed by Courts below--Civil Revision--Petitioner was not in possession--Held: Ejectment petition itself while petitioner was present before the Rent Controller that he was not in possession--Objection petition even otherwise would not be maintainable in view of such fact--Suit in view of bar would also be not maintainable is rather misplaced--Civil revision dismissed. [Pp. 371 & 372] B
Mr. Muhammad Hanif Niazi, Advocate for Petitioner.
Mr. S. Abid Mumtaz Tirmzi, Advocate for Respondent.
Date of hearing: 20.9.2007.
Judgment
Maulvi Anwar-ul-Haq, J.--On 22.4.2004 the respondent filed an application for ejectment of one Ch. Muhammad Riaz from a house located in Lahore Urban Area. The said tenant was served who put in appearance and took several opportunities to file written statement but failed to do so. His defence was accordingly struck off on 30.7.2004 and the case was adjourned to 15.9.2004 for recording ex-parte evidence. On this date the said tenant, who is the brother of the present petitioner, filed an application for setting aside the ex-parte proceedings while the petitioner filed an application under Order I, Rule 10 CPC stating that he should be impleaded as a party as he was the original owner of the property and that he had not sold the house to the respondent. The said application was taken up on 28.1.2005 when the learned Rent Controller after hearing all concerned appointed a Local Commissioner. It was reported that it is the tenant who is in possession of the premises. The objections filed by the petitioner were rejected and the application under Order I, Rule 10 CPC was dismissed on 6.6.2005. Against this order an appeal was filed which was dismissed on 19.7.2005. He then filed W.P. No. 16449/05 which was dismissed by this Court on 2.2.2006.
Meanwhile, the tenant was also bringing one application after the other and the matter was ultimately decided and an ejectment order was passed on 22.1.2007. A first appeal against this order was dismissed by the learned ADJ on 2.6.2007. W.P. No. 6628/07 filed by the said tenant was dismissed by this Court on 27.6.2007. After completing the said round the process of execution was commenced when the petitioner filed objection petition stating that he is the lawful owner and had not sold the house to the respondent lady. It may also be noted here that admittedly a regular civil suit for cancellation of the sale-deed in favour of the respondent lady has also been filed which is pending.
The objection petition was dismissed by the Executing Court on 19.7.2007. A first appeal filed by the petitioner was dismissed by a learned ADJ Lahore on 9.8.2007.
Learned counsel for the petitioner contends that the learned lower Courts have acted without lawful authority while observing that in the presence of the suit the objection petition would not be competent. According to him although the tenant is his brother yet he is colluding with the respondent lady and further that in fact he is in possession of the house as an owner.
Learned counsel for the respondent, on the other hand, contends that both the brothers are in league and that the tenant had been contesting the matter tooth and nail right upto this Court. The petitioner also had a first round upto this Court and that the objection petition is a mala fide attempt to avoid the execution of the lawful ejectment order. According to him in the circumstances of this case the impugned order cannot be said to be without jurisdiction or illegal. Both the learned counsel inter alia rely on the case of Mst. Khurshid Begum etc. vs. Mr. Ghulam Kubra etc. (1982 SCMR 90).
I have gone through the copies of the records appended with this civil revision as also file of W.P. No. 6628/07, which was requisitioned, with the assistance of the learned counsel for the parties. The history of the proceedings has already been narrated above. There can be no cavil with the proposition that in terms of Rule 103 of Order 21 CPC all questions relating to title and possession between an applicant under Rule 97 or an applicant under Rule 100 and the opposite party shall be adjudicated and determined by the Executing Court and no separate suit shall lie. In this case, obviously the petitioner is an applicant under the said Rule 100 and it is also not his case that he has been dispossessed. Upon a reading of the said provision of law as interpreted by the Honourable Supreme Court of Pakistan in the said case of Mst. Khurshid Begum etc. the questions had to be decided by the Executing Court. However, the matter does not end here. As stated by me earlier, the petitioner already had in proceedings inter partes i.e. main ejectment petition, on his own application had obtained a finding that he is not in possession and that his brother is in possession as a tenant and the consequent order dismissing the application for being impleaded as a party has been upheld by the appellate authority as also this Court.
The contention that the brother/tenant is colluding with the respondent lady is also not at all palatable upon a reading of the record. All conceivable applications and all manners of tactics were made to delay the proceedings in the Rent Controller's Court. It is a strange co-incidence that the application for impleadment was filed by the petitioner at the same time when his brother filed application for setting aside of the order closing his defence for failure to file written statement and both the brothers continued in pursuance of their respective applications till this Court.
To my mind, the record speaks otherwise showing the anxiety of both the brothers that the ejectment order is not executed. In the said judgment, Honourable Supreme Court, after holding that the jurisdiction is there to decide the questions of title and possession, upon a finding that the application was mala fide proceeded to set aside the order passed by Executing Court framing the issues to determine the objections and the application was dismised summarily.
There is yet another aspect of the matter. Order 21 Rule 103 CPC covers the case of an applicant inter alias under Rule 100 of Order 21 CPC. The said Rule 100 contemplates dispossession of a person other than the judgment debtor. In view of the said judgment of the Honourable Supreme Court of Pakistan it can be said that it also contemplates case of person who is sought to be dispossessed but is not a judgment debtor. As noted by me above, it has been found in the ejectment petition itself while petitioner was present before the learned Rent Controller that he is not in possession. This being so, the objection petition even otherwise would not be maintainable in view of the said fact. The apprehension expressed by the learned counsel that in view of the bar contained in Order 21 Rule 103 CPC his suit would also be not maintainable is rather misplaced. With these latter observations, the Civil Revision is dismissed but without any order as to costs.
(N.F.) Revision dismissed.
PLJ 2008 Lahore 372 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq & Nasim Sikandar, JJ.
NAJMA SUGAR MILLS LIMITED (formerly thar Sugar Mills Limited) SIKANDARABAD, JHUDA DISTRICT MIRPURKHAS--Appellant
versus
M/s MEGA TRADING COMPANY through its Chief Executive, Islamabad--Respondent
R.F.A. No. 173 of 2003, heard on 30.5.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, Rr. 2 & 3--Limitation Act, (IX of 1908), Arts. 64-A & 73--Suit for recovery--Dishonoured of post-dated cheques--Period of limitation--Period of three years commencing from the date of bill of exchange--Determination--Leave to defend--Appellant availed the credit facility for purchasing valves fittings and pipes from the respondent--According to the mode of payment agreed to by both the parties, the appellant handed over four post-dated cheques--Held: Matter was Governed by Art. 64-A of the limitation Act, which deals with the suit filed u/O. 37, CPC and the starting point was when the debt becomes payable--Contents of the agreement clearly provided that the cheques were to be presented on the dates mentioned on each cheque--Matter could not have been decided without determining the question of performance of the agreement by the parties--Leave to defend granted. [Pp. 373 & 374] A, B, C & D
Raja Muhammad Akram, Advocate for Appellant.
Mr. Mujeeb-ur-Rehman Kiani, Advocate for Respondent.
Date of hearing: 30.5.2007.
Judgment
Maulvi Anwar-ul-Haq, J.--On 17.4.2003, respondent filed a suit against the appellant for recovery of Rs. 1,10,28,513/- under Order 37 CPC. In the plaint it was stated that vide agreement dated 14.9.1999, the appellant availed the credit facility for purchasing valves fittings and pipes from the respondent. According to the mode of payment agreed to by both the parties, the appellant handed over four post-dated cheques to the respondent and these cheques were presented on the dates mentioned therein. It was then stated that actually the agreement was executed on 14.9.1999 whereas the respondent had already started the supplies in July, 1999. The last delivery was made on 8.8.2000. All the supplies were made and delivered against the receipts, which were duly acknowledged by the General Manager of the appellant. It was then explained that although under the terms of the agreement, the delivery was to be completed till 15.12.1999, but by implied consent, the time was extended and the delivery continued up to 8-8-2000. Four cheques were presented for payment in the manner stated in para 6 of the plaint but were returned with various remarks by the Bank. The amounts of the cheques having not been paid, a decree was accordingly prayed for.
The appellant was served in the manner prescribed and an application was filed on 20.6.2003 for leave to appear and to defend the suit. It was replied by the respondent on 20.9.2003. Vide order dated 30.9.2003, learned District Judge dismissed the said application and adjourned the case for 4-10-2003 for recording the evidence of the respondent. On the said date, learned District Judge while observing that the evidence need not be recorded proceeded to decree the suit.
Learned counsel for the appellant contends that the learned District Judge has proceeded to pass the impugned judgment and decree even without examining the plaint and the documents relied upon by the respondent and appended therewith. According to him, the suit was time barred and the learned District Judge was bound to take note of this fact. He further points out that upon reading of the plaint, it was not only a matter of issuance of cheques but was directly relatable to a contract and the consequent performance thereof as pleaded by the respondent. According to him, learned District Judge has acted against the law while passing the impugned judgment and decree and refusing the leave to appear and defend the suit.
Learned counsel for the respondent, on the other hand, contends that the application filed by the respondent does not at all disclose a plausible defence and the suit was correctly decreed with reference to the issuance of cheques, which was not denied by the appellant. Learned counsel for the appellant rejoins to state that the matter was to be considered with reference to the terms of the agreement, which was not only referred to in the plaint, but a copy whereof has been appended therewith.
We have gone through the records of the learned trial Court. We have already reproduced above almost the entire contents of the plaint. It was categorically stated that the cheques were issued as a condition of the contract between the parties and these were postdated cheques. Both the learned counsel have admitted that the copy of the agreement dated 14.9.1999, referred to in the plaint, is annexed at pages 75 and 76 of the file of trial Court. We have also gone through the said agreement and prima facie find that although the dates of cheques are mentioned and there is an agreement that the cheques will be presented on the dates mentioned in the agreement. However, the amount has not been mentioned. What has been mentioned is the percentage of the supplies made which, of course, means the value of the supplies made.
Coming to the said contention of the learned counsel for the appellant. We find that the date of the first cheque is 15.1.2000, second cheque is 1.3.2000 while the third cheque is 15.4.2000. The suit was filed on 17.4.2003. According to the learned counsel for the appellant, the matter is Governed by Article 73 of the Limitation Act, 1908, which provides a period of three years commencing from the date of bill of exchange. To our mind, the matter is Governed by Article 64-A of the Limitation Act, which specifically deals with the suit filed under Order 37 CPC and the starting point is when the debt becomes payable. To determine this point, the contents of the agreement are to be looked into which clearly provides that the cheques are to be presented on the dates mentioned on each cheques. However, it will have to be determined as to whether with reference to Article 64-A of Schedule to the Limitation Act, 1908, the suit is within time. We are also an agreement with the learned counsel for the appellant that the matter could not have been decided without determining the question of performance of the said agreement by the parties.
We, therefore, do find that the leave to appear and to defend the suit ought to have granted by the learned District Judge after examining the material on record. This RFA is accordingly allowed and the impugned judgment and decree dated 4.10.2003 is set aside. We also grant leave to appear and to defend the suit to the appellant. However, this will be subject to deposit of a sum of Rs. 50,00,000/- in cash with the learned District Judge, Islamabad, on or before 27.6.2007. In case the amount is deposited, learned District Judge shall take necessary steps to invest it in some Federal Government profit bearing saving scheme. The amount and the profits accrued thereon shall be disbursed in accordance with the final result of the suit. The appellant shall also on or before 27.6.2007 furnish a Company-guarantee in the sum of Rs. 50,00,000/- to the satisfaction of the learned District Judge. On the said date, the parties shall appear before the learned District Judge and the appellant shall file his written statement. Upon compliance of the said condition, learned District Judge shall proceed to decide the suit in accordance with law after framing the issues arising out of the pleadings of the parties and recording their evidence. It is hoped that the learned District Judge shall take steps to decide the suit before the year 2007 is out. Needless to state that in case the aforesaid condition qua deposit and furnishing of security are not complied with on or before 27.6.2007, the leave granted shall stand withdrawn.
Records of the trial Court alongwith a copy of this judgment be immediately remitted to the learned District Judge, Islamabad.
(A.S.) R.F.A. allowed.
PLJ 2008 Lahore 375
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rahman, J.
MUHAMMAD RIZWAN YOUSAF--Petitioner
versus
ADDL. DISTRICT JUDGE, MULTAN and another--Respondents
W.P. No. 1470 of 2005, decided on 18.6.2007.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----Ss. 10(4) & 14--Constitution of Pakistan, 1973, Art. 199--Suit for dissolution of marriage was decreed subject to return the property which was received through registered deed--Challenged by respondent--Condition qua return the proeprty declared to be perverse, fanciful and without legal effect--Assailed--Constitutional petition--Question of--Property was given as dower in consideration of Haq-ul-Mehr--Validity--Execution of registered deed was of the same date as that of Nikah--Trial Court while deciding the appeal had failed to take into consideration the perspective and has wrongly come to conclusion that the land cannot be considered as Haq-ul-Mehr since it was not mentioned in Nikahnama--Petition accepted.
[Pp. 377 & 378] A & B
Mr. Muhammad Suleman Bhatti, Advocate for Petitioner.
Mr. Javed Majeed Ansari, Advocate for Respondents.
Date of hearing: 18.6.2007.
Order
Brief facts leading to this writ petition are that the petitioner was married with Respondent No. 2 Mst. Asma Iqbal on 6.3.2002 and at the time of marriage the dower was mentioned in the Nikahnama as
Rs. 500/- and also vide Registered Deed No. 2066 dated 6.3.2002 father of the petitioner Haji Muhammad Yousaf had given the property measuring 1 marla 24 yards to Respondent No. 2 as dower. Thereafter the relations between the spouses became strained. On 29.6.2004 Respondent No. 2 filed a suit for dissolution of marriage in the Court of the learned Judge Family Court, Multan. The petitioner submitted written statement, wherein it was stated that as Respondent No. 2 had sought dissolution of marriage on the ground of Khula, she was bound to return the property measuring 1 marla 24 yards which she received through Registered Deed No. 2066 dated 6.3.2002. The learned Judge Family Court, Multan, vide judgment dated 9.12.2004 and in terms of Section 10(4) of the West Pakistan Family Courts Act, 1964 decreed the suit for dissolution of marriage filed by Respondent No. 2 with the condition that she would return the property measuring 1 marla 24 yards to the petitioner. Against the said order and decree, Respondent No. 2 filed an appeal, which was accepted by the learned Additional District Judge, Multan, vide his judgment dated 5.3.2005 and the decree for dissolution of marriage was upheld and the condition as imposed by the learned Judge Family Court, Multan, being declared to be perverse, fanciful, arbitrary and without legal effect, was struck off. Against the said judgment, the petitioner has filed this writ petition.
Learned counsel for the petitioner has contended that the learned Appellate Court wrongly assumed that only the Haq Mehr mentioned in the Nikahnama can be ordered to be returned whereas there is nowhere mentioned in Section 10 of the West Pakistan Family Courts Act, 1964 that only the Haq Mehr received by the wife can be ordered to be returned which is mentioned in the Nikahnama rather the words used in the said proviso that if reconciliation fails, the Family Court shall pass a decree for dissolution of marriage forthwith and also restore the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage, therefore, the impugned judgment dated 5.3.2005 is the result of misconception of law and the same is liable to be set aside and that under Section 14 of the West Pakistan Family Courts Act, 1964, no appeal is provided against the order passed under Section 10(4) of the said Act and, therefore, the appeal filed by the respondent Mst. Asma Iqbal before the learned Additional District Judge, Multan, was not maintainable.
On the other hand, learned counsel for Respondent No. 2 has supported the impugned judgment dated 5.3.2005 and contended that the judgment dated 9.12.2004 passed by the learned Judge Family Court, Multan, to the extent of condition for restoration of Zar-e-Khula is passed against the law and facts and record available with the learned trial Court; that the learned trial Court could not impose the impugned condition after decreeing the suit for dissolution of marriage as according to the available record with the learned trial Court in the shape of nikahnama only Rs. 500/- is mentioned as Haq-ul-Mehr, therefore, the learned trial Court could pass the decree, if deems fit to the extent of Haq-ul-Mehr which is given in the nikahnama cannot otherwise and that Respondent No. 2 also took plea in the suit for dissolution of marriage that due to ill behaviour of the petitioner, she had developed hatred against the petitioner and cannot live within the limits ordained by Allah Almighty and the Court has the powers to refuse to return of the dowered property amount to husband or to release him from payment of dower where due to his cruelty she was compelled to resort to Khula and in this respect reliance is placed upon Karim Ullah v. Shabana and 2 others (PLD 2003 Peshawar 146) and Abid Hussain vs. Additional District Judge, Alipur, District Muzaffargarh and another (2006 SCMR 100).
I have heard learned counsel for the parties and perused the judgment of the learned Judge Family Court and the impugned judgment passed by the learned Additional District Judge, Multan, as well as the record.
From the perusal of the Registered Deed No. 2066 dated 6.3.2002, which has been executed by father of the petitioner Haji Muhammad Yousaf and wherein it was specifically mentioned that:
It appears that the property measuring 1 marla 24 yards was given to Respondent No. 2 as dower in consideration of Haq-ul-Mehr and the said offer was accepted by Respondent No. 2. Keeping in view the same, the learned Judge Family Court, Multan, has rightly decreed the suit for dissolution of marriage on the basis of Khula subject to restoration of dower one marla and 24 yards land. Moreover, in para 5 of the appeal filed by Respondent No. 2 before the learned District Judge, Multan, Respondent No. 2 also admitted this fact as under:
Further the execution of the Registered Deed is of the same dated i.e. 6.3.2002 as that of the Nikah. The above facts establish that the said land measuring 1 marla 24 yards was given to Respondent No. 2 on account of dower. Therefore, the learned trial Court while deciding the appeal had failed to take into consideration the above perspective and has wrongly come to the conclusion that the said land cannot be considered as Haq-ul-Mehr since the same was not mentioned in Column No. 13 of the nikahnama. As such the said finding cannot sustain.
(N.F.) Petition accepted.
PLJ 2008 Lahore 378 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Syed Shabbar Raza Rizvi and
Muhammad Muzammal Khan, JJ.
MUHAMAMD AZAM--Appellant
versus
INSPECTOR GENERAL OF POLICE FOR CAPITAL TERRITORY, ISLAMABAD and 2 others--Respondents
I.C.A. No. 122 of 2003, decided on 24.10.2007.
Police Rules, 1934--
----R. 25.2--Law Reforms Ordinance, (XII of 1972), S. 3--Registration of second F.I.R.--Amended Schedule--FIA was not competent to investigate--Commission of cognizable offence--Second F.I.R. is not barred--Validity--FIA was not competent to investigate F.I.R. as offences mentioned in F.I.R. were not included in Schedule on the date impugned order was passed--Inquiry prior to registration of F.I.R. is not contemplated under the provisions of Code--Held: Where a different, opposite or a cross version is put forth by the complainant which disclose commission of cognizable offence, second F.I.R. is not barred--High Court directed SHO to register second F.I.R. on the complaint of appellant--Investigation shall be conducted by the local police instead of FIA--ICA allowed.
[Pp. 379 & 380] A, B & C
PLD 2005 Lahore 470, PLD 2007 SC 539, PLD 1978 Lahore 187 & PLD 1997 Karachi 119, ref.
Mr. Shaukat Aziz Siddiqui, Advocate for Appellant.
Sardar M. Ishaq Khan, Advocate for Respondents.
Syed Hasnain Kazmi, AAG for Respondents.
Date of hearing: 24.10.2007.
Order
In this appeal, the learned counsel has called in question order of the learned Single Bench of this Court dated 15.7.2003 passed in Writ Petition No. 2289/02. In the said order learned Single Bench held that:-
"It shall meet the ends of justice to entrust the investigation of the entire occurrence to a senior officer in F.I.A. who shall not be less than the rank of a Director F.I.A. who shall examine the version of both the parties, independently and impartially after giving full opportunity to the parties to produce oral and documentary evidence in support of its version. The said investigation shall be concluded positively within three months and alongwith other findings it shall also recommend whether a separate F.I.R. in line with one as contended by the petitioner is liable to be registered."
In the occurrence, subject-matter of this appeal, two persons namely Haq Nawaz and Muhammad Latif lost their lives and five other were seriously injured. The grievance of the appellant is that existing F.I.R. No. 221/02, dated 29.7.2002 does not reflect the true account of the occurrence.
It may also be pointed out that an inquiry was also conducted by the District and Sessions Judge, Islamabad in this matter. In the said inquiry report it was recommended that the investigation may be conducted by another agency instead of Islamabad police. It seems from the impugned order that this recommendation was approved and got favour from the learned Single Bench.
We have heard the learned counsel for the parties and considered their respective arguments.
We are afraid under the FIA Act, 1974, the FIA was not competent to investigate F.I.R. No. 221/02 as offences mentioned in the F.I.R. were not included in the Schedule on the date impugned order was passed i.e. 15.7.2003. The Schedule was amended on 18.8.2004 and now Section 302 stands included. Likewise, inquiry prior to registration of an F.I.R. is not contemplated under the provisions of the Code. This point has been resolved repeatedly by the Superior Courts of this country. In this regard, reference may be made to PLD 2005 Lahor 470 and PLD 2007 SC 539.
Similarly, it has been repeatedly held by Superior Courts of the country that where a different, opposite or a cross version is put forth by the complainant which disclose commission of cognizable offence, second F.I.R. is not barred. In this regard, reference may be made to PLD 1978 Lahore 187 and Miss Ghanwa Bhuttoo and others vs. Government of Sindh and others, PLD 1997 Karachi 119.
In view of the above discussion and forgoing reasons, we direct SHO of the concerned police station to register second F.I.R. on the complaint of the appellant. It is further directed that investigation shall be conducted by the local police instead of FIA as required under the Police Order, 2002. The I.O. shall take into account the mandate and provision of Rule 25.2 of the Police Rules, 1934. This ICA is allowed in the above terms.
(A.S.) ICA allowed.
PLJ 2008 Lahore 380
Present: Maulvi Anwar-ul-Haq, J.
M. JEHANGIR AKHTAR, M.D. LANDOO INTERNATIONAL, RAWALPINDI--Appellant
versus
G.H.Q. ARTILLERY OFFICERS MESS, THE MALL,RAWALPINDI--Respondent
F.A.O. No. 124 of 2005, heard on 28.5.2007.
Ejectment--
----Bonafide requirement for personal use and occupation--Direction to vacate premises--Validly appointed attorney--Determination--Neither original nor a copy of any power of attorney was produced--Objection of--Validity--Landlord was not needed to appear in person and can make a statement through an attorney but such a power of attorney has to be produced and then to be proved--Opportunity be given to produce and prove power of attorney as according to him such a power of attorney is available although not present on record--Held: Order to be rather non-speaking and having passed without considering the entire evidence on record including copies of judicial proceedings was produced by appellants in support of their respective pleas--F.A.Os allowed. [Pp. 381 & 382] A & B
Mr. Zaheer Bashir Ansari, Advocate for Appellant.
Mr. Ayub Alam Qureshi, Advocate for Respondent.
Date of hearing: 28.5.2007.
Judgment
This judgement shall decided FAO No. 124/05 and FAO No. 125/05 as common questions are involved.
On 29.5.2004 the respondent filed ejectment petitions against the appellants in these two cases. The ejectment was sought on the ground of bona fide requirement for personal use and occupation. The applications were resisted by the appellants by filing written replies. Following issues were framed in both the cases:--
Whether the property is personally bona fide required to the petitioners for their use and occupation? OPP.
Relief.
Evidence of the parties was recorded. Vide orders dated 30.5.2005 the ejectment petitions were allowed and the appellants were directed to vacate the premises within three months.
Learned counsel for the appellants contends that the statement made by PW-1 could not be considered as there is no evidence on record that he was a validly appointed attorney of the respondent. Further contends that the evidence led by the appellants to demonstrate the mala fides of the respondent has not at all been considered by the learned Rent Controller and the impugned orders are rather non-speaking. Learned counsel for the respondent insists that the PW-1 in both these cases was a validly appointed attorney and such a power of attorney can be produced and proved. According to him, the impugned orders have been passed lawfully and need not be interfered with in these first appeals.
I have gone through the records of the learned Rent Controller in both these cases. Muhammad Ashraf son of Muhammad Ramzan appeared as a sole witness for the respondent and his examination-in-chief is in the form of affidavits (Ex. P1)) in both the cases. In the matter of FAO No. 124/05 he was cross-examined on 7.3.2005 while in the matter of FAO No. 125/05 he was cross-examined on 3.3.2005. In reply to the very first question in cross-examination in both the cases, he admitted that neither the original nor a copy of any power-of-attorney has been produced by him. On the next date of hearing in both these cases, learned counsel for the respondent produced some documents which were marked. However, the original or a copy of the power-of-attorney was not produced. To my mind, the learned counsel has very correctly raised the objection that there is no evidence on record to show that the said Muhammad Ashraf was a lawfully appointed attorney of the respondent. No doubt a landlord need not appear in person and can make a statement through an attorney but such a power-of-attorney has to be produced and then to be proved. I am, however, inclined to grant the request of the learned counsel for the respondent that an opportunity be given to produce and prove power of present on record.
I also find the impugned orders to be rather non-speaking and having been passed without considering the entire evidence on record including copies of judicial proceedings produced by the appellants in support of their respective pleas. Both the FAOs are accordingly allowed. The impugned orders passed by the learned Rent Controller on 30.5.2005 are set aside. The result would be that the ejectment petition shall be deemed to be pending before the learned Rent Controller. The parties shall appear on 27.6.2007 in his Court. The records alongwith a copy of this judgment will be immediately remitted back to the learned Rent Controller by the office. He shall give an opportunity to the respondent to produce and prove the power-of-attorney being referred to by the respondent with a chance to the appellant to rebut the said evidence. Thereafter, the matters shall be decided after considering the entire evidence on record. The needful to be done within four months of the said date. No orders as to costs.
(R.A.) FAOs allowed.
PLJ 2008 Lahore 382
Present: Syed Hamid Ali Shah, J.
GHULAM RASOOL BHATTI--Petitioner
versus
JUDGE BANKING COURT II, LAHORE and 4 others--Respondents
W.P. No. 15966 of 2005, decided on 21.8.2007.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXI, R. 90--Financial Institutions (Recovery of Finances) Ordinance, (XLVI of 2001), Ss. 27, 19(7) & 22--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Relationship as a banker and customer--Default of commission--Suit for recovery with mark-up, decreed--Appeal was dismissed--Irregularity or fraud--Auctioner was appointed for sale of mortgage property--Declared successful bidder being highest bidder--Question of executability of decree--Challenged the sale of mortgage after two and half year--Condonation of delay--No action was conducted and proceedings were fraudulent--Petitioner was not intimated about auction proceedings--Petitioner willing to pay decretal amount--Application was dismissed--Assailed--Validity--Application was filed beyond the period of 30 days without an application for condonation of delay and without the deposit of 20% of sum realized at the sale--Such application could not proceed under the provisions of Law, for want of compliance of mandatory provisions of law--Mis-description of law is inconsequential and application of the petitioner can be considered, filed under S. 19(7) of the Ordinance, 2001--Held: Petitioner has justified filing of Constitutional petition on the plea that decree of Banking Court merged into appellate decree and after affirmation of decree in appeal in existence is of Appellate Court.
[P. 389] A
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 19(1)(2)--Civil Procedure Code, (V of 1908)--O. XXI, R. 90--Constitution of Pakistan, 1973--Art. 199--Suit for recovery with mark-up, decreed--Appeal was dismissed--Court auctioneer was appointed for sale of mortgaged property--Challenging the sale of mortgaged property on the ground that no auction was conducted and proceedings were fraudulent--Bar of--Assailed--Provisions of law--Execution proceedings--Neither filing of a separate application for execution of decree nor issuance of fresh notice, is needed to execute the decree of Banking Court--Suit automatically stands converted into execution proceedings--Held: Banking Court, if considers appropriate can proceed to execute the decree in any manner at the desire of the decree holder. [P. 390] B
Interpretation of Statute--
----Procedure for execution of decree--Any provision in general law so far it is repugnant to special statute, will give way to contrary provision in Ordinance, 2001--Provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001 will override the general provisions of CPC which are contrary to Ordinance. [P. 391] C
Constitution of Pakistan, 1973--
----Art. 199--Financial Institutions (Recovery of Finances) Ordinance, 2001--S. 27--Banking suit stands converted into execution--No application is required--Validity--Financial Institutions (Recovery of Finances) Ordinance, 2001, provides that decree in a banking suit stands converted into execution and no formal application is required--No fresh application is needed even when the decree of Banking Court is merged into appellate decree--Held: Appellate decree automatically stands converted into execution. [P. 391] D
Constitution of Pakistan, 1973--
----Art. 199--Financial Institutions (Recovery of Finances) Ordinance, 2001--Ss. 12 (15)(8) & 19--Constitutional petition--Maintainability--Question of--Process of auction, its confirmation and issuance of sale certificate--Divested of any right--Mortgage property stood extinguished long before filing of Constitutional petition--Jurisdiction--Mortgagor is divested of any right, title and interest in mortgage property, upon registration of sale-deed within contemplation of S. 15(8) of Ordinance--Right which the petitioner had with regard to mortgage property stood extinguished long before the filing of writ petition--Petitioner has approached High Court in its Constitutional jurisdiction with unclean hands. [P. 391] E
Constitution of Pakistan, 1973--
----Art. 199--Civil Procedure Code, (V of 1908)--O. XXI, R. 90--Jurisdiction--Suit for recovery with mark-up, decreed--Appeal was dismissed--Execution proceedings--Auctioner was appointed for sale of mortgage property--Declared successful higher bidder--Petitioner moved an application after 2« years--Failed to watch his interest vigilantly--Validity--Petitioner has neither paid the decretal amount, nor has made any effort to file objection on auction report before its confirmation--Petitioner was not bothered about the outcome of decree passed against him--His silence over a period of 2« years and neglect to pay his liability does not justify interference in Constitutional jurisdiction. [P. 391] F
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----S. 22--Constitution of Pakistan, 1973--Art. 199(1)--Remedy of appeal--Maintainability--Remedy of appeal provided u/S. 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001 against the impugned order of Banking Court was adequate and efficacious--Petition without availing the remedy of appeal, is not maintainable under Art. 199(1) of the Constitution of Pakistan. [P. 392] G
Constitution of Pakistan, 1973--
----Art. 199--Jurisdiction--Appealable order--Abstained the petitioner to challenge the order in appeal--Limitation--An appealable order, which has been passed by a Court of competent jurisdiction, is not open to exception in Constitutional jurisdiction, invoked by petitioner after the lapse of prescribed period of limitation for filing the appeal.
[P. 392] H
PLD 1964 SC 520; 1972 SCMR 395; AIR 1940 Lah. 394, AIR 1973 SC 2593, PLD 1993 Lah. 706, PLD 1961 SC 192, PLD 2001 SC 131, PLD 1965 SC 68, PLD 1976 SC 37, PLD 1976 SC 208, 1999 SCMR 1881, 1999 P.Crl.LJ 781, PLD 1975 SC 450, 2005 SCMR 445, 2006 SCMR 219, PLD 1992 SC 417, 2006 CLD 764, 2006 CLD 528 & 2004 CLD 1114, ref.
PLD 1987 SC 512, 2004 CLD 1114 & 2004 CLD 1452, rel.
Mr. A.K. Dogar, Advocate for Petitioner.
Mr. Hassan Nawaz Makhdoom, Advocate for Respondents No. 4 and 5.
Date of hearing: 21.8.2007.
Order
The relationship of the petitioner and Respondent No. 2, is that one of banker and customer and consequent upon commission of default, Respondent No. 2 instituted a recovery suit (Suit No. 547/2000) for
Rs. 7,57,091.87 with make up etc. in the Baning Court-II, Lahore. The suit was decreed with costs alongwith mark up till realization, in favour of Respondent No. 2 and against the petitioner, vide judgment and decree dated 17.3.2001. The petitioner filed appeal against judgment and decree dated 17.3.2001, which also met the fate of dismissal. Thereafter, during the course of execution. Court auctioneer was appointed on 26.5.2001 for the sale of mortgaged property, through auction. The auction was held on 12.12.2002 and according to the auction report M/s. Sheikh Tariq Nazir and Raza Ahmad were declared successful bidder, being the highest bidder (Rs. 650,000/-) Sale was confirmed in favour of the successful bidders, vide order dated 18.1.2003, and as a result thereof the sale certificate was issued on 14.4.2003. Sale-deed was registered in favour of auction purchasers i.e. Respondents No. 4 and 5.
The petitioner, two and half year later, moved an application under Order XXI Rule 90 CPC, challenging the sale of mortgaged property on the grounds: that no auction was conducted at site and proceedings were fraudulent; that auction took place when the petitioner was in jail in case FIR No. 215 of 2002, (registered under Section 302/34 PPC); that the petitioner was not intimated about auction proceedings; that the property is only source of income of the petitioner; that the petitioner is willing to pay the decretal amount and that the petitioner acquired knowledge of the sale through auction of his property a week before filing the application, from revenue officials. The respondent contested the application, filed reply and raised legal objections. Learned Executing Court, dismissed the application, vide order dated 30.7.2005, in view of the bar contained in Section 27 of Financial Institutions (Recovery of Finances) Ordnance, 2001, and also on the ground of delay. Hence this petition.
Learned counsel for the petitioner has submitted that the petitioner, preferred appeal (RFA No. 370/2001) against the decree and on dismissal of the appeal, the decree of the Banking Court stood merged into appellate decree. Executing Court ordered the auction of the property in the course of executing the decree of the Banking Court, which on dismissal of RFA has ceased to exist. He has added that the entire proceedings are without jurisdiction. Power to execute a decree vests in a Court, when decree is executable and not otherwise. Learned counsel has supported his contention by referring to the case of F.A. Khan vs. The Government of Pakistan (PLD 1964 SC 520), wherein it was held that the order of the original authority disappears and merges into appellate order. Learned counsel has further submitted that the question of executability of decree, is a pure question of law and its determination lies with this Court in its Constitutional jurisdiction. It was further submitted that the questions urged in the application under Order XXI Rule 90 CPC can only be resolved legally, when evidence is recorded and a proper inquiry is held. Dismissal of application summarily without holding proper inquiry is not sustainable. Finding of fact arrived at without any inquiry, is without jurisdiction and such order can validly be assailed in writ jurisdiction. Case of The Commissioner and another vs. Mian Sher Muhammad (1972 SCMR 395) was referred to support this contention. While referring to Order XXI Rule 66 CPC, it was contended that the value of the property has not been ascertained in accordance with law. It is required that valuation be determined after receiving its estimate from both the parties. Support in this contention was found by the learned counsel, from the case of Barkat Ram vs. Bhagwan Singh and others (AIR 1940 Lah. 394) and Gajadher Prasad and others vs. Babu Bhakta Ratan and others (AIR 1973 SC 2593). It was contended that improper and under valuation of property, is a material irregularity. Case of Nagina Silk Mills, Lyallpur vs. The Income Tax Officer, A-Ward Layallpur and Income Tax Appellate Tribunal, Pakistan (PLD 1993 Lah 706) was referred to contend that non-compliance of Rule 66 of Order XXI of CPC, vitiates sale. Learned counsel has placed reliance on the case of Islamic Republic of Pakistan vs. Muhammad Saeed (PLD 1961 SC 192), to submit that finding of the executing Court is erroneous that an Executing Court cannot go behind the decree. Court has to see and examine that decree under execution, is capable of execution. Case of Fakir Abdullah and others vs. Government of Sindh through Secretary to Government of Sindh, Revenue Department, Sindh Secretariat, Karachi and others (PLD 2001 SC 131) was also referred in this respect.
Learned counsel has addressed lengthy arguments on the question of maintainability of the writ petition. It was contended that the remedies provided under general law, if in conflict with Constitutional remedy, the latter will prevail. After referring to the cases of Ch. Altaf Hussain and others vs. The Chief Settlement Commissioner, Pakistan, Lahore and others (PLD 1965 SC 68) and Ali Muhammad v. Hussain Bakhsh and others (PLD 1976 SC 37), learned counsel argued that even on dismissal of appeal on the question of limitation, a writ petition can be filed and rigid application of doctrine of alternate remedy is uncalled for. Learned counsel added that non-filing of appeal or revision does not create an order passed without jurisdiction into, an order passed with jurisdiction. To support this contention, cases of Yousfalli Mulla Noorbhoy vs. The King (PLD 1949 P.C. 108) and Khuda Bakhsh vs. Khushi Muhammad and 3 others (PLD 1976 SC 208), were referred. Learned counsel added that availing the remedy of appeal or revision under the relevant statute is justified when order impugned has been passed by exercising jurisdiction properly, otherwise Constitutional remedy is just and proper. Reliance was placed on the cases of Al-Ahram Builders (Pvt.) Ltd. vs. Income Tax Appellate Tribunal (1993 SCMR 29), Sadaqat Enterprises vs. Islamic Republic of Pakistan and others (1994 CLC 1802). Learned counsel has submitted that it has been consistently held by the Superior Courts that when recourse to alternate remedy will result into prolong litigation and impugned order being patently illegal, void and wanting jurisdiction, then to nip the mischief in the bud, the right course is to invoke Constitutional jurisdiction. As authority for this proposition, learned counsel cited the cases of Khalid Mehmood vs. Collector of Customs, Customs House, Lahore (1999 SCMR 1881) and Allah Khan vs. S.H.O. Police Station Mouladad (1999 PCrl. LJ 781).
Learned counsel has vehemently contended that law enunciated and principle laid in the cases of Lt. Col. Nawabzada Muhammad Amir Khan vs. The Controller of Estate Duty etc. (PLD 1961 SC 119), Nagina Silk Mills, Lyallpur (supra), Salahuddin and 2 others vs. Frontier Sugar Mills & Distillery Ltd. Tokht Bhai and 10 others (PLD 1975 SC 244), and Sindh Employees' Social Security Institution vs. Dr. Mumtaz Ali Taj and another (PLD 1975 SC 450), is that a Constitutional petition is competent even where right of statutory appeal is not availed. Learned counsel made a reference to the cases of Asdullah Mangi and others vs. Pakistan International Airlines Corporation and others (2000 SCMR 445) and Fiaz Bakhsh and others vs. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others (2006 SCMR 219) to contend that the main object of the provisions of as contained in Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is the enforcement of right and not the establishment of legal rights. He added that to seek enforcement of right the petitioner before this Court has to show, actual infringement of the right so asserted. It was submitted at the end of arguments that it was duty of the Court to apply correct law. He supported his contention by making a reference to the case of Rehmat Elahi vs. Messers Hoyo Kabushiki Kaisha (PLD 1992 SC 417), wherein it has been held that pleadings of the parties do not control, the application of law.
Learned counsel for the Respondent No. 2 on the other hand has submitted that the petitioner has not come to this Court, with clean hands. He has stated in Grounds No. 2 and 3 of his application that the petitioner was arrested in case FIR No. 215/2005 during the execution proceedings and remained in jail as he was sentenced capital punishment of 25 years and as such the auction was not in his knowledge. He added that the petitioner was arrested on 20.5.2002 after the suit was decreed against him. The petitioner was released on bail on 15.10.2002 and the auction was conduced two months after his bail. The petitioner was re-arrested on 10.1.2005. Learned counsel has submitted that auction was conducted on 12.12.2002 and sale was confirmed on 18.1.2003 and sale certificate was issued on 14.4.2003 while sale-deed was registered on 23.2.2004. The application under Order XXI Rule 90 CPC was filed 2« years, after the confirmation of sale. An application under Rule 90 of Order XXI CPC, can be filed within the period of one month from the submission of auction report. An application under Rule 90 CPC, without deposit of 20% of the auction price is not competent. The order impugned in this petition, is assailable in appeal, under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001. Learned counsel has submitted that according to dictum laid in the case of Agha Abbas Haider Khan vs. Zarai Taraqiati Bank Limited through Branch Manager (2006 CLD 764), the only remedy available to the petitioner was the remedy of appeal and filing of writ after the lapse of prescribed period for filing the appeal, according to law laid down in the case of Ghulam Mustafa Bughiio and another (2006 CLD 528), is not legally permissible. Order has attained finality and instant petition has been filed to circumvent the question of limitation. Learned counsel has submitted that in view of remedy of appeal, the writ is not competent and supported his contention by placing reliance on the cases of Messers United Bank Limited vs. Banking Court No. IV, Lahore and others (2004 CLC 1114) and Messers Unicom Enterprises vs. Banking Court No. 5, City Court Building Karachi and 2 others (2004 CLD 1452). Learned counsel has submitted that the petitioner was aware of the pendency of the suit against him. His filed application for leave to defend the suit. He cannot escape his liability by asserting evasively that he acquired knowledge of auction in the years 2005. His silence from 15.10.2002 to 10.01.2005 is without any plausible explanation (time between his bail and re-arrest). Learned counsel submitted that the impugned order does not call for interference as it has been passed in accordance with law.
Learned counsel for Respondents No. 4 and 5 has submitted that auction purchasers participated in auction and were declared successful bidders. They deposited bid money according to terms of auction and no objection was raised on auction report within the stipulated period of one month. Sale, on confirmation of auction, issuance of sale certificate and registration of sale-deed, has attained finality. It has become past and closed transaction. Learned counsel has submitted that the allegation that no auction was conducted at the site, is false and no proof in this respect has been placed on record by the petitioner. The property was purchased in open auction against adequate price prevalent at the relevant time. He submitted that adequacy of auction price can be ascertained from the perusal of application filed under Rule 90 of Order XXI, where the petitioner assailed auction on various grounds without asserting anything regarding inadequacy of price.
Heard learned counsel for the parties and record perused.
The application moved by the petitioner, before the Banking Court, was under Rule 90 of Order XXI CPC, which was filed beyond the period of 30 days, without an application for the condonation of delay and without the deposit of 20% of the sum realized at the sale. Such application could not proceed under the above provision of law, for want of compliance of mandatory provisions of law. Mis-description of law is inconsequential and the application of the petitioner can be considered, filed under Section 19(7) of the Financial Institutions (Recover of Finances) Ordinance, 2001. Order passed under Section 19(7) of the Ordinance XLVI of 2001 or under Rule 90(ibid) is appealable under Section 22 of the Ordinance XLVI of 2001. Admittedly no appeal has been filed and instead order impugned is assailed in this petition after 2« years of the auction. The petitioner has justified filing of the Constitutional petition on the plea that decree of the Banking Court merged into appellate decree and after affirmation of decree in appeal (RFA No. 370/2001) the decree in existence is of Appellate Court. The stance of the petitioner on the question of executability of the decree of the Banking Court, is not convincing. The decree, execution whereof, is under challenge in this petition, was passed under the provisions of special statute, Banking Companies (Recovery of Loans, Advances and Finances) Act, 1997. Financial Institutions (Recovery of Finances) Ordinance, 2001, came into force on 30.8.2001 and proceedings for execution of the decree in the case in hand remained pending under the provisions of Ordinance, 2001. Section 19 Governs the execution of the decree, which is reproduced hereunder:
"19. Execution of decree and sale with or without intervention of Banking Court.--(1) Upon pronouncement of judgment and decree by a Banking Court, the suit shall automatically stand converted into execution proceedings without the need to file a separate application and no fresh notice need be issued to the judgment debtor in this regard. Particulars of the mortgaged, pledged or hypothecated property and other assets of the judgment debtor shall be filed by the decree holder for consideration of the Banking Court and the case will be heard by the Banking Court for execution of its decree on the expiry of 30 days from the date of pronouncement of judgment and decree:
Provided that if the record of the suit is summoned at any stage by the High Court for purposes of hearing an appeal under Section 22 or otherwise, copies of the decree and other property documents shall be retained by the Banking Court for purposes of continuing the execution proceedings.
(2) The decree of the Banking Court shall be executed in accordance with the provisions of the Code of Civil Procedure 1908 (Act V of 1908) or any other law for the time being in force or in such manner as the Banking Court may at the request of the decree holder consider appropriate, including recovery as arrears of land revenue.
Explanation.--The term assets or properties in sub-section (2) shall include any assets and properties acquired benami in the name of an ostensible owner.
(3)
(4)
(5)
(6)
(7)
It is evident from the perusal of the above provision of law that neither filing of a separate application for execution of the decree nor issuance of fresh notice, is needed to execute the decree of Banking Court. The execution application in the instant case was filed on 23.4.2001 and the proceedings stood converted under the provisions of the Ordinance, XLVI of 2001, on its enforcement. The suit automatically stands converted into execution proceedings. Proviso to sub-section (1) of Section 19 of Ordinance, 2001, reflects that the record if summoned by the High Court for the purposes of hearing the appeal, would not result into discontinuation of execution proceedings, execution will continue on the basis of the photo-copies of the relevant documents, required under law to be retained by the Banking Court. Various modes for execution of the decree, have been prescribed in sub-section (2) of Section 19 of Ordinance, 2001. Banking Court if considers appropriate can proceed to execute the decree in any manner at the desire of the decree holder. Special statute (Ordinance XLVI of 2001) has provided its own manner and procedure for execution of a decree. Any provision in general law so far it is repugnant to special statute, will give way to contrary provision in the Ordinance. Provisions of Ordinance 2001 will override the general provisions of CPC which are contrary to Ordinance. While holding so, I am fortified by the dictum of law laid down by the Hon'ble Supreme Court of Pakistan, in the case of Hudabia Textile Mills Ltd. and another vs. Allied Bank of Pakistan Ltd. and another (PLD 1987 SC 512). Financial Institutions (Recovery of Finances) Ordinance 2001, provides that decree in a banking suit stands converted into execution and no formal application is required. No fresh application is needed even when the decree of Banking Court is merged into appellate decree. Appellate decree automatically stands converted into execution. The stand taken by the petitioner that non-filing of fresh application for execution of appellate decree, had rendered the execution of decree of Banking Court without jurisdiction, has no legal force. Impugned proceedings, with regard to sale of the property through auction, are devoid of any illegality or jurisdictional error.
Having held that the decree was capable of execution, now I will revert to the question of maintainability of the writ petition. Process of auction, its confirmation and issuance of sale certificate stood concluded in since April, 2003. Sale-deed was registered in favour of the auction purchaser on 23.2.2004. Provisions of sub-sections (5) to (12) of Section 15 are also applicable to the sales under Section 19 of the Ordinance, 2001. A mortgagor is divested of any right, title and interest in the mortgage property, upon registration of the sale-deed, within the contemplation of Section 15(8) of the Ordinance, 2001. The right which the petitioner had with regard to the mortgage property stood extinguished long before the filing of this petition. The petitioner has approached this Court in its Constitutional jurisdiction with unclean hands. He has concealed the factum of his release on bail on 15.10.2002. He has falsely stated that he was in judicial lock up during the period when auction was conducted, confirmed and sale certificate was issued. He was arrested again on 10.1.2005. The petitioner was aware of recovery suit, which he contested through filing of application for leave to defend. The petitioner thereafter challenged the decree in appeal (RFA No. 370/2001), which was dismissed on 11.10.2001. The petitioner has failed to watch his interest vigilantly. He has neither paid the decretal amount, nor has made any effort to file objection on auction report before its confirmation. He was not bothered about the outcome of the decree, passed against him. His silence over a period of 2« years and neglect to pay his liability does not justify interference in the Constitutional jurisdiction. Moreso when law has provided remedy of appeal against impugned order dated 30.7.2005. Remedy of appeal provided under Section 22 of Financial Institutions (Recovery of Finances) Ordinance, 2001, against the order of Banking Court was adequate and efficacious. The petition, without availing the remedy of appeal, is not maintainable under Article 199(1) of the Constitution of Islamic Republic of Pakistan, 1973. There is nothing on record to show that the circumstances beyond the control of the petitioner, existed that abstained the petitioner to challenge, the order impugned in the appeal. An appealable order, which has been passed by a Court of competent jurisdiction, is not open to exception in Constitutional jurisdiction, invoked by a petitioner, after the lapse of prescribed period of limitation for filing the appeal. There is plethora of case law on the subject including the judgments in the cases of Messers United Bank Limited vs. Banking Court No. IV, Lahore and others (2004 CLD 1114) and Messers Unicom Enterprises vs. Banking Court No. 5, City Court Building Karachi and 2 others (2004 CLC 1452).
Viewing the case of the petitioner from either angle, the petition in hand is not competent and is accordingly dismissed, with no order as to costs.
(R.A.) Petition dismsised.
PLJ 2008 Lahore 392
Present: Iqbal Hameed-ur-Rahman, J.
MANZOOR AHMAD and another--Petitioners
versus
RAO MAQSOOD ALI KHAN and 2 others--Respondents
W.P. No. 484 of 2007, heard on 29.5.2007.
Land Revenue Act, 1967 (XVII of 1967)--
----S. 42--Transfer of Property Act, (IV of 1882), S. 41--Valuable rights--Protection--It is the duty of the revenue hierarchy to implement the order of Court and the revenue staff cannot go beyond the decree and is bound to give effect to it unless it is set aside or varied by comptent Court. [P. 398] A
PLJ 2006 SC 400 rel.
Land Revenue Act, 1967 (XVII of 1967)--
----S. 42--Constitution of Pakistan, 1973--Art. 199--Question of--Bona fide purchases--Valuable rights--Jurisdiction--Validity--As the entries in the record of rights had been made on the basis of allotment made under the Rehabilitation and Settlement Laws and the orders were past and closed transaction, no action can be taken against the petitioners, who are bona fide purchases. [P. 398] B
Constitution of Pakistan, 1973--
----Art. 199--Matter was decided by High Court--Compromise was effected--Interference--Question of--Respondents never objected to the compromises in Court at that time nor challenged it before any forum, therefore, the order has become binding on them as well.
[P. 398] C
Constitution of Pakistan, 1973--
----Art. 199--Agriculture land was allotted on the basis of bogus compromise--Effect of--At the time of passing of order, respondents were fully represented and no objections were raised by respondents in the Court nor they challenged it any further, hence respondents shall be deemed to be party to the compromise arrived at between parties--Petition accepted. [P. 398] D & E
Pir Kaleem Ahmad Khurshid, Advocate for Petitioners.
Mian Dilawar Mahmood, Advocate for Respondent No. 1.
Mr. Khurram Fraz, Advocate for Respondents No. 2 & 3.
Mr. Shahbaz Ahmad Dillon, AAG.
Date of hearing: 29.5.2007.
Judgment
Brief facts giving rise to this writ petition are that one Abdul Khaliq Siddiqui, a displaced person from India, was allotted land at Khata No. 62 of Registrar RL-II and the same was also confirmed in 1963. The legal heirs of Abdul Khaliq Siddiqui sold the land to one Ali Muhammad son of Sharaf Din and Muhammad Khan son of Noor Muhammad. In this regard, a suit for specific performance was decreed by the learned Civil Judge, Sheikhupura, and the sale-deed was registered on 13.5.1987.
"(a) As the land measuring 8 "Kanals" 6 "Marlas" was allotted to Rao Mashooq Ali Khan the father of the petitioner and same was considered genuine by the District Collector, vide order dated 1.12.1986. Neither the allotment to RL-II Khata No. 7 nor the order of District Collector, Sheikhupura dated 1.12.1986 was set aside by the Lahore High Court, Lahore vide order dated 6.11.2000 passed in W.P. No. 118-R/1988, therefore, the said allotment is allowed to be incorporated in the name of the allottee after observing all the codal formalities.
(b) The detail of the officials who are involved for transfer of the said resumed evacuee land measuring 22 Kanals 18 Marlas in favour of Liaqat Ali etc. be communicated with their present posting be sent to this office for information of worthy Chief Settlement Commissioner, Punjab.
(c) The latest position of the enquiry proceeding against those officials be intimated.
(d) Criminal case be got registered against officials/ beneficiaries and copy of FIR be sent".
Against the said memorandum dated 27.12.2006, the petitioners have filed this writ petition.
It is contended on behalf of the petitioners that serious prejudice will be caused to the petitioners as they are bona fide purchasers of the land measuring 4 Kanals 17 Marlas and the same was mutated in their favour by Respondent No. 1 and others vide Mutation No. 2153 dated 8.1.2004 for a consideration of Rs. 11,00,000/- and similarly, the petitioner purchased land measuring 8 Kanals 3 Marlas from Muhammad Khan son of Noor Muhammad, a co-sharer of Liaqat Ali etc. for a consideration of Rs. 10,00,000/- vide Mutation No. 2193 dated 22.3.2004 and, therefore, valuable rights have occurred in favour of the petitioners as the said mutations have not been challenged before any Civil Court; that the sale-deed exists in favour of Ali Muhammad and Malik Muhammad Khan and the same was registered under the direction of the learned Civil Judge and the judgment and decree of the learned Civil Judge is also holding the field and no application under Section 12(2) CPC has been moved that the said judgment and decree had been obtained through fraud and misrepresentation and it is the duty of the Patwari and the Revenue Officer to incorporate the same in the revenue record, therefore, any criminal proceedings cannot be launched against the subsequent purchasers i.e. the petitioners; that under Section 42 of the Land Revenue Act, revenue officer or the Patwari cannot question the decree of the Civil Court and the registered sale-deed, because it is beyond the jurisdiction of the revenue hierarchy to refuse to implement the order of the Civil Courts and High Court or to refuse to enter the sale-deed in the revenue and the same can only be challenged before the Civil Court and as the said mutations exists in favour of the petitioners, their rights are fully protected under Section 41 of the Transfer of Property Act; that while issuing the impugned memorandum, no notice was issued to the petitioners and the petitioners have been condemned unheard and no reason has been given in the memorandum and Rule 24-A of the General Clauses Act requires that before passing an order, it should be a speaking one; that the land had already been incorporated in the names of the legal heirs and there was no need of holding any inquiry, that Respondents No. 2 and 3 assumed jurisdiction on the basis of a fact which does not exists; that even from the perusal of the impugned memorandum, it is apparent that Respondent No. 2 has directed the revenue authorities to implement the order dated 6.11.2000 passed in W.P. No. 118-R/88 and if the above said order is already implemented how the criminal case can be registered against the officials and beneficiaries/purchasers, therefore, the impugned memorandum is violative of principle of natural justice, illegal and without jurisdiction. Further, notified officer could only interfere in actively pending matters but in the instant case, the matter has been decided upto the level of the High Court in W.P. No. 118-R/88 and the compromise has not been challenged by the revenue authorities the order of this Court has become binding on them as Deputy Commissioner/Collector, Sheikhupura and Additional Commissioner (Revenue) Lahore Division Lahore were parties before the Court in W.P. No. 118-R of 1988 as Respondents No. 5 and 6 and that as the said mutations were entered in the revenue record on the basis of allotment made under the Rehabilitation and Settlement Laws and the orders were past and closed transactions, no action can be taken against the petitioners. In support of these contentions, learned counsel for the petitioners has placed reliance on Mian Dilawar Mahmood, Senior Advocate Supreme Court of Pakistan vs. Member (Judicial-III)/ Chief Settlement Commissioner, Board of Revenue Punjab, Lahore (PLJ 2005 Lahor 628), Government of Sindh vs. Zafarul Islam and others (2002 SCMR 447), Nawabzada Zafar Ali Khan and others vs. Chief Settlement Commissioner/Member, Board of Revenue, Punjab Lahore and others (1999 SCMR 1719 and Abdul Hameed, Ex-Patwari R/O Village Karbat, Tehsil Cantt. District Lahore and others vs. Member (Revenue) BOR and 3 others (PLJ 2006 SC 400).
On the other hand, it has been contended on behalf of Respondents No. 2 and 3 that the compromise effected in W.P. No. 118-R/88 is not binding on Respondents No. 2 and 3 as the land was resumed in favour of the Central Government and Mutation No. 134 was sanctioned on 23.6.1981 in favour of the Central Government; that in the order dated 6.11.2000 passed in W.P. No. 118-R/88, it was observed that the parties have settled their dispute amicably and petitioner and Respondent No. 1 have entered into a compromise, whereas the order passed by the Deputy Commissioner Sheikhupura as District Collector dated 1.12.1986 showing allotment in favour of Abdul Khaliq Siddiquie has been declared bogus and the land has been ordered to be resumed in favour of the State, the land measuring 8 Kanals 6 Marlas which was allotted at RL-II Khata No. 7 was ordered to remain intact and the rest of the land will be resumed in favour of the Central Government and Mutation No. 134 sanctioned on 23.6.1981 on the basis of RL-II Khata No. 62 be reviewed and land resumed in favour of the Central Government; that the compromise could not be made when the land had already been resumed in favour of the Central Government and the Settlement Department has no record of the allotment in favour of Abdul Khaliq Siddiqui and that Respondents No. 2 and 3 were not party to the compromise as such the allotment of the land measuring 22 Kanals 18 Marlas claimed by the petitioners may kindly by declared bogus and the writ petition be dismissed.
On behalf of Respondent No. 1, it has been argued that Settlement Department is not a party; that other persons cannot enter into a compromise when the land has been resumed in favour of the Central Government; that there is no dispute that Respondent No. 1 had sold land measuring 4 Kanals and 17 Marlas to the petitioners and there is no allegation against Respondent No. 1 in the writ petition nor any relief has been sought against Respondent No. 1 and, therefore, he should be deleted from the array of the respondents. It is further pointed out that the inquiry is still pending and no final order has still be passed and this writ petition is pre-mature, as such the same be dismissed.
I have heard learned counsel for the petitioners as well as the respondents and perused the impugned memorandum alongwith the material available on the record.
The land was allotted to one Abdul Khaliq Siddiqui, a displaced person from India at Khata No. 62 of Register RL-II and the same was confirmed in 1963. His legal heirs sold the same to one Ali Muhammad and Muhammad Khan. In this regard, a decree for specific performance was passed by the learned Civil Judge, Sheikhupura and the sale-deed was registered on 13.5.1987.
The allotment of Abdul Khaliq Siddiqui was declared invalid by the Deputy Commissioner Sheikhupura vide order dated 1.2.1986 on the application of Respondent No. 1, Rao Maqsood Ali Khan. The said order was challenged by Ali Muhammad by way of revision petition which was dismissed. Therefore, Ali Muhammad filed Writ Petition No. 118-R of 1988, wherein a compromise was effected between Ali Muhammad and Respondent No. 1 and the said writ petition was disposed of vide order dated 6.11.2000. Both the parties filed applications for implementation of the order dated 6.11.2000 passed in W.P. No. 118-R of 1988. It was during the pendency of these applications that the land was entered in the revenue record in the names of both the parties. Therefore, the petitioners purchased the land measuring 8 Kanals 3 Marlas from Muhammad Khan, co-sharer of Liaqat son of Ali Muhammad for a consideration of Rs. 10,00,000/- vide Mutation No. 2193 dated 22.3.2004 and the land measuring 4 Kanals and 17 Marlas from Respondent No. 1 and others for a consideration of Rs. 11,00,000/- vide Mutation No. 2153 dated 8.1.2004. The said mutations have not been challenged before any Civil Court. Therefore, the valuable rights have accrued in favour of the petitioners and the same are fully protected under Section 41 of the Transfer of Property Act. The sale-deed exists in favour of Ali Muhammad and Malik Muhammad Khan and the same was registered under the direction of the learned Civil Judge and the judgment and decree of the learned Civil Judge still holds the field and no application under Section 12(2) CPC has yet been moved that the said decree has been obtained through fraud and misrepresentation. Therefore, the judgment and decree regarding the registration of the sale-deed passed by the learned Civil Judge has attained finality and under Section 42 of the Land Revenue Act, it is the duty of the revenue hierarchy to implement the order of the Court and the revenue staff cannot go beyond the decree and is bound to give effect to it unless it is set aside or varied by, competent Court and in this respect reliance is placed upon Abdul Hameed's case (PLJ 2006 SC 400). As the entries in the record of rights had been made on the basis of allotment made under the Rehabilitation and Settlement Laws and the orders were past and closed transaction, no action can be taken against the petitioners, who are bona fide purchases. In this respect reliance is placed upon Government of Sindh vs. Zafarullah Islam and others (2002 SCMR 447). Notified Officer can only interfere in actively pending matters but in the instant case, the matter has been decided upto the level of the High Court in W.P. No. 118-R/88 and the compromise effected between the parties has not been challenged by the Deputy Commissioner/Collector, Sheikhupura, and the Additional Commissioner (Revenue), Lahore Division, Lahore, who were parties in the said writ petition as Respondents No. 5 and 6, they never objected to the compromise in Court at that time nor challenged the same before any forum, therefore, the order dated 6.11.2000 passed in W.P. No. 118-R/88 has become binding on them as well. The contention of learned counsel for the respondents that Respondents No. 2 and 3 were not party in W.P. No. 118-R/88, as such the allotment of land measuring 22 Kanals 18 Marlas claimed by the petitioners on the basis of the compromise is bogus has no force as the Deputy Commissioner Sheikhurpura was arrayed as Respondent No. 5 as District Collector and Additional Commissioner (Revenue), Lahore Division, Lahore, as Respondent No. 6 in W.P. No. 118-R/88. That at the time of passing of order dated 6.11.2000 in W.P. No. 118-R/88, they were fully represented and no objections was raised by them in the Court nor they challenged the same any further, hence Respondents No. 2 and 3 shall be deemed to be party to the compromise arrived at between the parties.
In view of the above circumstances and relying upon the authorities cited by learned counsel for the respondents, I am of the view that Respondent No. 2 was not justified in issuing memorandum dated 27.12.2006. As such, this writ petition is accepted and the impugned memorandum dated 27.12.2006 is set aside.
(N.F.) Petition accepted.
PLJ 2008 Lahore 399
Present: Mian Hamid Farooq, J.
MUHAMMAD RAFIQUE and others--Petitioners
versus
GHULAM MURTAZA (deceased) through his Legal Heirs
and others--Respondents
C.R. No. 1527 of 1995, heard on 10.10.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Adverse possession--Contradictory pleas--Self-destructive possession--Entitlement of--Entitled to ownership of the land and to hold on possession of land due to adverse possession--Pleas of ownership and adverse possession are self--destructive and that a person who claims himself to be the owners of certain property cannot be allowed to plead at the same time that he is in possession of property hostile or adverse as against the real owner.
[Pp. 402 & 403] B
Adverse Possession--
----Possession of property for the last 12 years--Held: If the respondents are proved to be owners of property in such case since they are in possession of land in-question for the last 12 years, therefore, they have become owners of land in question as in adverse possession.
[P. 402] A
Local Commission--
----Second report--Objections of--Contention--Petitioners filed the objections to the second report of local commission and such objections were not decided, but it is equally true that the petitioners did not make any effort for getting such objections decided inasmuch as it was neither pointed out to Court to advert to objections nor any application was filed--Held: Trial Court relied second report of local commission that the second report supports stand of the plaintiffs.
[P. 403] C
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Reverse findings of Appellate Court--Revisional jurisdiction--Not sustainable in law--Principle of administration of justice--Violation of--Validity--Findings as compared to First Appellate Court's judgment, suffers from grave legal errors, which have been rectified by Appellate Court by reversing the findings of trial Court and its own findings--Held: Impugned judgment is neither contrary to evidence on record nor in violation of the principle of administration of justice. [P. 404] D
1993 CLC 1361, 1991 SCMR 2063, 1991 SCMR 1245, PLD 1996 Karachi 202, 1991 CLC 313 & 2000 CLC 500, ref.
Mr. Ghulam Hussain Malik, Advocate for Petitioners.
Nemo for Respondents.
Date of hearing: 10.10.2007.
Judgment
Respondent No. 1/plaintiff instituted the suit for possession of land measuring one Kanal (elaborately described in the plaint), against the petitioners/Defendants No. 1 and 2, which was resisted through the written statement, inter alia, pleading that if the plaintiff is proved to be owner of the suit land, then they have become owner of the land on account of adverse possession, as they are in continuous possession of the same for the last 12 years. The learned trial Court framed 5 issues, recorded evidence of the parties and in the ultimate analysis dismissed the suit, vide judgment and decree dated 23.4.90. Respondent No. 1 challenged the said decree through the appeal and the learned Additional District Judge, set aside the decree dated 23.4.90 and remanded the case to the learned trial Court with the directions to implead remaining co-sharers, as defendants in the suit and then decide it afresh, vide judgment dated 18.11.90. Petitioner's revision petition (C.R. No. 774/91) against the said judgment was dismissed by this Court on 6.5.91. In the post remand proceedings, the learned trial Court impleaded Defendants Nos. 3 and 6 in the suit, however, they were proceeded exparte. Revenue Officer was appointed as local commission, who filed the report, to which both the parties raised the objections. Resultantly, with the consent of the parties, the report of the commission was set aside by the learned trial Court and Muhammad Afzal Khan, Advocate was appointed as local commission, who submitted his report before the Court on 12.9.92. The petitioners, statedly, filed the objections to the latest report of the local commission. The learned trial Court, in the ultimate analysis, dismissed the suit, vide judgment and decree dated 23.5.93. Respondents No. 1 and 2 assailed the said decree before the Appellate Court, through the appeal, and the learned Additional District Judge accepted the appeal and decreed respondent's suit to the extent of 13 Marlas, vide impugned judgment and decree dated 20.4.95, hence the present revision petition.
The respondents are represented by Qureshi Muhammad Saeed Sadi, Advocate, who is an outside counsel. Office has reported that PC Card was issued to the outside learned counsel for today. Despite that none-represents the respondents, thus, they are proceeded exparte.
Learned counsel for the petitioner contends that although the petitioners filed the objections to the second report of the local commission, yet the learned trial Court, without adverting to those objections, decided the suit. He submits that the Appellate Court has decided Issue No. 1 on the basis of second report of the local commission in complete ignorance of the fact that the objections to the said report were not decided by the learned trial Court. He has relied upon Maqsood Ali Butt vs. Muhammad Bashir and another (1993 CLC 1361).
I have heard the learned counsel and examined the available record. It appears appropriate to reproduce the issues, framed in the suit, which reads as follows:--
ISSUES
Whether the plaintiff is owner of the suit property?
If Issue No. 1 is proved whether the plaintiff is entitled to recovery possession of the suit property from the defendant?
Whether the suit is not maintainable and the defendant is entitled to special costs?
Whether the suit is not properly valued for the purposes of Court-fee, if so, its effect?
Relief.
The learned trial Court framed four issues, out of which, Issues Nos. 1, 3 and 4 were decided in favour of the plaintiffs and the suit was dismissed on the basis of findings on Issue No. 2 after holding that the defendants have become owners of the suit land due to adverse possession. It was also held that the report of the local commission "supports the stand of the plaintiff and defendants are in occupation to the extent of 13 Marlas in Khasra in question". The learned trial Court in view of the evidence on record and relying upon second report of the local commission, submitted in the Court on 12.9.92, decided Issue No. 1 in favour of Respondent No. 1. The petitioners neither filed appeal nor cross-objections against the conclusions arrived at by the learned trial Court on the said issue and its reliance upon the report of the commission. Thus, the petitioners by their acts and omissions, in fact, acknowledged and admitted that findings of the learned trial Court on the aforenoted issue and latest report of the local commission as correct. Additionally, the said findings were maintained by the First Appellate Court on the ground that no cross-objections were filed by the petitioners. The petitioners by not filing appeal or cross-objections against the findings on Issues No. 1 to 3, have, in fact, relinquished their right to challenge those findings, now in the revision petition, when the respondent's appeal was decided against them. It has also rightly been held by the learned Additional District Judge that the learned trial Court has relied upon the report of the second local commission, which supports the plea of the plaintiffs that defendants are in occupation of the land in question to the extent of 13 Marlas, which findings were not challenged by the petitioners before the Appellate Court. Findings of both the Courts on Issue No. 1 are concurrent and Respondents No. 1 and 2/plaintiffs have been held to be owners of the land in question. In view whereof, those findings are not open to exception, thus, the same are maintained.
I have examined the written statement, filed by the petitioners, and find that it has been pleaded in the preliminary objections that if the respondents are proved to be owners of the property in question, in that case since they are in possession of the land in question for the last 12 years, therefore, they have become owners of the land in question as in adverse possession. It would be appropriate to reproduce preliminary Objection No. 6 which read as follows:
It is evident from the above that firstly the petitioners have pleaded that they are owners in possession and if proved otherwise, then they are entitled to ownership of the land and to hold on possession of the land due to adverse possession. It has been held in the case reported Abdul Majeed and 6 others vs. Muhammad Subhan and 2 others (1999 SCMR 1245) that the pleas of ownership and adverse possession are self-destructive and that a person who claims himself to be the owners of certain property cannot be allowed to plead at the same time that he is in possession of property hostile or adverse as against the real owner. It appears appropriate to reproduce an extract from the case of Abdul Majeed (supra), which reads as under:-
"..... It is now well-settled that person who asserts ownership over a certain property by purchased would not be legally justified at the same time to say that his occupation of the property was hostile or adverse as against the real owner. The logic behind is that a person cannot claim hostile and adverse possession over a property which he holds in his own right and such a possession lacks the essentials of adverse possession so far recognized for maturity of ownership on this count. It has been so held in Mirza Ghulam Hussain and another v. Ch. Iqbal Ahmed (PLD 1991 SC 290), the relevant paras of which are reproduced..."
In view of the above, as the petitioners have pleaded contradictory pleas, which are self destructive therefore, the learned Appellate Court proceeded in right legal direction to decide Issue No. 2 against the petitioners.
In the above perspective, I have deeply examined the judgments of reversal and is of the view that the learned Appellate Court has rightly relied upon the case of Maqbool Ahmed vs. Government of Pakistan (1991 SCMR 2063), to hold that the plea of adverse possession has been declared repugnant to the injunction of Islam.
Now coming to the contention raised by the learned counsel regarding objections to the second report of the local commission. It is true that the petitioners filed the objections to the report of the local commission and those were not decided, but it is equally true that the petitioners did not make any effort for getting those objections decided inasmuch as it was neither pointed out to the learned Court to advert to the objections nor any application towards the said directions was filed. There is another aspect of the case. The learned trial Court, while deciding Issue No. 1 in favour of Respondents No. 1 and 2, has also relied upon the second report of the local commission and has held that the said report supports stand of the plaintiffs. A portion of findings on Issue No. 1, rendered by the learned trial Court, are reproduced below:-
"...The latest report of the Local Commission prepared by Muhammad Afzal Khan, Adv. tendered in Court on 12.9.92 also supports the stand of the plaintiff that defendants are in occupation to the extent of 13 Marlas in the Khasra in question. This report is to be accepted as no sound objection has been raised on it."
Although the learned trial Court relied upon the second report of the local commission and has held that it supports stand of the plaintiff, yet the petitioners, as noted above, did not assail the findings on Issue No. 1, particularly reliance of the learned trial Court on the report of local commission, through appeal inasmuch as no cross-objections were filed. When the petitioners have themselves acknowledged the correctness of findings on Issue No. 1 and did not agitate the same before the higher forum through any of the modes, then they are precluded from saying at a revisional stage that their objections were not decided by the learned trial Court. The petitioners should have challenged the findings of the learned trial Court on Issue No. 1 at least through cross-objection. Thus, at this stage, the petitioners cannot be allowed to say that their objections were not decided. Even otherwise, I have also gone through petitioner's objections, and find that they are without any substance. More importantly, it has been acknowledged by the petitioners that the local commission inspected the site and measured the questioned land in view of the record and in the presence of Patwari Halqa and the parties. It has casually been stated without any prima facie evidence on record that the local commission re-inspected the site without notice to the petitioners. It appears from the tenor of the objections that the petitioners were not serious in objecting to the second report of the local commission.
In the above perspective, I have examined the impugned judgment and find that the same is not only in accordance with the record of the case but the same is also in consonance with the law on the subject, particularly, in view of the principles of law laid down in the judgment of Maqbool Ahmed and Abdul Majeed and 6 others (ibid). I am not persuaded to reverse findings of the learned Appellate Court in exercise of revisional jurisdiction of this Court. I have also examined the findings rendered by the learned trial Court on Issue No. 2 and find that the same is not sustainable in law. To may mind, the said findings, as compared to the learned lower Appellate Court's judgment, suffers from grave legal errors, which have been rectified by the learned Appellate Court by reversing the findings of the learned trial Court and substituting its own findings, which are supported by reasons. I am not persuaded to restore the findings of the learned trial Court on Issue No. 2, which, to my mind, have rightly been reversed by the learned lower Appellate Court.
In my view as the impugned judgment is neither contrary to the evidence on record nor in violation of the principle of administration of justice, thus the judgment of the learned Appellate Court should ordinarily be preferred. If any case is needed, judgments reported as Mir Muhammad alias Miral vs. Ghulam Muhammad (PLD 1996 Karachi 202), Ilamuddin through legal heirs vs. Syed Sarfraz Hussain through legal heirs and 5 others (1999 CLC 313) and Aasa vs. Ibrahim (2000 CLC 500) can be referred.
In view of the above, the present petition is devoid of merits, hence stands dismissed with no order as to costs.
(N.F.) Petition dismissed.
PLJ 2008 Lahore 405
Present: Syed Ashgar Haider, J.
NAJAM AZIZ SETHI--Appellant
versus
MUHAMMAD AZEEM BUTT--Respondent
F.A.O. No. 384 of 2006, heard on 3.10.2007.
Words and Phrases--
----Word--"Prescribed Person"--Definition--Meaning of--"Federal Government, a Provincial Government, Local Authority, a Company, a non profit organization or diplomatic mission of foreign state.
[P. 409] B
Cantonment Rent Restriction Act, 1963 (XI of 1963)--
----S. 17(9)--Ejectment--Disputed premises--Default in payment of rent--No option except to invoke penal provisions--Personal need--Agreement of tenancy--Eviction tenant--Appellant was under a bounden and cardinal duty to adhere to such directions and pay rent as directed--Order passed was tentative and in case of any ambiguity or confusion, could have been assailed, by filing miscellaneous proceedings--Held: Petitioner did not adhere to the direction of the Rent Controller and did not deposit the rent in the stated amount, therefore, the Rent Controller had no option but to invoke the penal provisions as contained in Section 17(9) of the Cantonment Rent Restriction Act, and strike off the defence of the petitioner and thereafter grant the ejectment petition as prayed for--Appeal dismissed. [Pp. 408 & 409] A, C & D
M/s. Ch. Fawad Hussain, and Miss Alia Ejaz, Advocates for Appellant.
Mr. Waqar Arif Khan, Advocate for Respondent.
Date of hearing: 3.10.2007.
Judgment
The respondent gave on rent the disputed property to the appellant vide agreement dated 6.7.2004. Thereafter he filed an ejectment petition before the Additional Rent Controller (Cantonment) pleading personal need. The rent stated in the petition was Rs. 55,000/- (rupees fifty five thousand only) per month. The appellant filed written reply, admitted the relationship inter se the parties, as landlord and tenant. The Rent Controller after perusing the record and hearing the counsel for the parties, passed an order for deposit of rent on 29.3.2006, directing the appellant to deposit the rent in the sum of Rs. 55,000/- per month from March 2006 onwards. The appellant failed to deposit rent in the sum as directed. Therefore, the respondent filed an application under Section 17(9) of the Cantonment Rent Restriction Act 1964, alleging default, in the deposit of rent, pleading that the order of deposit of rent reflected Rs. 55,000/-, however, the petitioner tenant deposited an amount of Rs. 52,250/- therefore, there is premeditated, wilful default and non-compliance, as such the defence of the appellant be struck off and ejectment petition be allowed. This application was allowed and ejectment petition granted. Aggrieved thereof the appellant has filed the instant appeal.
Rs. 52,250/- is after deducting income tax as ordained by Section 155 of the Income Tax Ordinance, 2001, therefore, there is absolutely no default and the impugned order is illegal. Further the Income Tax Ordinance. 2001 is later legislation than the Cantonment Rent Restriction Act, 1964, therefore, its provisions would over-ride and prevail upon former legislation, the agreement was between Muhammad Azeem Butt and Vanguard Books (Pvt.) Ltd., the business of book selling, is transacted in the premises, and the appellant, as Chief Executive on behalf of Vanguard Books executed the agreement and, therefore, is not a tenant as defined in the Cantonment Rent Restriction Act 1964. Further the term "tenant" is wide enough to cover the Vanguard Books, all these questions, through, raised, but were not addressed and answered by the learned Rent Controller, the parties had adopted a peculiar practice and adhered to the same, therefore, deduction of income tax was natural consequence. He relied on the following precedents "Muhammad Alam vs. Noor Muhammad" (1973 SCMR 606), "Mehrban Ali vs. Haji Muhammad Qasim" (PLD 1976 Lahore 1052), "Muhammad Shafi vs. Iqbal Ahmad and another" (PLD 1965 Lahore 23), "Major Feroze Din Khan and others vs. Sh. Muhammad Amin" (PLD 1967 Lahore 966), "Sultan Textile Mills (Karachi) Ltd., Karachi vs. Muhammad Yousaf Shami" (PLD 1972 Karachi 226) "Amir Ali vs. Mrs. Alima Ahmad" (PLD 1981 Karachi 150), "Muhammad Siddique vs. Abdul Rasheed" (1982 CLC 217) and "Ghulam Adamali Jeevaji vs. N. Hassan Ali and Co." (PLD 1984 Karachi 373). According to the learned counsel the provisions of Section 17(9) of the Cantonment Rent Restriction Act 1964 come into play only in case, default is premeditated and wilful, in the present matter, the default is neither wilful nor deliberate. In fact the appellant being a law abiding citizen has discharged his obligations and duties and has rightfully paid the tax due, which was his cardinal duty, thus he can not be penalized for a lawful duty. To fortify his contention he relied on "L. Hussain vs. Muhammad Nawab and 4 others" (PLD 1992 Karachi 307), "Niaz Muhammad and another vs. Waris Hussain and 2 others" (2004 YLR 1266) and "Safeer Travels (Pvt.) Ltd. vs. Muhammad Khalid Shafi" (PLD 2007 SC 504). He lastly urged that the respondent has not been able to establish non-compliance of deposit of rent; therefore, the order is patently illegal and unlawful. In this context he relied on 1998 SCMR 970. "Noor Muhammad vs. Mehdi" (PLD 1991 SCMR 711), "Mehboob Jwewllers and others vs. Nur Ahmad" (1989 SCMR 1327), "A.S.K. Samad vs. A. Hussain and another" (1987 SCMR 1013).
The learned counsel for the respondent contended that the agreement dated 6.7.2004 was executed inter se appellant and respondent in their private capacity. The execution of this agreement, itself establishes that the earlier agreements entered inter se, Vanguard Books (Pvt.) Ltd. and the respondent lost efficacy, were made redundant by execution of the instant agreement, which was a clear departure from the previous practice, therefore, the earlier agreements cannot be relied upon or even considered. To fortify his argument he submitted that there was a deliberate departure from the previous agreements, as the agreement dated 6.7.2004 conspicuously omitted by Vanguard Books and referred to Najam Seithi and Muhammad Azeem Butt as tenant and landlord. He also stated that the provisions of Section 155 of the Income Tax Ordinance are not applicable to the private persons and come into play only in case of "prescribed persons", therefore, the deduction of rent for the proposes of income tax was clearly violative of the order of the Rent Controller, as appellant is a private individual and not "a juristic person", thus the default is not only deliberate but is premeditated and wilful as well. To fortify his contention the learned relied on "Ashiq Ali and another vs. Mehar Elahi and 13 others" (2001 SCMR 130), "Qureshi Industries vs. Karachi Development Authority" (1993 Karachi 553), "Saleem Ahmad vs. Additional District Judge and others " (1992 CLC 1531). He lastly argued that once default in rent is established the Rent Controller has absolutely no jurisdiction in law but to strike off the defence of the tenant and proceed to grant the ejectment petition as prayed for. He relied on "Zikar Muhammad vs. Mrs. Arifa Sabir and another" (2000 SCMR 1328), "M. H. Mussadaq vs. Muhammad Zafar Iqbal and another" (2004 SCMR 1453), "Muhammad Ilays vs. Asfaque Hussain" (1992 MLD 1577) and "Khadim Hussain vs. Nasir Ahmad" (2003 SCMR 1580). Therefore, the impugned order is unexceptionable and resultantly this appeal be dismissed.
I have heard the learned counsel for the parties at length and examined the record.
Before adverting to the stance taken by either party, it is essential to examine the agreement dated 6.7.2004, executed inter-se, appellant and respondent. It clearly reflects that the parties concerned are Muhammad Azeem Butt "landlord" and Najam Aziz Seithi "tenant". There absolutely is no mention of Vanguard Books in the expression "lessee/tenant which has been defined and explained in detail in the agreement, the words "tenant" and "landlord" are confined to heirs, successors, legal representatives and assignees. Thus the agreement in question is a clear departure from the previous agreements executed inter se. The Vanguard Books and Muhammad Azeem Butt, because the agreements dated 7.7.1999 and 7.7.2002 reflect Vanguard Books as "tenant" and Mr. Muhammad Azeem Butt as "landlord". Thus there absolutely is no ambiguity or confusion, in the agreement as to who, the tenant and landlord, respectively, are. Therefore, Muhammad Azeem Butt and Mr. Najam Aziz Seithi are "landlord" and "tenant" respectively, in their private capacity. Thus assertion of the learned counsel for the appellant disputing the agreement for purposes of Vanguard Books (Pvt.) Ltd. as tenant is not tenable and therefore is repelled.
The order passed by Rent Controller dated 29.3.2006 reflects the rate of rent payable as Rs. 55,000/- (rupees fifty five thousand only) by the 5th day of each succeeding month. Therefore, the appellant was under a bounden and cardinal duty to adhere to these directions and pay rent as directed. The order passed was tentative and in case of any ambiguity or confusion, could have been assailed, by filing miscellaneous proceedings. This was not done. Thus the conduct of appellant reflects that there was no confusion or ambiguity qua the terms of the order for deposit of rent in the sum of Rs. 55,000/- in his mind, still the order was not complied with, as directed, and rent not deposited in the sum of
Rs. 55,000/- thus default is wilful.
7-A. As the petitioner did not adhere to the direction of the Rent Controller and did not deposit the rent in the stated amount, therefore, the Rent Controller had no option but to invoke the penal provisions as contained in Section 17(9) of the Cantonment Rent Restriction Act, 1963 and strike off the defence of the petitioner and thereafter grant the ejectment petition as prayed for. The impugned order is unexceptionable because adherence to the order of deposit of rent under Section 17(9) of the Cantonment Rent Restriction Act, 1963, has to be unconditional, complete and without reservation, as the word "shall" used in Section 17(9) of the said Act, has been interpreted by the Hon'ble Supreme Court of Pakistan and means "Mandatory" Reference "Safeer Travels (Pvt.) Ltd. vs. Muhammad Khalid Shafi" (PLD 2007 SC 504). The precedents referred to by the learned counsel for the appellant, in these circumstances, are clearly distinguishable on facts. Resultantly this appeal has no merits and is dismissed. The appellant, however, is granted time, subject to payment of rent as directed, to vacate the disputed premises by 28th of February, 2008.
(A.S.) Appeal dismissed.
PLJ 2008 Lahore 409 (DB)
Present: Syed Asghar Haider and Maulvi Anwar-ul-Haq, JJ.
GHULAM YASIN--Appellant
versus
DISTRICT OFFICER (R), JUDGE and 2 others--Respondents
ICA No. 175 of 2007 in W.P. No. 5122 of 2007, heard on 26.9.2007.
Registration Act, 1908 (XVI of 1908)--
----Ss. 58 to 61--Scope of--Presentation of document for registration--Registering Officer is bound to register document--Minor an idiot or lunatic--Refusal to register the document--Validity--Upon the presentation of a document for registration, upon the appearance of the person executing the document and on his satisfaction that the documents represented themselves to be and if admitted the execution of document a Registering Officer is bound to register a document in accordance with Registration Act--If a person denies the execution of appears to be minor, an idiat or a lunatic or execution is denied by LRs of deceased execution, Registering Officer shall refuse to register the document. [P. 411] A
Interpretation of Statute--
----Registering the document or refusing to register--Conditions--Conditions for exercise of jurisdiction by registering officer while registering the document or refusing to register the document are clearly mentioned in Statute. [P. 411] B
Registration Act, 1908 (XVI of 1908)--
----Ss. 51 & 52(c)--Law Reforms Ordinance, 1972, S. 3--Document for registration--Dishonestly in collusion--Relief from Civil Court--Legality--Official respondents have acted dishonestly in collusion with private respondent who were at the time unable to obtain any relief from Civil Court except a permission to withdraw and dismissal as unconditionally while failing to lead any evidence in support of their plea--ICA allowed. [P. 412] C & D
Mian Sarfraz-ul-Hassan, Advocate for Appellant.
Mr. Shahbaz Ahmad Dhillon, AAG for Respondents No. 1-2.
Sh. Umar Draz, Advocate for Respondent No. 3.
Date of hearing: 26.9.2007.
Judgment
Maulvi Anwar-ul-Haq, J.--This ICA proceeds against judgment dated 25.5.2007 of a learned Single Judge, in Chamber of this Court, whereby W.P. No 5122/07 filed by the appellant was dismissed.
Learned counsel for the appellant contends that the impugned judgment fails to take notice of the contents of the writ petition whereby, in fact, the appellant had questioned the authority of the official respondents to amend or rectify a registered document and making it wholly ineffective. According to the learned counsel, no such power vests in the official respondents under the Registration Act, 1908. The learned AAG argues that such a power is available to a Registrar under Section 68(2) of the Registration Act, 1908. According to the learned Law Officer, the impugned order is for rectification of an error regrading a book. The learned counsel for the private respondent has also argued on the same lines.
We have gone through the file of writ petition. The general power-of-attorney is Annex.B to the writ petition. It was registered by sub-registrar, Shorkot, on 31.8.2002. With reference to the contents of the writ petition and the copies of the documents available on record, we confronted the learned counsel for the private respondent and he admitted that they did file a declaratory a suit qua the contents of the said document and that the suit was sought to be withdrawn with permission to file a fresh suit on a date fixed for evidence. The permission was not granted and the suit was dismissed after closing the evidence on 28.2.2007. The first appeal was dismissed by a learned ADJ, Shorkot, on 3.3.2007. It appears that yet another suit was filed thereafter wherein again an application was filed to withdraw with permission to file afresh. This application was refused on 26.4.2007. A revision petition was filed and on 21.5.2007 the learned counsel for the private respondent stated before the learned ADJ that he will now withdraw the suit unconditionally and the civil revision was also disposed of as withdrawn. Therefore, he filed an application before the respondent-DO(R) for the same relief. In fact, a prayer was made that the description (boundaries) of the property mentioned in the said registered document be corrected. The said DO (R) proceeded to obtain a report and thereafter proceeded to make a note on 3.4.2007 that the boundaries of the property are not correctly entered in the general power-of-attorney and he is restrained from alienating the land till such time that he gets the boundaries corrected.
It is but apparent that the said DO (R) proceeded not only to enter the said note on the said power-of-attorney but also be make it completely ineffective by restraining the principal as well as the attorney from alienating the land.
We have examined the provisions of the Registration Act, 1908 and we have not been able to find any provision in the said entire Act authorizing a DO (R)/Registrar/Sub-Registrar to take such an action or to pass such an order. So far as the said contention of the learned AAG is concerned, the said power to rectify any error regarding a book has to be exercised in a manner consistent with the said Registration Act, 1908. At the pain of repetition, we state that no such power can be read in any provisions of the said Act. Upon the presentation of a document for registration, upon the appearance of the person or persons executing the document and on his satisfaction that they are persons they represent themselves to be and if they admit the execution of the document a Registering Officer is bound to register a document in accordance with Sections 58 to 61 of the Registration Act, 1908. On the other hand, if a person denies the execution of appears to be a minor, an idiot or a lunatic or the execution is denied by the LRs of the deceased execution, the Registering Officer shall refuse to register the document. It will, thus, be seen that the conditions for exercise of jurisdiction by the registering Officer while registering the document or refusing to register the document are clearly mentioned in the Statute. This does not at all involve an inquiry into title, possession or even correctness of the contents of a document sought to be registered. The contention of the learned Law Officer that by making the said note on the document, the official respondents rectified the error in book is misconceived. Reference is to the books to be kept by the Registering Officers in accordance with Section 51 of the said Act. Under Section 52(c) the document presented for a registration is to be copies in the said book. Similarly, under Section 61 the endorsement and certificates made in accordance with Sections 59 and 60 for the said Act are also to be copied into margin of Book No. 1 . The rectification obviously means any error while copying the document and not amending the document itself and that too after its registration.
Apart from the said clear legal position, prima facie, the official respondents have acted dishonestly in collusion with the private respondent who were at the same time unable to obtain any relief from the Civil Court except a permission to withdraw and dismissal as such unconditionally while failing to lead any evidence in support of their plea.
The ICA is accordingly allowed. The writ petition is accepted and the impugned order/endorsement dated 3.4.2007 on the said registered document is declared to be illegal, void and without lawful authority and is set aside. The document shall take effect accordingly. No orders as to costs.
(N.F.) ICA allowed.
PLJ 2008 Lahore 412
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD ARIF and 12 others--Petitioners
versus
MUHAMMAD HAFEEZ and 32 others--Respondents
C.R. No. 361 of 2002, heard on 18.9.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Inheritance mutation--Joint possession--Factum of minority--Minor at the time of sale--Beneficiary to prove the transaction as a fact--Question of title--Possibility cannot be ruled out--A mutation does neither confer any title nor, in fact, is evidence of title--Plea of adverse possession and plea of title in the same breath are mutually destructive--Admittedly, the land is joint and actual possession is not of any relevance--Predecessor-in-interest of the petitioners was not in possession--Nothing, therefore, turns on such possession which for all purposes inures for benefit of petitioners as well till such time partition is effected--Held: High Court is inclined to grant a chance to respondents, to prove a valid sale as possibility cannot be ruled out in view of the peculiar circumstances of such case that they were mis-led by the form of issue. [P. 415] A, B, C & D
PLJ 2007 SC 797, 2007 SCMR 236 & NLR 2000 SCJ 135, ref.
Syed M. Kaleem Ahmad Khurshid, Advocate for Petitioners.
Agha Intizar Ali Imran, Advocate for Respondents.
Date of hearing: 18.9.2007.
Judgment
This judgment shall decide C.R. No. 361/02 and C.R. No. 2669/01 as they proceed against a common judgment.
On 29.11.1995 the petitioners filed a suit against the respondents. In the plaint, it was stated that Allah Ditta son of Ahmad Yar, the predecessor-in-interest of the petitioner was the owner of the land described in paras-1 and 2 of the plaint and on his death it was mutated in favour of the petitioners or their predecessor vide inheritance Mutation No. 231 attested on 12.8.1941. It was then stated that the Defendant No. 1 Hassan Din (deceased) represented by Respondent No. 1 to 3 as LRs was a clever person who managed to get Mutation No. 232 attested on 28.8.1941 purporting to be the sale of 88 Kanals and 9 Marlas out of the said land in his favour. He made further alienations as detailed in Para 5 of the plaint. According to them, they are in joint possession and came to know about the said facts a month before the institution of the suit. They accordingly sought a declaration that they are co-owners in the suit land to the extent of 2164/5454 share and the said mutation and further alienations are void. It was stated that Muhammad Anwar petitioner was a minor at the relevant time. The suit was contested by the said Hassan Din and his transferrees including his children and wife and they claimed a valid sale in their favour and at the same time claimed to be in adverse possession and to have matured their title. The suit was stated to be barred by time. The factum of minority of Muhammad Anwar was not denied. Following issues were framed by the learned trial Court:--
Whether the suit is not maintainable in its present form?
Whether the plaintiffs are estopped by their words and conduct to file this suit? OPD.
Whether the defendants have become owners on the basis of adverse possession? OPD.
Whether the suit is bad for mis-joinder and non-joinder of parties? OPD.
Whether the plaintiffs are owner in possession of disputed land upto the extent of 2164/4554 shares measuring 108 Kanals 4 Marlas? OPP.
Whether the plaintiffs are entitled for issuance of permanent injunction as prayed for? OPP.
Relief.
Evidence of the parties was recorded. The learned trial Court dismissed the suit on 9.5.2000. A first appeal filed by the petitioners was partly allowed by a learned ADJ, Sheikhupura, on 29.11.2001 inasmuch as he set aside the transaction vis-a-vis Muhammad Anwar petitioner.
Against the said judgment and decree of the learned ADJ, the petitioners have filed C.R. No. 361/02 praying that the entire suit be decreed while the respondents have filed C.R. No. 2669/01 praying that the entire suit be dismissed.
Syed Kaleem Ahmed Khurshid, Advocate/learned counsel for the petitioners contends that there is not an iota of evidence on record to prove a valid sale having been made by the petitioners in favour of the said Hassan Din. According to him, admittedly, it was a joint land and possession was of no reliance and as such the suit has wrongly been held to be time barred. Agha Intizar Ali Imran, Advocate/learned counsel for the respondents, on the other hand, contends that since, admittedly, his clients continued in possession and the same being adverse, the suit was barred by time. According to him, it was for the petitioners to disprove the sale. Alternately contends that a chance be given to his clients to prove a valid sale in their favour as issues were not happily worded. He, however, has not much to say about the transaction stated to be entered into by Muhammad Anwar when he was a minor.
I have gone through the copies of the records, appended with both these civil revisions, with the assistance of the learned counsel for the parties. There is no denial of the fact that Muhammad Anwar was a minor at the time of alleged sale and this fact has been admitted by Hassan Din defendant appearing as DW-4. I am, therefore, not at all inclined to interfere with the judgment of the learned ADJ holding the transaction to be void to the extent of the said petitioner.
Regarding the remaining petitioner. I have already noted above that they had denied having sold the land to Hassain Din. Conversely, Hassain Din Pleaded a valid sale in his favour by the petitioners. I have examined the evidence on record and do agree with Syed Kaleem Ahmad Khurshid, Advocate, that there is no evidence whatsoever on record of any valid sale having been made by the petitioners in favour of Hussain Din. Learned counsel for the respondents could only point out to the statement of Hassan Din in the witness-box but nothing turns on the same as the same stands rebutted by the said denial on the part of the petitioners in the plaint as well as in the witness-box. Needless to state that a mutation does neither confer any title nor, in fact, is evidence of title. In case of dispute the beneficiary has to prove the transaction as a fact. Reference be made to the cases of Rehmatullah and others v. Saleh Khan and others (PLJ 2007 SC 797) and Aurangzeb through L.Rs. and others v. Muhammad Jaffar and another (2007 SCMR 236).
Similarly, the plea of adverse possession and the plea of title in the same breath are mutually destructive. Admittedly, the land is joint and actual possession is not of any relevance.
I may further note here that in his written statement Hassan Din stated that even Allah Ditta, the predecessor-in-interest of the petitioners was not in possession. Nothing, therefore, turns on the said possession which for all purposes inures for benefit of the petitioners as well till such time the partition is effected. Reference be made to the case of Abdul Majeed and 6 others vs. Muhammad Subhan and 2 others (NLR 2000 SCJ 135).
I am, however, inclined to grant a chance to the clients of Agha Intizar Ali Imran, Advocate, to prove a valid sale as possibility cannot be ruled out in view of the peculiar circumstances of the present case that they were mis-led by the form of the issue.
For all that has been discused above, C.R. No. 2669/01 is dismissed and the impugned judgment of the learned ADJ holding the transaction to be void vis-a-vis Muhammad Anwar petitioner/plaintiff is affirmed. However, the remaining matter, namely, C.R. No. 361-02 is remanded back for a decision on the following Issue No. 6-A.
"6-A. Whether Hassan Din validly purchased the suit land from the petitioners or their predecessor-in-interest? OPD-1".
The parties shall appear before the learned Senior Civil Judge, Sheikhupura, on 29.10.2007. A copy of this judgment be immediately remitted to the said learned Senior Civil Judge who shall requisition the records and proceed to undertake the said exercise and to take all steps to decide the matter before the Summer Vacations, 2008. No orders as to costs.
(N.F.) Case remanded.
PLJ 2008 Lahore 416
Present: Syed Shabbar Raza Rizvi, J.
FAIZ AHMED--Petitioner
versus
ADDITIONAL SESSIONS JUDGE/JUSTICE OF PEACE, SARGODHA and 3 others--Respondents
W.P. No. 7997 of 2007, decided on 4.9.2007.
Constitution of Pakistan, 1973--
----Art. 190--Criminal Procedure Code, (V of 1898), S. 22-A(6)--Ex-officio Justice of Peace--Registration of F.I.R.--Cognizable offence--Interest of justice--If a complaint is filed before ex-officio Justice of Peace disclosing commission of a cognizable offence, they have no other option to order registration of an F.I.R.--Registration of a case does not necessarily make nominated, person in the FIR guilty--Investigating Officer is required to treat nominated persons in FIR strictly in accordance with law--Held: Registration of the case does not require arrest or immediate arrest straightaway in every case unless Investigating Officer is satisfied that same is required in the interest of justice and on the basis of material collected against the named person in FIR. [P. 419] A & B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 22-A(6)--Constitution of Pakistan, 1973, Art. 199--Ex-officio Justice of Peace--Jurisdiction of--Jurisdiction of ex-officio Justice of Peace u/S. 22-A(6), Cr.P.C. is not at par with Constitutional jurisdiction of High Court u/Art. 199 of the Constitution--Held: If complaint discloses commission of a cognizable offence, is not applicable to High Court. [P. 419] C
Mr. Imtiaz Hussain Khan Baloch, Advocate for Petitioner.
Date of hearing: 4.9.2007.
Order
The learned counsel for the petitioner has called in question order of the learned Addl. Sessions Judge/Ex-officio Justice of the Peace, Sargodha, dated 25.8.2007, whereby he ordered for registration of case against the petitioner. The learned counsel contends that the impugned order is also incompatible with decision of a Full Bench judgment of this Court reported in PLD 2005 Lahore 470, Khizar Hayat vs. IPG.
An application under Section 22-A(6), Cr.P.C. was filed by Respondent No. 3 against SHO Police Station Cantt., Sargodha, present petitioner, and two others for registration of an FIR against them. In the said application, Respondent No. 3 alleged that on 23.6.2007 he was present with his family members at his residence, where present petitioner arrived in a white car alongwith two police constables and two unknown persons. They illegally and forcefully entered into house of the Respondent No. 3 and threatened him to arrest in a fake dacoity case. It was further alleged in the application that the petitioner acted at the instigation of Respondent No. 4. The learned Addl. Sessions Judge, called a report from the SHO. According to the report, the allegations leveled by Respondent No. 3 against the petitioner and other accused were found false. The report further noted that a case FIR No. 244/07, dated 26.6.2007, under Section 392 PPC stood registered at the instance of Respondent No. 4 against Respondent No. 3, hence the application before the learned Addl. Sessions Judge/Ex-officio Justice of the Peace was filed to harass the petitioner and other police officials.
Despite above mentioned report from the SHO, the learned Addl. Sessions Judge/Ex-officio Justice of the Peace passed the following order:-
"From the contents of petition, it is evident that the respondent as an ASI acted beyond his authority. In these circumstances, the SHO concerned is directed to lodge FIR and to proceed under the law."
According to the learned counsel for the petitioner, the impugned order has been passed despite report of the SHO which had not supported the allegations against the petitioner, etc. According to him, impugned order is violative of Khizar Hayat case.
In Khizar Hayat vs. IPG, PLD 2005 Lahore 470, it was held that the officer in charge of the relevant police station may be under a statutory obligation to register an FIR whenever an information disclosing commission of cognizable offence is provided to him but the provisions of Section 22-A(6) Cr.P.C. do not make it obligatory for an ex-officio Justice of the Peace to necessarily or blindfoldedly issue a direction regarding registration of a criminal case whenever a complaint is filed before him in that regard. The use of the word "may" in Section 22-A(6), Cr.P.C. clearly shows that the jurisdiction of an ex-officio Justice of the Peace in that regard is discretionary in nature, and understandable so. It was further held in the same judgment that there is a pressing need on the part of the ex-officio Justice of the Peace to exercise caution and restrain before issuing a direction regarding registration of a criminal case. According to the learned Court, it is prudent and advisable for an ex-officio Justice of the Peace to call for comments of the officer in charge of the relevant police station in respect of complaint of this nature before taking any decision of his own in that regard so that he may be apprised of the reasons why the local police have not registered a criminal case in respect of the complainant's allegations. In addition to the above, it was further held as under:-
"If however, the comments furnished by the officer in charge of the relevant police station disclosed no justifiable reason for not registering a criminal case on the basis of the information supplied by the complaining person than an ex-officio Justice of the Peace would be entirely justified in issuing a direction that a criminal case be registered and investigated."
It was further held that in appropriate cases, an ex-officio Justice of the Peace may refuse to issue direction regarding registration of a criminal case and may dismiss the complaint under Section 22-A(6), Cr.P.C. reminding the complainant person of alternate statutory remedies.
As mentioned above, the above mentioned judgment allows ex-officio Justice of Peace not to agree with the report/comments furnished by the officer in charge of the police station and may pass an order contrary to the report/comments offered by the SHO. Therefore, if in the present case, the learned ex-officio Justice of the Peace has passed impugned order disregarding report/comments of the SHO, the same cannot be held in conflict with Khizar Hayat vs. IGP, PLD 2005 Lahore 470.
A new development has taken place which was not in knowledge of the learned counsel for the petitioner. The Hon'ble Supreme Court has very recently disagreed with the above view of the learned High Court. According to the recent view of the Hon'ble Supreme Court, if a complaint discloses commission of a cognizable offence, the ex-officio Justice of the Peace is bound to direct officer incharge of the police station to register a case. According to the judgment, neither the ex-officio Justice of the Peace nor the SHO is required to hold any inquiry into correctness or otherwise of the information which is conveyed to the ex-officio Justice of the Peace, etc. According to the Hon'ble Supreme Court, the check against lodging of false FIRs is not refusal to record such FIRs but punishment of such informants under Section 182 PPC. The Hon'ble Supreme Court held as under:
"Therefore, in our opinion the only jurisdiction which could be exercised by an ex-officio Justice of the Peace under Section 22-A (6), Cr.P.C. was to examine whether the information disclosed by the applicant did or did not constitute a cognizable offence and if it did then to direct the concerned SHO to record an FIR, without going into veracity of the information in question, and no more. Offering any other interpretation to the provisions in question would be deemed violence to the entire scheme of the Cr.P.C. which could not be permitted". (Muhammad Bashir vs. Station House Officer), PLD 2007 SC 539).
"We are conscious of the fact that in pursuance of petitions filed under Article 199 of the Constitution, the High Courts at times, did refuse to issue writs directing recording of F.I.Rs. Suffice it so say that the exercise of discretion under the said jurisdiction was not dependent only on an illegality committed by a competent authority but was also controlled by some other important consideration such as the seeker of a writ being an aggrieved person; availability of alternative remedies such as filing of a complaint etc. in criminal matters and the applicant being qualified, in equity, for the grant of the sought relief. The powers of the Ex-officio Justice of the Peace under Section 22-A (6) of the Cr.P.C. could, therefore, not be equated with the Constitutional jurisdiction vesting in a High Court."
(N.F.) Petition dismissed.
PLJ 2008 Lahore 420 (DB)
Present: Kh. Muhammad Sharif and Asif Saeed Khan Khosa, JJ.
ASAD MEHMOOD CHEEMA, INSPECTOR/INCHARGE ELITE
FORCE GUJRAT and others--Appellants
versus
SABIR HUSSAIN and 6 others--Respondents
I.C.A. No. 452 of 2004 in W.P. No. 12309 of 2004, heard on 23.4.2007.
Law Reforms Ordinance, 1972--
----S. 3--Constitution of Pakistan, 1973 Art. 199--Intra Court Appeal--Question of--Extra ordinary jurisdiction--No other adequate and alternate remedy--Maintainability--Held: When after submission of the challan the trial Magistrate has taken cognizance of the matter and co-accused of the petitioner had made confession, writ petition was not maintainable as the writ petitioner had a remedy before trial Court to seek his acquittal by filing a proper petition--Where an alternate remedy is available to petitioner and without availing of that remedy first it was not proper for the High Court to invoke its Constitutional jurisdiction. [P. 421] B
Land Reform Ordinance, 1972--
----S. 3--Constitution of Pakistan, 1973, Art. 199--Intra Court Appeal--An order having been passed under Art. 199 of Constitution, was appealable before two or more judges of High Court--ICA allowed.
[P. 421] A
Mr. Aftab Ahmad Bajwa, Advocate for Appellants.
Syed Ijaz Qutab, Advocate for Respondent No. 1.
Mr. Tahir Mahmood Gondal, AAG for other Respondents.
Date of hearing: 23.4.2007.
Judgment
Kh. Muhammad Sharif, J.--This judgment will dispose of Intra Court Appeal Nos. 452 and 453 of 2002 filed by Asad Mahmood Cheema, Inspector and Muhammad Arif Gondal, Inspector against the judgment dated 13.9.2004 passed in Writ Petition No. 12309 of 2004 whereby FIR No. 168 registered under Section 5 of the Punjab Prevention of Gambling Ordinance, 1978 with Police Station Sadar Lala Musa, District Gujrat was quashed and a criminal case was ordered to be registered against the present appellants under Sections 453, 395 PPC read with Section 156 of the Police Order, 2002.
Mr. Aftab Ahmad Bajwa, learned counsel for the appellants submits that cognizance of the case having been taken by the trial Magistrate after submission of the challan and one of the accused having confessed the guilt, there was no occasion for the High Court to interfere in its Constitutional jurisdiction because according to learned counsel, writ jurisdiction being an extraordinary jurisdiction can only be invoked when there is no other adequate and alternate remedy. For this proposition of law, learned counsel has relied upon PLD 2005 SC 831.
On the other hand, learned counsel for the writ petitioner submits that in view of the law laid down in the case of Nawazul Haq Chowhan vs. The State (2003 SCMR 1597), Intra Court Appeal against the order of a single Judge of the High Court passed in Constitutional jurisdiction under Article 199 of the Constitutional quashing the FIR is not maintainable.
Mr. Tahir Mahmood Gondal, learned AAG submits that an alternate remedy being available to the writ petitioner, writ petition was not maintainable. For this view, the learned law officer has relied upon 2006 SCMR 1957.
We have heard learned counsel for the parties at length. First of all we should address ourselves to the question of maintainability of this Intra Court Appeal. In this regard, we may rely upon the case of Pakistan International Airlines vs. Samina Masood and others (PLD 2005 SC 831) wherein their lordships of the Hon'ble Apex Court ruled that an order having been passed under Article 199 of the Constitution, we appeal able before two or more Judges of the same High Court. The Apex Court of the country has taken similar view while deciding CP No. 1684/L of 2006 decided on 31.7.2006.
So far as merits of the case are concerned we are of the considered view that in the facts and circumstances of the case when after submission of the challan the trial Magistrate has taken cognizance of the matter and a co-accused of the writ petitioner had made confession, the writ petition was not maintainable as the writ petitioner had a remedy before the trial Court to seek his acquittal by filing a proper petition. The learned law officer was thus right in relying upon 2006 SCMR 1957 wherein their lordships of the Apex Court observed that in a case where an alternate remedy is available to a petitioner and without availing of that remedy first it was not proper for the High Court to invoke its Constitutional jurisdiction. The order impugned herein are thus not legally sustainable.
For what has been discussed above, both the above titled Intra Court Appeals are allowed and as a result thereof the order dated 13.9.2004 passed in Writ Petition No. 12309 of 2004 is set aside.
(N.F.) ICA allowed
PLJ 2008 Lahore 422
Present: Muhammad Sair Ali, J.
ABDUL HAMEED and 7 others--Petitioners
versus
ABDUL RAZZAQ and 3 others--Respondents
C.R. No. 747 of 2005, heard on 26.9.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Suit for declaration was dismissed--Serious error of decision--Mis-exercised of jurisdiction--Appeal was decided on wrong issues--Assailed--Civil revision--Serious miscarriage of justice rendering the impugned judgments and decrees incomprehensible for the litigants as well as for the persons of ordinary or extraordinary prudence--First Appellate Court committed material irregularity, misapplied itself and mis-exercised its jurisdiction in passing the judgments and decrees--Revisions accepted. [P. 423] A
Mr. Hamid Ali Mirza, Advocate for Petitioners.
Rana Zahoor Ali, Advocate for Respondents.
Date of hearing: 26.9.2007.
Judgment
Owing to the identity of facts and the questions involved, Civil Revision No. 747/2005 (Abdul Hameed etc. v. Abdul Razzaq etc.) and Civil Revision No. 2128/2005 (Abdul Razzaq etc. v. Abdul Hameed etc.) are decided together. In Civil Revision No. 747/2005 respondents' suit for declaration was dismissed by the trial Court on 31.3.2003. The learned First Appellate Court vide judgment dated 6.1.2005 accepted the appeal, set aside the judgment and decree of the trial Court and remanded the case to the trial Court for re-decision.
In Civil Revision No. 2128/2005 the petitioner's suit for declaration was dismissed by the trial Court on 31.3.2003 and the appeal was also dismissed by the learned First Appellate Court on 6.1.2005. The trial Court decided both the suits on one and the same day on 31.3.2003 and the lower Appellate Court also decided appeals in both the cases on one day i.e. 6.1.2005.
On hearing the learned counsel for the parties, the record of both the civil revisions in the perspective of the impugned judgments and decrees was examined with their assistance. The scrutiny of the impugned judgments intriguingly revealed that the learned First Appellate Court committed serious error of decision, rendering its judgments incoherent, incomprehensible and, therefore, unsustainable. The appellate judgment in Civil Appeal No. 105-13 of 2003 being assailed in Civil Revision No. 747/2005 was decided on issues which were not the issues before the trial Court in Suit No. 144-1 of 2001 from which the appeal had arisen. Similarly the judgment passed by the First Appellate Court in Civil Appeal No. 106-13 of 2003, the subject-matter of Civil Revision No. 2128/2005, was also not on issues adjudicated upon by the learned trial Court in Suit No. 143-1 of 2001. There is no connection between the issues and the decision rendered in the judgments.
It appears that the issues in Suit No. 143-1 of 2001 were transposed as issues in Civil Appeal No. 105-13 of 2003 while issues in Suit No. 144-1 of 2001 were erroneously considered as the issues requiring decision in Civil Appeal No. 106-13 of 2003. As such the respective appeals were decided on wrong issues. This error could be the result of consolidated consideration of the two appeals together, may be a slip of procedure or an error of judgment or in advertent typographical mistake, yet it made both the impugned judgments and decrees as incoherent. The issues framed by the learned trial Court in the respective suits culminating in the trial Courts' judgments and decrees and were the issues under challenge before the First Appellate Court in the appeals filed respectively by the appellants. But the Appellate Court did not give respective judgments and decrees on issues of the suits from which these arose and intermixed the issues. The impugned judgments and decrees of the Additional District Judge, Jaranwala were the result of inapplicability of mind or inattention or erroneous typographical transposition of issues. Whatever may be the reason, it caused serious mis-carriage of justice rendering the impugned judgments and decrees incomprehensible for the litigants as well as for the persons of ordinary or extraordinary prudence. The Appellate Court committed material irregularity, misapplied itself and mis-exercised its jurisdiction in passing the impugned judgments and decrees. A judgment is not a jigsaw puzzle or a guessing game or a riddle to be solved by mind joggling exercises. Standard judgments are error free, concise, consistent, coherent and comprehensible irrespective of the stylistic differences. Principles, parameters and requirements of judgments are:--
(i) Judgment should contain a concise statement of case, points for determination, decision thereon and reasons for such decision manifesting application of mind by the Judge to resolve the issued involved.
(ii) It ought to be self-contained, unambiguous, easily intelligible, lucid, open only to one interpretation and thus leaving nothing to guess work or probabilities on matters under determination.
(iii) It should be self speaking, well reasoned and analytical reflecting due consideration of facts, law and contentions of the parties.
(iv) It should be founded on legal grounds and the evidence on record.
The learned counsel for the parties confronted with the paradoxical situation created by the impugned judgments and decrees, jointly prayed for setting aside the same thereby directing rehearing and re-decision of the appeals by the learned First Appellate Court.
In view of what has been observed above, both the civil revisions are accepted. The impugned judgments and decrees dated 6.1.2005 passed by the Additional District Judge, Jaranwala are set aside. The appeals shall be deemed to be pending before the learned First Appellate Court who shall redecide the same in accordance with law and in exercise of jurisdiction vesting in the Court of appeal. The parties shall appear before the learned District Judge, Faisalabad on 30.10.2007 who may decide the appeals himself or may assign the same to any learned Additional District Judge for decision afresh. As the parties have suffered because of the act of the Court, there shall be no order as to the costs.
(N.F.) Revision accepted.
PLJ 2008 Lahore 424
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rehman, J.
BUSHRA SHAHEEN--Petitioner
versus
EXECUTIVE DISTRICT OFFICER, HEALTH VEHARI
and 3 others--Respondents
W.P. No. 5971 of 2006, decided on 22.1.2007.
Constitution of Pakistan, 1973--
----Art. 199--Service matter--Being eligible applied for the post of Lady Health Visitor--Constitutional petition--Qualification for the post was matric--Appointment of respondent was illegal and based on malafide--Validity--Respondents have neither been able to satisfy that on what criteria, the marks of interview have been awarded nor any proceedings reports of the interview have been produced in the Court despite specific orders to produce the same--Held: Interview process was not conducted in a just, fair and transparent manner--Appointment of respondent was declared to be without lawful authority and jurisdiction--Petition allowed. [P. 425 & 426] A & B
Mr. Saghir Ahmad Bhatti, Advocate for Petitioner.
Malik Muhammad Ijaz Khokhar, Advocate for Respondent
No. 4.
Mr. Muhammad Qasim Khan, Asstt. A.G. with Dr. Zulfiqar Ali, EDO (Health) & Dr. Muhammad Abid, Litigation Officer, Vehari.
Date of hearing: 22.1.2007.
Order
The petitioner being eligible applied for the post of Lady Health Visitor (L.H.V.) pursuant to an advertisement got published on 19.7.2006. The required qualification for the post applied for was Matric whereas the petitioner was Matric in 1st Division FA in 2nd Division, passed her nursing courses in 1st Division and Diploma in Midwifery also in 1st Division from Public Health Nursing School, Nishtar, Multan. The petitioner stood first on the basis of the educational and professional qualification Certificates and experience. After interview, Respondent No. 4 had been appointed. The petitioner being aggrieved of the said appointment filed the instant Constitutional petition.
It is contended that the merits list prepared by the Respondents No. 2 and 3 was in violation of the recruitment policy of the Government and appointment of Respondent No. 4 on the basis of such merit list is illegal and based on mala fide. Comments were called for from the respondents in which they admitted that the petitioner acquired maximum marks in her academic merit but in the final merit list including the marks of interview, she stood at Serial No. 3. After submission of the comments, the respondents were asked to produce the proceedings report of the interview on the basis of which, the interview marks had been awarded to the candidates but they failed. Today, the officials, present in the Court state that no proceedings of the interview are available.
Perusal of the merit list clearly shows that the petitioner has secured 45 marks out of 50 and she is at No. 1 according to the academic and other qualifications but in the interview she has been given the lowest marks while Respondent No. 4 has been given the highest marks. The respondents have neither been able to satisfy that on what criteria, the marks of interview have been awarded nor any proceedings reports of the interview have been produced in the Court despite specific orders to produce the same.
In view of the above, I am convinced that the interview process was not conducted in a just, fair and transparent manner. This is a fit case warranting indulgence of this Court under Article 199 of the Constitution. Resultantly, this writ petition is allowed and the appointment of Respondent No. 4 is declared to be without lawful authority and jurisdiction. The respondents are directed to make appointments after observing proper procedure and recruitment policy of the Government in its true spirit.
(R.A) Petition allowed.
PLJ 2008 Lahore 426
Present: M. Bilal Khan, J.
IFTIKHAR AHMED--Petitioner
versus
ZULFIQAR ALI and 3 others--Respondents
W.P. No. 2920 of 2006, heard on 8.10.2007.
Constitution of Pakistan, 1973--
----Art. 199--Illegal Dispossession Act, 2005, S. 3--Constitutional petition--Registered sale-deed--Occupied illegally without any justification--Illegally dispossessed the petitioner from shop--Scope of--Held: If a brother illegally dispossesses his brother, the Illegal Dispossession Act, 2005 would not be attracted and further that such Act would also not come into play if the property had been procured by any of the parties by means of registered sale-deed--High Court cannot subscribe to the view express by Session Judge--Petition was accepted. [Pp. 428 & 429] A & C
Illegal Dispossession Act, 2005--
----Scope of--Illegal Dispossession Act, 2005 had inter alia observed that such Act covered all cases of illegal occupants without any distinction except those which were already pending before any other forum--Petition was accepted. [P. 429] B
PLD 2007 SC 423, ref.
Malik Amjad Pervaiz, Advocate for Petitioner.
Mr. Waheed Anwar, Advocate for Respondents No. 1 & 3.
Mr. Tahir Mehmood Gondal, A.A.G. for State.
Date of hearing: 8.10.2007.
Judgment
Iftikhar Ahmad son of Abdul Ghani Butt, the petitioner, by filing this Constitutional petition, has challenged the order dated 20.2.2006 passed by the learned Sessions Judge, Sialkot, whereby his complaint under the Illegal Dispossession Act, 2005 filed against Respondents No. 1 to 3, namely, Zulfiqar Ali son of Abdul Ghani Butt, Khurram Shehzad and Umar Shehzad sons of Inam Ullah, had been dismissed.
Respondents No. 1 to 3 contested the complaint and by means of the impugned order dated 20.2.2006, the learned Sessions Judge, Sialkot came to the following conclusion, which is contained in Paragraph No. 2 thereof:-
"After hearing arguments and attending to available record it is found that bone of contention between Iftikhar Ahmad complainant and Zulfiqar Ahmad respondents brothers inter se is a commercial shop. Illegal Dispossession Act, 2005 was introduced to protect the lawful owners and occupiers of immovable property from their illegal and forcible dispossession therefrom by the property grabbers, Iftikhar Ahmad complainant claiming to have acquired the proprietary and possessory rights of the disputed property from his real brother Zulfiqar Ahmad Respondent No. 1 through registered sale-deed executed in the year 1993, interference by this Court in exercise of discretionary powers under Illegal Dispossession Act, 2005 is not warranted, hence, complaint is dismissed in limine."
"After hearing the learned counsel for the parties, and with their consensus I am referring the complaint under the Illegal Dispossession Act, 2005 which had been dismissed in limine, to District Police Officer, Sialkot. He shall get a detailed probe conducted in the matter through an officer of his own choice not below the rank of Deputy Superintendent of Police. A report in this behalf shall be submitted to this Court within three weeks. DPO Sialkot and the Inquiry Officer shall not be influenced by the impugned order dated 20.2.2006, whereby the said complaint had been dismissed in limine. The Inquiry Officer may, if so required, seek help from Excise and Taxation, Revenue Authorities or any other relevant department in this regard."
Pursuant to the said order, District Police Officer, Sialkot submitted a detailed report stating therein that Zulfiqar Ali (Respondent No. 1) had sold the shop in question to Iftikhar Ahmad (petitioner) and had also handed over the possession thereof to him; later on Respondent No. 1 had dispossessed the petitioner from the said premises and had forcibly taken over the possession of the same. He also noted in the report that after hearing both the parties at length and examining their documents. ASP Saddar had come to the conclusion that Respondent No. 1 had illegally dispossessed the petitioner from the shop.
I have heard the learned counsel for the parties at considerable length and have also gone through the record. A plain look at the operative part of the impugned order, which has been reproduced hereinabove would show that the learned Sessions Judge did not apply his mind to the facts and circumstances of the case and was swayed into dismissing the complaint under the Illegal Dispossession Act, 2005 merely for the reason that Respondent No. 1 happened to be a real brother of the petitioner and that the shop in question had been alienated in favour of the petitioner by means of a registered sale-deed. The impression which one gathers from a mere reading of the impugned order is that if a brother illegally dispossesses his brother, the Illegal Dispossession Act, 2005 would not be attracted and further that the said Act would also not come into play if the property had been procured by any of the parties by means of registered sale-deed. I am afraid I cannot subscribe to the aforesaid view expressed by the learned Sessions Judge. In this connection, it would be advantageous to refer to the case of Rahim Tahir v. Ahmad Jan and 2 others (P.L.D. 2007 S.C. 423) wherein the Hon'ble Supreme Court of Pakistan while dilating on the scope of the Illegal Dispossession Act, 2005 had inter alia observed that the said Act covered all cases of illegal occupations without any distinction except those which were already ending before any other forum.
In view of what has been stated above, I accept this petition and set aside the impugned order dated 20.2.2006 passed by the learned Sessions Judge, Sialkot. The complaint under the Illegal Dispossession Act, 2005 filed by the petitioner shall be deemed to be pending before the said learned Judge and shall be decided strictly in accordance with law. There will be no order as to costs.
(N.F.) Petition accepted.
PLJ 2008 Lahore 429
Present: Iqbal Hameed-ur-Rehman, J.
Mst. AIMNA--Petitioner
versus
MUHAMMAD EASA etc.--Respondents
C.R. No. 561 of 2006, decided on 22.12.2006.
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 11 & O.XXXIX, Rr. 2 & 3--Scope of--Application for temporary injunction was accepted--Appeal also accepted--Assailed--Rejection of the plaint--Appellate Court, in the circumstances could not have rejected the plaint to the petitioner at such juncture--Held: It was only to decide the appeal to the extent of the grant of temporary injunction. [Pp. 431 & 432] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115, O.XXXIX, Rr. 2 & 3 & O.VII, R. 11--Rejection of plaint--Application for temporary injunction--Plaint of petitioner also rejected under O. 7 R. 11--Civil revision--Question of--Order of Appellate Court against the interim order and rejection of plaint--Scope of--Appellate Court could not reject the plaint while hearing the appeal against the interim order as he was not seized of the main suit--Whether the Appellate Court was competent in law to reject the plaint--Validity--Whether appellant was entitled for the grant or refusal of the temporary injunction--Held: Appellate Court could not have rejected the plaint as lis was pending before the trial Court--Revision accepted. [P. 432] B & D
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 11 & S. 115--Rejection of plaint--Appellate Court was not competent to reject the plaint of the petitioner while hearing the appeal against the grant of temporary injunction by the trial Court--Revision accepted. [P. 432] C
Mr. Saghir Ahmad Bhatti, Advocate for Petitioner.
Sheikh Muhammad Rafique Goreja, Advocate for Respondents.
Date of hearing: 7.12.2006.
Judgment
Through this civil revision, the petitioner has challenged the judgment dated 21.6.2006 passed by the learned Additional District Judge, D.G. Khan, whereby while accepting the appeal of the respondents, set aside the order dated 25.3.2006 passed by the learned Civil Judge, D.G. Khan, whereby he accepted the application for temporary injunction filed by the petitioner. The learned Additional District Judge D.G. Khan also rejected the plaint of the petitioner under Section 7 Rule 11 CPC vide the same judgment.
Brief facts necessary for the disposal of the civil revision are that Mst. Ameena petitioner/plaintiff filed a suit for declaration against the respondents/defendants to the effect that they had no concern whatsoever with the suit property and she was sole owner in possession of the suit property and entries in record of rights were inoperative on her rights attached with the property. The petitioner/plaintiff also filed an application seeking temporary injunction till the final decision of the suit to the effect that the respondents/defendants be restrained from selling the suit property or changing its nature. The suit as well as application for temporary injunction were resisted by the respondents/defendants. Vide order dated 25.3.2006, the learned Civil Judge, D.G. Khan accepted the application of the petitioner/plaintiff for temporary injunction. Against the said order, the respondents/ defendants filed an appeal which was accepted, the order dated 25.3.2006 was set aside and the plaint of the petitioner/plaintiff was also rejected under Order 7, Rule 11 CPC. Hence this civil revision.
It is contended by learned counsel for the petitioner that the learned Appellate Court could not reject the plaint while hearing the appeal against the interim order as it was not seized of the main suit, as such the impugned order is illegal, without jurisdiction and coram-non-judice, in this behalf reliance is placed upon Nishan Ali vs. Sher Muhammad and 3 others (2004 MLD 1809), Mushtaq Hussain vs. Province of Punjab through Collector Jehlum District and 6 others (2003 MLD 109) and Iftikhar ul Haq vs. District Canal Officer and others (2005 CLC 1740); that the learned Appellate Court had rejected the plaint after observing that the suit is in competent because the petitioner/plaintiff had not challenged the validity of Mutation No 2278 dated 17.5.1929 and this observation of the learned Additional District Judge is not consonant with the law applicable in such situation because whenever Court decides that the suit is incompetent, amendment is necessary for said purpose, and therefore, it was the duty of the Court to provide a chance for amendment but the learned Additional District Judge had passed the impugned order in hasty manner, in this behalf reliance is placed upon Muhammad Ismail and another v. Roshan Ara Begum and others (PLD 2001 Lahore 28) and Mst. Ghulam Bibi and others vs. Sarsa Khan and others (PLD 1985 SC 345). It is further argued that after every four years, record of rights are revised and fresh cause of action begins, as such the suit is not barred by time.
On the other hand, learned counsel for the respondents has contended that relief flows from the facts in the plaint had even if the amendment is allowed, the defect could still remain as mutation was not challenged in the suit, as such the suit was incompetent, in this behalf reliance is placed upon S.M. Shafi Ahmad Zaidi through Legal Heirs vs. Malik Hussain Ali Khan (MOIN) through Legal Heirs (2002 SCMR 338); that this civil revision is not maintainable as the original decree has been passed against the petitioner and RFA should have been filed and where an appeal lies, no revision petition is maintainable, in this behalf reliance is placed on S. Azizul Hassan and another vs. Malik Ghulam Muhammad (1971 SCMR 123) and Ghulam Muhammad vs. United States Agency for International Development (U.S. AID) Mission, Islamabad and another (1986 SCMR 907) and that the mutation was carried on in the year 1929 and the same has been challenged in the year 2004 as such the suit is barred by time.
I have heard learned counsel for the parties and perused the impugned judgment.
It is an admitted fact that the respondents filed an appeal against the order dated 25.3.2006 passed by the learned Civil Judge Class III, D.G. Khan, whereby he accepted the application of the petitioner for the grant of temporary injunction. The learned Additional District Judge D.G. Khan while hearing the appeal against the interim order, rejected the plaint of the petitioner by exercising powers under Order 7 Rule 11 CPC.
Now the question which has been urged in this civil revision is whether the Appellate Court was competent in law to reject the plaint of the petitioner while deciding the application for the grant of temporary injunction when it was not seized of the main suit.
The scope of the appeal before the learned Appellate Court was restricted. The lis at that time was pending before the learned trial Court. The learned Appellate Court, in the circumstances, could not have rejected the plaint of the petitioner at this juncture. It was only to decide the appeal to the extent of the grant of temporary injunction. I am fortified with my above view by a judgment of this Court reported in 2004 MLD 1809 titled Nishan Ali vs. Sher Muhammad and 3 others, wherein it has been held that the learned Appellate Court could not reject the plaint while hearing the appeal against the interim order as he was not seized of the main suit. The scope of the appeal before the learned Appellate Court was as to whether the appellant was entitled for the grant or refusal of the temporary injunction. The Appellate Court could not have rejected the plaint as the lis was pending before the learned trial Court.
In view of the above circumstances and relying upon the judgment reported in 2004 MLD 1809 titled Nishan Ali vs. Sher Muhammad and 3 others, I am of the view that the learned Appellate Court was not competent to reject the plaint of the petitioner while hearing the appeal against the grant of temporary injunction by the learned trial Court. Therefore, this civil revision is accepted and the impugned judgment is set aside. Resultantly, the case is remanded to the learned Additional District Judge D.G. Khan who shall decide the same afresh in accordance with law or course.
(N.F.) Revision accepted.
PLJ 2008 Lahore 432
Present: Muhammad Sair Ali, J.
NAJEEBULLAH KHAN--Petitioner
versus
PROVINCE OF PUNJAB through District Collector/District Officer (Revenue), District Bhakkar and others--Respondents
W.P. No. 3379 of 2007, decided on 18.5.2007.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Application for revocation of the proceedings of superdari was dismissed--Challenge to--Proceedings had been carried out in execution of some orders passed by revenue department--Superdari of the crops was handed over to the superdar and the suit land was resumed--Under the orders of revenue department, the petitioner's possession over the suit land was interfered with and the petitioner was deprived of the yield of the crops sown by him--Validity--Grievance or the cause to agitate thereagainst had this unarguably matured--It was thus quizzical as to how the District Courts term the petitioners application as "premature"--Held: District Courts unjustly declined to exercise jurisdiction in accordance with law by holding the petitioner's application as premature--Impugned orders were thus held to be without lawful authority and of no legal effect--Petitioner's application would be re-decided by trial Court in accordance with law--Case remanded. [Pp. 434 & 435] B, C & D
Words and Phrases--
----Word "premature"--Meaning of--`Prematurity'--"When the facts underlying a plaintiff's complaint to not yet create a live claim".
[P. 434] A
Black's Law Dictionary by Bryan A Garner (17th Edition) ref.
Ch. Bashir Ahmad, Advocate for Petitioner.
Ch. Maqsood-ul-Hassan, A.A.G. for Respondents No. 1 and 2.
Date of hearing: 18.5.2007.
Order
The petitioner's application dated 6.2.2007 seeking revocation of the proceedings of superdari dated 31.1.2007 and resumption of the land by Respondents No. 1 and 2, was dismissed by the learned Civil Judge through order dated 8.2.2007. This order was challenged by the petitioner in revision which was also dismissed by the learned Additional District Judge Bhakkar through order dated 28.3.2007 upholding the Civil Judge's order terming the application to be premature. Hence the present constitutional petition.
Limine notice was issued to Respondents No. 1 and 2. In response thereto, the learned A.A.G. has appeared alongwith Muhammad Aslam, Tehsildar Bhakkar. Respondents No. 5 to 16 were the co-plaintiffs with the petitioner. As such, they are only the performa respondents.
Both the sides addressed their full arguments from which it emerged that the petitioner sought decision of his application dated 6.2.2007 for cancellation of proceedings dated 31.1.2007 for superdari and resumption of land on merits. Instead the learned subordinate Courts held the application to be premature.
On hearing the learned counsel for the petitioner and the learned A.A.G appearing for Respondents No. 1 and 2, I find that the decision of the present constitutional petition is dependent upon the meaning of the word `premature' and also on the question as to whether the learned subordinate Courts exercised their jurisdiction in accordance with the law by dismissing the petitioner's application dated 6.2.2007 as premature instead of deciding the same on merits.
Through the impugned orders, the petitioner's application was held to be premature by the learned Courts assuming the pending proceedings on petitioner's application seeking action against Respondents No. 1 and 2 for disobedience of injunction, as sufficient because, per the learned Judges, the factual and legal questions in both the applications were identical.
I am afraid, the approach adopted by the learned Courts below for summary dismissal of the petitioner's above referred application dated 6.2.2007 was without lawful authority and also without jurisdiction. The petitioner challenged proceedings dated 31.1.2007 by Respondents No. 1 and 2 for superdari of the crops and resumption of land as illegal and also being against the injunctive orders claimed to be in currency. And that from this fact emerged the petitioner's request for cancellation of the proceedings dated 31.1.2007. The learned Courts below were thus obligated to consider and decide as to whether any injunctive orders were violated by Respondents No. 1 and 2 and as to whether the status quo order dated 31.1.2007 passed in the presence of ADA was effective on being so passed or not and what was its legal efficacy, effect and consequence (also in relation to the suit). The learned subordinate Courts instead cryptically held the petitioner's application dated 6.2.2007 to be "premature."
Black's Law
Dictionary by Bryan A. Garner (17th Edition) provides a guideline as to the meaning of the word prematurly' by defining the wordprematurity ' as a stage
"when the facts underlying a plaintiff's complaint do not yet create a live claim."
To the mind of this Court, the above elaboration of the term indicates that a claim could only be termed as premature, if the fact, cause or effect thereto had not come into existence or had not happened or ripened to give rise to a legal injury upon which a legally enforceable claim could be formulated by an applicant.
In the present case, the proceedings dated 31.1.2007 had been carried out in execution of some orders passed by Respondents No. 1 and superdari of the petitioner's crops was handed over to the superdari and the suit land was resumed. At the minimum, under the orders of Respondents No. 1 and 2, the petitioner's possession over the suit land was interfered with and the petitioner was deprived of the yield of the crops sown by him. The learned A.A.G. and Muhammad Aslam, Tehsildar Bhakkar do not dispute these facts. The petitioner questioned the above actions of Respondents No. 1 and 2 as illegal and in violation of the stay orders. Vires of these actions became the litigated facts and questions in the petitioner's application dated 6.2.2007. The grievance or the cause to agitate thereagainst had thus unarguably matured. When cumulatively read, the above referred facts actions gave rise to as many causes as the facts. It is thus quizzical as to how the learned District Courts could term the petitioner's application as "premature". They appear to have adopted a course to bypass the decision on merits of a mature cause.
The learned A.A.G. wishes this Court to consider that the learned Courts pended the petitioner's application seeking proceedings for disobedience of the interim orders to decide the same on merits because the subject-matter of the two applications was the same.
Be that as it may, the facts of the two applications may be the same or similar or identical but such facts gave rise to the separate actionable causes as well as the reliefs under the law. The two applications were thus considerably distinct and independent in their scope and legal consequences. In view thereof, the learned District Courts unjustly declined to exercise jurisdiction in accordance with the law by holding the petitioner's application dated 6.2.2007 as premature. The impugned order are thus held to be without lawful authority and of no legal effect.
(A.S.) Case remanded.
PLJ 2008 Lahore 435
Present: Umar Ata Bandial, J.
SARA JEWELLERY (PVT) LIMITED, LAHORE through its
Chief Executive--Pettioner
versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Commerce, Government of Pakistan, Pakistan Secretariat, Islamabad and another--Respondents
W.P. No. 16354 of 2005, decided on 8.3.2007.
Import and Export (Control) Act, 1950 (XXXIX of 1950)--
----S. 3--Constitution of Pakistan, 1973, Art. 199--Call deposit for the grant to authorization to import bullion--Question of--Refundable--Call deposit not a security amount--Refusal to refund security--Challenge to--Privilege of registration--Federal Government has lawful authority to charge fees for conferring the privilege of import authorization on qualified person--Determination--Call deposit amount was refundable after acceptance of application--Indeed, none of these instruments contain any provision for refund of call deposit--Petitioner's claim that the call deposit represent a security amount is merely a sophisticated argument lacking legal or factual foundation--Held: Constitutes payment of fees as recompense by petitioner for the privilege and benefit of being granted registration and authorization to import bullion--Pettion dismissed.
[Pp. 439 & 440] A, C & D
Call Deposit--
----Meaning and effect of the expression "call deposit" for grant of registration to import bullion to be a payment and not merely the provision of a security amount. [P. 439] B
Mr. Shehzad Rabbani, Advocate for Petitioner.
Mr. Asad Munir, Deputy Attorney General for Respondents.
Date of hearing: 8.3.2007.
Order
This petition has been filed to challenge the stand taken by to Respondent No. 1, Ministry of Commerce ("Ministry") in its letter dated 28.10.2002 as reiterated in its letter dated 30.3.2004, declining to refund an amount of US$ 50,000/- previously collected from the petitioner as a call deposit for the grant to him of authorization to import bullion.
The Ministry had issued a public notice an 25.7.1998 (Public notice") inviting applications for pre-qualification of firms for importing bullion in bulk for onward sale to the public through the banking channels. Conditions No. (xi) in the public notice requires applicants to give "a Call Deposit of US $ 50,000/- refundable in case of non-acceptance of the application." The petitioner's application dated 29.10.1998 was accepted on 17.11.1998 by the Ministry which granted it an import authorization for bulk import of gold and silver.
It is established on record that prior to the aforesaid public notice, the requisite call deposit amount for the same import authorization of bullion was US $ 100,000/- Clearly the public notice had liberalized Government policy in the matter of import of bullion. Some four years later, the Federal Government made another major policy concession. Vide SRO 496(I)/2002 dated 6.8.2002 ("SRO") the Ministry altogether withdrew the condition of call deposit and made the import authorization for bullion free of cost. Shortly thereafter, on or about 8.8.2002 the petitioner wrote to the Ministry for the refund of its demand draft furnished in satisfaction of the condition of call deposit. This was declined by the two letters referred first hereinabove. In the petition the principal ground of challenge to the refusal to give refund is that the amount of call deposit is merely a security deposit which became refundable after the condition for the same was deleted under the new Government policy reflected in the SRO.
To fortify the aforesaid claim, the learned counsel for the petitioner has referred to the terms of the public notice and to subsequent correspondence between the parties. Initially, in 1998, the Ministry accepted US Dollar bonds in the amount $ 50,000/-as satisfactory compliance of the condition of a call deposit by the petitioner. However, by letter dated 21.9.1999 the Ministry rejected the said instrument for its non-encashability and demanded its substitution by a demand draft. This was done by the petitioner and its bank draft was duly encashed by the Ministry. Learned counsel for the petitioner emphasized that the amount of call deposit cannot be retained by the Ministry unless it was collected as a fee or a tax. In the present case, neither the Ministry's public notice nor its correspondence at any point describes the said payment to be a fee or tax. Therefore, the call deposit amount must possess the character of a security amount which becomes refundable after the aforesaid change in law.
The learned Deputy Attorney-General has opposed the foregoing contentions. He submits that the call deposit given by the petitioner pays the registration fee for grant of authorization to import bullion. The public notice cannot be read in isolation in this regard and compliance with its conditions has consequences that are explained in the Schedule to the Import Policy Order 1999 bearing SRO No. 895(1)/1999 dated 3.8.1999. This order makes the following provision with reference to the import of gold:
"Importable by companies specifically registered and authorized for the purpose by the Ministry of Commerce. As laid down in the public notice of 25th July, 1998."
It is the Import Policy Order 1999 that confers the privilege to import bullion on persons who satisfy its preconditions namely registration and authorization. The call deposit given by the petitioner is stated by the learned DAG to have paid the fee charged for the conditions of registration and authorization that predicate conferment of the privilege to import bullion. The Federal Government had also charged such fee under its previous import policy orders from persons that got registered and authorized to import bullion. Learned Deputy Attorney-General informs that there are three such registered and authorized importers, each of whom paid registration fee with a call deposit of US $ 100,000/-. However, after the presently relevant change in law by the SRO neither these importers have demanded refund of their call deposit amounts nor have they been offered any refund by the respondents. The claim by the petitioner is objected for seeking refund of registration fee after availing for more than four years, the privilege and benefit conferred thereby to import bullion. The petitioner's claim therefore, seeks refund of the value of a benefit that the petitioner has already consumed. At best it is a speculative claim based on the alleged ambiguity of the expressions "call deposit" used in the public notice the literal meaning of which expression admittedly does not include the charge of "fees".
The learned counsel for the parties have been heard and the record perused carefully. It transpires that originally the petitioner had given US$ bonds as purported compliance with the requirement of a call deposit. These bonds were rejected by the Federal Government and instead a demand draft for the amount of US $ 50,000/- was asked for. That demand was contested and not complied by the petitioner; consequently its registration and authorization was cancelled by the respondents on 14.2.2000. The petitioner thereafter submitted the requisite demand draft which was not kept as security but was duly encashed by the respondents and the petitioner's license was resorted on 11.3.2000. The deposit challan for the said demand draft produced on record show that its proceeds were deposited in the account, inter alia, titled as "Other Receipts Fees realized under the Import and Export (Control) Act, 1950." The petitioner's argument that the requisite call deposit is merely a security deposit may have had force if the US$ bonds had been accepted by the respondents as due compliance with condition (xi) of the public notice. However, this argument is futile because the petitioner subsequently paid the call deposit amount to retain its authorization to import bullion. The conduct of the parties makes it abundantly clear that a call deposit was understood to constitute a payment to the respondents rather than the provision of a security to cover the breach or default of the conditions of the import authorization by the petitioner.
The fact, however, remains that there is no statutory instrument that describes the subject call deposit as a fee. Therefore, the point of importance is whether the Federal Government has lawful authority to collect amounts as fee for citizen without any express and specific charge being imposed by a valid legal instrument. Registration and authorization for import of bullion under the Import Policy Order, 1999 was given to applicants who satisfied the conditions specified therefore. Quite obviously the grantees of such registration and authorization were conferred a special privilege in comparison to other registered importers in the country. It cannot be claimed nor is urged by the learned counsel for the petitioner that the law gives the petitioner a right for the gratuitous conferment of such a privilege. It is a legal presumption in our jurisprudence that unless stated so expressly, no benefit and, therefore, privilege can be deemed to be conferred gratuitously on a party. The law presumes against free rides. That is the rationale of Section 70 of the Contract Act 1872 which sets out the legal principle of non-gratuitous benefits in quasi contractual relations. The nature of the privilege conferred on the petitioner by import registration and authorization is subject to terms specified by the Ministry. Although granted in the public domain, this privilege is derived from offer and acceptance in relations that resemble a contractual arrangement. Therefore, the foregoing principle should apply fully to the facts of the present case. Hence the petitioner cannot deny its obligation to reimburse to the Ministry the value of the privilege enjoyed by it. Indeed, it is also established law that the Government is vested with authority to charge a free for conferring a benefit or privilege on a person. This quid pro quo as a basis for imposition of `fee' is highlighted by the Honourable Supreme Court in Collector of Custom vs. Sheikh Spining Mills and others (1999 SCMR 1402):-
"The controversy arising for determining in these appeals is to ascertain the exact nature of levy as to whether it is a customs duty in contradistinction to the terms fee' andtax'. As far as fee is concerned, it is distinguishable from tax. The distinction between
"tax" and "fee" lies primarily in the fact that a tax is levied as a part of common burden while a fee is paid for a special benefit or privilege. Fees confer a special capacity although the special advantage as for example, in the case of registration fee for documents or marriage licence is secondary to the primary motive or regulation in the public interest. Public interest seems to be at the basis of all impositions, but in a fee it is some special benefit, which the individual receives. It is the special benefit accruing to the individual, which is the reason for payment in the case of fees. In the case of a tax, the particular advantage if it exists at all, is an incidental result of a State action." (emphasis added).
It is common ground that under Section 3 of the Import and Export (Control) Act 1950 ("Act") the Federal Government has lawful authority to charge fees for conferring the privilege of import authorization on qualified persons. That statutory power is exercisable by executive action through notification in the official Gazette. Under the law laid down by the Honourable Supreme Court in Saghir Ahmed through legal heirs vs. Province of Punjab through Secretary, Housing and Physical Planning Lahore and others (PLD 2004 SC 261), it is not necessary that every notification must be published in the Official Gazette. In the present case, no cavil is raised to the effectiveness of the public notice relied by the petitioner to successfully notify the requirement of call deposit. Therefore, the public notice sufficed to comply the statutory requirement of notification. Given that the petitioner availed a privilege conferred by the Federal Government the former is under a lawful obligation to pay for the value of such privilege. Moreover, the Ministry has authority under the Act to charge fees for granting import registration and authorization. This has been exercised through the public notice to require payment of the call deposit amount. On the foregoing facts, the case of the petitioner reduces to the semantical question whether the meaning of the expression "call deposit" can include the charge of a fee as recompense for a privilege conferred. This expression is not a term of art either under the law developed in relation to the Act nor under taxation law. The meaning ascribed thereto in banking law is of no relevance to the facts of the present case and therefore need not be considered. However, in the context of the petitioner's duty to reimburse the benefit availed, it is clear from the conduct of the parties that they understood the meaning and effect of the expression "call deposit" of grant of registration to import bullion to be a payment and not merely the provision of a security amount. There is nothing in the public notice, the Import Policy Order, 1999 or the SRO to suggest that the call deposit amount was refundable after acceptance of application. Indeed, none of these instruments contain any provision for refund of the call deposit. Consequently, the petitioner's claim that the call deposit represent a security amount is merely a sophisticated argument lacking legal or factual foundation.
Accordingly, in the facts of the case and under the applicable law, the payment of the call deposit amount by the petitioner, the quantum whereof is not attacked in the petition, constitutes a payment of fees as recompense by the petitioner for the privilege and benefit of being granted registration and authorization to import bullion. It is a lawful charge collected by the Federal Government from the petitioner. Therefore, this petition has not merit and is dismissed but with no order as to costs.
(N.F.) Petition dismissed.
PLJ 2008 Lahore 440
Present: Maulvi Anwar-ul-Haq, J.
Haji CHIRAGH DIN--Petitioner
versus
MUHAMMAD RAFI (deceased) through his Legal
Representatives--Respondents
C.R. No. 1681 of 2001, heard on 27.4.2007.
West Pakistan Urban Rent Restrictions Ordinance, 1959 (VI of 1959--
----S. 13--Civil Procedure Code, (V of 1908), S. 115--Ejectment petition--Question of--Received no earnest money and not executed any agreement--Without lawful authority--Petitioner had categorically stated that he had received no earnest money and had not executed any agreement--Observations of the Courts below that petitioner had admitted the execution is wholly without lawful authority being a case of deliberate of mis-reading or non-reading of evidence on record--Held: Respondent is directed to hand over vacant possession of shop to petitioner--Petitioner shall be entitled to execute the ejectment order in accordance with law--Revision allowed.
[P. 445] A & B
Mr. Nasarullah Khan Babar, Advocate for Petitioner.
Mr. Muhammad Yaqoob Chaudhry, Advocate for Respondent.
Date of hearing: 27.4.2007.
Judgment
This judgment shall decide C.R. No. 1681/01 and SAO No. 26/04 as common questions are involved.
On 15.5.1995 the petitioner (who is also the appellant in SAO No. 26/04) filed an application for ejectment of the respondent from a shop located in Kasur Urban Area. According to the contents of this application, the respondent was a tenant under the petitioner in the said shop subject to payment of Rs. 600/- per month as a rent. The payment of rent at the said rate was stopped with effect from December, 1994. The ejectment was accordingly sought on the ground of default in payment of rent as also for the personal use and occupation of a son of the petitioner. Impairment of the value and utility of the building was also pressed. On 22.11.1995 the petitioner filed a written statement. He admitted that he had been occupying the shop as a tenant since the time of his father as well as grandfather. The petitioner declared his intention to sell the shop and ultimately agreed to sell the shop to him for a consideration of Rs. 70,000/-. A sum of Rs. 50,000/-was paid by way of earnest, the receipt whereof was acknowledged by the petitioner by executing agreement dated 27.11.1990. For the payment of balance amount of Rs. 20,000/-, a period of three years was fixed. According to him, after the execution of the said agreement and payment of earnest, the relationship of landlord and tenant between the parties ceased to exist. The other allegations were accordingly denied.
On 10.9.1995 the respondent filed a suit against the petitioner stating that he had been occupying the said shop as a tenant under the petitioner, who agreed to sell the shop to him for a consideration of Rs. 70,000/-, received a sum of Rs. 50,000/- by way of earnest money and executed the agreement dated 27.11.1990, the terms whereof are that the respondent was to pay the balance amount of Rs. 20,000/- within three years. The petitioner had refused to perform his part of the contract. A decree for specific performance was accordingly sought. The petitioner in his written statement denied having entered into any agreement to sell with the respondent or to have received any amount of consideration. According to him, the respondent approached him with the representation that let a rent note be executed and accordingly he accompanied him to a Scribe. He is an aged illiterate person and none from his family including his son accompanied him. The thumb-impressions were obtained on some papers on the pretext that the rent note has to be executed in duplicate. According to him, the suit has been filed on the basis of fabricated document long after the institution of the ejectment petition by the petitioner against the respondent. In the matter of ejectment, the following preliminary issue was framed:-
"1. Whether relationship of landlord and tenant has ceased to exist? OPR."
In the matter of civil suit, following issues were framed by the learned trial Court:
Whether present suit is barred by time? OPD.
Whether present defendant agreed to sell disputed shop in favour of the present plaintiff vide agreement to sell dated 27.11.90 for a total consideration of Rs. 70,000/-? OPP.
Whether defendant received a sum of Rs. 50000/- as earnest money from the plaintiff? OPP.
If Issues No. 2 and 3 are proved in affirmative, whether plaintiff remained willing and ready to perform his part of the contract? OPP.
If Issues No. 2 to 4 are proved in affirmative, whether plaintiff is entitled to a decree for specific performance of the agreement to sell dated 27.11.90? If so under what terms and conditions? OPP.
Relief.
Later an additional issue was farmed as follows:-
"Whether plaintiff has not come in the Court with clean hands? OPP"
Evidence was recorded separately in both the cases. The learned Rent Controller allowed the ejectment petition on 20.5.2000. The civil suit was decreed by learned Senior Civil Judge, Kasur, on 27.7.2000. The parties filed first appeals respectively. These appeals were heard together by a learned ADJ, Kasur. Vide judgments and decree passed on 17.5.2001 the appeal filed by the petitioner in the matter of civil suit was dismissed while the appeal filed by the respondent in the ejectment matter was allowed and ejectment petition was dismissed.
Learned counsel for the petitioner contends that the learned Courts below did concede that the evidence led by the respondent was discrepant and not sufficient to prove execution of the agreement by the petitioner. However, they have observed that the execution of the agreement had been admitted by the petitioner and consequently have recorded their findings in the matter of civil suit. Pressing the second appeal, learned counsel urges that the judgment of the learned ADJ allowing the appeal is wholly without lawful authority as the agreement was absolutely silent about delivery of possession there-under and there was nothing on record that the relationship of landlord and tenant ever ceased to exist. Even if it be assumed that the agreement was executed by the petitioner. Learned counsel for the respondent, on the other hand, has supported both the judgment and the decree in the civil suit as also the rent matter.
I have gone through the copies of the records, appended with the civil revision and the lower Court records which are available in the matter of SAO, with the assistance of the learned counsel for the parties. I have already reproduced above in some detail the respective pleadings of the parties in both the matters. There is no denial that the respondent was inducted as a tenant by the petitioner and he had been paying rent to him. According to him, he stopped payment of rent after the execution of the said agreement. The learned Rent Controller after examining the said agreement and other evidence had held that the relationship of landlord and tenant did not cease to exist. Certified copy of the said agreement has been placed as Ex. R.1 on the record of the ejectment proceedings. It narrates that the petitioner has agreed to sell the shop to the respondent for a consideration of Rs. 70,000/-. A sum of Rs. 50,000/- has been received as earnest while the balance amount will be paid within three years whereafter a sale-deed shall be executed and got registered. The agreement further narrates that in case the balance amount is not paid within the said period of time, the earnest money shall stand forfeited and in case the petitioner fails to perform his part, he will be liable to pay an amount equal to the said amount of earnest as damages. The agreement then narrates that the respondent is already in possession as a tenant since his forefathers. Upon a plain reading of this agreement, there is nothing spelt out that the respondent was absolved of his liability to pay rent or that the nature of his possession was changed from that of a tenant to one under the agreement to sell. The learned ADJ has dealt with the matter in a callous rather perverse manner. First of all he has rebuked the learned Rent Controller as to why he did not stay the proceedings of ejectment when there was a dispute of title. This observation is against the settled rule of law laid down by the Hon'ble Supreme Court of Pakistan in several judgments. Reference may here be made to the case of Haji Jumma vs. Haji Zarin Khan (PLD 1999 SC 1101). Thereafter, he has observed as follows:
"If there was no clause in agreement to sell to the effect that tenant/appellant would stop payment of rent after the execution of the agreement to sell, the intention for the same could be gathered impliedly, from the agreement to sell."
The said observation is equally perverse and against the legal norms settled by the Superior Judiciary over a period of time.
"So far as the execution of document is concerned, in case of total denial from the execution of document by the defendant the conduct of stamp vendor could be considered but when the thumb impressions on the document Ex P. 1 are admitted and the marginal witnesses have supported the contents of document then objection as to conduct of stamp vendor and writer and other persons present at that time, in absence of any strong and cogent evidence has become of no value."
The learned ADJ has followed suits faithfully.
It is but apparent on the face of the record that the petitioner appeared in the witness box as DW-5. He has categorically stated that he had received no earnest money and had not executed any agreement. He was cross-examined at length. What to speak of confronting the petitioner with the said Ex.P. 1, there is no mention at all of Ex. P. 1 in the entire cross-examination. In view of the said circumstance glaring on the face of the record, the observations of the learned Courts below that the petitioner had admitted the execution of Ex.P.1 is wholly without lawful authority being a case of deliberate of mis-reading or non-reading of the evidence on record. A case for interference in terms of Section 115 CPC is accordingly made out.
As a result of the above discussion, the civil revision is allowed. Both the impugned judgments and decrees are set aside and the suit of the respondent is dismissed. Also for the reasons stated above, the SAO is allowed and the impugned judgment dated 17.5.2001 of learned ADJ, Kasur, is set aside while the ejectment order passed by the learned Rent Controller on 20.5.2000 is restored. The respondent is directed to hand over vacant possession of the shop to the petitioner/appellant on or before 31.5.2007 failing which the petitioner/appellant shall be entitled to execute the ejectment order in accordance with law. No orders as to costs in both the cases.
The records summoned in the SAO be returned back immediately.
(N.F.)
PLJ 2008 Lahore 445 (DB)
Present: Syed Shabbar Raza Rizvi and Fazal-e-Miran Chauhan, JJ.
AMIR GUL--Petitioner
versus
UNIVERSITY OF HEALTH SCIENCES, LAHORE through its Vice-Chancellor and another--Respondents
W.P. No. 7171 of 2007, decided on 21.1.2008.
Constitution of Pakistan, 1973--
----Art. 199--Educational institution--Constitutional petition--Question of--Declaring as successful candidate--Prayer for--Direction to issue result card of M.B.B.S. examination as successful candidate--Prospectus is subject to change and alteration--Petitioner has no vested right to claim, that examination be taken and a subject be taught exactly in the manner, as it has been provided in prospectus of college at the time, when he was given admission to a professional college--Prospectus is subject to change and alteration and legitimate expectation set up by petitioner is neither reasonable nor have the backing of law--Held: Petitioner has to clear the two subject i.e. ENT and Eye by appearing in 3rd professional M.B.B.S. examination, as per rules and after clearing the same, would be eligible to promotion in the final professional--Petition disposed of. [Pp. 448 & 449] A & B
PLD 2006 Supreme Court 300; PLD 2007 Lahore 78; PLD 2004 SC 168; PLD 1993 Lahore 341 rel.
Mr. Khawar Ikram Bhatti, Advocate for Petitioner.
Mr. Rassal Hasan Syed, Advocate for Respondent No. 1.
Mr. Muhammad Fareed Chaudhary, Advocate for Respondent
No. 2.
Date of hearing: 21.1.2008.
Order
Fazal-e-Mian Chauhan, J.--By filing the instant writ petition, it is prayed that, the respondents be directed to issue a new result card of the petitioner regarding M.B.B.S. Examination, 2006 by declaring him as successful student in the examination and he be allowed to appear in the final proof, according to the old pattern.
2 Briefly, the facts of the case are that; the petitioner is student of 4th professional M.B.B.S. Allama Iqbal Medical College, Lahore. He has taken 3rd professional M.B.B.S. examination eight times and failed; consequently, he was detained in 4th professional M.B.B.S. pursuant to University Regulation prohibiting the promotion to the next higher class without passing the corresponding propositional examination. On receiving his result card, the petitioner applied to Respondent No. 1 that, he is an old student of 4th professional M.B.B.S. He appeared in the 3rd professional supplementary examination, 2005, according to the old pattern i.e. in the subjects of Community Medicine and Pathology. He has been detained in Pathology. However, later on, according to the University Notification, subjects of ENT and Eye were included in the 4th professional M.B.B.S. by the University in the supplementary examination, 2006-2007 and it was requested that, he may be promoted to the final year and be allowed to take his classes. This application was not accepted and he was not promoted to the final year, hence, this writ petition.
Learned counsel for the petitioner argued that the petitioner shall be considered as an old student and he is not liable to clear the examination of additional two subjects of ENT and Eye. He has been discriminated as one Muhammad Akram, who appeared in the 2nd professional M.B.B.S. supplementary examination, 2006 held in March, 2007, was promoted declaring him to be successful candidate.
Conversely, learned counsel for Respondents No. 1. University of Health Sciences, Lahore opposed this writ petition by arguing that, the University Regulation prohibits the promotion to the next higher class without passing the corresponding professional examination. The demand of the petitioner for promotion into final year without passing 4th M.B.B.S. examination (3rd professional M.B.B.S. was in fact earlier raised by some other students by filing writ petition at Multan Bench of Lahore High Court, Lahore, which was heard and dismissed in the year 2007 by a Division Bench of this Court relying upon Muhammad Umar Wahid and others vs. University of Health Sciences Lahore, and others (PLD 2006 Supreme Court 300). It was held by the Division Bench of this Court that:-
"13. Permitting study to next higher class, without qualifying passing the current examination will result in indiscipline in medical institutions. It will hinder in improving higher standard of education, we do not agree with the arguments of the learned counsel for the petitioners. The Apex Court has enunciated law in Umar Wahid's case in view whereof promotion to the next higher class to failed candidates, is not legally tenable.
Further submits that, the objection of the petitioner regarding/ notification dated 5.7.2006 is ill-founded and is without any substance. The University authorities are the best judges, being the policy makers in the relevant field to conduct and regularize its examination and reserve the right of addition and alternation of any rule in the prospectus at any stage. Reference is made to Rashid Nawaz and 7 others vs. University of the Punjab through Vice-Chancellor, Lahore and 3 others (PLD 2007 Lahore 78). Also submits that, the student/candidate has no vested right to claim that, the examination be taken and a subject be taught exactly in the manner, as it has been provided in the prospectus of the college, at the time, when such student was admitted to a professional college. The prospectus is subject to change the alteration and legitimate expectation set up by the petitioners is neither reasonable nor have the backing of law. In this respect, reliance is made to Shafique Ahmed and others vs. Government of Punjab and others (PLD 2004 SC 168), wherein it has been held that:-
"9. The legitimate expectation set up by the petitioners is neither reasonable nor has the backing of any law. It also cannot be based on any rule or the prospectus of the Government Medical Colleges in the Punjab because the same is revised yearly to update the changes and contains in built provisions to the effect that the students of the medical colleges shall be bound to abide by the rules and regulations laid down therein and the changes issued by the Government of the Punjab from time to time and the Government of the Punjab reserves the right of additions and alterations of any rule in the prospectus at any stage."
and prays that, the writ petition has no merit and the same deserves dismissal.
Learned counsel for Respondent No. 2 Allama Iqbal Medical College, Lahore also opposed this writ petition and argued that, the petitioner has failed to clear 3rd professional M.B.B.S. examination in the 8th attempt and he had been detained in the last examination held in November, 2007 for the eight time, when he failed to clear the 3rd professional M.B.B.S. examination. The Medical College has to follow the rules and regulations and the notifications, issued by the University health Sciences, which regulates the examination and the result thereof taken by the student. The petitioner has yet another chance to appear in the supplementary examination, 2007 to clear the subjects i.e. ENT and Eye. The petitioner cannot be promoted to 5th year unless he clear that above said two subjects.
We have heard learned counsel for the parties and gone through the documents annexed with this writ petition, as well as, the reply with their assistance. The main prayer in the writ petition is that, the respondents be directed to issue result card of M.B.B.S. examination, 2006 declaring him as successful candidates in the examination and to allow him to appear in the final proof, according to the old pattern. This prayer of the petitioner cannot be allowed in view of the judgment reported as PLD 2007 Lahore 78 and PLD 2004 SC 168 (referred to supra).
The petitioner has no vested right to claim that, the examination be taken and a subject to taught exactly in the manner, as it has been provided in the prospectus of the college at the time, when he was given admission to a professional college. The prospectus is subject to change and alteration and legitimate expectation set up by the petitioner is neither reasonable nor have the backing of law. Reference in this respect is made to Rashid Nawaz and 7 others vs. University of the Punjab through Vice-Chancellor, Lahore and 3 others (PLD 2007 Lahore 78), Adnan Tariq vs. Vice-Chancellor of the University of Punjab (PLD 1993 Lahore 341), and Sahafique Ahmed and others vs. Government of Punjab and others (PLD 2004 Supreme Court 168).
In the end, learned counsel for the petitioner submits that, a direction be given to the respondents to allow the petitioner to attend the classes to study the two subjects i.e. ENT and Eye. Learned counsel for Respondent No. 2 submits, that, the petitioner can attend the classes, if he wants, there is no resection on his joining the classes and he can study the subjects. However, he has to clear two subjects i.e. ENT and Eye to clear the 3rd professional M.B.B.S. examination, making him eligible to joint the final year.
In this view of the matter, this writ petition is disposed of holding that the petitioner has to clear that two subjects i.e. ENT and Eye by appearing in the 3rd professional M.B.B.S. examination, scheduled to be held by the respondent authority, as per rules and after clearing the same, would be eligible to promotion in the final professional. He can also join the classes of 4th professional to study the two subjects i.e. ENT and Eye.
(N.F.) Petition disposed of.
PLJ 2008 Lahore 449
Present: Muhammad Muzammal Khan, J.
MUHAMMAD ZAHOOR ULLAH CHISHTI and another--Petitioners
versus
ELECTION TRIBUNAL, FEROZEWALA DISTRICT SHEIKHUPURA (MR. KHALID NAVEED DAR) and 10 others--Respondents
W.P. No. 2743 of 2007, decided on 27.6.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 10 & O.VII, R. 11--Constitution of Pakistan, 1973, Art. 199--Election petition--Application under O. VII, R. 11 was dismissed--Constitutional election petition--Provision of law make it clear that Court where the subsequent suit is filed, will not proceed with its trial--Now, the election petition was filed earlier to the application before the Election Commission, hence, petitioner's application before the Election Tribunal cannot proceed and such proceeding could not be stayed being earlier in time--Held: In such manner, as well the Election Tribunal rightly dismissed the application of petitioners--Controversy was correctly put to rest, without committing any error of law facts--Petition dismissed. [P. 452] A & B
Mr. Muhammad Ahsan Bhone, Advocate for Petitioners.
Mr. Muhammad Baleegh-uz-Zaman, Advocate for Respondents.
Date of hearing: 27.6.2007.
Order
Instant constitutional petition assailed the order dated 18.11.2006 passed by the Election Tribunal, Ferozewala District Sheikhupura to be declared illegal avoid and of no legal consequence, whereby application filed by petitioners under Order VII Rule 11 CPC for rejection of election petition was dismissed.
Precisely relevant facts are that petitioners and Respondents No. 2 to 11 contested the last local bodies elections held on 25th of August, 2005 for the offences of Nazim/Naib Nazim of Union Council No. 134 Bostan Colony Nishtar Town Lahore. Nomination papers of the contestants were not objected by any body and all of them contested the election. Petitioners were declared as returned candidates and after their notification Respondents No. 2 and 3 filed an election petition before the notified Election Tribunal on 17.9.2005. Pending Election petition, Respondents No. 8 and 9 filed an application/complaint before the learned Member, Election Commission of Pakistan urging disqualification of Petitioner No. 1 in terms of Section 152 (E) of the Punjab Local Government Ordinance, 2001 that he is not matriculate and the "Sanad" appended with his nomination papers is not recognised.
Petitioners contested the election petition filed by Respondents No. 2 and 3 by filing their written reply and out of divergent pleadings of the parties, 9 issues were farmed by the Election Tribunal/Respondent No. 1. Petitioners firstly moved an application before the Election Tribunal for amendment rectification of Issue No. 1 which was dismissed on 18.11.2006 and thereafter, they filed another application under Section 10 of the CPC for staying the proceedings on the ground that another application/complaint by Respondents No. 8 and 9 under Section 152 of the Punjab Local Government Ordinance, 2001 has been taken cognizance by the Election Commission of Pakistan. Their case was that Respondents No. 2 and 3 have also pleaded in the election petition the same disqualification as asserted by Respondents No. 8 and 9 before the Election Commission, and both these matters cannot proceed, simultaneously.
Though the petitioners have levelled allegations of bias against the learned Presiding Officer of the Election Tribunal yet this matter is not relevant to the controversy brought before this Court hence, the same need not be dilated upon in detail. Election Tribunal Respondent No. 1 took up the application of the petitioners filed under Section 10 CPC and after hearing the parties, dismissed the same on 18.11.2006 with a finding that Election Tribunal, while dismissing the application under Order VII Rule 11 CPC on 17.6.2006 had declined the request of staying the proceedings. Petitioners thereafter filed instant petition with the relief noted above and respondents in response to notice, by this Court, have appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Petitioners did not produce order dated 17.6.2006 passed by the Election Tribunal whereby their application under Order VII Rule 11 CPC was dismissed but this order has been appended with reply filed by the Respondents No. 2 and 3. It shows that the question of taking cognizance of the alleged disqualification of Petitioner No. 1 by the learned Member, Election Commission of Pakistan and stance of the petitioners was repelled. The petitioners being aggrieved of dismissal of their application under Order VII Rule 11 CPC on 17.6.2006, filed constitutional petition before this Court (Writ Petition No. 7738 of 2006) but without any success, as the same was dismissed on 18.7.2006.
It is floating on the face of the record that election petition was filed by Respondents 2 and 3 on 17.9.2005 whereas Respondents No. 8 and 9 filed their applications before the learned Member, Election Commission on 3.10.2005. It shows that the election petition was filed earlier to the application before the Election Commission of Pakistan Section 10 CPC envisages that no Court shall proceed with the trial of any suit in which the matter in issue is also directly involved in previously instituted suit. For convenience and ready reference Section 10 CPC is reproduced and the same reads as under:-
"10. Stay of suit.--No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between the parties under whom they or any of them claim litigation, under the same title where such suit is pending in the same or any other Court in (Pakistan) having jurisdiction to grant the relief claimed or in any Court beyond the limits of (Pakistan) established or continued by (the Central Government) and having jurisdiction or before (the Supreme Court)."
The above-reproduced provision of law make it clear that Court where the subsequent suit is filed, will not proceed with its trial. Now, the election petition was filed earlier to the application before the learned Member, Election Commission as noted above hence petitioner's application before the Election Tribunal Respondents No. 1 can not proceed and the proceedings on the election petition could not be stayed being earlier in time. It goes without saying that Respondents No. 2 and 3 who have filed the election petition before Respondent No. 1, are not party to the application complaint initiated by Respondents No. 8 and 9 and thus they cannot be deprived of adjudication of their election petition. In this manner, as well the Election Tribunal rightly dismissed the application of the petitioners. Scan CT record and impugned order revealed that controversy was correctly put to rest without committing any error of law facts.
For the reasons noted above no case for interference in constitutional jurisdiction was made. Even otherwise, lawful decision within the ambit of conferred jurisdiction, cannot be substituted on the petition which being devoid of any merit, is dismissed.
(N.F.) Petition dismissed.
PLJ 2008 Lahore 452
Present: Syed Shabbar Raza Rizvi, J.
QAISER HAMEED and another--Petitioners
versus
IMTIAZ AHMAD KHAN and 8 others--Respondents
W.P. No. 7100 of 2007, heard on 29.1.2008.
Punjab Local Government Elections Rules, 2005--
----Rr. 35, 36, 38, 75, 75(d) & 78--Constitution of
Pakistan, 1973, Art. 199--Election petition--Loal bodies election--Powers of election tribunal--Recounting of polling stations--Matter relates to power of election tribunal and not of a Returning Officer--Tribunal declared the election as a whole to be void' means election of the whole constituency not one or two polling stations only--Empowers the election tribunal to make decision and Rule 36(3 & 5) provides that all the ballot papers shall be opened and sealed in presence of contesting candidates/agents duly appointed by the Presiding Officer and Rule 36(6) provides that the consent of the Presiding
Officer can be challenged, if the Returning Officer is satisfied about reasonableness of the challenge or he is directed to do so by the Chief
Election Commissioner--Expression cannot be interpretedas a whole to be void' to the extent of two polling stations only--Impugned order passed by Election
Tribunal set aside and declared without lawful authority and of no legal effect--Held: Election as a whole to be void means elections of the whole constitutency void instead of one or two polling stations only--Concerned authorities directed for fresh election of the whole constituency within stipulated period--Petition accepted. [Pp.
454, 455, 456 & 457] A, B, C, D, E, F & G
Mr. Tariq Moeez, Advocate for Petitioners.
Mr. Shehram Sarwar Chaudhary, Advocate for Respondents.
Date of hearing: 29.1.2008.
Judgment
According to the learned counsel for the petitioners, panel of petitioners won seats of Nazim and Naib Nazim respectively in local bodies election held in August 2005, securing 1866 votes against the panel of Respondents No. 1 and 2 who had secured 1715 votes. Respondents No. 1 and 2 filed an application before the Returning Officer for re-polling at Government High School No. 1, Ghakkar on 20.8.2005 which was dismissed on the same day.
That on 21.9.2005, election petition was filed by Respondents No. 1 and 2. During the pendency of the election petition an application for recounting of votes was filed of all the polling stations. However, the Election Tribunal allowed recounting of polling stations at Government Normal Boys High School and another polling station of Town Committee Ghakkar. Writ Petition No. 969/2006 was filed by the petitioners against the above orders. The writ petition was dismissed. Recounting was conducted on 29.4.2006 whereby votes of Respondents No. 1 and 2 were increased to 1750, whereas votes of the petitioners were decreased to 1609. Another Writ Petition No. 4341/2006 was filed, which was dismissed on the ground that the recounting was allowed by the High Court itself in its decision in the earlier Writ Petition No. 969/2006. Against the above orders of the High Court petitioners filed C.P. No. 319/2006 in the Honourable Supreme Court of Pakistan which was allowed and the case was remanded to the High Court on 11.0.2006. The Writ Petition No. 4341/2006 was reheard and allowed on 17.4.2007.
Against the order of this Court dated 17.4.2007 passed in Writ Petition No. 4341/2006, Respondents No. 1 and 2 and petitioners also filed C.P. No. 427/2007 and C.P. No. 452/2007 respectively. The Hon'ble Supreme Court of Pakistan while disposing of the C.Ps. directed the Election Tribunal to decide the election petition on its merits.
After recording the evidence the learned Election Tribunal framed an additional Issue 6-A on 22.6.2007 and finally passed an order of re-polling at four polling stations out of total eight polling stations. Polling was held and notification has been issued whereby Respondents No. 1 and 2 have been declared returned candidates, during the pendency of this petition.
According to the learned counsel for the petitioners the order of the learned Election Tribunal is against the law and rules. In this regard he referred to the statement of A.W.1, A.W.2 and also referred to the contents of FIR Ex. A/1. He also referred to the statement of R.W.2, the Presiding Officer. According to him the impugned order of the learned Election Tribunal dated 26.6.2007 is not sustainable.
According to the learned counsel for the respondents, Issue No. 6-A was farmed with the mutual consent of the parties as it reflects from the impugned order itself. The petitioners have not submitted any affidavit to controvert that petitioners had not agreed to framing of additional Issue No. 6-A, therefore, the order of the learned Election Tribunal has to be given full credence. According to the learned counsel for the respondents, the impugned order has been passed in the light of guidance provided by the Hon'ble Supreme Court. The learned counsel prays for the dismissal of the writ petition, particularly, when fresh polling has taken place at two polling stations in pursuance of the order of the learned Election Tribunal and result has also been notified by the Election Commission of Pakistan. The learned counsel referred to I.C.A. No. 243/04 in support of his contention as well as order in Writ Petition No. 6764/06.
The learned counsel for the petitioners added into his earlier arguments and submitted that partial re-polling is not contemplated under the rules and in this regard he also referred to decision in Writ Petition No. 10507/06.
I have heard the learned counsel for the parties and considered their arguments carefully. I have examined the impugned order of the learned Election Tribunal as well as case law submitted by the parties and otherwise.
I allow this writ petition for the reasons to follow hereafter.
In Para-12, the learned Election Tribunal noted that Rule 75 of the Punjab Local Government Elections Rules, 2005 clearly empowers the Election Tribunal to make decision. He also referred to Rule 35(3) and (5) which clearly provides that all the ballot papers shall be opened and sealed in presence of contesting candidates/agents duly appointed by the Presiding Officer and Rule 36(6) provides that the count of the Presiding Officer can be challenged if the Returning Officer is satisfied about reasonableness of the challenge or he is directed to do so by the Chief Election Commissioner. According to the Tribunal the mandatory provisions in the above context were not followed by all the concerned quarters.
It is observed and made clear that powers mentioned in Rule 75 relates to powers of the Election Tribunal, whereas, power mentioned in Rules 35 and 36 relate to powers/functions of Presiding Officer and Returning Officer.
The learned
Tribunal further observed in para-13 of his judgment that Rules 75 to 78 of the
Punjab Local Government Election Rules, 2005 provide sufficient guidance in the present context and according to Rule 78 failure of any person to comply with the provisions of Ordinance and Rules thereto is sufficient to declare the election as a whole to be void'. I must observe that while referring to Rule 78, correctly so, there is no mention of declaring such election void at one or two polling stations. To give power to the Tribunal to declare the electionas a whole to be void' means election of the whole constituency. Thus, in my opinion, the learned Election Tribunal has ascribed wrong interpretation to
Rule 78. I further disagree with the finding of the learned Election Tribunal given in para-14, which reads as under:-
"The election of UC No. 32/3 Urban Ghakhar is hereby declared void to the extent of polling station i.e. G.B. Normal High School No. 1 (Male and Female) and Town Committee Ghakhar (Male and Female."
As I mentioned above, the learned counsel could not appreciate connotation of expression as a whole to be void'. This expression cannot be interpretedas a whole to be void' to the extent of two polling stations only.
(a) dismissing the petition;
(b) declaring the election of the returned candidate to be void;
(c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or
(d) declaring election as a whole to be void.
The order of the learned Election Tribunal in concluding para-14 refers to Rule 75(d) and as I observed above, Rule 75(d) refers to the whole constituency and not to one or two poling stations only.
"Reference to Rules 75 to 77 of the Rules, 2005 in support of the claim of Respondents No. 2 and 3 for declaring them as returned candidates in palce of the petitioners was of no help to them, as election of the returned candidates/writ petitioners was not declared void by the Election Tribunal and after re-poll at Polling Station No. 7, the Returning Officer shall prepare fresh consolidated statement in Form XV appended with the above referred rules which will decide who out of the contestants are the returned candidates."
Whereas, in the instant case, the learned Election Tribunal has declared election as a whole void. I again reproduce the relevant lines from the impugned order as below:-
"In view of my issue-wise finding, this election petition is hereby accepted. The election of UX No. 32/3 Urban Ghakhar is hereby declared void to the extent of polling stations i.e. G.B. Normal High School No. 1 (Male and Female) and Town Committee (Male and Female)."
"The upshot of the above discussion is that the Election Tribunal, in the facts and circumstances of the case, had no jurisdiction to declare the result of one Polling Station as void. Having come to the conclusion that the election process had been hampered by violence and conducted in violation of the law thereby subverting the will of people, the entire election should have been declared as null and void resulting in a run of election to the entire constituency."
The Election Tribunal has highlighted in the impugned order particularly in paras 11 to 13 that provisions of Rule 35 and 36 were not complied with by the concerned persons and on the same basis he referred to Rule 78 of the Punjab Local Government Election Rules, 2005 and concluded as under:-
"In view of the above discussion, whereas, Rules 75 to 78 provide sufficient guidance in the present context and according to Rule 78 of the Punjab Local Government Election Rules, 2005, failure of any person to comply with the provisions of the Ordinance and Rules thereto, it is sufficient to declare the election as a whole null and void."
In view of the above observations of the learned Election Tribunal himself and his reliance on Rules 35, 36 and 78, he should have ordered fresh election of whole constituency. Similarly in the above background and conclusion of the Election Tribunal itself for framing of Issue No. 6-A (even with consent of the parties) has no legal backing and cannot be countenanced.
Pursuant to the above discussion and reasons, the impugned order passed by the learned Addl. Sessions Judge/Election Tribunal, Hafizabad, dated 26.6.2007 is set aside and declared without lawful authority and of no legal effect. It is further declared that election as a whole to be void means elections of the whole constituency void instead of one or two polling stations only. The concerned election authorities are directed to make arrangement for a fresh election of the whole constituency/UC No. 32/3 Urban Ghakhar, Tehsil Waizrabad, District Gujranwala, within stipulated period.
(A.S.) Petition accepted.
PLJ 2008 Lahore 457 (DB)
Present: Sayed Zahid Hussain and Fazal-e-Miran Chauhan, JJ.
MUHAMMAD NASEER KHAN--Appellant
versus
MUHAMMAD RIAZ CHOPRA, ADDL. DISTRICT JUDGE/RETURNING OFFICER, N.A. NO. 115, DISTRICT NAROWAL and 2 others--Respondents
E.A. No. 13-R of 2007, heard on 7.12.2007.
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 14(5)--Representation of the People (Conduct of Election) Rules, 1977, R. 5--Election matter--Nomination papers were rejected on the ground of Bachelor's Degree by Returning Officer--Genuineness of degree--University grants commission certified vide letter about the degree issued by University--Nomination papers have wrongly and illegally been rejected--High Court had also sent for the record from the Higher Education Commission--Assertion of the respondent that some other material was also produced or presented before the Returning Officer, remain unsubstantiated as neither any such material has been shown or produced before High Court--Held: On the basis of same qualifications and similar circumstances he had been elected in the year 2002, on such mere in substantiated allegations, is not justifiable--In view of stance of the commission, his nomination papers have wrongly and illegally been rejected--Appeal accepted. [P. 460] A
Mr. Saif-ul-Malook, Advocate for Appellant.
Syed Iftikhar Hussain Shah, Deputy Attorney General for Pakistan for Respondent.
Ch. Rizwan Amjad, Standing Counsel for Pakistan with Muhammad Ishaq, Assistant Director, Higher Education Commission, Lahore.
Mr. Shahid Hameed Dar, Advocate with Respondent No. 2 in person.
Mr. Waqar Mushtaq Ahmed, Advocate for Respondent No. 3.
Date of hearing: 7.12.2007.
JUDGMENT
Sayed Zahid Hussain, J.--Muhammad Naseer Khan appellant and Respondents No. 2 and 3 alongwith others are said to have filed nomination papers for a seat in the National Assembly, NA-115, Narowal. On the objections filed against the appellant that he did not possess bachelor's degree and was not qualified to be a candidate for election, his nomination papers were rejected by the Returning Officer on 3.12.2007. This is appeal under Section 14(5) of the Representation of the People Act, 1976, to assail the said order.
The learned counsel for the parties have been heard whereas the learned Standing Counsel for Pakistan has produced before us a letter from Higher Education Commission dated 6.12.2007.
During the course of hearing of the appeal the learned counsel for Respondent No. 3 has candidly stated that the said respondent was not contesting the appeal and rather he had the instructions that the objections so filed before the Returning Officer, may not be pressed. However, the learned counsel for Respondent No. 2 has contested this appeal.
The case of appellant as advanced by his learned counsel is that he had contested the election held in the year 2002 when a similar objection was raised before the Returning Officer which had been turned down in view of the certification by the then University Grants Commission. Letter dated 7.9.2002 is being invoked whereby the Commission had informed "that University or Nairobi is an accredited University of Kenya. The University of Grants Commission recognized the Bachelor of Arts degree awarded to Mr. Muhammad Nasir Khan as equivalent to Bachelor's degree from Pakistan. It is further clarified that as customary the Foreign Universities did not mention the Role No., Registration No. or father's name of candidate on the degrees." According to the learned counsel in view of such a report having been received from the Commission, the appeal was even withdrawn by the then contestant against the appellant (i.e. E.A. No. 78/2002). It is contended that the same position prevails even now, as the Higher Education Commission has affirmed the degree so possessed by the appellant. The learned counsel for the contesting respondents, however, has endeavoured to dispute the very genuineness of the degree on the basis of which the appellant is claiming to be qualified for contesting the election. Another aspect which is being brought to our notice is that before the Returning Officer, some documents were produced/shown by one of the candidates, which persuaded him to take the view that the degree produced by the appellant was fake and forged. None is, however, on the record before us.
On consideration of the matter we find that the appellant had indeed contested the election held in the year 2002 as is apparent from the record and even admitted by the respondent side. The issue as to the genuineness of the degree had even then cropped up and the University Grants Commission certified vide letter dated 7.9.2002 about the degree issued by the University of Nairobi, Kenya. When such an objection was raised before the Returning Officer, the appellant was directed on 29.11.2007 by the Returning Officer to produce the verification certificate from the University Grants Commission/Higher Education Commission with original certificate, on 1.12.2007. It was thus, that letter dated 30.11.2007 from the Higher Education Commission was addressed to the learned Additional Sessions Judge/Returning Officer for NA-115, Narowal to confirm the contents of previous letter dated 7.9.2002. It was noted in the order by the Returning Officer that "During oral hearing the original degree together with certificate of the HEC of Pakistan was produced by the candidate. The candidate also produced mark-sheets and certificate issued by the University of Nairobi on 29 August, 2002", despite that, he recorded the finding that the degree produced by the candidate was fake and forged. We are unable to countenance such an approach adopted by the Returning Officer in presence of the repeated certification by the Commission as to the degree and its genuineness. For our satisfaction, we had also sent for the record from the Higher Education Commission. The same is available and earlier stance of the commission taken in the year 2002 is being reiterated and reaffirmed. The assertion of the learned counsel for Respondent No. 2 that some other material was also produced or presented before the Returning Officer, remain unsubstantiated as neither any such material has been shown or produced before us. To keep the appellant out of contest from the election in the circumstances when on the basis of same qualifications and similar circumstances he had been elected in the year 2002, on such mere unsubstantiated allegations, is not justifiable. In view of stance of the Commission, his nomination papers have wrongly and illegally been rejected. The order passed by the Returning Officer is, thus, unsustainable and is set aside.
The appeal is accepted, as a consequence whereof the nomination papers filed by the appellant will be treated to have been accepted. No order as to costs.
(N.F.) Appeal accepted.
PLJ 2008 Lahore 460 (FB)
Present: Mian Muhammad Najam-uz-Zaman, Tariq Shamim and
M. Bilal Khan, JJ.
SAMI ULLAH CH.--Petitioner
versus
RETURNING OFFICER PP-271 BWP-V, DISTT., BAHAWALPUR
and 2 others--Respondents
W.P. No. 12015 of 2007, decided on 17.12.2007.
Constitution of Pakistan, 1973--
----Arts. 63 & 270-AA (amendment brought about on 31st December, 2003)--Representation of the People Act, 1976, S. 99(1)(g)--Contempt of Courts Act, 1976, S. 4--Nomination papers for seat of Provincial Assembly--Objection was raised--Conviction and sentence under Contempt of Court--Disqualification to participate in election--Rejection of nomination papers--Assailed--Question of--Whether the petitioner suffers from disqualification or not on account of conviction--Protection was given to Legal Framework Order, 2002--Validity--if a person is convicted for a crime involving moral turpitude, he is not qualified to be elected or chosen as a member of an Assembly--Petition dismissed. [P. 462] A
Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 99(1)(g) & 100--Conduct of General Election Order, 2002, Ss. 8-D(1)(h) & 8-D(2)(h)--Constitution of Pakistan, 1973, Art. 63 & 199--Contempt of Court Act, 1976, S. 4--Conviction and sentence under Contempt of Court--Language couched--Nomination papers for contesting general election was rejected--Challange to--Illegality--Since the provision regarding permission to contest election after lapse of five years from incurring disqualification incurred by petitioner is permanent in nature in view of Art. 63(h) of the Constitution--Sections 8-D(1)(h) and 8-D(2)(h) of the Conduct of General Election Order, 2002 as well as Section 99(1)(g) of Representation of the People Act, the provisions are fully attracted to the case of petitioner--Held: No illegality, irregularity or error has been found by High Court in order of Election Tribunal in the Constitutional petition--Petition dismissed. [P. 462] B
Mr. Zahid Sultan Khan Minhas, Advocate for Petitioner.
Date of hearing: 17.12.2007.
Order
The petitioner filed his nomination papers for the seat of Provincial Assembly PP-271 Bahawalpur before Respondent No. 1, the Returning Officer. At the time of scrutiny Respondent No. 2 raised an objection that at one stage the petitioner had been convicted under Section 4 of the Contempt of Courts Act, 1976 and sentenced to suffer imprisonment till the rising of the Court, therefore, he was disqualified to participate in the election. While sustaining the objection, the Returning Officer proceeded to reject his nomination papers. The petitioner being aggrieved thereof filed an election appeal which was dismissed on 12.12.2007. Against the dismissal of his appeal, the petitioner has approached this Court through the instant petition.
According to the learned counsel for the petitioner, the Returning Officer proceeded to reject the nomination papers of the petitioner in terms of provisions of Section 99(1)(g) of the Representation of the People Act, 1976 which was erroneous and in complete departure from the accepted dictates of law regarding interpretation of statutes. In furtherance of his argument the learned counsel contended that the disqualification emanating from his conviction under the Contempt of Courts Act could not effect the petitioner's right to contest the elections after expiry of 5 years of the petitioner's conviction. If the interpretation as placed by the Presiding Officer as well as the learned Election Tribunal is accepted then the petitioner would be deprived forever from contesting any election in future and the same would be contrary to the spirit of Clause (g) of sub-section (1) of Section 99 of the Representation of the People Act, 1976.
We have heard the learned counsel and have given anxious thought to the arguments advanced by him.
In the given facts and circumstances the main point which needs to be consideration is whether the petitioner suffers from a disqualification or not on account of his conviction?
Amendment was made in Article 63(h) of the Constitution by the Legal Framework Order, 2002 whereby the period of disqualification was omitted. Protection was given to the Legal Framework Order, 2002 by virtue of Article 270-AA of the Constitution on account of 17th Amendment in the Constitution brought about on 31st December, 2003. Amendment was also made in Section 99 of the Representation of the People Act, 1976 and according to sub-section (1) clause (g), if a person is convicted for a crime involving moral turpitude, etc. he is not qualified to be elected or chosen as a member of an Assembly.
Although conviction under the Contempt of Courts Act, 1976 does not find mentioned as disqualification under Article 63 of the Constitution, however, the language couched in Section 100 of the Representation of the People Act and Article 63 of the Constitution as well as 8-D(1)(h) and 8-D(2)(h) of the Conduct of General Election Order, 2002 as well as Section 99(1)(g) of the Representation of the People Act, 1976 is unambiguous and clear in all respects and, therefore, legal effect must be given to it. Since the provision regarding permission to contest election after a lapse of 5 years from incurring disqualification has been omitted, therefore, the disqualification incurred by the petitioner is permanent in nature in view of Article 63(h) of the Constitution, Section 8-D(1)(h) and 8-D (2)(h) of the Conduct of General Election Order, 2002 as well as Section 99(1) (g) of the Representation of the People Act, 1976 the provisions of which are fully attracted to the case of the petitioner. No illegality, irregularity or error has been found by us in the order of the learned Election Tribunal impugned in this petition calling for interference by this Court in its constitutional jurisdiction.
For what has been discussed above, we find no merit in this petition which is dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2008 Lahore 463
Present: Maulvi Anwar-ul-Haq, J.
MUNIR AHMAD--Petitioner
versus
FIAZ MUSHTAQ and others--Respondents
S.A.O. No. 108 of 2007, decided on 11.9.2007.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(3)(a)(ii)(b)--Application for ejectment--Explanation required only which is in his possession and also is owned by him--A landlord is required to render such explanation only regarding a building which is in his possession and also is owned by him--No obligation on him to explain the possession of a rented shop--No other point has been urged--SAO dismissed. [P. 464] A
Mr. Muhammad Rafique Chaudhry-I, Advocate.
Date of hearing: 11.9.2007.
Order
On 9.5.2000 Mushtaq Ahmad predecessor-in-interest of the respondents filed an application for ejectment of the appellant from a shop located in Lahore Urban Area. The ejectment was sought on the ground that the shop is required for personal use of his son and that the appellant has failed to pay rent with statutory increase. During the pendency of the said application the said Mushtaq Ahmad died and respondents were brought on record as L.Rs. The appellant filed a reply denying the said allegation. Issues were framed. Evidence of the parties was recorded. The ejectment petition was accepted by the learned Rent Controller on 9.5.2006 who found in favour of the respondents on both the said issues. The appellant filed a first appeal which was decided by a learned ADJ vide order dated 22.5.2007 and finding on the question of default was reversed but the finding on the issue of personal requirement was upheld. The appeal was accordingly dismissed.
Learned counsel for the appellant contends that its stood proved rather admitted on record that Fiaz Mushtaq respondent was doing his business in a rented shop and in the absence of any explanation that it was not sufficient for his need, the impugned findings are against law.
I have gone through the certified copies of the record which has been appended with this SAO by the learned counsel with his assistance.
It is true that Respondent No. 1 while appearing as AW. 1 admitted that he is doing business in a rented shop but nothing turns on the same. The reason being that for the purpose of Section 13(3) (a) (ii) (b) of the Punjab Urban Rent Restriction Ordinance, 1959 a landlord is required to render the said explanation only regarding a building which is in his possession and also is owned by him. There is no obligation on him to explain the possession of a rented shop. The matter has been settled by the Honourable Supreme Court of Pakistan in the case of Abdul Aziz and another vs. Muhammad Ibrahim (PLD 1977 Supreme Court 442). No other point has been urged. The SAO is dismissed in limine.
(N.F.) SAO dismissed.
PLJ 2008 Lahore 464
Present: Maulvi Anwar-ul-Haq, j.
TARIQ MEHMOOD ANJAM--Appellant
versus
ALLAH DITTA--Respondent
F.A.O. No. 246 of 2007, decided on 25.1.2008.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24--Suit of pre-emption--Question of--Zar-e-Soim be deposited within 30 days--No error of law or fact--Mutation was entered in Rozenamcha Waqiati and mentions the sale price--At the time of attestation that the amount was corrected with reference to the admission of parties to the sale--Mala fide cannot be attributed to respondent while mention in the price as Rs. 7,50,000/- in plaint--Held: District Judge has very rightly pointed out that the trial Court ought to have specified the amount which was to be deposited particularly when office had reported that 1/3rd comes to Rs. 2,50,000--High Court do not find any error of law or fact in the impugned order--FAO is accordingly dismissed.
[Pp. 465 & 466] A, B & C
Mr. Qamar Riaz Hussain Basra, Advocate for Appellant.
Date of hearing: 25.1.2008.
Order
For the purposes of this FAO reference to details pleaded facts would not be necessary suffice to say that on 22.12.2005 the respondent filed a suit against the appellant. The suit was filed to exercise right of pre-emption. It was stated that the suit land has been purchased by the appellant for a consideration of Rs. 7,50,000/- vide Mutation No. 2945 attested on 21.9.2005. The case came up before the learned trial Court on 23.12.2005. Office was called upon to report and it was reported by the Reader that 1/3rd comes to Rs. 2,50,000/-. The learned trial Court passed the following order:
The is no dispute that sum of Rs. 2,50,000/- was deposited by the respondent as directed. On 2.9.2006 an application was filed by the appellant stating that he has in fact purchased land for Rs. 37,50,000/- and the appellant has falsely mentioned the amount as Rs. 7,50,000/- and has deposited Rs. 2,50,000/- 1/3rd whereas 1/3rd comes to Rs. 12,50,000/- and according to him the said amount is so mentioned in the mutation. The reply was filed stating that in the report in Rozenamcha regarding Mutation No. 2945 the price was mentioned as Rs. 7,50,000/- and so is the case in the entry report. Several other factors were also mentioned that in fact Rs. 7,50,000/- was paid. The learned trial Court proceeded to dismiss the suit on 17.11.2006. A first appeal filed by the respondent has been allowed by a learned Additional District Judge, Faisalabad, on 31.7.2007, who has directed the appellant to deposit the remaining amount after holding that a proper order for deposit had not been passed and further holding that in fact the price mentioned in the mutation is Rs. 37,50,000/- and has remanded back the case for decision on merits.
Learned counsel for the appellant contends that in the mutation as well as in Rozenamcha the price is mentioned as Rs. 37,50,000/- and order for deposit should have passed accordingly and since the actual 1/3rd has not been deposited, the suit was correctly dismissed by the learned trial Court.
I have gone through the certified copies of the records appended with the assistance of the learned counsel. I have already reproduced the necessary details of the proceedings. As to what was price of the land that was paid by the appellant to the vendor is yet to be decided. However, the copy of the mutation (Annex-J) shows that mutation was entered with reference to Report No. 15 in Rozenamcha Waqiati and mentions the sale price as Rs. 7,50,000/- both in figures as well as in words. In the attestation order, however, a sum of
Rs. 37,50,000/- is mentioned at two places. The appellant has appended Report No. 38 dated 21.9.2005 (not Report No. 15 dated 3.9.2005) and this also narrates that in the mutation 2945 the sale price was mentioned as Rs. 7,50,000/- and it was at the time of attestation that the amount was corrected with reference to the admission of the parties to the sale. I do, therefore, find that mala fide cannot be attributed to the respondent while mentioning the price as Rs. 7,50,000/- in the plaint.
Besides primarily it is duty of the Court to pass a correct order under Section 24 of the Punjab Pre-emption Act, 1991. I have already reproduced the order passed on 23.12.2005 above. It simply says that 1/3rd be deposited within 30 days. The learned Additional District Judge has very rightly pointed out that the learned trial Court ought to have specified the amount which was to be deposited particularly when office had reported that 1/3rd comes to Rs. 2,50,000/-
Having thus examined the record I do not find any error of law or fact in the impugned order. The FAO is accordingly dismissed in limine.
(N.F.) FAO dismissed.
PLJ 2008 Lahore 466
Present: Maulvi Anwar-ul-Haq, J.
IQBAL HUSSAIN--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, LAHORE
and 5 others--Respondents
W.P. No. 3436 of 2007, heard on 24.1.2008.
Constitution of Pakistan, 1973--
----Arts. 199 & 212(1)(a)(b)--Service Tribunal Act, 1973, S. 3(2)--Constitutional petition--Exclusive jurisdiction--Claim for damages--Administrative Court--Held: Art. 212(1) of Constitution authorizes appropriate legislature to provide for the establishment of one or more Administrative Court or Tribunal to exercise exclusive jurisdiction under the three clearly distinctive heads--Obvious distinction stands drawn between matters relating to the terms and conditions of person in the service of Pakistan on the one hand and matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan--Held: Service Tribunal established under the Act, 1973 only covers the matters provided for in Art. 212(1)(a) of the Constitution and not the matters provided for in Art. 212(1)(2) of Constitution--Suit did not present a dispute between the employer or employee--No relief was claimed against the Federal Government in the original plaint and in any case the Government stand deleted as a defendant--Upon proving contents of the plaint the petitioner will be entitled to relief--Petition allowed.
[P. 469] A & B
Petitioner in person.
Ch. Jamshaid Sadiq, Advocate for Respondent No. 2.
Nemo for others Respondents.
Date of hearing: 24.1.2008.
Judgment
The petitioner filed a suit against Respondents No. 2 to 5 and Government of Pakistan (date of institution is not available). I may also note here that during the pendency of the suit Ikram Ali Shah, Respondent No. 3 died and his L.Rs. were impleaded. In the rather prolix plaint several personal allegations were made against the said private respondents, as the mala fide of their acts and resulting into damages to the petitioner in the amount of Rs. 18,20,000/- as detailed in para-12 of the plaint. A prayer was made for decree in the suit amount against the said private respondents only. Later Government of Pakistan was deleted from the array of the defendants. The other respondents filed written statement denying their liability and issues were farmed on 13.9.2000. An application was filed by Respondent No. 2 for rejection of plaint. This application was resisted. It was dismissed by the learned trial Court on 22.7.06. The said Respondent No. 2 filed a revision, which has been allowed by a learned Additional District Judge, Lahore, on 23.11.2006, and he has rejected the plaint of the petitioner under Order VII, Rule 11 CPC.
The petitioner states that he had claimed damages for personal acts of the said private respondents and no question of terms and conditions of his service or determination thereof was involved in the suit and the learned Additional District Judge has acted without lawful authority while rejecting his plaint. Learned counsel for the contesting Respondent No. 2 places implicit reliance on the case of Federal (Ministry of Railways and others vs. Zafarullah Khan (1988 PLC (C.S.) 602) whereby the learned Karachi High Court upheld the rejection of plaint in similar circumstances.
I have gone through the copies of the records. I have already made a reference to the plaint, which does contain allegation against the persons of the private respondents and claim for damages has been made. No relief pertaining to the terms and conditions of service has been prayed for in the said plaint against the employer whose name as already noted by me above, stands deleted. Coming to the contentions of the learned counsel for Respondent No. 2. I have gone through the said judgment. I may note here that the revision application decided by his lordship arose out of a suit filed by Zafarullah claiming damages for illegal termination of his services against the Federal Government in the Ministry of Pakistan Railways. His lordship reproduced Article 212 of the Constitution and observed that since the Service Tribunals has been set up under sub-section (2) of Section 3 of the Service Tribunals Act, 1973 the suit arising out of the alleged breach of the terms and conditions of service would be hit by the bar contained in Article 212(2) read with Section 3(2) of the Service Tribunals Act, 1973.
Most humbly I find myself in disagreement with the said observations of the learned Karachi High Court. I deem it appropriate to reproduce Article 212 of the Constitution:
"212. (1) Notwithstanding anything hereinbefore contained, the appropriate legislature may by Act (provide for the establishment of) one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons (who are or have been) in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal (other than an appeal pending before the Supreme Court), shall abate on such establishment:
Provided that the provisions of this clause, shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal."
Upon plain reading of the Article 212(1) it authorizes appropriate legislature to provide for the establishment of one or more Administrative Court or Tribunal to exercise exclusive jurisdiction under the said three clearly distinctive heads. It will be seen that obvious distinction stands drawn in the said Article between matters relating to the terms and conditions of person in the service of Pakistan on the one hand and matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan. To my mind, the Service Tribunal established under the Act 1973 only covers the matters provided for in Article 212 (1)(a) of the Constitution and not the matters provided for in Article 212(1) (b). In case the interpretation placed on Article 212 in the said judgment is accepted it can be presumably argued that the Tribunal established for the purposes of said clause (a) for Article 212 (1) would also cover the matters provide for in clause (c) thereof.
A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Lahore.
(A.S.) Petition allowed.
PLJ 2008 Lahore 470
Present: Maulvi Anwar-ul-Haq, J.
FIRST CAPITAL EQUITIES LIMITED, 64-E/1-C, GULBERG-III, LAHORE--Appellant
versus
Mrs. ISHRAT SALEEM--Respondent
S.A.O. No. 75 of 2007, heard on 18.1.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. 19--West Pakistan Urban Rent Restriction Ordinance, 1959, S. 13--Ejectment petition--Matter of default--Appeal against the order of Rent Controller--Affidavits were duly filed--Right of cross-examination was illegally closed--Erred in law--Affidavits were duly filed and the witnesses were present in Court on all dates of hearing but they were not cross-examined--Not a single reason is forthcoming as to why the witnesses were not cross-examined when the respondent was producing her witnesses on every date so fixed for the purpose--No procedure is prescribed in the ejectment petition--Held: Rent Controller had, therefore erred in law while refusing to read such evidence in the form of affidavits as respondent had complied with directive of Supreme Court and had made her witnesses available. [P. 472] A & C
Civil Procedure Code, 1908 (V of 1908)--
----S. 19--By affidavits--Evidence by affidavits is permissible subject to the option of the opposite party to cross-examine the witnesses.
[P. 472] B
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13---Ejectment petition--Matter of default--Appeal against the order of Rent Controller--Matter of default has already been conceded--Only objection is that before depositing rent in Court, appellant ought to have tendered the rent to the landlady--Such objection, however, has no force as S. 13 of Ordinance, 1959 recognizes deposit with Rent Controlled as valid tender of rent--High Court, therefore, affirm finding of the Rent Controller pertaining to default--So far as pertaining to bona fide personal need is concerned, it does require a speaking finding by the First Appellate Court in the light of evidence available on record--SAO accordingly allowed.
[P. 472] D
NLR 2000 Civil (SC) 282 rel.
Mr. Ali Asim Syed, Advocate for Appellant.
Mr. Muhammad Iqbal Akhtar, Advocate for Respondent.
Date of hearing: 18.1.2008.
Judgment
On 4.6.2006 the respondent filed an application for ejectment of the appellant from the building located in Lahore urban area and described in the ejectment petition. The ejectment petition was sought on the ground of default in payment of rent w.e.f. 14.3.2004. According to the petition the rate of rent with effect from said date was Rs. 93,500/- per month. The bona fide need for personal use and occupation of son of the respondent was also pleaded. Following issues were framed by the learned Rent Controller on 4.11.2004:--
Whether the respondent is wilful defaulter in payment of rent, if so for what period and for what amount? OPA
Whether the disputed premises is required in bona fide by the petitioner for her personal need? OPA
Relief.
The case was adjourned to 8.12.2004. The witnesses of the respondents were present and their affidavits were filed. The case was adjourned for cross-examination for 8.1.2005. On this date the witnesses were present but the case was adjourned on joint request to 27.1.2001. On this date again witnesses were present but an adjournment was sought by the appellant and the case was adjourned to 23.2.2005 subject to cost of Rs. 500/- with warning that this will be the last opportunity. On 23.2.2005 the witnesses were present. However, the appellant again made a request for adjournment it was disallowed and right of cross-examination was closed. The documentary evidence was recorded on 10.5.2005. I may note that a document which was a power-of-attorney Ex. A1 was produced by attorney of the respondent on oath. The request was made and he was cross-examined by the appellant. A witness for appellant was also examined by tendering of affidavit and the cross-examination. The remaining evidence was closed on 23.1.2006. Vide order dated 5.5.2006 learned Rent Controller answered both the issues against the respondent and dismissed the ejectment petition. A first appeal filed by the respondent has been allowed by a learned Additional District Judge, Lahore, on 10.5.2007 who has reserved findings on both issues and passed an ejectment order.
Learned counsel for the appellant contends that the impugned order is against law inasmuch as although it has been observed that the finding on Issue No. 1 pertaining to the default is reversed yet no reason have been stated as to how the appellant is guilty of default in paying or tendering rent. In the matter of bona fide personal requirement he urges that neither the learned Rent Controller had recorded any finding nor the learned Additional District Judge has said a word as to how the said issue stands proved. Learned counsel for the respondents has made a clean breast of the matter. He concedes that the rent had been regularly paid to tendered. As to the matter of bona fide personal requirement he states that the learned Additional District Judge ought to have decided the matter on the basis of evidence on record. At this stage learned counsel for the appellant rejoins to contend that the right of cross-examination was illegally closed and that affidavits cannot be read into the evidence.
I have gone through the records of the learned lower Courts with the assistance of the learned counsel for the parties. I have already reproduced above the entire proceedings, which took place before the learned Rent Controller, and as noted by me above, the affidavits were duly filed and the witnesses were present in Court on all said dates of hearing but they were not cross-examined. Not a single reason is forthcoming as to why the witnesses were not cross-examined when the respondent was producing her witnesses on every date, so fixed for the purposes. No procedure is prescribed in the matter of ejectment petition under the Punjab Urban Rent Restriction Ordinance, 1959. Under Order 19 CPC evidence by affidavits is permissible subject to the option of the opposite party to cross-examine the witnesses. In the case in hand the learned Rent Controller proceeded in the manner ordained by the Hon'ble Supreme Court in the case of Barkat Ali vs. Muhammad Ehsan and another NLR 2000 Civil (SC) 282). The learned Rent Controller hand, therefore, erred in law while refusing to read the said evidence in the form of affidavits, as the respondent had complied with directive of the Hon'ble Supreme Court and had made her witnesses available.
However, I do agree with the learned counsel for the appellant that whereas the learned Rent Controller had not stated a word as to why he is answering the issue pertaining to personal requirement against the respondents. The same is case with the learned Additional District Judge while answering issue in favour of the respondent. The matter of default has already been conceded. Only objection is that before depositing rent in Court, the appellant ought to have tendered the rent to the landlady. This objection, however, has no force, as Section 13 of the said Ordinance, 1959 recognizes deposit with the learned Rent Controller as valid tender of rent. I, therefore, affirm finding of the learned Rent Controller on Issue No. 1 pertaining to default. So far as Issue No. 2 pertaining to bona fide personal need is concerned, it does require a speaking finding by the learned first Appellate Court in the light of evidence available on record. SAO is accordingly allowed. The result would be that the first appeal filed by the respondent lady shall be deemed to be pending. The parties shall appear before the learned District Judge, Lahore, on 4.3.2008. The records shall also be immediately remitted to the learned District Judge. The learned District Judge shall himself proceed to decide the first appeal or to entrust it to a learned Additional District Judge, who shall decide the appeal after hearing the parties and examining the evidence available on record. No order as to costs. A copy of this judgment be also remitted to the learned District Judge.
(N.F.) SAO allowed.
PLJ 2008 Lahore 473 (DB)
Present: Sayed Zahid Hussain and Fazal-e-Miran Chauhan, JJ.
JAWAD HUSSAIN MANJ--Appellant
versus
RETURNING OFFICER For PP-91, Gujranwala-I
and another--Respondents
E.A. No. 119-A of 2007, heard on 12.12.2007.
Nomination Papers--
----Nazim or Naib Nazim may file nomination papers without resigning but will have to resign from the office of Nazim or Naib Nazim before the expiry of date of withdrawal of candidature. [P. 477] A
Punjab Local Government Ordinance, 2001--
----S. 162--General election--Matter of--Nomination papers--In present appeal nomination papers were accepted by Returning Officer and could not be objected to for the simple reason that he was Nazim of Union Council--Counsel has also produced before High Court the resignation tendered by him--Such resignation is deemed "to be accepted and effective forthwith"--Returning Officer, thus did not commit any illegality in accepting his nomination papers--Appeal was dismissed accordingly. [P. 477] B
Representation of the People Act, 1976--
----S. 14(5)--Contest of election--Matter of--Nomainatino papers--Resignation from the office of Nazim--No valid objection could be raised to the filing of nomination papers by appellant, who however, could enter the contest of election only after resigning from the office of Nazim, Union Council before the last date of withdrawal of candidature--His nomination papers will stand accepted with the proviso that if he does not resign from the office of Nazim Union Council by or before the withdrawal date, his nomination papers will stand rejected and his name will not be published in the final list of candidates--Appeal is accepted. [P. 479] C
A.I.R. 1958 SC 687 & AIR 1967 SC 836, rel.
Mr. Muhammad Shahzad Shaukat, Advocate for Appellant.
Mr. Muhammad Asif Ismail, Advocate for Appellant in E.A. No. 190-A/2007.
Mr. Muhammad Saeed Ansari, Advocate for Appellant in E.A. No. 176-A/2007.
Mr. Mazhar Nasim, Advocate for Appellant in E.A.No. 196-R/2007.
Mr. Aamir Rehman, Additional Advocate General, Punjab for Respondent.
Kh. Saeed-uz-Zafar, Advocate for Respondent No. 2 in E.A. No. 119-A/2007.
Nemo for Respondent No. 1 in E.A. No. 190-A/2007.
Nemo for Respondent No. 2 in E.A. No. 176-A/2007.
Nemo for Respondent No. 2 in E.A.No. 196-R/2007.
Date of hearing: 12.12.2007.
Judgment
Sayed Zahid Hussain, J.--In these appeals i.e. E.A. No. 119-A/2007, E.A.No. 190-A/2007, E.A.No. 176-A/2007 and E.A. No. 196-R/2007, the Nazims/Naib-Nazims, who were desirous of contesting the general elections scheduled to be held on 8.1.2008, their nomination papers were either accepted or rejected by the respective Returning Officers whereagainst these appeals have been filed under Section 14(5) of the Representation of the People Act, 1976. Since issue in all these connected appeals is about the true import and content of Section 158 of Punjab Local Government Ordinance, 2001, we have heard the learned counsel and the learned Additional Advocate General, Punjab as well in this matter.
"158. Bar against dual membership etc.--(1) A Zila Nazim, Naib Zila Nazim, Tehsil Nazim, Naib Tehsil Nazim, Town Nazim, Naib Town Nazim, Union Nazim and Naib Union Nazim may contest election for any other political office after resigning from the office of Nazim or, as the case may be Naib Nazim:
Provided that a member of Zila Council, Tehsil Council, Town Council or Union Council may contest election for any other political office without resigning from the membership of such Council:
Provided further that such member shall not hold more than one office at one time.
(2) Nothing in sub-section (1) shall apply to a Union Nazim or Naib Union Nazim, becoming members of the Zila Council or Tehsil Council, or the members elected against reserved seats in the Zila Council or Tehsil Council, or being elected as Naib Zila Nazim or, as the case may be, Naib Tehsil Nazim."
Before the above provision of law, the relevant part of Section 158 of Punjab Local Government Ordinance, 2001 as it existed prior to amendment, was:--
"158. Bar against dual membership.--The holder of an elective office may contest election for any other political office:
Provided that he resigns before filing his nomination papers for election to the new office."
The comparison of phraseology of Section 158 of Punjab Local Government Ordinance, 2001, amended and un-amended, shows that the holder of an elective office could contest election for any other political office but he had to resign "before filing of his nomination papers for election to the new office." The phrase "before filing his nomination papers", however, has been done away by the legislature in the amended provision. According to the provision now existing, a Nazim or Naib Nazim "may contest election for any other political office after resigning from the office of Nazim or, as the case may be, Naib Nazim". The condition of resignation before filing of nomination papers has now lost its relevance or importance. It is a significant change and omission in law, aimed at to enable him to file nominations without resignation. According to the amended provision, the resignation can be tendered any time before "contest" of the election. In this context, the word "contest election" has assumed somewhat importance. No precise definition of the said phrase has been brought to our notice. In order to find out the import of the phrase "contest election", some provisions of the relevant law i.e. The Representation of the People Act, 1976 will have to be kept in view. According to definition clauses mentioned in Section 2 of the Representation of the People Act, 1976, a "contesting candidate" means a validly nominated candidate who has not withdrawn his candidature (clause viii)). A "validly nominated candidate" as per clause (xxvi) means a candidate whose nomination has been accepted. Another clause relevant in the context is clause (xxvii) which defines "withdrawal day" to mean "a day appointed under Section 11 on or before which candidature may be withdrawn". It may be mentioned that Chapter IV deals with conduct of elections. Section 11 of the Representation of the People Act, 1976 which falls in the said Chapter concerns the announcement of date of elections and schedule of events. Once the said schedule is announced, the stage of filing of nomination papers beings. Section 12 of the Representation of the People Act, 1976 deals with that stage under which the Returning Officer is charged with certain duties and then scrutiny of nomination papers takes place under Section 14 of the Representation of the People Act, 1976. On conclusion of that stage i.e. acceptance/rejection of nomination papers, a list of validly nominated candidates is to be published by the Returning Officer under Section 15 of the Representation of the People Act, 1976. A validly nominated candidate can avail the chance to withdraw his candidature before the withdrawal date as per Section 16 of the Representation of the People Act, 1976. According to sub-section (4) thereof, the Returning Officer is to prepare and publish the list of "contesting candidates". This appears to be the stage when a real "contest" of the election inter se the validly nominated candidates is contemplated by law. In K. Kamaraja Nadar v. Kunju Thevar and others (A.I.R. 1958 S.C. 687), it was observed that the candidates, who survive the date of the withdrawal of the candidature, are the contesting candidates. In Har Swarup and another v. Brij Bhushan Saran and others (AIR 1967 Supreme Court 836), the words "returned candidates" and "contesting candidates" were considered and it was held that "a returned candidate is one who has been elected and a contesting candidate is one who has not withdrawn his candidature under Section 37". Thus, it is evident that the stage of withdrawal is of significance and importance in the context of contest of election. Therefore, the schedule of election issued by the Election Commission of Pakistan vide Notification dated 20.11.2007 need to be kept in view:
Sl.
No. Events. Dates
Returning Officers by the candidates to
26-11-2007
the Returning Officers to
3-12-2007
of the Returning Officers rejecting/accepting nomination papers.
Last date for deciding appeals by the Tribunals 14-12-2007
Last date for withdrawal of candidature 15-12-2007
Publication of revised list of candidates 16-12-2007
Polling day 08.01.2008
The perusal of the above events as per schedule in the Notification would indicate that upto 14.12.2007 is the stage relating to the filing of nomination papers, scrutiny by the Returning Officer, filing of appeals and decisions of the appeals by the Tribunals. That stage becomes over with the decisions of appeals by the Tribunals i.e. 14.12.2007. Then comes that last date for withdrawal of candidature which, according to the schedule, is 15.12.2007, whereafter, a final list of candidates is to be published. It appears from the events that contest of election in practical terms begins from the expiry of date of withdrawal of candidature. Before that, withdrawal is permissible to a candidate on any date. Once that date is over and final list of candidates is published, a stage of competition reaches as is spelt from the definition of "contest" given of this word in the "Concise Oxford Dictionary of Current English Page 282". It is, thus, evident that a Nazim or Naib Nazim may file nomination papers without resigning but will have to resign from the office of Nazim or Naib Nazim before the expiry of date of withdrawal of candidature i.e. 15.12.2007. The underlying idea paper to be that during the contest of election, the Nazim or Naib Nazim, as the case may be, may not influence the voters of the constituency in view of their position and office held by them. Till that day he gets a chance to make a choice to continue as Nazim or Naib Nazim or to go for contest for any other political office. Thus, the fate of nomination papers filed by Nazims or Naib Nazims is determinable by keeping in view the provisions of Section 158 of Punjab Local Government Ordinance, 2001, as discussed in the above context.
In the instant appeal (E.A. No. 119-A/2007) nomination papers filed by Rana Faisal Rauf Khan for PP-91, Gujranwala-I were accepted by the Returning Officer on 28.11.2007 and could not be objected to for the simple reason that he was Nazim of Union Council on the said date. His learned counsel has also produced before us the resignation dated 10.12.2007 tendered by him. As per Section 162 of Punjab Local Government Ordinance, 2001, the said resignation is deemed "to be accepted and effective forthwith". The Returning Officer, thus, did not commit any illegality in accepting his nomination papers. The appeal is dismissed accordingly.
E.A. No. 190-A/2007.
Ch. Muhammad Rafee, Nazim, Union Council filed nomination papers for PP-125, Sialkot, which were accepted by the Returning Officer on 30.11.2007. The same have been assailed through this appeal under Section 14(5) of the Representation of the People Act, 1976, primarily by invoking the provisions of Section 158 of Punjab Local Government Ordinance, 2001. According to the learned counsel, the cutoff date for determination of qualification of a candidate is the last date for filing of nomination papers and since the respondent had not tendered resignation from the office of Nazim, he is not qualified to contest the election and his nomination papers have illegally been accepted.
The appeal is disposed of with the observation that in case the respondent does not resign from office of Nazim, Union Council by or before the last date of withdrawal of candidature i.e. 15.12.2007, his nomination papers will stand rejected and his name will not be included in the final list of the candidates.
E.A. No. 176-A/2007.
Sabir Mahmood Ali, Nazim, Halqa No. 87/51, Gujranwala had filed nomination papers for PP-93, Gujranwala-III, which have been accepted by the Returning Officer on 28.11.2007. This appeal under Section 14(5) of the Representation of the People Act, 1976 has been filed qua the same primarily on the ground that since the respondent had not resigned from the office of Nazim, his nomination papers have illegally been accepted.
The appeal is disposed of with the observation that in case the respondent does not resign from office of Nazim, Halqa by or before the last date of withdrawal of candidature i.e. 15.12.2007, his nomination papers will stand rejected and his name will not be included in the final list of the candidates.
E.A. No. 196-R/2007.
Umar Sharif Ahmad, Nazim of Union Council had filed nomination papers for PP-133, which were rejected by the Returning Officer on 1.12.2007 for the reason that he was Union Council Nazim from which office he had not resigned. This is appeal under Section 14(5) of the Representation of the People Act, 1976 qua the same.
(N.F.) Appeal accepted.
PLJ 2008 Lahore 479
Present: Fazal-e-Miran Chauhan, J.
ABDUL HAMEED--Petitioner
versus
PUNJAB BAR COUNCIL, etc.--Respondents
W.P. No. 990 of 2008, decided on 14.3.2008.
Words and Phrases--
----The word "advocate" has been defined in S. 21(a) of Legal Practitioners and Bar Councils Act, 1973. [P. 485] A
Words and Phrases--
----The word "role" has been defined in S. 2(k) of the Legal Practitioners and Bar Councils Act. [P. 486] B
Punjab Legal Practitioners and Bar Council Rules, 1973--
----R. 5.1--Chapter V--Legal Practitioners and Bar Councils Act, 1973--Ss. 26 & 56--Constitution of Pakistan, 1973--Art. 199--Constitutional Petition--Challenged inserted rule--Person is not entitled to seek enrolement as an advocate beyond age of 35 years--Validity--Contentions--Petitioner being law graduate applied for enrolement to be enrolled as an advocate--Intimation fee was deposited through bank challan--Neither any intimation nor any role number slip was issued for appearance in the entry test--Intimation being not entertainable is returned--Rules were framed and approved by Punjab Bar Council in its meeting--Rule was added--Method of enrolement of advocate--Held: Any person qualified for admission as an advocate u/S. 26 of the Legal Practitioners and Bar Councils Act, 1973 may make any application in Form "A" to the Bar Council if he proposes to practice generally within the jurisdiction of the Bar Council--All such applications shall be placed before an enrollment committee, but a person the age of 35 years on 30.6.2009 shall not be entitled for admission as an advocate--Further held: Punjab Bar Council has not acted in excess of its power while framing Rules 5.1 & 5.2--Petition dismissed. [Pp. 486 & 487] C & F
Legal Practitioners and Bar Councils Act, 1973--
----S. 26--Punjab Legal Practitioners and Bar Council Rules 1974--R. 5.1--Scope of--No restriction of 35 years was imposed--Opportunity was provided to those who have cleared the examination before induction of S. 26 to intimate regarding joining senior for the purpose of apprenticeship till 30.6.2007--Not entitlement of enrolement as an Advocate beyond the age of 35 years--Petitioner has failed to intimate the Punjab Bar Council about joining his senior to complete his apprenticeship--No exception could be taken in the case of the petitioner, when there is a clear cut bar imposed by Punjab Bar Council on all those, who crossed the age of 35 years on 30.6.2007 except those who have intimated prior to 30.6.2007 of their joining senior or to complete the apprenticeship. [P. 486] D
(v) Constitution of Pakistan, 1973--
----Art. 199--Punjab Legal Practitioners and Bar Councils Rules, 1974--Rr.5.1 & 5.2--Legal Practitioners and Bar Councils Act, 1973--S. 56--Constitutional petition--Challenged Rule 5.1 inserted by Punjab Bar Council in Chapter V of Power Punjab Legal Practitioners and Bar Councils Rules, 1974--Ultra vires--Not entitled seek enrolement as an Advocate beyond the age of 35 years--Petitioner being law graduate applied for enrolement to be enrolled as an Advocate--Neither any intimation nor any role number slip was issued for appearance in expiry test--Validity--Punjab Bar Council which purported to enact exceeded the power conferred on it under Legal Practitioners and Bar Councils Act that the authority which purported to make rules act in excess of its authority conferred on it under the Act--Section 56 of Act, 1973 provides full authority power to Punjab Bar Council to make rules and to provide for the condition subject to which a person may be admitted as on advocate or advocate of High Court--Held: Essence of the doctrine of ultra vires is that the act is done in excess of the powers possessed by person or body in law--Doctrine proceeds on the basis that this person or body has limited power to from rules--Punjab Bar Council is fully empowered to make rules to provided for condition--Petition dismissed. [P. 486] E
NOTE: In above headnote of [C & F] for the words and please read the words "Punjab Legal Practitioners and Bar Council Rules, 1974" and the age of 35 years on 30.6.2007 instead of 30.6.2009.
Dr. Ehsan-ul-Haque Khan, Advocate for Petitioner.
Mr. Faisal Ali Qazi, Assistant Advocate-General.
M/s Muhammad Iqbal Mohal and Ch. Imran Masood, Advocates on behalf of Punjab Bar Council.
Date of hearing: 14.3.2007.
Order
By filing the instant writ petition, the petitioner has challenged Rule 5.1 inserted by Punjab Bar Council in Chapter-V of the Punjab Legal Practitioners and Bar Councils Rules, 1974, vide Notification 23738-A/12-12-2006.
Brief facts of the case are that, the petitioner being law graduate applied for the enrollment to be enrolled as an Advocate, after proper undergoing the period of apprenticeship with Zia-ul-Mustafa, Advocate High Court, thereafter, the intimation fee was deposited through Bank Challan No. 116187, dated 11.7.2007 and the same was received in the office of Punjab Bar Council vide Diary No. 2253, dated 11.7.2007. The petitioner waited for appearing in entry test, but neither any intimation nor any role number slip was issued to him in this regard for appearance in the said entry test. Furthermore, the petitioner approached the concerned authority, whereby the petitioner was told that, a letter dated 10.8.2007 was issued to him under the subject of intimation regarding joining the apprenticeship, wherein it was intimated that, under Rule 5.1 of the Punjab Legal Practitioners and Bar Council Rules, 1974, a person is not entitled to seek enrollment as an Advocate beyond the age of 35 years; that petitioner is beyond the age of 35 years, thus, the intimation under reference, being not entertainable, is returned. The petitioner approached the office of Respondent No. 1, but all in vain, hence, this writ petition.
It is argued by learned counsel for the petitioner that, Section 26 of Legal Practitioners and Bar Councils Act, 1973, prescribed qualifications for admission/enrollment as Advocate and there is no bar of age limiting the entry into legal practice after a certain age, prescribed in the said statute. The Punjab Bar Council is not empowered to frame or amend the rules. Further argued that, the newly inserted Rule 5.1 is inconsistent with the Legal Practitioners and Bar Councils Act, 1973, hence, is liable to be set aside, being inconsistent with the Legal Practitioners and Bar Councils Act, 1973. The amendment, so introduced is in derogation of fundamental rights in citizen of Pakistan. The impugned Rule 5.1 was framed in a hasty manner, which is totally against the interest of students, as such, not sustainable in the eye of law and is liable to be declared violative of the fundamental rights.
Conversely, learned Assistant Advocate-General has opposed this writ petition by arguing that, under sub-clause (k) of Section 56 of the Legal Practitioners and Bar Councils Act, 1973, empowers to frame its rules. The newly added rules were framed by the body exceeding its rule making authority given to the Punjab Bar Council under Section 56 of the Legal Practitioners and Bar Councils Act, 1973. The said newly rules are not ultra vires to the provision of the Legal Practitioners and Bar Councils Act, 1973. By adding the said rules, a restraint has been imposed by limiting the age to 35 years for enrollment of fresh advocate. The act of Punjab Bar Council was not in excess of its power to frame rule or amend the same. The induction of newly framed rules is not without jurisdiction.
Learned counsel appearing on behalf of Punjab Bar Council argued that, after due deliberation, probe and discussion by the members to restrict uncontrolled influx of fresh law graduates, particularly, those who passed the exams, after their retirement, the said rules have been introduced, while framing the rules and imposing restriction of age limit, proper care was taken to give a proper notice to all those, who were likely to be effected by the newly added rule. The rule was framed on 12.12.2006. The proviso to the said rule was also added to give effect at once to all those, who are above the age of 35 years on 30.6.2007 and wanted to be enrolled as advocate shall intimate his joining a senior for the purpose of apprenticeship and that intimation of senior is received before 30.6.2007. In the present case, the petitioner did not intimate the Punjab Bar Council before 30.6.2007 of his joining a senior Advocate as apprenticeship, knowingly that, he has crossed the age limit, so prescribed. His intimation was received on 11.7.2007, showing that he had joined the chamber of his senior for the purpose of apprenticeship on 1.6.2007. As per his own showing in the intimation letter, he crossed the age of 55 years on 30.6.2007 and his intimation, under reference, was not entertainable after 30.6.2007, thus, the same was returned vide letter dated 10.8.2007. Since, the petitioner of his own, has failed to avail the opportunity, provided by the Punjab Bar Council by not intimating before 30.6.2007, thus, is not eligible to appear in the examination, to be held on 15.3.2008. When arguing on legal side, it is argued that, the rule framed on 25.11.2006, to be given effect from 1.7.2007, provides sufficient time to those, who had crossed the age limit to avail the last opportunity. So far as the question, whether the Punjab Bar Council is vested with any power or authority to frame the rules. Reference is made to Section 56(k) of the Legal Practitioners and Bar Councils Act, 1973, which sub-clause duly powers to the Punjab Bar Council to frame its new rules, thus, the letter issued refusing to accept the intimation after 30.6.2007 was rightly issued. The rules are not ultra vires to the act or the Constitution.
I have heard learned counsel for the parties, perused the relevant law and the documents, placed on the record. Admittedly, Section 56 of the Legal Practitioners and Bar Councils Act, 1973 gives power to make rules. Section 56 and sub-clause (k) ibid, reads as follow:
"56. Power of Provincial Bar Council to make rules.--[A] Provincial Bar Council may, by notification in the office Gazette, make rules to provide for--
(k) the conditions subject to which a person may be admitted as an Advocate or an advocate of the High Court."
Sub-clause (k) provides for conditions subject to which a person may be admitted as an advocate or advocate of the High Court. While exercising the power given in Section 56 of the Legal Practitioners and Bar Councils Act, 1973, rules were framed and approved by the Punjab Bar Council in its meeting held on 7.7.1974. These rules are in order in the Legal Practitioners and Bar Councils Act, 1973 and as per clause 1.2, the same came into force at once. Chapter-V of the rules deals with enrollment of an advocate. Rule 5.1 added and subsequently in its meeting on 25.11.2006, notified on 12.12.2006, reads as follows:--
"5.1 Any person qualified for admission as an Advocate under Section 26 may make an application in Form `A' to the Bar Council if he proposes to practice generally within the jurisdiction of the Bar Council. All such applications shall be placed before an Enrollment Committee, but a person shall not be entitled for admission as an advocate who is of 35 years of age on 30.6.2007 and thereafter when his application for admission is received in the office of the Bar Council:
Provided that this shall not apply to the persons whose intimations regarding joining the seniors for the purpose of apprenticeship are received till 30.6.2007.
This rule has been farmed in addition to Section 26 of the Legal Practitioners and Bar Councils Act, 1973, which deals with qualification for admission as an advocate. Section 26 reads as follows:--
"26. Persons qualified for admission as advocates.--(1) Subject to the provisions of this Act and the rules made thereunder, a person shall be qualified to be admitted as an advocate if he fulfills the following conditions, namely:--
(a) he is citizen of Pakistan or a person deriving his nationality from the State of Jammu and Kashmir:
Provided that, subject to the other provisions of this Act, a national of any other country [who has resided in Pakistan for a period of not less than one year immediately preceding the day on which he applies for admission] may be admitted as an advocate if citizens of Pakistan duly qualified are permitted to practice law in that other country:
(b) he has completed the age of twenty-one years;
(c) he is a Barrister or is or was enrolled as an advocate of a High Court in any area which before the fourteenth day of August 1947, was comprised within India as defined by the Government of India Act, 1935 [26 Geo. 5, o 2) or has obtained--
(i) before the 7th day of February 1966, a degree in law from any University in Pakistan; or
(ii) before the fourteenth day of August, 1947, a degree in law from any University in any area which was comprised before the date within India as defined by the Government of India Act, 1935 (26 Geo 5, o 2); or
(iii) a Bachelor's degree in any subject other than law from a University in Pakistan, or from a University outside Pakistan recognized by the Pakistan Bar Council, and a degree in law from a like University;
(d) he has undergone such course of training and passed such examination after the training as may be prescribed by the Pakistan Bar Council:
Provided that this clause shall not apply to any class of persons who, by reason of their legal training or experience, are declared by the Pakistan Bar Council to be exempt from the provisions of this clause; and
(e) he has paid such enrollment fee and fulfills such other conditions as may be prescribed by the Pakistan Bar Council.
(2) A person shall be disqualified from begin admitted as an advocate--
(i) he was dismissed or removed from service of Government or of a public statutory corporation on a charge involving moral turpitude, unless a period of five years, or such less period as the Federal Government may, by notification in the official Gazette, specify in this behalf has elapsed since his dismissal or removal; or
(ii) he has been convicted for an offence involving moral turpitude, unless a period of five years, or such less period as the Federal Government may, by notification in the official Gazette, specify in this behalf, has elapsed since the expiration of his sentence; or
(iii) he has been declared a tout and such declaration has not been withdrawn.
(3) Where any person has been admitted by a Bar Council [as an advocate of the Supreme Court or) as an advocate of High Court,[the Supreme Court or, as the case may be,] the High Court may, if it is of the opinion that it will not be in the interest of the legal profession for such person to continue on the roll of advocates, refer the matter to the Bar Council for its reconsideration.
"21. Classes of advocates.--There shall be the following four classes of advocates, namely--
(a) senior advocates of the Supreme Court;
(b) advocates of the Supreme Court;
(c) advocates of the High Court; and
(d) other advocates.
The word "role" has also been defined in sub-clause (k) of Section 2 of the Legal Practitioners and Bar Councils Act, 1973, which reads as under:--
"role" means, the roll of advocates maintained by the Bar Council."
Such like advocate of High Court or role of advocate, prepared and maintained by the Punjab Bar Council, under this Act.
The newly added Rule 5.1 of the Punjab Legal Practitioners and Bar Council Rules, 1974, introduced and added on 12.12.2006, prescribed method of enrollment of advocate with the Punjab Bar Council. Under this rule, it is specifically mentioned that, any person qualified for admission as an advocate under Section 26 of the Legal Practitioners and Bar Councils Act, 1973 may make an application in form `A' to the Bar Council if he proposes to practice generally within the jurisdiction of the Bar Council. All such applications shall be placed before an Enrollment Committee, but a person above the age of 35 years on 30.6.2007 shall not be entitled for admission as an advocate. The proviso to this Section has been added in order to provide opportunity to those, who have cleared this examination before the induction of this Section, to intimate regarding joining his senior for the purpose of apprenticeship till 30.6.2007 and no restriction of 35 years was imposed in this case. The petitioner, having cleared the examination after the induction of this Court was in the knowledge of the same, as he must have approached the office of the Punjab Bar Council to get information for enrollment. The petitioner has failed to intimate the Punjab Bar Council about joining his senior to complete his apprenticeship. No exception could be taken in the case of the petitioner, when there is a clear cut bar imposed by the Punjab Bar Council on all those, who crossed the age of 35 years on 30.6.2007 except those, who have intimated prior to 30.6.2007 of their joining senior or to complete the apprenticeship. On merits, the petitioner has failed to make out any case to seek indulgence of this Court. So far as the argument advanced that the rule framed is ultra vires to the Act and the Constitution. Learned counsel for the petitioner except arguing that, the rule framed is ultra vires has failed to any other assistance.
The term "ultra vires" simply means beyond power or lack of power. The Act is said to be ultra vires, when it is in excess of the power of the person or authority doing so. When it is argued that, the newly added Rules 5.1 and 5.2 by the Punjab Bar Council is ultra vires of the Act or the Constitution. It means that, the Punjab Bar Council, which purported to enact exceeded the power conferred on it under the Legal Practitioners and Bar Councils Act, 1973. When it said that the rule is ultra vires to the Act, it means that the authority, which purported to make rules/act in excess of its authority conferred on it under the Act. Section 56 of the Legal Practitioners and Bar Councils Act, 1973. In fact, the said clause provides full authority/power to the Punjab Bar Council to make rules and to provide for the condition, subject to which a person may be admitted as an advocate or advocate of High Court. The newly added Rule 5.1 has been framed with lawful authority to regulate the admission and induction of advocate to be enrolled as advocate or advocate of High Court. The essence of the doctrine of ultra vires is that, the act is done in excess of the powers possessed by the person or body in law. This doctrine proceeds on the basis that the person or body has limited powers to frame rules, whereas, in the instant case, the Punjab Bar Council is fully empowered under sub-clause (k) of Section 56 of the
PLJ 2008 Lahore 487
Present: Maulvi Anwar-ul-Haq, J.
GHULAM FARID--Petitioner
versus
MUHAMMAD SIDDIQUE and 5 others--Respondents
W.P. No. 11054 of 2007, decided on 14.11.2007.
Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 30--Suit for pre-emption--Limitation--Sale through registered sale deed--Prescribed period of limitation of four months would commence from the date of registration of sale deed--Apart from the fact that pre-emption was a party to suit for specific performance culminating into sale deed through Court process, possession had been delivered to vendee prior to the registration of sale-deed, which itself upon a proper proof, is a starting point of limitation under S. 30 of Pre-emption Act, 1991--Suit for limitation having been filed beyond statutory period, was rightly dismissed by Courts below.
[Pp. 488 & 489] A & B
NLR 2007 SCJ 192, ref.
Sh. Masood Akhtar, Advocate for Petitioner.
Date of hearing: 14.11.2007.
Order
Seeking specific performance of an agreement to sell dated 19.3.1984 the petitioner filed a suit on 1.4.1984. This suit was contested by the opponents and was decreed by the learned trial Court on 3.7.1988. First appeal was dismissed on 27.7.1995. RSA No. 46/95 was dismissed by this Court on 23.6.1999 while CPLA No. 1141-L/99 was dismissed by the Hon'ble Supreme Court of Pakistan on 13.12.2000, the decree was put into execution and a sale-deed was executed in favour of the petitioner by the learned Executing Court on 12.6.2001 and registered on 23.10.2001.
On 19.11.2001 the Respondents No. 1 and 2 filed a suit against the petitioner for possession of the land, subject-matter of the sale-deed, by pre-emption. I may note here that at a later stage, Respondents No. 3 and 4 were impleaded as parties as they claimed that the petitioner has entered into an agreement promising to sell the suit land to them. Written statements were filed by the petitioner as well as the said Respondents No. 3 and 4 who had also filed a suit for specific performance of the alleged agreement to sell. One of the objections raised was that the suit is barred by time. The learned trial Court consolidated both the suits vide order dated 4.4.2005 and issues were framed. The proceedings were to be conducted in the said pre-emption suit. Issue No. 4 pertained to the said objection of limitation. Vide order dated 6.12.2005 the learned trial Court decided to treat the said issue as preliminary. Evidence on this issue was also recorded in the form of documents. On 19.10.2006 after making some submissions, the learned counsel for the parties agreed that the issue be decided alongwith the other issues in the consolidated proceedings. Thereafter, again, an application was filed by the petitioner for rejection of the plaint under Order VII, Rule 11 CPC with reference to the said objection. This application was resisted. Vide order dated 21.2.2007 the learned trial Court decided that the limitation would start from the date of registration of the sale-deed. Against this order, a revision was filed by the petitioner as well as Respondents No. 3 and 4 together. This revision has been dismissed by a learned ADJ, Shakargarh, District Narowal, on 29.10.2007.
Learned counsel contends that since the sale-deed was registered pursuant to a decree for specific performance, the limitation would start from the date of the said decree or from the date of commencement of execution proceedings.
I have gone through the copies of the records. I have narrated the entire history of this case above. The limitation, of course, is governed by Section 30 of the Punjab Pre-emption Act, 1991, which clearly lays down the point of commencement of the period of limitation of such a suit. The sale having, admittedly, been effected by means of a registered document, under the said provision of law, the prescribed period of limitation of four months shall commence from the date of registration of the said document. The objection, therefore, has rightly been over-ruled by the learned Courts below. I also find that the learned trial Court has relied upon the case of Mst. Maqsood Mai v. Abdul Rashid, etc. (NLR 2007 SCJ 192). I have examined the said judgment. In the said case, the pre-emptor, in fact, was a party to the suit for specific performance. A similar objection was raised by the vendees when the suit was brought for possession by pre-emption of the subject-matter of the said suit after registration of the sale-deed in execution of the decree for specific performance. It was observed that the objection is totally unfounded and that the cause of action for such a suit would accrue only when the sale-deed is registered pursuant to the enforcement of the terms of the agreement by execution of the decree for specific performance. I may further note here that apart from the fact that the pre-emptor was a party to the suit for specific performance, the other ground was that possession has been delivered prior to the registration of the sale, which itself, upon a proper proof, is a starting point of limitation under Section 30 of the Punjab Pre-emption Act, 1991.
In the instant case, it has simply been objected that since the sale-deed was registered in execution of the decree for specific performance, the starting upon of limitation would be the date of the decree or the date of commencement of the execution proceedings. To borrow the words from the said dictum of the Hon'ble Supreme Court, the objection, of course, is wholly baseless. The writ petition accordingly is dismissed in limine.
(A.A) Petition dismissed.
PLJ 2008 Lahore 489
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD BASHIR--Appellant
versus
MUNAWAR HUSSAIN--Respondent
R.S.A. No. 111 of 2007, decided on 25.3.2008.
Limitation Act, 1908 (IX of 1908)—
----S. 18--Civil Procedure Code, (V of 1908), S. 100--Provision of S. 18, Limitation Act, 1908--Applicability--Essentials--Plaintiff filed suit for pre-emption beyond period of limitation, claiming that sale-deed was concealed from plaintiff and he came to know of sale beyond the period of limitation--Admitted position was that sale in-question, having been effected by means of registered document, thereafter, mutation was also sanctioned on basis of such document--Besides, in original plaint no allegation of fraud were mentioned nor particulars of fraudulent concealment relating to sale were stated in original plaint--Provisions of S. 18, Limitation Act, 1908 were thus, not available to facts of case--Plaintiffs suit being barred by limitation, was rightly dismissed by Courts below. [P. 491] A
PLD 1995 SC 345; PLD 2006 Lahore 365, ref.
Mr. Zaka-ur-Rehman Awan, Advocate for Appellant.
Date of hearing: 25.3.2008.
Order
The respondent vide registered sale-deed dated 10.2.2003 purchased the suit land mentioned in heading of the plaint. On 26.6.2003 the appellant filed suit for possession of the suit land by pre-emption. In heading of the plaint there is reference to Mutation No. 1784 attested on 10.12.2002. The plaint narrates that the respondent has purchased the suit land from Mst. Mariam Bibi vendor by keeping it secret; that he came to know about it on 19.6.2003 when he made first Talb and then issued a notice of Talb-i-Ishhad under registered cover A.D. He claimed to be Shafi Shareek, Shafi Khaleet and Shafi Jar. The respondent filed a written statement, inter alias, taking an objection that the suit is barred by time. On 17.11.2003 an application was field by the respondent praying that the plaint on the face of it is barred by law being time-barred and it be rejected. In reply the appellant insisted that he has filed suit within time, as according to him under Section 30 of the Punjab Pre-emption Act, 1991 the suit could be filed with reference to the date of knowledge. This application was dismissed by the learned trial Court on 12.10.2005. A revision filed against the said order was also dismissed. The respondent filed W.P. No. 11212/05 in this Court, which was allowed and the case was remanded back to the learned trial Court to decide the application afresh.
This was done vide judgment dated 6.2.2006. After the remand appellant filed an application under Order VI, Rule 17 CPC on 10.3.2006. Through this application primarily the appellant wanted to urge ground as envisaged in Section 18 of the Limitation Act, 1908 to bring the suit within time. Both these applications were taken up together by the learned trial Court whereas the appellant under Order VII, Rule 11 CPC was allowed one under Order VI, Rule 17 CPC was dismissed on 21.11.2006. A first appeal filed by the appellant has been dismissed by a learned Additional District Judge, Lahore, on 30.6.2007.
Learned counsel contends with reference to the certified copies of the record appended with this RSA that in the first instance sufficient pleadings had already been made in the original plaint to enable the appellant to avail benefit of Section 18 of the Limitation Act, 1908 and in the second permission ought to have been granted to amend the plaint and refusal is against the well settled proposition that amendment in plaint is to liberally allowed. Relies on the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 S.C. 345). He further contends that the learned Courts below have committed an error of law while being influenced by the observations of this Court while remanding the case back for decision of the application under Order VII, Rule 11 CPC.
I have gone through the said records with the assistance of the learned counsel. I have already narrated above the material contents of the plaint, the application under Order VII, Rule 11 CPC, its reply and the application under Order VI, Rule 17 CPC filed by the appellant.
So far as the original plaint is concerned, in para 1 it has been stated that the land has been purchased by the respondent from Mst. Mariam Bibi vendor and sale-deed was kept secret and he came to know about it on 19.6.2003. To my mind, the said allegation is of general nature and is to be found in every such like suit being filed under new dispensation. This, of course, has reference to making of the first Talb as prescribed.
Section 18 of the Limitation Act, 1908, which is being relied upon lays down in specific terms that it is not simple concealment which would bring the said provisions of law into play rather the concealment has to be fraudulent. It is admitted position on record that not only was the sale effected by means of registered document but later mutation was also sanctioned on the basis of the same. Needless to state that the particulars of the fraud have to be stated. Apart from the fact that there is no allegation of fraud in the original plaint; even in the proposed amendment I am unable to find any such allegation muchless particulars of the fraud or fraudulent concealment of the sale. I have already noted above that in the reply even no such plea was taken. Learned counsel states at bar that the reply to the application under Order VII, Rule 11 CPC was also amended and plea was taken that no notice was issued by the sub-registrar or Revenue Officer in terms of Section 31 of the Punjab Pre-emption Act, 1991. This allegation by itself hardly brings the case within mischief of Section 18.
At this stage I may refer to the earlier judgment of this Court whereby the case was remanded for decision of the application. This judgment is now reported in PLD 2006 Lahore 365. After hearing both the parties it was held that provision applicable would be Section 30(a) of the Punjab Pre-emption Act, 1991. I deem it appropriate to reproduce here para-10 of the said judgment at pages 370-371 of report.
"10. Without prejudice to the above, even otherwise the petitioner has not pleaded in his plaint, that the Registration Officer failed to comply with the provisions of Section 31(2) of the Act, as no notice within the specified time was given after the registration of the sale-deed. It is for the first time, that in reply to the application under Order VII, Rule 11 C.P.C., filed by the petitioner, the plea was raised that the plaintiff learnt about the sale when he was dispossessed from the property and that no notice was issued by the officer concerned, in terms of Section 31. I am afraid, that by the time the stage to propound the plea had passed, because the presumption of regularity is attached to the official acts and nothing had been stated to controvert the said presumption in the plaint."
It was with the said observations that the case was remanded and the learned trial Court was called upon to decide the application under Order VII, Rule 11 CPC. Upon my query the learned counsel concedes that this judgment was never challenged in the manner prescribed by law. This being so, the learned trial Court was required to decide the matter within the parameters set down in the remand order.
(A.A) Appeal dismissed.
PLJ 2008 Lahore 492
[Bahawalpur Bench Bahawalpur]
Present: Saghir Ahmad, J.
SAEED IQBAL--Petitioner
versus
SAYED SHABIR AHMAD and others--Respondents
C.R. No. 357 of 2007/BWP, decided on 23.1.2008.
(i) Civil Procedure Code, 1908 (V of 1908)—
----Ss. 12(2) & 115--Application under S. 12(2), C.P.C.--Framing of issues or recording of evidence in proceedings under S. 12(2), C.P.C. is not the rule of law--Court is not bound to undergo such exercise in every matter under S. 12(2), C.P.C. [P. 494] A
(ii) Specific Relief Act, 1877 (I of 1877)—
----S. 12(2)—Civi l Procedure Code, (V of 1908), S. 115--Agreement to sell, assailed as being forged and fictitious--Legality--Where plaintiff being major and competent to enter into compromise and voluntarily appeared before Court, he would be bound by his statement made before that Court--Plaintiff in earlier proceedings had made compromise statement wherein he had admitted defendant, claim relating to agreement to sell and receipt of earnest money--Their being no illegality, material irregularity or lack of jurisdiction on the part of Appellate Court, interference was not warranted therein.
[P. 495] B
PLJ 2000 SC 1563 and 2003 SCMR 1050, ref.
Ch. Naseer Ahmad, Advocate for Petitioner.
Date of hearing: 23.1.2008.
Order
In brief the facts are that one Syed Nazar Hussain Shah filed a suit for specific performance of agreement to sell dated 27.10.1966 with regard to 850-Kanals and 2-Marlas of land, against Sher Muhammad and others, with the averment that said Sher Muhammad while acting as guardian of his son Saeed Iqbal, agreed to sell said land for a consideration of Rs. 28,400/- out of which Rs. 800/- in cash and 20-mounds of wheat valuing Rs. 400 were taken as earnest money and remaining were to be received at the time of attestation of mutation. Pursuant to the said agreement to sell the possession of the land was also delivered to the plaintiff. The Defendants No. 1 and 2 i.e. Sher Muhammad and Saeed Iqbal while filing written statement though admitted the agreement to sell and also receipt of the earnest money, yet pleaded that the plaintiff himself was responsible for non-performance of the said agreement. The remaining Defendants No. 3 to 6 however, vehemently contested the suit by pleading that they were bona fide purchasers of land measuring 288-Kanals 1-Marla for consideration, through Plaintiff No. 1 by way of Mutation No. 165 dated 21.1.1967. This mutation was also attacked by the plaintiff. The suit was ultimately decreed on 29.5.1968, against which the appeal filed by Defendants No 3 to 6 was allowed and case was remanded back by the learned Additional District Judge vide judgment dated 3.1.1983 after framing of additional issue, for its decision afresh. After remand, the learned trial Court vide judgment dated 24.4.1986 partly decreed the suit only to the extent of recovery of Rs. 2200/- the amount paid by the plaintiff as earnest money, as such, specific performance of the alleged agreement to sell was refused. This judgment was further assailed by in appeal and during proceedings before the appellate Court Saeed Iqbal respondent appeared before the Court on 21.6.2002 alongwith his counsel and made a statement that he has no objection to the decision of the appeal in terms of the compromise. The appellants also got recorded their statement and in terms thereof, the learned District Judge vide order dated 21.6.2002 disposed of the appeal, set aside the judgment and decree of the learned trial Court and decreed the suit of the appellants in terms of the statements of the parties. Thereafter, Saeed Iqbal the present petitioner moved an application under Section 12(2) CPC before the learned District Judge, Bahawalnagar to the effect that decision dated 21.6.2002 had been obtained by the respondents by practicing fraud upon the Court, by contending that alleged agreement to sell as well as mutations were forged and fictitious; that Sher Muhammad his father was not authorized to sell his property and that neither the petitioner nor his father ever appeared before any forum for transfer of the property. Further it was averred that his father Sher Muhammad deceased had not been appointed guardian by any Court thus could not sale out the land and that his purported statement of compromise never intends to take off his hands from his entire holding without any consideration. The learned District Judge, Bahawalpur vide impugned order dated 17.7.2007 after procuring reply to the said application and hearing the parties, dismissed the application of the petitioner under Section 12(2) CPC, hence, this revision petition.
The contention of learned counsel for the petitioner is that Sher Muhammad father of the petitioner was not appointed as Guardian, therefore, could not execute any sale agreement on behalf of the petitioner, that the alleged agreement to sell is not binding upon the petitioner; that decision of the appeal in terms of the compromise is violation of earlier order of this Court; that petitioner could not make a statement to his own detriment; that it was essential for the learned District Judge to have framed issues on the application of the petitioner under Section 12(2) CPC and after thorough trial should have passed the verdict.
Arguments considered. Record perused.
So for the contention with regard to the decision of petitioner's application under Section 12(2) CPC is concerned, framing of issues or recording of evidence in proceedings under Section 12(2) CPC is not the rule of law, as it is not incumbent upon the Court to undergo such exercise in every matter under Section 12(2) CPC. Reliance is placed on the case reported in "Nazir Ahmad vs. Muhammad Sharif and others' (PLJ 2000 SC 1565 and "Mst. Nasira Khatoon and another vs. Mst. Aisha Bai and 12 others" (2003 SCMR 1050). Furthermore, the available record evidently shows that before different Courts in different rounds, the petitioner and his father Sher Muhammad remained involved and their written statements filed before the Courts, though they posed themselves to contest the suit but they admitted the execution of agreement to sell and also receipt of earnest money and it was for this reason that at one stage the suit of the respondent/plaintiff was decreed as a whole and on the second time it was partly allowed directing the petitioner to return the earnest money. This is no where the case of the present petitioner that he never signed the written statement. Furthermore, appointed of Mr. Muhammad Iqbal Sohail, Advocate as his attorney is also not denied by the petitioner. Even otherwise, on 21.6.2002 the petitioner himself appeared before the learned first appellate Court and in the presence of his said counsel made a categorical statement that he has no objection to the decision of the appeal in terms of the compromise between the parties, it is thus, obvious and understandable that petitioner being major fully knew the terms of the compromise as well as ultimate effect of his statement on his proprietary rights. The said statement is not only signed by the petitioner but also by his counsel. This statement of the petitioner being part of the judicial record, carry a presumption of truth. If a party who is otherwise, major and competent to enter into a compromise, voluntarily appears before the Court and makes any statement it is for the said party to safeguard his interest. Even the previous conduct of the present petitioner is indicative of the fact that they were never hotly contesting the suit of the respondent, thus making of such type of compromise statement was well according to the circumstances. The said statement also does not run counter to the factual position, as it is evident, that part of the land which had been sold out to Defendants No. 3 to 6 through Mutation No. 165 was kept intact. Furthermore, decision of the appeal in terms of the compromise, in no way, can be said to be violative of earlier direction of this Court for decision of the appeal on merits, as conclusion of any litigation in terms of the compromise is always considered to be its best resolve.
For what has been discussed above, the learned counsel for the petitioner has not been able to point out any illegality, material irregularity or lack of jurisdiction on the part of the learned District Judge, while passing the impugned order. Finding no force in the instant petition, the same is dismissed in limine, with no order as to costs.
(A.A) Revision dismissed.
PLJ 2008 Lahore 496
[Rawalpindi Bench Rawalpindi]
Present: Kazim Ali Malik, J.
MUHAMMAD KHALIL--Petitioner
versus
S.H.O. etc.--Respondents
W.P. No. 195 of 2008, decided on 28.2.2008.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Constitution of Pakistan (1973), Art. 199--Quashment of F.I.R. registered against petitioner under Section 468/471/419/420 P.P.C.--Alleged sale of land through mutation--Respondent himself admitted before Revenue Officer in subsequent proceedings that he had identified a fake woman as his mother at the time of sanction of mutation yet he was treated as star prosecution witness not only by Revenue Officer who got registered case against petitioner as also by the Police--Proceedings before Revenue Officer being summary in nature, controversy between parties required regular trial requiring evidence--Subsequent orders of Revenue Officer by means of which he reviewed his earlier orders and got registered criminal case against petitioner being not sustainable in law and being illegal, F.I.R. registered on basis of the same was quashed--Respondent, Revenue Officer was ordered to pay specified costs to petitioner.
[Pp. 498, 499 & 500] A, B & C
Petitioner in person.
Syed Shahid Hussain Kazmi, A.A.G. for Respondents.
Muhammad Altaf, Naib Tehsildar in person.
Date of hearing: 28.2.2008.
Order
The land in dispute was owned by Muhammad Asif, Respondent No. 4 and his mother Mst. Saleem Akhtar, Respondent No. 5. They alienated the same in favour of Muhammad Khalil, petitioner by means of separate Mutations No. 601 and 607 respectively. The above-named original owner/vendors appeared before Ch. Muhammad Altaf, Naib Tehsildar, Respondent No. 3 and made statement to the effect that after having received the total sale price they parted with their possession over the sold land and handed over the same to the petitioner/vendee. The respondent-Naib-Tehsildar sanctioned the mutations in favour of the petitioner-vendee. It is important to note that the lady who claimed to be Mst. Saleem Akthar before the Naib Tehsildar while making her statement in favour of the petitioner had been identified by her son Muhammad Asif, respondent. After acquiring interest in the disputed land through above-said mutations of sale, the petitioner herein further alienated the same in favour of Adil Hussain and Sajid Hussain (not party to this petition). Raja Muhammad Rashid (not party to this petition), a brother of Muhammad Asif, respondent sued the subsequent transaction through pre-emption before the learned Civil Court at Gujjar Khan.
After termination of the mutation proceedings to the above effect, Muhammad Asif and his mother Mst. Saleem Akthar, respondents made separate applications/complaints before the respondent-Revenue Officer with an allegation that Muhammad Khalil, petitioner, vendee had deprived them of their landed property fraudulently. Contention of Muhammad Asif, respondent before the respondent-Revenue Officer was that another woman had personated herself as Mst. Saleem Akhtar and that he (Muhammad Asif respondent) had identified her as his mother before the respondent-Revenue Officer. Mst. Saleem Akhtar, respondent also adopted the above-said version of her son Muhammad Asif. Muhammad Asif asserted in his application that he sold the land in favour of Muhammad Khalil, petitioner for Rs. 3,00,000/- out of which only Rs. 90,000/- had been paid to him and that he made a statement of receipt of total sale price before the Revenue Officer on the assurance and asking of Muhammad Khalil, petitioner that he would make payment of the balance amount later on. The respondent-Revenue Officer took cognizance of the above said complaints by the vendors, recorded evidence and not only reviewed his earlier orders on the mutations of sale but also got registered case F.I.R. No. 42 dated 21.1.2008 under Sections 468/471/419/420 P.P.C. at Police Station Gujjar Khan, District Rawalpindi.
Feeling aggrieved, Muhammad Khalil, petitioner/vendee/ accused has filed constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 561-A Cr.P.C. seeking quashment of the impugned F.I.R.
Before adverting to the merits or demerits of the controversy I find it advantageous to bring on record the facts, which are not in dispute or disputable:--
(a) The land in dispute was owned by Muhammad Asif and his mother Mst. Saleem Akhtar, respondents.
(b) A women who posed and introduced herself as Mst. Saleem Akhtar before the respondent-Revenue Officer had been identified by Muhammad Asif, respondent who is admittedly real son of Mst. Saleem Akhtar. Muhammad Asif respondent appeared before the respondent-Naib Tehsildar and made a statement that after having received the total sale price of the sold land he delivered possession to Muhammad Khalil, petitioner-vendee.
(c) The respondent-Revenue Officer sanctioned the mutations in favour of Muhammad Khalil, petitioner after recording statements of the vendors.
(d) A brother of Muhammad Asif respondent pre-empted the sale through pre-emption which had subsequently been made by Muhammad Khalil, petitioner.
For the sake of arguments, if it is admitted for a moment that some woman personated herself as Mst. Saleem Akhtar before respondent-Naib Tehsilar, then an important question arises as to why Muhammad Asif, respondent was introduced as star prosecution witness by the respondent-Naib Tehsildar and the investigator without asking him as to why he identified a fake woman as his own mother. The respondent-Revenue Officer could not identify and locate the woman who allegedly personated herself as Mst. Saleem Akhtar before him despite the fact that it was the contention of Muhammad Asif, respondent that he identified a fake woman as his own mother before the Revenue Officer. In other words Muhammad Asif abetted and facilitated the commission of alleged offence punishable under Section 419 P.P.C. as per his own version. The most shocking aspect of the matter is that Muhammad Asif, respondent himself admitted that he identified a fake woman as his mother but he was treated as star prosecution witness not only by the Revenue Office but also by the police.
Muhammad Asif, respondent admittedly appeared before the respondent-Revenue Officer and made a statement on the basis of which the mutation had been sanctioned. After attestation of the mutation he came forward before the same Revenue Officer with a different story. The respondent-Revenue Officer accepted and believed the changed and re-shaped version of Muhammad Asif, respondent and cancelled the mutations by exercising his powers under Section 163 of the Land Revenue Act, 1967. A bare perusal of the provisions of Section 163 of the Act would show that an order by the Revenue Officer can only be reviewed if new and important evidence is discovered, which after the exercise of due diligence was not within the knowledge of the person seeking review or on account of some mistake, or error apparent on the face of the record. The case in hand does not qualify the legal test laid down by Section 163 bid. No new evidence had been discovered. As per changed version of Muhammad Asif, respondent it was in his knowledge that the woman claiming to be Mst. Saleem Akhtar before the Revenue Officer was not his mother. At the cost of repetition, I would say that it was the case of Muhammad Asif, respondent before the respondent-Revenue Officer that the identified a fake woman as his mother. There was no legal controversy as to the payment of sale price. Initially Muhammad Asif, respondent admitted before the Revenue Officer that he received the total sale price from the petitioner-vendee. Later on he introduced another version that the vendee did not pay him the total sale price. Without recording evidence and without full-fledged trial, it was/is not possible to say with certainty as to which of the two versions of Muhammad Asif, respondent was true. The respondent-Revenue Officer was possessed with no yardstick enabling him to say that the changed version of Muhammad Asif was true particularly when he (Muhammad Asif) admitted in writing that he had identified a fake woman as his mother. The available record does not show as to why the respondent-Revenue Officer accepted the re-shaped version of Muhammad Asif, respondent as gospel truth.
The mutations were entered and sanctioned under Section 42 of the Land Revenue Act, 1967. It is an established principle of law subject to no exception that the proceedings under Section 42 surpa are of summary nature and any controversy requiring a regular trial or recording of evidence goes beyond the scope of the summary proceedings under Section 42 of the Act. I am unable to understand as to how and with what authority the respondent-Revenue Officer assumed the role of Civil Court.
The points in issue before the respondent-Naib Tehsildar, which emerged after the changed and re-shaped version of Muhammad Asif and her mother, respondents-herein, were as to whether Muhammad Asif, respondent identified his own mother or a fake woman before the Revenue Officer and as to whether he received the total sale price of the land as stated by him in his earlier statement before the respondent Revenue Officer or he received part payment as per his changed version. It was/is impossible to answer these questions summarily. As a matter of fact that respondent-Revenue Officer believed the changed version of Muhammad Asif, respondent without any basis and beyond the scope of his jurisdiction under Section 163 of the Land Revenue Act, 1967.
The Revenue Officer has attempted to explain his position that his orders reviewing the sanctioned mutations still hold the field and that the petitioner cannot involve constitutional jurisdiction of this Court against the said orders.
For multiple reasons this Court is of the view that the contention is mis-conceived. Firstly, for the reasons recorded in the preceding paragraphs, I have no doubt in my mind that subsequent orders passed by the respondent-Revenue Officer being nullity in the eyes of law must be ignored. This Court can exercise its inherent powers under Section 561-A Cr.P.C. to prevent the abuse of process of law and to advance the interest of justice and to protect the rights of the citizens guaranted by law and the Constitution. In the case in hand, no criminal offence can be said to have been committed by the petitioner, on the basis of facts admitted and patent on record and in such circumstances allowing the prosecution or investigating agency to continue with the investigation would amount to abuse of process of law. While exercising inherent powers the only criterion would be whether the continuance of the investigation before the police at the instance of the respondent-Revenue Officer would be a futile exercise, wastage of time and abuse of process of law or not. In the case in hand the respondent-Revenue Officer misused his official position in a crude form and in the circumstances it would be unjust to allow the police to drag the petitioner in frivolous litigation.
For what has been stated above, I have no doubt in my mind that the respondents joined hands with each other to avoid the legal consequences of the mutations sanctioned in favour of the petitioner. Subsequent orders of the respondent-Revenue Officer by means of which he reviewed his earlier orders and got registered a criminal case are not sustainable being illegal, without lawful authority and motivated. I, therefore, allow this constitutional petition and quash the impugned F.I.R.
Before parting with this order, I must say that the respondent-Revenue Officer played havoc with the system of Revenue Administration. He cancelled his earlier orders by exercising power in a crude manner not vesting in him obviously for some considerations extraneous to the record. Here I would say that the victim of Government functionaries action should not be left to their mercy. During the course of arguments the petitioner stated that he spent Rs. 50,000/- in prosecuting his case and cause before the Court of Sessions and this Court. By exercising the inherent jurisdiction, I direct the respondent-Revenue Officer to pay Rs. 50,000/- to the petitioner in 10 equal monthly instalments each of Rs. 5000/-. The E.D.O.R., Rawalpindi and the Distt. Accounts Officer, Rawalpindi are directed to deduct Rs. 5000/- from the salary of the respondent-Revenue Officer each month and ensure its deposit in the bank account of the petitioner under intimation to the Deputy Registrar (J) of this Court.
The writ petition stands disposed of in the above terms.
(A.A) Petition accepted.
PLJ 2008 Lahore 501
Present: Syed Asghar Haider, J.
ABRAR HUSSAIN & another--Petitioners
versus
DIN MUHAMMAD--Respondent
C.R. No. 1697 of 2006, decided on 14.5.2007.
Punjab Pre-emption Act, 1991 (IX of 1991)—
----Ss. 2(c) & 13--Suit for pre-emption--Demand of Pre-emption--Sale point of adjudication--Whether the talbs were made in accordance with the spirit, mandate and command of Section 13 of Punjab Pre-emption Act, 1991, or not--Determination--Transfer of ownership triggers the pre-emptor's right, he considers himself aggrieved and thereafter has to establish a superior right to retrieve such property, thus the demand is to be made upon a person, who is owner of the property. [P. 504] A
Punjab Pre-emption Act, 1991 (IX of 1991)--
----Ss. 13, 5 & 6--Transfer of Property Act, (IV of 1882), Ss. 54 & 55--Right of Pre-emption--Rights and liabilities of buyer and sellers--Right of pre-emption in accordance with S. 13 of Punjab Pre-emption Act, 1991 is to be exercised upon the buyer of property alone and no one else, because with the execution of the sale-deed, the seller completely divests himself of all rights in the property and they are transferred to the buyer, who steps into the formers shoes--Such transfer triggers the pre-emption suit, because the plaintiff considers himself aggrieved and seeks to retrieve back the property from the buyer--Such talbs are required to be made upon him--Talbs were not made upon the owner of the land, therefore, they were not made in accordance with the provisions of Section 13 of the Punjab Pre-emption Act, as such, the plaint was rightly rejected by the trial Court holding that they were made upon an improper person--Petition allowed. [Pp. 504 & 505] B & C
M/s Asjad Saeed & Khawaja Saeed-uz-Zafar, Advocates for Petitioners.
Mr. Abdul Samee Khawaja, Advocate for Respondent.
Mr. Farooq Qureshi Chishti, Advocate newly added for Respondent.
Date of hearing: 10.4.2007.
Judgment
Muhammad Jamil, Petitioner No. 2, purchased the suit property through sale Mutation No. 4564, dated 31.1.2003. The plaintiff/ respondent learnt of the transaction on 24.4.2003 at 4. p.m., through his grand son, he immediately made Talb-i-Muwathibat, on 25.4.2003, he went to the office of his counsel and issued notice dated 30.4.2003, making Talb-i-Ishhad and thereafter filed a suit on 5.5.2003. It is an admitted position on record that Petitioner No. 2 had sold the suit property to Petitioner No. 1 on 28.4.2003, therefore, while contesting the suit Petitioner No. 2 filed an application under Order VII, Rule 11 C.P.C. praying for rejection of the plaint, pleading that the suit property was sold earlier to making Talb-i-Ishhad, thus, there was no cause of action in favour of the plaintiff. After contest the trial Court allowed the application and rejected the plaint on 19.2.2004. Aggrieved thereof the plaintiff/respondent filed appeal before the lower Appellate Court, which, after contest, was allowed and the order and decree dated 19.2.2004, passed by the trial Court was set aside.
An application under Order 1, Rule 10 C.P.C. was made by one Amanat Ali claiming to be rival pre-emptor, therefore, a necessary, party to the dispute, as such, he be impleaded in the present petition. The petitioners or the respondent did not object to his impleadment, therefore, his application was allowed and he was impleaded as Respondent No. 2.
Learned counsel for the petitioner contended that Talb-i-Ishhad was made upon Muhammad Jamil (Petitioner No. 2) on 30.4.2003, whereas he had sold the property to Abrar Hussain, Petitioner No. 1 on 28.4.2003, as talbs have to be made upon the owner of the property as contained in Section 13 of the Punjab Pre-emption Act, 1991, therefore, no talb in law was made, as such, the plaint was rightly rejected. To augment his arguments he submitted that pre-emption is a feeble, predatory right and has thus, to be followed as mandated in law and every provision of Section 13 of the Punjab Pre-emption Act has to be meticulously adhered to, and in case of default the right is deemed to have been waived and provisions of Section 15 of the Punjab Pre-emption Act, 1991, came into play. To fortify his contentions he relied upon Haji Muhammad Saleem vs. Khuda Bakhsh (P.L.D. 2003 S.C. 315), Akbar Ali Khan and others vs. Mukamil Shah and others (2005 SCMR 431), Umar Khan through Legal Heirs vs. Ali Akbar through Legal Heirs and others (2004 C.L.C. 1671) and Muhammad Ramzan vs. Lal Khan (1995 S.C.M.R. 1510).
Learned counsel for Respondent No. 1 vigorously defended the impugned judgment and submitted that subsequent transfer in favour of vendee cannot effect the pre-emption right of the first pre-emptor, therefore, talbs were performed in accordance with law, as such rejection of plaint was unwarranted and the order was rightly reversed by the lower Appellate Court.
Learned counsel for Respondent No. 2 has also defended the impugned judgment and submitted that right of pre-emption is conferred upon individuals under Sections 5 and 6 of the Punjab Pre-emption Act, 1991, these are substentative provisions of law and have to be read in conjunction with Section 13 of the Punjab Pre-emption Act, which means that the plea adopted by the petitioners to frustrate the right of pre-emption was collusive, disguised and mala fide, therefore, it is against the spirit of law, further the transaction is sham, collusive and fraudulent, therefore, requires a detailed trial and the proceedings cannot be permitted to be short circuited. To fortify his contentions he relied on the following precedents:--
(i) Inayat Ullah Khan vs. Muqqarrab Khan (P.L.D. 1983 Peshawar 129), (ii) Mst. Mah Rauf Sultan vs. Abdul Yamin (1968 S.C.M.R. 874), (iii) Taj Din vs. Jumma etc. (P.L.D. 1978 Peshawar 88), (iv) Mumtaz Begum vs. Mukhtar Begum (P.L.D. 1983 S.C. 76), (v) Muhammad Khan vs. Sadiq etc. (P.L.D. 1983 Lahore 929), (vi) Ghulam Tayyab vs. Shahroo Khan, (P.L.D. 1962 (W.P. BJ-1), (vii) Jaffaran Bibi vs. Saleh Muhammad (P.L.J. 1975 Lah. 268), (viii) Muhammad Khan vs. Khan Muhammad (P.L.J. 1973 Lah. 522), (ix) Mustaqim Khan vs. Abdullah Khan (P.L.D. 1951 Pesh. 1).
(i) Talb-i-Muwathibat;
(ii) Talb-i-Ishhad; and
(iii) Talb-i-Khussmat.
Thereafter the procedure and manner in which these demands are to be made has been clearly enunciated. The question now arises upon whom demands are to be made. The answer is relatively simple, because transfer of ownership triggers the pre-emptor's right, he considers himself aggrieved and thereafter has to establish a superior right to retrieve this property, thus the demand is to be made upon a person, who is owner of the property. Section 2-(c) of the Punjab Pre-emption Act, 1991, reads:
"Right of pre-emption" means a right to acquire by purchase an immovable property in preference to other person by reason of such right.
Section 2(d) reads:
"Sale" means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of hiba-bil-iwaz' orhiba ba shart-ul-iwaz'.
If both provisions are read together they fully support this interpretation as sale in favour of the new owner is to be challenged, therefore, demand has to be made upon him.
Sections 5 and 6 of the Punjab Pre-emption Act, 1991, in fact, support this view point. Section 5 ibid clearly stipulates that the right of pre-emption accrues on the sale of immovable property, while Section 6 states the person in whom the right of pre-emption vests, therefore, if both these sections are read together, they advert to sale and qualifications of a person, who can exercise right of pre-emption.
The Transfer of Property Act, 1882 (Section 54) defines sale: "Sale is a transfer of ownership exchange for a price paid or promised or part paid and part promised." While Section 55 of Transfer of Property Act enumerates the rights and liabilities of buyer and sellers. Therefore, the contract of sale visualizes only two persons, vis. buyer and seller. If Section 13 and Sections 5 & 6 of the Punjab Pre-emption Act, and Section 54 and 55 of the Transfer of Property Act are read together, it is clear that the right of pre-emption in accordance with Section 13 of the Punjab Pre-emption Act, is to be exercised upon the buyer of property alone and on one else, because with the execution of the sale-deed, the seller completely divests himself of all rights in the property and they are transferred to the buyer, who steps into the formers shoes. This transfer triggers the pre-emption suit, because the plaintiff considers himself aggrieved and seeks to retrieve back the property from the buyer. Who now is the owner of property, as such talbs are required to be made upon him. As talbs were not made upon the owner of the land, therefore, they were not made in accordance with the provisions of Section 13 of the Punjab Pre-emption Act, as such, the plaint was rightly rejected by the trial Court holding that they were made upon an improper person. The precedents referred to by the learned counsel for Respondent No. 2 are distinguishable on facts. Inayatullah Khan vs. Mukarab Khan and another (P.L.D. 1983 Pesh. 12) deals with acquiring a superior pre-emptive right and thus is not applicable to the present proposition. Mst. Mahruf Sultan vs. Abdul Yamin and another (1968 SCMR 874) is also inapplicable and distinguishable on facts as the suit property was gifted during the pendency of the suit, whereas in the present matter the property was sold earlier to the filing of the suit. Likewise Taj Din vs. Jumma and 6 others (P.L.D. 1978 S.C. (AJ&K) 131) also deals with superior right of pre-emption. The other precedents referred to are inapplicable to the facts of the present proposition. Therefore, this petition is allowed, the impugned judgment and decree dated 7.6.2006 is set aside, the order and decree of the trial Court dated 19.2.2004, is restored. No order as to costs.
(A.S) Petition allowed.
PLJ 2008 Lahore 505
Present: M.A. Zafar, J.
MUHAMMAD HANIF--Petitioner
versus
DEPUTY SUPERINTENDENT OF POLICE, P.S. NAULAKHA, LAHORE and 2 others--Respondents
W.P. No. 1591 of 2008, decided on 12.3.2008.
Constitution of Pakistan, 1973—
----Art. 199--Pakistan Penal Code, (XLV of 1860) Ss. 420, 468, 471 & 380--Criminal Procedure Code, (V of 1898), Ss. 22-A & B--Constitutional petition--Quashing of FIR--Prayed for registration of criminal case u/S. 489-F of P.P.C. and quashing the FIR registered by respondent--Validity--Petition filed u/S. 22-A & B of Cr.P.C. disclosed commission of cognizable offence and in such like situation there was no option with Ex-Officio Justice of Peace but to order for registration of criminal case--Held: Investigating officer is directed to investigate both FIRs simultaneously and to proceed in the matter in accordance with law without being influenced anything in such order--Petition partly accepted. [Pp. 507 & 509] A & D
Criminal Procedure Code, 1898 (V of 1898)—
----S. 154--Provisions of--Cognizable offence--Provisions of S. 154, Cr.P.C. command a S.H.O. to lodge an FIR if the information, conveyed to him disclosed the commission of a cognizable offence irrespective of the information being correct or incorrect. [P. 508] B
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 22-A (6) & 154--Ex-Officio Justice of Peace--Extra authority--Mandatory requirements--Provisions of--No additional powers on an Ex-Officio Justice of Peace to hold any enquiry to assess the credibility of such an information communicated for the purpose in-question nor do the provisions give any extra authority to the Ex-Officio Justice of Peace to refuse registration or order non-registration of an FIR in violation of or beyond mandatory requirements of S. 154, Cr.P.C. [P. 508] C
Investigation--
----Investigation cannot be conducted without registering a criminal case and such act of the police is always not approved by the Courts.
[P. 509] E
Ch. Zulfiqar Ali, Advocate for Petitioner.
Mr. Muhammad Shahid Ikram Siddique, Advocate for Petitioner.
Mr. Najam-ul-Hassan Gill, A.A.G.
Date of hearing: 12.3.2008.
Order
Muhammad Hanif petitioner has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan making multiple prayers in the petition. He has prayed for issuing direction to Respondent No. 2 for the registration of criminal case u/S. 489-F PPC for dishonouring of cheque amounting to Rs. 48,75,000/- it has also been prayed that case FIR No. 56/2008 registered u/S. 420/468/471/380 PPC with Police Station Naulakha, Lahore against the petitioner be cancelled and quashed. It has also been prayed that Respondents No. 1 and 2 may kindly be restrained from harassing, pressuring, involving the petitioner in any case.
Learned counsel for the petitioner submits that case of the petitioner is that he is running a company under the name and style of Master Textile Trander and supplies different types of goods and parts etc., to the Textile units. The Respondent No. 3 is also running two Textile Units in the name and style of Najia Textile and Rehmat Wazir Textile Units and the petitioner used to supply Respondent No. 3 various goods. In this regard, petitioner supplied to Respondent No. 3 Textile Units, the textile parts for an amount of Rs. 64,00,000/- upon which Respondent No. 3 made hard cash and for the remaining amount, the Respondent No. 3 issued a cheque amounting to Rs. 48,75,000/- drawn at Metropolitan Bank, Gulberg-III, Lahore which cheque when the petitioner deposited in his account for encashment of the same, the said cheque was dishonoured by the bank authorities due to non-payment of the same. He further submits that he want to SHO Police Station Naulakha, Lahore for lodging of FIR but he refused to register the case, then, he filed an application u/S. 22-A & B Cr.P.C. to the learned Sessions Judge, Lahore, which was entrusted to learned Addl. Sessions Judge, who called comments and after examining the contents of the petition and parawaise comments of respndent/SHO ordered Respondent No. 2/SHO to register a case and to proceed in accordance with law vide order dated 14.1.2008. He further submits that after obtaining the order petitioner went to Respondent No. 2 for lodging the FIR but at that time, Respondent No. 1, who happened to be the Superintendent of Police Naulakha Circle, without any cogent reason summoned the petitioner and started inquiring the matter, while ignoring the clear out order of the learned ASJ for registration of the criminal case against Respondent No. 3. The act on the part of Respondent No. 1 was harsh and partial, while doing the inquiry into the matter, which is ultra vires, and against the law.
The grievance of the petitioner is that time and again he approached the SHO for the registration of criminal case at his instance but of not avail, then, he again filed an application under Section 22-A & B Cr.P.C. before the learned Addl. Sessions Judge, Lahore for complying with the order dated 14.1.2008. Respondent No 3 also filed an application for recalling of the order dated 14.1.2008 and when the case was pending before the learned Addl. Sessions Judge learned counsel for Respondent No. 3 shows displeasure against the said learned Addl. Sessions Judge and moved transfer application to learned Sessions Judge, Lahore. Learned counsel for the petitioner submits that instead of registering a case at the instance of the petitioner, he has been falsely involved in case FIR No. 56/2008 registered with Police Station Naulakha, Lahore and the same is liable to be quashed.
It is noticed that petition filed under Section 22-A and B Cr.P.C. disclosed commission of cognizable offence and in such like situation there was no option with the learned Addl. Sessions Judge/Ex-officio Justice of Peace but to order for the registration of criminal case. Reference is made to the case of Muhammad Bashir vs. Station House Officer, Okara Cantt and others (PLD 2007 S.C. 539) in which it has been observed by the Hon'ble Supreme Court of Pakistan as under:
"For the purposes of this petition, we are concerned, primarily, with clause (i) of the above quoted provisions of sub-section (6) of the Section 22-A of the Cr.P.C. These provisions create a new forum to rectify a wrong done by an Officer Incharge of a Police Station by refusing to register a criminal case i.e. not recording an F.I.R. We have held above that the provisions of Section 154 Cr.P.C. command a S.H.O. to lodge an F.I.R. if the information, conveyed to him disclosed the commission of a cognizable offence irrespective of the information being correct or incorrect. Undoing this wrong on non-registration of a criminal case would mean only an order to the S.H.O. to register the case. The provisions of the said sub-section (6) of Section 22-A, Cr.P.C. confer no additional powers on an Ex-officio Justice of the Peace to hold any enquiry to assess the credibility of such an information communicated for the purpose in-question nor do the said provisions give any extra authority to the said Ex-officio Justice of the Peace to refuse registration or order non-registration of an F.I.R. in violation of or beyond the mandatory requirements of Section 154, Cr.P.C."
From the above, it is manifest that the learned Ex-officio Justice of Peace has no option except to order registration of a criminal case if commission of a cognizable offence is made out from the contents of the petition as in the instant case. The order of the learned Addl. Sessions Judge/Ex-officio Justice of Peace impugned in the petition is bad in law, he has not properly exercised the jurisdiction vested with him.
The order dated 14.1.2008 passed by learned Addl. Sessions Judge is within the four corners of law laid down by the Hon'ble Apex Court. Respondent/SHO instead of complying with the order dated 14.1.2008 registered the case against the petitioner. The unfortunate aspect of the matter is that when order dated 14.1.2008 was not obeyed by SHO P.S. Naulakha, Lahore, petitioner filed another application u/S. 22-A and B Cr.P.C. before the learned Addl. Sessions Judge for issuing direction to comply with the order dated 14.1.2008 and other side also filed an application for recalling of the said order. Before passing any order by the learned Addl. Sessions Judge on the aforesaid application, petitioner has rushed to this Court seeking registration of the case on the strength of order dated 14.1.2006 passed by learned Addl. Sessions Judge, Lahore.
Another petition under Sections 22-A and 22-B Cr.P.C. was filed by Respondent No. 3 alleging that cheque in-question had been stolen, the learned Additional Sessions, Judge/Ex-officio Justice of Peace vide order dated 18.1.2008 directed Respondent No. 3 to approach the SHO concerned and the SHO was directed to act in accordance with law if any cognizable offence is made out. After the said order F.I.R. No. 56/2008 under Section 420/468/471/330 PPC was registered at Police Station Naulakha Lahore on 31.1.2008 at the instance of Respondent No. 3 against the petitioner. Quashment of aforesaid F.I.R. has also been sought for.
But that as it may, SHO Police Station, Naulakha, Lahore is directed to register a case at the instance of the petitioner according to the contents of petition under Section 22-A and B Cr.P.C. which prima facie discloses the commission of cognizable offence. As far as, quashing of case FIR No. 56/08 registered against the petitioner, is concerned, I am not inclined to quash the same. However, the investigating officer is directed to investigate both the FIRs simultaneously and to proceed in the matter in accordance with law without being influenced anything said in this order or any previous investigation conducted by him before registering a case because it is a settled law that investigation cannot be conducted without registering a criminal case and such act of the police is always not approved by the Courts. Resultantly petition is partly accepted to the extent of directing to register a case at the instance of petitioner.
(R.A) Petition partly accepted.
PLJ 2008 Lahore 509
Present: Ali Akbar Qureshi, J.
LIAQAT HAYAT KHAN WAHLA--Appellant
versus
MIAN MUHAMMAD TRUST HOSPITAL, FAISALABAD through Honorary Secretary--Respondent
S.A.O. 38 of 2008, decided on 24.3.2008.
Limitation Act, 1908 (IV of 1908)—
----S. 5--West Pakistan Urban Rent Restriction Ordinance, (VI of 1959), S. 15(6)--Condonation of delay in filing appeal--Contents of application for condonation of delay did not contain any satisfactory and cogent explanation, except that delay in filing appeal was neither intentional nor deliberate--Requirement of law is to explain delay of each and every day in filing appeal--Such essential ingredients being absent in application for condonation of delay, appeal filed by appellant was deemed be time barred on account of non-disclosure of sufficient and tangible explanation thereof. [P. 511] A
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----Ss. 13(6) & 15(6)--Non-compliance with lawful order of Rent Controller relating to deposit of rent--Conduct of tenant (appellant) remained contumacious firstly, by not complying with lawful order of Rent Controller and secondly, by not producing any evidence to substantiate his claim--Tenant was thus, rightly deemed to be willful defaulter by Courts below--Tenant's appeal being barred by limitation, was dismissed as not maintainable. [P. 512] B
Mr. Muhammad Siddique Bajwa, Advocate for Appellant.
Date of hearing: 24.3.2008.
Order
Facts giving rise to SAO 38 of 2008 are that on 14.3.2005 respondent Mian Muhammad Trust Hospital Faisalabad instituted an ejectment petition against the appellant/defendant with reference to Shop No. 19 Ahmed Market Mian Muhammad Trust Hospital Faisalabad. It is alleged that premises was rented out to the appellant/tenant on 27.8.1996 at the monthly rent of Rs. 937/- wherein he is stated to have carried out the business of auto spare parts. He continued to pay the rent at the rate of Rs. 1313/-till June 2004 whereafter, he stopped payment thereof to the respondent. It was asserted by the respondent that since July 2004, the appellant was liable to pay the rent @ Rs. 1640/- per month. The appellant is alleged to have constructed a basement in the disputed premises with the permission of respondent and it was settled that rent thereof would be half of the disputed premises but the appellant did not pay the same and notice in this regard was sent to him on 28.3.2002, hence, became defaulter since July 2004 and February 2002.
The appellant contested the suit. It was the case of the appellant that respondent received the rent but did not issue the receipts from April 2005. Respondent used to collect the amount of 3 or 4 months in lump sum and latter issued receipts, hence, the appellant was not a defaulter. He maintained that respondent received Rs. 30,000/- for the construction of disputed premises, the agreement sought to be relied upon by respondent was bogus, as the appellant was rented out the disputed premises in 1990 and that since his lease rights were not extended by the Provincial Government, therefore, appellant was not bound to pay him the rent.
Before the issues were framed, learned Rent Controller passed order under Section 13(6) of the Urban Rent Restriction Ordinance 1959 directing the appellant to deposit arrears & future rent @ 1640/- per month till the final decision of the case before 15th day of each calendar month, closed the right to produce evidence of the appellant and directed him to submit receipt of the arrears/future rent and on account of non-submission thereof, defence of the appellant was struck off with the consequence that the appellant was directed to vacate the premises within 30 days.
The only issue that falls for determination in the case was whether the appellant was a wilful defaulter. In his written reply, the appellant admitted that he used to pay the rent to respondent from the very inception of the tenancy. Moreover, the appellant did not receive any notice in terms of S. 13(a) of the Rent Restriction Ordinance from the Provincial Government with regard to the change of ownership, thus, he was not liable to pay the rent to the respondent.
The appellant has also filed an application under Section 5 read with Section 14 of the Limitation Act, for condonation of delay and the learned counsel was asked to cross the initial and basic hurdle of limitation before arguing the case on merit. In this regard learned counsel says that judgment was passed on 24.12.2007, whereas, the appellant filed the requisite application for obtaining the certified copy thereof on 2.1.2007, and the same was prepared by the copying agency on 17.1.2008 but delivered on 31.1.2008, hence, the instant appeal is within time from the date of delivery thereof. Whereas, the stamp affixed by the copying agency concerned reveals that copy was prepared on 17.1.2008, but the appellant did not make any effort to collect the same on the day of its preparation. It is also evident from the contents of the application that no satisfactory and cogent explanation is given, except that delay in filing the appeal is neither intentional nor deliberate. Whereas, requirement of law is to explain the delay of each and every day in filing the appeal. Such essential ingredients are conspicuous by their absence in the said application. Obviously, the instant appeal is held to be time barred on account of non-disclosure of sufficient and tangible explanation thereof.
On merit, learned counsel says that though the appellant was tenant of the respondent, but since the Provincial Government did not extend the lease in favour of the respondent/landlord, so he unilaterally stopped payment of monthly rent, and thus, cannot be considered or held as a wilful defaulter. Adds that both the Courts below did not appreciate the crucial question with reference to the relationship of landlord and tenant as no notice within the meaning of Section 13(a) of the Ordinance ibid was served upon the appellant by the Provincial Government, and that both the Courts below did not take into account the documentary as well as oral evidence, and thus, the findings are based on mis-reading and non-reading of evidence.
It transpires from the order of the learned Rent Controller dated 13.5.2005 directing the appellant to deposit the arrears/future rent @ Rs. 1640/- per month till the final disposal of the case before 15th day of each succeeding calendar month. It clearly stands established on record that the appellant did not comply with said order of the Rent Controller. Had he complied with the aforesaid order, the amount so deposited by him was to remain in the custody of the Rent Controller. If a tenant is not willing to pay the monthly rent, how could he be allowed to retain the possession of the rented premises, and could ask any relief from the Courts of law. Conduct of the appellant remained contumacious firstly by not complying with the lawful order of the Rent Controller and secondly by not producing any evidence to substantive his clam. Furthermore there is nothing on record on behalf of the appellant, which could show that non-compliance of the order to deposit future rent was beyond his control or due to the act, of God. Hence, he failed to perform his legal obligation and disobeyed the lawful order of the Court of law wilfully and intentionally, and hence, he was held, and rightly so, a wilful defaulter.
Apart from the question of limitation, for the foregoing facts and reasons, no case for inference with the concurrent and consistent findings of the Courts below is made out, as the conclusion drawn are in absolute conformity of law and facts. Resultantly, this appeal before devoid of any merit as also barred by limitation is dismissed at the limine stage of the hearing of the case with no order as to costs.
(A.A) Appeal dismissed.
PLJ 2008 Lahore 513
[Rawalpindi Bench Rawalpindi]
Present: Ali Akbar Qureshi, J.
Mst. KANEEZ FATIMA--Petitioner
versus
JUDGE FAMILY COURT and another--Respondents
W.P. No. 830 of 2006, decided on 14.4.2008.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Challenged the vires of interim order--Maintainability--Constitutional petition is not maintainable against the interim order. [P. 515] A
West Pakistan Family Courts Act, 1964 (XXXV of 1964)—
----S. 17--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Challenged the vires of order passed by Judge Family Court--Consolidated suit for dowry articles, maintenance and dower amount against petitioner's son--Maintainability--Wife was facilitated to consolidate her claim as provided by law in one suit--No other option but to file a collective suit regarding her claims--Held: If the independent suit's are filed, the Judge Family Court would have no option but to consolidate the same and Family Courts have been given powers to regulate its own proceedings in the interest of justice if the situation so required--Matter pending before Family Court is being delayed by different tactics, hence not entitled for any equitable relief--Petition was dismissed. [P. 515] B
Mr. Basharat Ullah Khan, Advocate for Petitioner.
Mrs. Sarkar Abbas, Advocate for Respondents.
Date of hearing: 14.4.2008.
Order
Through this Constitutional petition, the petitioner has challenged the vires of the order dated 17.3.2006 passed by the learned Judge Family Court on an application filed by the petitioner. The Respondent No. 2, who has been divorced by the son of the petitioner, filed a consolidated suit for dowry articles, maintenance and dower amount etc. against the petitioner's son namely Muhammad Arshad. The present petitioner, who is mother of the ex-husband of the Respondent No. 2, has filed the instant petition being the attorney. The petitioner submitted the written statement and during the proceedings on 15.3.2006, filed an application before the learned Judge Family Court to the effect that the suit filed by the Respondent No. 2 is not maintainable as the collective claim regarding maintenance, dower and dowry articles can only be filed in a suit for dissolution of marriage and not otherwise. The learned Judge Family Court after receiving the reply of the said application heard the arguments and dismissed the application vide order dated 17.3.2006, hence this Constitutional petition.
The learned counsel for the petitioner contended that the collective claim asked by the Respondent No. 2 in one suit excluding the suit for dissolution of marriage is not maintainable in view of Section 17 of the West Pakistan Family Courts Act, 1964. Next contended that the order passed by the learned Judge Family Court is without jurisdiction and violative of the provisions of Section 17 of the Act ibid. Thus the findings recorded to this effect are not sustainable in law. Reliance is placed on Abdul Majeed vs. Judge Family Court, Kehror Pacca and 2 others (2003 YLR 884).
Conversely, the learned counsel for the respondent contended that the Respondent No. 2 has already been divorced so the collective claim in one suit prayed by the Respondent No. 2 is not violative of Section 17 of the Act ibid. Further contended that the Section 17 confers ample powers to the Family Court to regulate its own proceedings and has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law and Family Court can exercise its own powers to prevent the course of justice being deflected from the path particularly in the circumstance when the West Pakistan Family Courts Act, 1964 is a remedial statute and its enactment is actuated with beneficial object behind it, for expedited the matrimonial and family disputes by simplifying the procedure and curtailing the technicalities of the procedure law. Next contended that in any case in the claims prayed by the Respondent No. 2, the parties would be same and has to be decided by the same learned Judge Family Court obviously by consolidating the same so no illegality was committed by the courts below. The reliance has been placed on Shahid Bakhsh v. Mst. Shazia Bibi and another (2004 CLC 703) Arif Sana Bajwa v. Additional District Judge, (Mushtaq Ahmed Tarar), Lahore and 4 others (2004 MLD 794) and Mst. Naziran Bibi v. Additional District Judge and others (2003 YLR 82). In response of the contention raised by the learned counsel for the petitioner that the mother of the ex-husband of the Respondent No. 2 cannot be impleaded, the learned counsel for the respondent has placed reliance on Muhammad Anwar and another v. Additional District Judge, Lahore (Miss Uzma Akhtar Chughtai) and 2 others (2003 YLR 365) wherein it is ruled that if the dowry articles are in the custody of the father of the husband, the father may also be impleaded as party and can be considered as necessary party.
I have heard the learned counsel for the parties and perused the record.
The instant Constitutional petition has been filed against an interim order passed by the learned Judge Family Court on an application filed by the petitioner and this is settled proposition of law that the Constitutional petition is not maintainable against the interim order. This proposition was confronted to the learned counsel for the petitioner, the learned counsel could not address this issue nor cited any judgment so the Constitutional petition is dismissed on this score alone. While dealing with the other issue involved in this matter, that the learned Judge Family Court has rightly observed that while inserting Section 17 by the legislature in the Family Courts Act, 1964, the wife has been facilitated to consolidate her claim as provided by law in one suit whereas in this case admittedly the Respondent No. 2 has already been divorced by the son of the petitioner so the Respondent No. 2 had no other option but to file a collective suit regarding her claims. Even otherwise, if the independent suits are filed, the learned Judge Family Court would have no option but to consolidate the same and the Family Courts have been given powers to regulate its own proceedings, in the interest of justice if the situation so required. It is also observed that the attitude of the son of the petitioner and also the petitioner is so contumacious that the matter pending before the learned Judge Family Court is being delayed by different tactics, hence not entitled for any equitable relief.
In these circumstances, this petition is dismissed with costs of Rs. 10,000/- which would be paid to the Respondent No. 2 before the learned Judge Family Court, who shall record the event of paying the costs as ordered by this Court and the learned trial Court shall dispose of the matter expeditious preferably within a period of two months.
(R.A.) Petition dismissed.
PLJ 2008 Lahore 515
Present: Hafiz Tariq Nasim, J.
SAEED-UD-DIN KHAN--Petitioner
versus
SECRETARY RAILWAY BOARD etc.--Respondents
W.P. No. 11453 of 2006, decided on 12.2.2008.
Constitution of Pakistan, 1973—
----Art. 212--Emoluments of civil servant--Constitutional petition--Maintainability--Petitioner seeks a direction to respondents for declaring him entitled for emoluments--Requested before departmental authorities for redressal of his grievance but claim was refused--Validity--Withholding of emoluments of BS-20 post where admittedly the petitioner served for a considerable long time without any interruption or complaint whatsoever in fact suffers from inherent vice--Held: High Court would be competent in issuing the directions to respondents who are admittedly persons performing functions in connection with the affairs of Federation, to do a thing which they are required by law to do within jurisdiction of High Court on the strength of law laid down in case of (2001 SCMR 1320)--Petitioner could be non-suited on such like grounds because it is undisputed fact which is also reflected from departmental record that the petitioner performed his duties against the post of BS-20 w.e.f. 28.4.2000 to 23.2.2005 and such in fact action should have initiated against those who were sitting the helm of affairs for such irregularities and petitioner cannot be held responsible in any manner--Petitioner is held to be entitled to difference of emoluments between BS-19 and BS-20 for the period commencing from 28.4.2000 to 23.2.2005--Petition was allowed. [Pp. 517 & 518] A, C, D & E
Administration of Justice--
----Principal object behind all legal formalities is to safeguard the paramount interest of justice--Legal precepts were devised in order to view to impart certainty, consistency and uniformity to administration of justice and to secure same against arbitrariness, errors of individual judgment and malafides. [P. 517] B
Mr. Pervaiz I. Mir, Advocate for Petitioner.
Mr. Muhammad Aslam Zar, Standing Counsel for the Federation with Mr. Mumtaz Bhalwana, Deputy Director Legal, Pakistan Railways.
Date of hearing: 12.2.2008.
Order
Through this writ petition the petitioner seeks a direction to the respondents for declaring him entitled for the emoluments of BS-20 post with effect from 28.4.2000 to 23.2.2005 as the petitioner continuously performed the duties of BS-20.
The petitioner submitted a request before the departmental Authorities for the redressal of his grievance but vide letter dated 6.10.2006 the petitioner's claim was refused. The learned counsel for the petitioner submits that the petitioner has a lawful right of emoluments of the post of BS-20 as the petitioner performed the duties of the higher post on the directions of Respondents No. 1 and 2 and the refusal of such benefit is otherwise violative of law laid down by the superior Courts.
On the other hand the learned Standing Counsel appearing on behalf of respondents assisted by Deputy Director Legal, Pakistan Railways submitted that it is not denied that the petitioner performed his duties against the post of BS-20 with effect from 28.4.2000 to 23.2.2005 but assigning the said duties was not with the approval of the then Prime Minister who was the competent authority rather, it was under the directions of the Chairman Railway Board/Secretary Ministry of Railways who was not competent to do so, hence the petitioner cannot be held entitled for the said relief as claimed for. The learned Standing Counsel next contended that the writ petition is not competent in view of bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
Arguments heard, record perused.
So far the bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is concerned suffice it to say that withholding of emoluments of BS-20 post where admittedly the petitioner served for a considerable long time without any interruption or complaint whatsoever in fact suffers from inherent vice.
It is well settled by now that the "principal object behind all legal formalities is to safeguard the paramount interest of justice--legal precepts were devised in order to view to impart certainty, consistency and uniformity to the administration of justice and to secure same against arbitrariness, errors of individual judgment and malafides."
Relief claimed by the petitioner is with regard to the issuance of direction to the respondents to pay the emoluments to the petitioner for which he is entitled according to the law laid down by the apex Court and in such like controversy High Court would be competent in issuing the directions to the respondents who are admittedly persons performing functions in connection with the affairs of the Federation, to do a thing which they are required by law to do within the jurisdiction of the High Court hence on the strength of law laid down in case of Administer, District Council Larkana and others v. Ghulab Khan and 5 others (2001 SCMR 1320) the objection of bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is repelled.
So far the second submission of the respondents is concerned, it is not disputed that the petitioner started functions not at his own rather the petitioner performed his duties on the directions of Chairman Railway Board/Secretary Ministry of Railways, Government of Pakistan.
It is an important thing that the case of the respondents is not that the petitioner lacked requisite qualification/eligibility thrash hold for the post of BS-20, on the contrary the respondents themselves directed the petitioner to work against the post of BS-20 without seeking prior approval from the then Prime Minister for reasons best known to them, so in such like situation the respondents cannot be allowed to take benefit of their lapses in order to deprive the petitioner from his lawful right which is otherwise available to him in the light of series of judgments of the Hon'ble Supreme Court of Pakistan merely because the respondents have themselves committed irregularity in violating the procedure governing the said assignment.
I have not been persuaded to agree with the respondents that the petitioner could be non-suited on such like grounds because it is undisputed fact which is also reflected from the departmental record that the petitioner performed his duties against the post of BS-20 with effect from 28.4.2000 to 23.2.2005 and as such in fact action should have been initiated against those who were sitting the helm of affairs for such irregularities and the petitioner cannot be held responsible in any manner whatsoever.
Reliance can safely be placed on the law laid down by the apex Court reported as Director, Social Welfare, N.-W.F.P. Peshawar v. Sadullah Khan (1996 SCMR 1350) and Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali (2006 SCMR 678).
For the foregoing reasons, this writ petition is allowed the petitioner is held to be entitled to the difference of emoluments between BS-19 and BS-20 for the period commencing from 28.4.2000 to 23.2.2005.
The respondents are directed to release the said emoluments to the petitioner within a period of two months under intimation to the Deputy Registrar (Judl.) of this Court. No order as to costs.
(R.A.) Petition allowed.
PLJ 2008 Lahore 519
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rehman, J.
Mst. RUQIA BATOOL and another--Petitioners
versus
STATE and 2 others--Respondents
W.P. No. 4675 of 2007, heard on 3.10.2007.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 365-B, 419, 420, 468 & 471--Quashing of FIR--Dispute of Nikahs--Abductee left the house of her parents and contracted marriage with her free will and volition--Validity--Abductee was summoned from the jail and had been presented before High Court in person and she had made a statement in categorical terms that no one had abducted her and that she with her own free will and volition left the house of her parents and that case has been falsely registered against the petitioners--Nikah mentioned in FIR by complainant becomes doubtful when petitioner denies having entered into any other Nikah rather she owns the Nikah entered by accused, wherein the contents of Nikahnama have been admitted by husband and wife, the same is held as valid as has been held in case of PLD 1982 FSC 42--FIR is based upon nothing but frustration and malice on the part of the complainant who has tried to convert and transform a matrimonial issue into a criminal case so as to bring the weight of criminal law to bear upon petitioner and her husband in order to break their nuptial ties--FIR was quashed. [P.521] A & B
2005 YLR 2500; 2005 PCr.LJ 1638; 2004 PCr.LJ 620; PLD 2005 Lah. 316 and 2005 PCr.LJ 1119 ref.
Mr. Tahir Mehmood, Advocate for Petitioners.
Mr. Muhammad Qasim Khan, A.A.G. for Respondents No. 1 and 2.
Mr. Muhammad Tahir Ejaz, Advocate for Respondent No. 3.
Date of hearing: 3.10.2007.
Judgment
Through this Constitutional petition the petitioners seek quashment of FIR No. 210/2007 dated 13.07.2007 registered under Sections 365-B, 419, 420, 468, 471 P.P.C. at Police Station Mehmood Kot, District Muzaffargarh.
The precise allegation in the FIR lodged against the petitioners is that Nikah of Mst. Ruqia had already been performed, Mst. Ruqia aged about 20/21 years, she is daughter of the complainant, on 16.6.2007 at 7.30 a.m. the complainant was standing at Adda Turk Wala along with his daughter (abductee) in order to board her on a wagon, in the meantime, a wagon came from the side of Muzaffargarh, which was being driven by Abid Hussain son of Kora, along with him another unknown person was there, they forcibly put Mst. Ruqia in the Wagon, in this duration, the witnesses also attracted at the spot.
It has been stated on behalf of the petitioners that the case against the Petitioner No. 2 and others is forged and fabricated story; that no one had abducted the daughter of the complainant Mst. Ruqia Batool. In fact, she left the house of her parents and contracted marriage with Abid Hussain Petitioner No. 2 with her own free will and volition, as such, the abduction of Mst. Ruqia Batool is not established. Further stated that during her stay in Darul Aman, she had also submitted an application to the Investigation Officer of the case that no one has abducted her, she at her own free will has entered into marriage with Petitioner No. 2, which has caused annoyance to her family and on account to this annoyance and feeling danger to her life, she got refuge in the Darul Aman.
In compliance with the order dated 17.09.2007. Mst. Ruqia Batool was summoned from Daral Aman but it was at the later stage that she has been taken into custody in the instant FIR No. 210/2007 and on account of which she was sent to the Women Central Jail, Multan. Thereafter vide order dated 25.09.2007 she was summoned from the Women Central Jail, Multan. She has been produced from the Jail, she is before this Court in person and has made a statement in a categorical terms that no one had abducted her and that she with her own free will and volition left the house of her parents and that the case has been falsely registered against the petitioners and others; and that no offence has been committed with her by Petitioner No. 2 and others and she would like to continue her matrimonial life with Petitioner No. 2 Abid Hussain. Reliance has been placed on the cases of Mst. Dilshad Akhtar and another Vs. The State (PLD 1996 Lahore 145), Mst. Zareena Bibi Vs. The State (2005 P.Cr.L.J. 1119). Mst. Zeenat Bibi and another Vs. The State and 2 others (2005 P.Cr.L.J. 1312), Mst. Afshan Perveen Vs. SHO Police Station Qutabpur, Multan and 2 others (2004 P.Cr.L.J. 208), and Mst. Hajra Khatoon and another Vs. Station House Officer, Police Station Fateh Jang, District Attack and 2 others (PLD 2005 Lahore 316).
On the other hand, it has been argued on behalf of the complainant that a suit for jactitation of marriage is pending in the Court of Judge Family Court, Kot Addu and till the decision of that suit the criminal proceedings be stayed.
Both the petitioners and complainant party are disputing their respective Nikahs. The Nikah mentioned in the FIR by the complainant becomes doubtful when Petitioner No. 1 denies having entered into any other Nikah rather she owns the Nikah entered by Petitioner No. 1 with Abid Hussain Petitioner No. 2, wherein the contents of the Nikahnama have been admitted by both the husband and the wife, the same is held as valid as has been held in the case of Arif Hussain and Azra Parveen Vs. The State (PLD 1982 FSC 42) that :--
Reliance in this behalf is also placed on the case of Iftikhar Ahmad alias Raju Soomro and 2 others Vs. Khan Muhammad and another (2005 YLR 2500) wherein it has been held that "Where both the petitioner and the complainant were disputing their respective Nikah, dispute could only be resolved by the Family Court after entering into a full-fledged inquiry as to the genuineness of marriage between the parties in the suits for jactitation of marriage and it was not a case which should have gone to Criminal Court as Criminal Court was not competent to decide and declare about the legality of respective Nikahs." Reliance is placed on the case of Dr. Ghulam Mustafa Solangi and 5 others Vs. The State (2005 P.Cr.L.J. 1638). Even otherwise the question as to which Nikah is valid is a subject fit for a Family Court to adjudicate upon before the same cannot be made a basis of criminal prosecution of the petitioners. Reliance in this behalf is placed on the case of Mst. Nighat Abbas and others Vs. Muhammad Yousaf and others (2004 P.Cr.L.J 620).
(R.A.) FIR quashed.
PLJ 2008 Lahore 522
Present: Hafiz Tariq Nasim, J.
MEHMOODA KAUSAR--Petitioner
versus
SPECIAL SECRETARY EDUCATION etc.--Respondents
W.P. No. 2213 of 2008, decided on 26.3.2008.
Constitution of Pakistan, 1973—
----Arts. 3, 2-A & 212--Posting of civil servant--Valuable right--Longtime OSD--Such practice is regretted--There is a common practice prevalent to keep the civil servants without posting as a measure of punishment and that too for considerable long periods by making them OSD without getting normal work which otherwise is an abuse of executive power which must be discontinued by the Government--Held: Civil servant has a legal right to be posted to a position commensurate to her rank with responsibilities without unnecessary delay--Respondent was directed to pass appropriate order for the posting of the civil servant within a period of two weeks--Petition was accepted. [Pp. 523 & 524] A & B
Mr. Muhammad Yasin Bhatti, Advocate for Petitioner.
Mr. Naeem Masood, Assistant Advocate General Punjab with Rana Khalid Mahmood, Litigation Officer for Respondents.
Date of hearing: 26.3.2008.
Order
This writ petition is filed with the prayer that the respondents be directed to issue the posting order of the petitioner in compliance with the order of Respondent No. 3, wherein the petitioner has been taken on deputation for a specific post at Toba Tek Singh and also to release the pay of the petitioner.
The learned counsel for the petitioner submits that despite hectic efforts, the petitioner is not being posted anywhere and resultantly she is deprived of her lawful right of salary.
The learned Assistant Advocate General submits that the transfer and posting is outside the purview of this Court in view of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, hence the writ be dismissed on this ground.
Arguments heard. Available record perused.
The departmental representative, who is present in the Court could not controvert the position about non- posting of the petitioner.
Ordinarily, the matter of posting and transfer is to be dealt with by the competent departmental authorities and is not to be made subject of a judicial review under Article 199 of the Constitution of Pakistan.
However, there is another important aspect of the impugned matter, which needs consideration.
The petitioner was transferred/deputed by the competent authority but she was left without any posting. In my view, the right of posting is a valuable right and is implicit in Article 3 of the Constitution posting on the fundamental principle from each according to his/her ability. Even under Article 2A of the Constitution that is to say the objectives resolution, the right of social justice has been granted.
Even in case titled Pakistan and others vs. Public at Large and others (PLD 1987 S.C. 304), it was held by the Hon'ble Supreme Court that right to work is very valuable right, which cannot be denied.
In a similar case of P.K. Chinnasamy vs. Govt. of Tamil Nadu and others (AIR 1988 S.C. 78) the Supreme Court of India took the view "every public officer is a trustee and in respect of the office he holds and the salary and the other benefits which he draws, he is obliged to render appropriate service to the State. The scheme postulates that every public officer has to be given some posting commensurate to his status and circumstances should be so as to render commensurate service in lieu of the benefits received by him from the State---------it would ordinarily not be appropriate to continue an officer against a post and provide no work to him and yet pay him out of the Consolidated Fund."
Unfortunately, in the Federation and the Provinces of our country there is a common practice prevalent to keep the civil servants without posting as a measure of punishment and that too for considerable long periods by making them OSD without getting normal work which otherwise is an abuse of executive power which must be discontinued by the Government. Keeping in view the facts of the present case, I hold that the petitioner has a legal right to be posted to a position commensurate to her rank/status with responsibilities without unnecessary delay.
Respondent No. 1 is directed to pass appropriate order for the posting of the petitioner within a period of two weeks positively under intimation to the Deputy Registrar (Judicial) of this Court. The learned Assistant Advocate General who is present in Court shall notify the order for its compliance.
Writ petition is accepted in the above terms.
(R.A.) Order accordingly.
PLJ 2008 Lahore 524
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD NAZIM SHAHZAD--Petitioner
versus
CHAIRMAN PAKISTAN PUBLIC SERVICE COMMISSION, LAHORE and another--Respondents
W.P. No. 1521 of 2008, decided on 26.2.2008.
Punjab Judicial Service Rules, 1994—
----R. 7--Punjab Legal Practitioners & Bar Council Rules 1974, Rr. 7.10 & 7.12--Memorandum of Association/Rules of Business of Bar Associations, Art. 6--Eligibility for appointment as Civil Judge-cum-Judicial Magistrate--Requirement of 2 years experience--Held: Under the Rules 1974 membership of recognized Bar Association is condition precedent for a person to practice as an Advocate--Rule 7.12 facilitate such person by providing that R. 7.10 shall stand complied with on an application being filed for membership of Bar Association--Art. 6 of the Memorandum of Association/Rules of Business of Bar Associations does provide that fresh entrants shall be deemed to be practicing regularly but this is only for the purpose of Art. 6, so as to make them eligible for membership of the Bar Associations which does not in any manner derogate from the mandatory provision of R. 7.10 of the Rules 1974--As petitioner did not fulfil condition of 2 year practice, writ petition was dismissed in limine. [P. 526] A & B
Mr. Muhammad Hanif Saleemi, Advocate for Petitioner.
Date of hearing: 26.2.2008.
Order
In response to an advertisement published by Respondent No. 2 inviting applications for appointment to the posts of Civil Judges/Judicial Magistrates the petitioner filed an application, which was summarily rejected on 11.1.2008. A representation filed by the petitioner was dismissed on 19.2.2008. The ground of rejection is that the petitioner has no requisite experience.
Learned counsel for the petitioner contends that the petitioner having been enrolled as an Advocate on 19.8.2005, notwithstanding fact that he became member of the Bar Association on 29.10.2005 he had the requisite 2 years experience by the closing dated 20.10.2007 and as such the impugned orders are void. In support of this contention he relies on Article 6 of the Memorandum of Association/Rules of Business of Bar Associations published by the Punjab Bar Council vide notification dated 7.12.1981. He particularly referred to Article 6 of the said Memorandum to urge that his client would be deemed a practicing Advocate w.e.f., date of his enrollment with the Punjab Bar Council
I have gone through this file with the assistance of the learned counsel. The petitioner after passing LL.B examination was enrolled as Advocate by the Punjab Bar Council on 19.8.2005 vide Annex-F., while he became member of the Lahore Bar Association on 29.10.05 vide certificate Annex-G. The appointment to the said post is governed by the Punjab Judicial Service Rules, 1994. Rule 7 prescribes the qualifications for the appointment to a post of Civil Judge-cum-Judicial Magistrate. These are as follows :--
"7. Qualifications:--(1) No person shall be appointed to a post in the service by initial recruitment unless--
(a) in case of appointment to a post of Civil Judge-cum-Judicial Magistrate--
(i) he possesses a degree in Law from a recognized University entitling him to practise the profession of law or is a Member of the Faculty of Advocates of Scotland; and
(ii) he has actively practiced the profession of law for not less than two years after having been enrolled as an Advocate.
Rule 7.10 of the Punjab Legal Practitioners & Bar Council Rules, 1974 is to the following effect:--
"7.10. No person shall practice as an Advocate unless he is a member of a recognized Bar Association".
I also deem it appropriate to reproduce here Rule 7.12 of the said Rules:
7.12. It will be sufficient compliance with the requirements of Rule 7.10 if within six months of being enrolled as an Advocate a person applies for being admitted as a member of such Bar Association and his application has not been dismissed.
Upon plain reading of the said Rule of appointment and said Punjab Legal Practitioners and Bar Council Rules, 1974 it is clearly provided that membership of recognized Bar Association is condition precedent for a person to practice as an Advocate. Rule 7.12 facilitate such a person by providing that Rule 7.10 shall stand complied with on an application being filed by the person for membership of Bar Association. Upon my query learned counsel states that application for membership was also filed on 29.10.2005.
Now coming to the said contention of the learned counsel it is true that the said Article 6 of the Memorandum of Association/Rules of Business of Bar Associations does provide that fresh entrants, to the profession shall be deemed to be practicing regularly but this is only for the purpose of the said Article 6 so as to make them eligible for membership of the Bar Associations. The said Article 6, therefore, does not at all in any manner derogate from the mandatory provisions contained in Rule 7.10 of the said Rules 1974.
Having thus examined the facts of this case in the light of applicable Rules I do find that the application filed by the petitioner was correctly rejected with reference to lack of statutory period of experience. The writ petition is accordingly dismissed in limine.
(J.R.) Petition dismissed.
PLJ 2008 Lahore 527
[Multan Bench Multan]
Present: Iqbal Hameed-ur-Rehman, J.
Messers THAL INTERNATIONAL AIRWAVES (PVT.) LTD. through its Chief Executive, Multan--Petitioner
versus
PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY (PEMPRA) through its Chairman, Green Trust Tower, Jinnah Avenue, Blue Area, Islamabad and 5 others--Respondents
W.P. No. 4571 of 2007, decided on 8.10.2007.
Pakistan Electronic Media Regulatory Authority Ordinance, 2002—
----R. 27(2)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Cancellation of the licence to establish F.M. Radio Station--Petitioner was allowed license for a period of ten years--Frequencies for one station was not allocated--Request for allocation of the frequencies--Show-cause notice was issued instead of allocation of frequencies--License of the petitioner was cancelled--Assailed--Requirement of Condition No. 34 of license issued to the petitioner to commence broad cast operation within a period of one year from the date of issue of license--Petitioner was not able to start the transmissions--Contentions of the petitioner that the period of one year was to commence from the date of allocation of the frequency--Held: Frequency was not to be allocated by respondents the same was to be allocated by telecommunication authorities for which the respondents cannot be blamed--Petitioner applied for allocation of the frequency for the first time after one and half year of the issuance of the license as such the petitioner had defaulted in compliance of Condition 34 of the license, which entailed the starting of the transmissions within one year's period--Further held: Petitioner has not been able to obtain the allocated frequency from Pakistan Telecommunication Authority within the stipulated period--Respondents have not committed any illegality, so as to invoke the Constitutional jurisdiction of High Court--Petition dismissed.
[Pp. 530 & 531] A, B & C
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Party who had failed to perform its obligation according to law, is not entitled to discretionary relief under Art. 199 of Constitution of Pakistan. [P. 531] D
Malik Waqar Haider Awan, Advocate for Petitioners.
Mr. Muhammad Zargham Ullah, Advocate for Respondents.
Date of hearing: 8.10.2007.
Order
Through the instant writ petition the petitioner, Messrs Thal International Airwaves (Pvt.) Limited, has called in question the cancellation of the license to establish F.M. Radio Station at D.G. Khan, vide order dated 23.06.2006.
Brief facts of the case are that the petitioner/company, Messrs Thal International Airwaves (Pvt) Limited, had been allowed license on 27.01.2004 for a period of ten years for establishing F.M. Radio Stations at D.G. Khan. It is submitted that the F.M. Radio Stations at Muzaffargarh and Layyah were allocated the frequencies by Frequency Allocation Board and both the stations commenced their transmissions within one year of allocation of frequencies but the frequencies for the D.G Khan was not allocated, as such, the petitioner submitted reminder to the respondents for allocation of the frequencies vide letter dated 8.06.2005 Annexure-C. Instead of allocation of the frequencies, the respondents on 27.04.2006 issued a show-cause notice Annexure-D, thereafter the license of the petitioner for D.G. Khan was cancelled on 23.06.2007 Annexure-E.
The learned counsel for the petitioner states that according to Rule 9 of Pakistan Electronic Media Regulatory Authority Ordinance, 2002 the license is valid for a period of one year after the allocation of the frequency. The commencement of the operation of transmissions of F.M. Radio Station was to be stipulated within a period of one year and the period would commence from the date of the allocation of the frequencies to the petitioner/company. In the instant case as is apparent from Annexure-D the show-cause notice, the frequency had been granted on 30.12.2005, as such, the license could not have been cancelled uptill 29.12.2006 but the respondents had, with mala fide intention issued the show-cause notice on 27.04.2006 and thereafter on 23.06.2006 had cancelled the license in violation to the clause, as such, the petitioner/company cannot be penalized. The petitioner/company had already started the test transmissions even before the grant of allocation, the regular transmissions could not begin on account of non-allocation of the frequencies by the respondents.
On the other hand, learned counsel for the respondents has opposed this petition on factual as well as legal grounds. Firstly, it is stated that this petition is not maintainable as the petitioner is not the Chief Executive of the Company and is not authorized to file the instant petition; that the petitioner has not attached any resolution of the Board of Directors authorizing him to file the instant petition. It is further stated that according to Rule 27(2) of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002, the petitioner/company cannot change its share holdings without prior approval of the Authority which states as under:--
"27. Mergers and transfers:--(1)......
(2) A person who is the shareholder of, or owns an interest in, a company which is a licensee, shall not transfer or dispose of his shares or the interest, without the prior approval of the Authority.
In the instant case the petitioner/company had not sought any approval from the respondents. Further in view of the violation of Rule 27 of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002, it is the clear proof that the petitioner/company has approached this Court with unclean hands, as such, this petition merits dismissal straightaway and the above mentioned violation in addition has prompted the issuance of the cancellation of all the licenses of the petitioner/company on account of this even that of Muzaffargarh and Layyah for which the respondents/Authority reserves the right to initiate cancellation proceedings. If is further stressed that the frequencies allocation number under Section 42 is to be allocated by the Telecommunication Authority, PEMPRA has no power to allocate the frequency as such, the petitioner was to apply to the Telecommunication Authorities, it was not the duty of the PEMPRA. Further that previously also the license had been issued and the petitioner has simultaneously approached the Tele Communication Authorities regarding Muzaffargarh and Layyah, which was done within the stipulated period. In the instant case of D.G. Khan, the petitioner/company filed the application before the Tele Communication Authorities on 08.06.2005 and the letter, which the petitioner is ascribing as reminder. Annexure-C with the writ petition, was in fact an application to the Tele Communication Authorities for allocation of the frequency, which was made after almost one and half years of the grant of license and by virtue of condition 34 of the license, the license of the petitioner/company had already stood expired as cancelled. Even after this the respondents had taken a sympathetic view and six months' grace period was allowed to the petitioner/company. Further that the petitioner/company had not been able to satisfactorily establish their arrangements, they were using the facility of M/s. Friends Media Cable Net Work, D.G. Khan, even their transmissions in Muzaffargarh was not functioning properly according to the inspection being carried out by the Field Supervisor as is apparent from Annexure-E with the reply, letter dated 24.07.2006. According to the allocated license the petitioner/company was to start their transmissions from 14.08.2006 when the petitioner/company was asked why they failed to start their frequency, the Chief Executive of the petitioner company submitted that due to the lengthy process to start operation, some of the directors left the company which created financial constraints and company was not in a position to start the services. The company remained in search of financers to establish the FM stations at D.G. Khan. Now company has found financers and has placed order for purchase of equipment. If Authority permits the transfer of management & operation to financing companies or financier inclusion in the Board of Directors then the operation can be started by 14th August 2006. The company representative was asked to provide the proof for purchase of equipment within 7 days, which they failed, as such the petitioner/ company itself is to be blamed. The said cancellation has rightly been made. Further that the doctrine of approbate and reprobate would apply to the case of the petitioner/company.
Arguments heard, record perused.
That according to Condition No. 34 of the license issued to the petitioner/company, it was required to commence broadcast operation within a period of one year from the date of issue of license. The petitioner/company was not able to start the transmissions The contentions of the petitioner/company that the period of one year was to commence from the date of allocation of the frequency. It is apparent that the frequency was not to be allocated by the respondents, the same was to be allocated by the Tele Communication Authorities, for which the respondents cannot be blamed. The petitioner applied for the allocation of the frequency for the first time on 08.06.2005 i.e. after one and a half year of the issuance of the license, as such, the petitioner/ company had defaulted in compliance of Condition 34 of the license, which entailed the starting of the ransmissions within one year's period. Further the respondents had even after the expiry period, had accommodated the petitioner/company and allowed six months grace period to the petitioner/company. The petitioner/company has not been able to obtain the allocated frequency from the Pakistan Tele Communication Authority within the said stipulated period as the said frequency had been allocated to the petitioner/company on 30.12.2005 although the license had been issued to the petitioner/company on 07.01.2004, as such, the respondents cannot be blamed. It appears that the petitioner/company was not in a financial position to become operational as is apparent from Annexure-E attached with the reply. In the above perspective, cancellation of the license dated 23.06.2006 has rightly been issued. The respondents have not committed any illegality in the same, so as to invoke the Constitutional jurisdiction of this Court. The learned counsel for the petitioner has not been able to point out any illegality or infirmity in the impugned order dated 23.6.2006. Reliance can be placed to the case of Nadira Kaiser and others vs. Chairman, Karachi Cantonment Board and another (2004 CLC 1872) where it has been held that the party who had failed to perform its obligation according to law, is not entitled to discretionary relief under Article 199 of the Constitution of Pakistan, 1973.
In view of the above, this writ petition is dismissed.
(R.A.) Petition dismissed.
PLJ 2008 Lahore 531
Present: Zubda-tul-Hussain, J.
GHULAM RASOOL--Petitioner
versus
SENIOR CIVIL JUDGE and 4 others--Respondents
W.P. No. 1702 of 2008, decided on 3.3.2008.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)—
----S. 14(2)--Constitution of Pakistan, 1973, Art. 199--Suit for maintenance allowance was decreed--Quantum of maintenance--Assailed--Petitioner was arrested and sent to jail--Released when he gave undertaking that on the remaining amount would be paid in installments--Petitioner requested the Judge Family Court to defer the payment for some time as he being financially not in a position to pay--Request was disallowed--Validity--Facility of payment through installment was given to petitioner at his own instance and with his own consent--Held: Petitioner is bound by same and has to face the consequences unless he makes out a case of legal and factual justification for any variation in matter settled through compromise--Law relating to grant of maintenance allowance is in essence aimed at welfare of the persons entitled to get maintenance--Further held: If a right of appeal against the insufficiency of quantum of maintenance allowance is curbed on the strength of S. 14(2) of Family Courts Act, it shall be inhuman, unreasonable and against all norms of logic and law--True perspective of law is that the bar provided is against the judgment debtor and not against the decree-holder agitating against the insufficiency of maintenance allowance decreed by the Court--Position of the petitioner as debtor depends upon the determination question of facts--Such factual inquiry can not be under taken in the proceedings of the writ jurisdiction--Petition was dismissed. [Pp. 533 & 535] A, B, C & F
Estoppel--
----Destitue entitled to protection of law--Settlement for payment of maintenance--No estoppel against law and notwithstanding undertaking of the petitioner and agreed settlement for payment of maintenance and its arrears in installment, if he proves himself a destitute entitled to protection of any law for time being in force, the undertaking and settlement may not operate against him as estoppel.
[P. 534] D
Relief of Indebted Ordinance, 1960—
----S. 5--West Pakistan Family Courts Act, 1964, S. 14(2)--Execution of decree--Liability of a debtor--Entitlement of protection--Availability--No debtor shall be arrested and imprisoned in execution of a decree for money whether before or after commencement of the Relief of Indebted Ordinance--Liability of a debtor payable under the decree or order of a Civil Court for anything recoverable as arrears of land revenue--Held: Family Court/Executing Court is a Civil Court under the law and decree for maintenance allowance is executable and its amount recoverable as arrears of land revenue--Petitioner being entitled to protection available u/S. 5 of Relief of Indebted Ordinance, is immune from arrest in execution of impugned decree for maintenance allowance. [Pp. 534 & 535] E
Mian Muhammad Nawaz, Advocate for Petitioner.
Date of hearing: 3.3.2008.
Order
The Respondents No. 3, 4 and 5 namely Uzma, Sanobar and Muhammad Zunair, all minors were born out of the wedlock of the petitioner Ghulam Rasool and the Respondent No. 2 namely Mst. Mussarat. The petitioner and the Respondent No. 2, however, could not live harmoniously with each other and resorted to family litigation in the form of suit for dissolution of marriage, suit for restitution of conjugal rights and the suit for maintenance allowance. As per averments of the petition, the dissolution of marriage was denied by the learned Family Court to Respondent No. 2 while the petitioner's suit for restitution of conjugal rights was decreed but the Respondent No. 2, Mst. Musarrat, even then did not join her matrimonial life with the petitioner. The suit of respondents for the maintenance allowance was decreed by the learned Judge Family Court, Faisalabad, granting the maintenance allowance to them @ Rs. 500/- per month.
Dissatisfied with the quantum of maintenance, the judgment and decree was challenged by the respondents before the learned District Judge, Faisalabad, as a result of which the appeal was accepted and the maintenance allowance was enhanced to Rs. 1000/- per month. In the execution proceedings the petitioner was arrested and sent to jail, whereafter out of the total accumulated amount of Rs. 99,000/-, he paid Rs. 50,000/- and as a result of compromise between the parties, he was released when he gave the undertaking that the remaining amount would be paid by the petitioner/judgment debtor through installments @ Rs. 2000/- per month. The current amount of maintenance of Rs. 3000/- were also to be paid along with the arrears. Thus an amount of Rs. 5000/- was payable by the petitioner/judgment debtor every month to the respondents, which commitment he could not perform and he requested the learned Family Court that he being financially not in a position to pay Rs. 5000/- per month, the payment may be deferred for some time, which he shall pay as and when he was able to make the payment. This request was disallowed by the learned Judge, Family Court vide his order dated 24.02.2008.
The legality of this order dated 24.02.2008 has been questioned by the petitioner through the instant petition on the ground that it is against law and norms of natural justice. It has been maintained that the financial condition of the petitioner could not be ignored by the learned Executing Court. The learned counsel for the petitioner has also relied upon Section 14(2) of the West Pakistan Family Court Acts, 1964 and argued that the enhancement in the rate of maintenance allowance was unlawful because the maintenance allowance being only Rs. 500/- per month. The judgment and decree in that behalf was not appealable. The learned counsel has also asserted that the total assets of the petitioner being less than worth Rs. 5000/-, he could not be arrested in execution of the decree by virtue of the protection available to him under the Relief of Indebtedness Ordinance, 1960.
As is obvious from the facts narrated above, the facility of payment through installment was given to the petitioner at his own instance and with his own consent. It was only because of this facilitation that he was able to get himself released from the prison. It, therefore, does not lie in his mouth to go back upon his commitment. He is bound by the same and has to face the consequence unless he otherwise makes out a case of legal and factual justification for any variation in the matter settled through compromise. The order of the learned Executing Court is, therefore, justified in law as well as on facts.
The contention of the learned counsel that the judgment and decree in favour of Respondents No. 2 to 5 was not appealable is totally mis-conceived. The bar provided under Section 14(2) of the West Pakistan Family Court Act, 1964, is not operative against a decree-holder, dissatisfied with the quantum of maintenance allowance. It is only the judgment debtor, who is debarred from questioning the validity of a decree for maintenance allowance of Rs. 1000/- per month.
The law has always to be interpreted in a manner so as to give a logical and reasonable meaning to it and also to advance the cause and object of the relevant legislation. The law relating to the grant of maintenance allowance is in essence aimed at the welfare of the persons entitled to get maintenance. Any interpretation which is likely to put a clog on such right would run counter to the spirit of the law and, thus, must be turned down. If a right of appeal against the insufficiency of the quantum of maintenance allowance is curbed on the strength of Section 14(2) ibid it shall be inhuman, unreasonable and against all norms of logic and law. The only sense that Section 14(2) makes in the true perspective of law is that the bar provided therein is against the judgment debtor and not against the decree holder agitating against the insufficiency of the maintenance allowance decreed by the Court. In this behalf I am duly fortified by the dictum laid down in Mst. Neelam Nosheen etc. v. Raja Muhammad Khaqaan etc. (NLR 2002 Civil 52) and Saeed Alia v. Syed Ghulam Mursalin Naqvi (2004 MLD 306).
It is of course true that there is no estoppel against law and notwithstanding the above mentioned undertaking of the petitioner and the agreed settlement for payment of maintenance and its arrears in instalments, if he proves himself a destitute entitled to the protection of any law for the time being in force, the undertaking and settlement such as mentioned above (arrived at in this case between the parties) may not operate against him as estoppel.
Section 5 of the Relief of Indebtedness Ordinance, 1960 relied upon by the learned counsel for the petitioner lays down that no debtor shall be arrested and imprisoned in execution of a decree for money whether before or after the commencement of this Ordinance. The "debt" as defined in Section 2(b) of the ibid Ordinance includes, among others, the liability of a debtor payable under the decree or order of a Civil Court for anything recoverable as arrears of land revenue. By virtue of Section 2(c) ibid "debtor" means a person who owes a debt; and i) .....; or ii) .....; iii) whose total assets do not exceed five thousand rupees. The contention of the learned counsel for the petitioner is that the learned Family Court/Executing Court is a Civil Court under the law and the decree for maintenance allowance is executable and its amount recoverable as arrears of land revenue. He has further asserted that the total assets of the petitioner at present do not exceed Rs. 5000/- and, hence, he being entitled to the protection available under Section 5 ibid is immune from arrest in execution of the impugned decree for maintenance allowance.
The learned counsel for the petitioner also questioned the observation of the learned Family Court/Executing Court whereby it turned down the request of the petitioner for relaxation of agreed condition of payment on the ground that the same could not be done without the consent of the decree holder. He referred to Section 11 of the said Relief of Indebtedness Ordinance which provides that notwithstanding anything contained in any law for the time being in force or in any contract, a Court may, at any time, on the application of a judgment-debtor, after notice to the decree-holder, direct that the amount of any decree, whether passed before or after the commencement of this Ordinance, in respect of a debt, including any decree in suit relating to a mortgage by which any loan is secured, shall be paid in such number of instalments and on such dates and subject to such conditions as, having regard to the circumstances of the judgment-debtor and the amount of the decree, it considers fit. It is true that in cases where the provisions of Section 11 ibid are attracted the Court is not bound to get the consent of the decree holder to direct payment by instalments. Once the Court comes to the conclusion that the case of a judgment debtor is that of a "debtor" within the meaning of the said Ordinance, 1960 it will be well within its domain to exercise the powers available to it under Section 11 ibid without the clog of any contract or other law for the time being in force.
The impediment to the present writ petition is, however, more than obvious. The plea of the petitioner with reference to Section 5 and Section 11 of the said Ordinance presupposes that the petitioner is a "debtor" under Section 2(c) ibid whereas this presumption is not inbuilt or irrebutable. Nor is it based on admitted facts. The position of the petitioner as "debtor" depends upon the determination of question of fact. This point does not even seem to have been raised before the learned Executing Court, where if raised the learned Executing Court could deal with and decide it in accordance with law. Such factual inquiry cannot be undertaken in the proceedings of the writ petition.
The writ petition fails and is dismissed in limine.
(T.A.F.) Petition dismissed.
PLJ 2008 Lahore 536
Present: M. Bilal Khan, J.
ZAHID MEHMOOD MALIK and 4 others--Petitioners
versus
DIRECTOR ANTI CORRUPTION PUNJAB & 3 others--Respondents
W.P. No. 4428 of 1999, decided on 13.2.2008.
Constitution of Pakistan 1973—
----Act 199--Punjab Anti Corruption Establishment Rules, 1985, R. 77--FIR lodged by the Director Anti-Corruption on the order of Chairman of the team to the Chief Minister--Quashing of FIR--Petitioner instead of joining investigation filed quashment petition, by raising Contention--FIR can only be registered after holding a preliminary inquiry u/S. 7 of Punjab Anti Corruption Rule 1985--Petitioner has been exonerated of the charge during departmental inquiry--Held: Departmental action and criminal action against civil servant be quashed--Petition was dismissed. [P. 537] A, B & C
Constitution of Pakistan, 1973--
----Art. 199--High Court has no jurisdiction to resolve disputed question of facts in its Constitutional jurisdiction. [P. 539] E
2006 SCMR 276 + 2006 SCMR 512
Administration of Justice--
----High Court had no jurisdiction to quash FIR by appreciation of documents produce by the parties without providing chance to cross-examination or confronting the documents in-question. [P. 539] F
Quashing of FIR--
----Constitution of Pakistan, 1973, Art. 199--Not heard for eight and half years--Constitutional petition--Maintainability--Investigation remained stalled on account of interim order of High Court--Writ petition was not heard for almost eight and a half years--No case for quashing the FIR has been made out. [P. 539] D
Mr. Muhammad Aslam Zar, Advocate for Petitioners No. 1 and 3 to 5.
Mr. Muhammad Saleem Chaudhry, Advocate for Petitioner
No. 2.
Ch. Muhammad Suleman, Addl. A.G. with Arshad Iqbal, Inspector/C.O. Headquarter, Anti Corruption, Sargodha.
Date of hearing: 13.2.2008.
Order
The petitioners, namely, Zahid Mahmood Malik, District Engineer, Abdul Qayyum Khan, Khalid Hayat, S.D.Os., Malik Ghulam Muhammad and Waqar Ahmad Qureshi, Sub-Engineers, Zila Council, Sargodha, by filing this Constitutional petition have sought quashing of F.I.R. No. 3, dated 27.2.1999, with Police Station Anti-Corruption Establishment, Sargodha for offences under Sections 168, 409,420,471 P.P.C.
Precisely the facts giving rise to the instant petition were that the petitioners had been performing their duties as aforementioned, however, during the visit of the Chief Minister's Inspection Team, certain irregularities allegedly committed by them had been detected in the development works, for which an inquiry had been conducted resulting in submission of report dated 25.2.1999 by the Chairman of the Team to the Chief Minister, on the basis whereof, Director, Anti-Corruption Punjab, Lahore (Respondent No. 1) had ordered registration of the case. Resultantly, the instant F.I.R. had been recorded on 27.2.1999.
The petitioners instead of joining the investigation had invoked the Constitutional jurisdiction of this Court by filing this petition, which had come up for hearing on 12.3.1999 and to consider the contentions of the petitioners that the registration of the F.I.R. had not been regulated by the provisions of Rule 7 of the Punjab Anti-Corruption Establishment Rules, 1985, which provided initiation of preliminary inquiry against a public servant by a Deputy Director or an officer above his rank; that the petitioners had been condemned unheard as they had not been associated in the inquiry conducted by the Chairman, Chief Minister's Inspection Team (Respondent No. 4) and that the aforesaid case had been registered without lawful authority and that the whole proceedings conducted by Respondent No. 4 were politically motivated, this Court had directed the respondents to appear at limine stage on 12.4.1999 and further proceedings had been stayed.
Today Mr.Muhammad Saleem Chaudhry, the learned counsel for Abdul Qayyum (Petitioner No. 2) by placing on record order dated 11.4.2002 passed by the Secretary, LG & RD Department/ Chairman, Punjab Local Government Board, Lahore has pointed out that as he has been exonerated of the charge during the departmental inquiry, the criminal proceedings against him be quashed.
Circle Officer (respondent 3) has appeared and apprised this Court that investigation into the crime has not been concluded so far due to the restraint order of this Court passed as far back as on 12.3.1999.
I have heard the learned counsel for the parties at considerable length and have also gone through the record. There is no merit in the contention of the learned counsel for the petitioners that the instant F.I.R. could only be registered after holding a preliminary inquiry as contemplated by the Punjab Anti-Corruption Establishment Rules, 1985. In this connection, reference may be made to the cases of Mirza Muhammad Iqbal and others v. Government of Punjab (P.L.D. 1999 Lahore 109), Shafqat Hussain and another v. Malik Sarfraz and another (2000 P.Cr.L.J.1995) and Muhammad Aslam, Project Manager, Punjab Mineral Development Corporation Sargodha Road, Khushab v. Special Judge, Anti-Corruption, Sargodha etc. (2001 P.Cr.L.J 69). In the case of Shafqat Hussain (supra), a Division Bench of this Court had inter-alia held as under:
"Prior permission for registration of case against a public servant was not a statutory requirement--Seeking permission of the Authorities before registration of the case against public servants is beyond the scope of S. 3 of rule-making powers given to the Government under S. 6 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961, as neither of these two provisions authorizes the Executive to frame Rules seeking prior permission for the registration of cases."
The said learned Bench had further proceeded to observe as under:--
"Law embodied in S. 154, Cr.P.C. under which criminal cases are registered and after detailed investigation guilt or innocence of accused is determined, had stood rigours of time for more than a century which could not be allowed to become subservient to be governed by subordinate legislation contained in the Rules as S.8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 had itself provided that the provisions were in addition to and not in derogation to any other law - Accused could not claim by way of right that contrary to the provisions of S. 154, Cr.P.C, Rr.6 & 7 of the Punjab Anti-Corruption Establishment Rules, 1985 had conferred upon them a right to be subjected to a preliminary inquiry first and thereafter permission to register the case be obtained."
The other contention of the learned counsel for Petitioner No. 2 that since he stands exonerated in the departmental inquiry, criminal case ought to be quashed is also devoid of any substance. Departmental action and criminal action against civil servants can go side by side and may even end in varying results. Reference may advantageously be made to the cases of The Deputy Inspector-General of Police, Lahore and others v. Anis-ur-Rehman Khan (P.L.D. 1985 S.C. 134), Amir Abdullah v. Superintendent of Police, and others (1989 S.C.M.R. 333) and Talib Hussain v. Anar Gul Khan and 4 others (1993 S.C.M.R. 2177).
It has been observed that the investigation in this case remained stalled on account of interim order of this Court dated 12.3.1999. This petition was not heard for almost eight and a half years. No case for quashing the F.I.R. has been made out.
Even otherwise, it has time and again been held by the Hon'ble Supreme Court of Pakistan that the disputed questions of fact could not be resolved by this Court in its Constitutional jurisdiction. Reference in this regard may be made to a recent pronouncement made by the Hon'ble Apex Court in the case of Col. Shah Sadia v. Muhammad Ashiq and others (2006 S.C.M.R. 276), wherein it was held that High Court, has no jurisdiction to resolve disputed questions of fact in its Constitutional jurisdiction. It was further observed by their lordships that if prima-facie an offence had been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to Constitutional jurisdiction of High Court; that High Court had no jurisdiction to quash F.I.R. by appreciation of documents produced by the parties without providing chance to cross-examine or confronting the documents in question. Likewise, in the case of Rafique Bibi v. Muhammad Sharif and others (2006 S.C.M.R. 512), it had been held that disputed questions of fact could not be gone into in proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
For what has been discussed above, no occasion has been found by this Court for interference in the matter at this stage. There being no merit in this petition, the same is dismissed in limine.
The Investigating Officer is directed to proceed with the investigation forthwith and submit report under Section 173 Cr.P.C.
(T.A.F.) Petition dismissed.
PLJ 2008 Lahore 540 (DB)
Present: Maulvi Anwar-ul-Haq and Zafar Iqbal Chaudhry, JJ.
Malik UMAR ASLAM AWAN--Petitioner
versus
ELECTION COMMISSION OF PAKISTAN, CONSTITUTION AVENUE, ISLAMABAD through it Secretary and 5 others--Respondents
W.P No. 1687 of 2008, heard on 6.3.2008.
Constitution of Pakistan 1973—
----Art. 199--Representation of the People Act, 1976, S. 103-AA--Several allegations raised as to commission of illegal and corrupt practice committed by Returning Officer in the course of consolidate of the results on the election day--Illegalities--Result has been notified and Election Tribunal has been constituted--Allegations raised in writ petition can only be gone in by the Election Tribunal--Held: Petitioner can approach such a competent tribunal, where entire allegation and objection can be gone into and determine--Petition was disposed of. [Pp. 541 & 543] A, B & C
2006 SCMR 1713 & PLD 1991 Q 51, rel. PLD 2002 SC 184 & PLD 1989 SC 396.
M/s. Jehanzeb Khan Bharwana & Imtiaz Rashid Siddiqui, Advocates for Petitioner.
Dr. Z. Babar Awan, Advocate for Respondent No. 4.
Nemo for remaining Respondents.
Date of hearing: 6.3.2008.
Judgment
Maulvi Anwar-ul-Haq, J.--The petitioner contested elections to a National Assembly seat in NA-69 Khushab, District Khushab. At the close of polls, the Respondent No. 4 was declared returned with 61076 votes with the petitioner following in second position with 60443 votes. In the writ petition, several allegations have been made as to commission of illegal and corrupt practices on the election day by or at the behest of Respondent No. 4. Illegalities allegedly committed by the Returning Officer in the course of consolidation of the results have also been pointed out. The Respondent No. 4 has put in appearance through her learned counsel in response to a notice issued to her and has filed a written statement denying the said allegations.
Learned counsel for the petitioner in the very beginning have stated that for the purposes of this writ petition, they will be restricting their submissions to some illegalities, according to them, patent on the face of the record, committed by the R.O. and to confine their prayer to a direction to the Election Commission to examine the record which according to the learned counsel would be sufficient to enable the Respondent No. 1 to pass orders as envisaged in Section 103-AA of the Representation of People Act, 1976. They have taken us through the result statements prepared by the presiding officers in juxta position to the consolidated statement of results prepared by the R.O. to point out several discrepancies therein. According to them, several hundreds of votes have been shown as rejected in the said consolidated statement whereas no such vote is depicted in the statements prepared by the P.Os. Primary reliance has been placed on the cases of Faqir Abdul Majeed Khan v. District Returning Officer and others (2006 SCMR 1713) and Muhammad Ayub v. Election Commission of Pakistan, Islamabad and 7 others (PLD 1991 Quetta 51).
Learned counsel for Respondent No. 4, on the other hand, contends that the documents being relied upon to question the consolidated statement prepared by the R.O. are not admissible per se and reference cannot be made to the said documents without their production and proof in accordance with law governing the production and admission of evidence. He also draws our attention to the result of the election held in 2002 to demonstrate that the percentage of the rejected votes is almost similar. The primary contention of the learned counsel is that since the results have been notified and Election Tribunals have been constituted, several allegations raised in the writ petition including those pressed at the bar can be gone into only by the said competent Tribunal. According to him, even the allegation as to violation of the mandatory provisions of the said Act of 1976 can be taken cognizance of only by the said Tribunal. He relies on the cases of Ch. Nazir Ahmed and others v. Chief Election Commissioner and 4 others (PLD 2002 SC 184) and Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396).
We have gone through the writ petition and the several documents accompanying it, with the assistance of the learned counsel for the parties. We do find that in the matter of Polling Station No. 232, the results i.e. the number of votes as stated in document purporting to be a statement of Count in Form-XIV, in favour of the candidates mentioned therein are different from the statement prepared by the R.O. (at page 117 regarding the same Polling Station). As against 74 votes in the former document in the latter 161 votes are recorded in favour of Respondent No. 4 and as against 114 votes in favour of the petitioner, 83 votes are recorded in the consolidated statement. Whereas Malik Irfan Ahmad candidate is shown to have polled 141 votes in the consolidated statement nil vote is recorded while the votes of Malik Tanvir Sultan candidate are recorded as 105 by the R.O. as against 4 votes recorded in the document at page 36. At several Polling Stations, whereas in the corresponding statements stated to have been supplied by the P.Os., no rejected vote is mentioned, various number of rejected votes are mentioned in the consolidated statement against the same Polling Stations. However, there is no difference in the validly polled votes shown in both the statements. There is also a discrepancy of about 30 votes in the matter of P.S. No. 259. Relying on the said state of affairs it is being urged that the Election Commission ought to have exercised its jurisdiction and to have passed orders under Section 103-AA of the Representation of People Act, 1976, by allowing prayer of the petitioner for a partial re-poll and a direction to re-count the rejected ballot papers. According to them, the provisions of Sections 38 and 39 of the said Act of 1976 have accordingly been violated and the violation being patent, the dismissal of the application filed by the petitioner by the Respondent No. 1 is without lawful authority.
We have also examined the said three cases decided by the Hon'ble Supreme Court of Pakistan and being relied upon by the learned counsel for the parties. The consensus appears to be that primarily this Court would not interfere in an election matter in view of the provisions of Article 225 of the Constitution. However, in the case of Faqir Abdul Majeed Khan cited by Mr. Imtiaz Rashid Siddiqui an exception has been made to the said rule. We may note that in the said case of Faqir Abdul Majeed Khan provisions of Rule 36 of the Punjab Local Government Election Rules, 2005, came up for interpretation. Sub-Rule (6) of the said Rule 36 stands reproduced at page 1722 of the report and we find that sub-section (6) of Section 39 of the Representation of People Act, 1976, is almost couched in the same words except the mention of the District Returning Officer. The precise finding recorded by their Lordships is that a District Returning Officer had no lawful authority to direct a R.O. to re-count the rejected votes. This is so held in para-10 of the report at the same page. It is further observed by their lordships in para-14 of the report that the Returning Officer wrongly included the rejected votes in favour of the respondent before their lordships under the influence of the said direction issued by the District Returning Officer. Another striking aspect of the said case is that not only had the R.O. proceeded to treat some votes as valid but this Court dismissed the writ petition filed by the said Faqir Abdul Majeed Khan not only with reference to Article 225 of the Constitution but proceeded to up-hold the decision on its merits as well. It was contended before their lordships that the petitioner before them would not be having any case to take to the Tribunal in view of the findings recorded by this Court.
Reverting back to the present case, Annexure-G is the application, which was filed by the petitioner before the R.O. It alleges that some Presiding Officers are missing and it is apprehended that attempt has been made to change the results and a re-count be made and the results be prepared afresh. This application was filed on 20.2.2008 and was dismissed by the R.O. with the observation that the results have been consolidated and sent to the Election Commission. The Election Commission in its order dated 23.2.2008 has observed that it is unable to record its satisfaction within the meaning of Section 103-AA of the said Act of 1976.
Going by the finding recorded in the said case of Faqir Abdul Majeed Khan with reference to a provisions which is in pari-materia, the Election Commission would not be having the jurisdiction to direct a count or examination of the rejected/invalid votes. So far as the matter of said discrepancy being pointed out is concerned, the matter of determination has been entirely left to the Respondent No. 1, of course, subject to recording of satisfaction within the bounds of the said Section 103-AA and further as to whether any such illegality or violation is grave, presumably also has nexus with its effect on the result of the election. We, therefore, do not find any ground or reason being made out to interfere with the orders passed by the Respondent No. 1 within the confines of these proceedings. Needless to state that the results of the elections have already been notified and Election Tribunals stand constituted, the petitioner can, of course, approach such a competent Tribunal with a properly constituted election petition where the entire allegations and objections can be gone into and determined in accordance with law. With these observations, the writ petition is disposed of. No orders as to costs.
(T.A.F.) Petition disposed of.
PLJ 2008 Lahore 543
Present: Fazal-e-Miran Chauhan, J.
ASMAT ULLAH BUTT--Petitioner
versus
KAMRAN JAVAID and 2 others--Respondents
W.P. No. 7413 of 2007, decided on 5.11.2007.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)—
----S. 13--Ejectment petition--Personal need of petitioner daughter, default, sublet and damage of the property--Rent Controller accepted ejectment petition on the ground of personal need of daughter of the petitioner--Daughter was the owner of the property--Appellate Court set-aside the finding of Rent Controller and remanded the matter to decide afresh--Held: No issue regarding deliver of possession of room was framed--That was taken first time in reply to ejectment petition but never moved application to frame issue on that subject--Even otherwise that was not fatal to the case--Issues framed covered the whole case--Petition was accepted. [P. 547, 548 & 550] A, B & C
Mrs. Firdous Butt, Advocate for Petitioner.
Mr. Nauman Qureshi, Advocate for Respondent No. 1.
Respondents No. 2 & 3 are proforma Respondents.
Date of hearing: 18.10.2007.
Judgment
Through this Constitutional petition, the petitioner has impugned the judgment and decree dated 11.06.2007, passed by learned Additional District Judge, Lahore and restoration of the judgment and decree dated 30.09.2006, passed by the learned Rent Controller, Lahore.
Facts giving rise to the filing of the present writ petition are to the effect that the petitioner being landlord of the property in question filed petition under Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959, seeking ejectment of Respondent No. 1 Kamran Javed from the property in question for personal need in good faith for her daughter and her family on the ground of default causing damage to the property lowing his valuation. In support of ejectment petition, affidavit of Asmat Ullah petitioner, AW-1 Shakar Ullah & AW-2 were annexed with the ejectment petition. Reply to the ejectment petition was filed by Respondent No. 1 denying that the property in question is required by the landlord for need of his daughter for the personal use and occupation as both of them are owner-in-possession of the property Bearing No. 232 Kashmir Block, Allama Iqbal Town, Lahore and 666 Kashmir Block, Allama Iqbal Town, Lahore. The daughter of the petitioner is residing in House No. 116 Kashmir Block, Allama Iqbal Town, Lahore which is owned by her father in law namely Khurshid Ahmad Butt. Also denied that a default in payment of rent has been committed. The rent for the month of September, 2004 was received by the petitioner himself and he also issued receipt of the same. Causing damage to the property was also denied.
On the basis of divergent pleadings of the parties, following issues were framed on 05.01.2006 by the learned Rent Controller, Lahore.
ISSUES:
Whether the respondent is wilful defaulter in payment of rent, if so for what period and for what rate? O.P.A.
Whether the disputed premises is required by the petitioner for his own personal need? O.P.A.
Whether the disputed property has sublet to other person without consent and permission? O.P.A.
Whether the respondent has become a permanent source of nuisance and mental disturbance due to his act and conduct? O.P.A.
Whether the dispute premises has damaged by the respondent? O.P.A.
Relief.
The learned Rent Controller, after recording and appreciating the evidence of the parties, proceeded to accept the ejectment petition deciding Issue No. 2 in favour of the landlord after observing that the property in question is required by the landlord for the use and occupation of his daughter and directed Respondent No. 1 to hand over the vacant possession of the property in dispute to the landlord petitioner, within one month. Respondent No. 1 challenged the eviction order by filing appeal under Section 15 of the Punjab Urban Rent Restriction Ordinance, 1959. The learned lower appellate Court after hearing the parties accepted the appeal set-aside the findings on Issue No. 2 and remanded the case to the learned Rent Controller, to adjudicate upon the issue afresh by hearing arguments and if he thinks some issue is required, frames the same in the line of decision given by the learned lower Appellate Court, hence this writ petition.
Learned counsel for the petitioner argued that, the learned, lower Appellate Court erred in law and facts of case and failed to comprehend its true perspective, in making bleak to the crystal clear, pleas, prompting to file the ejectment petition against the tenant. The learned lower Appellate Court while reversing the finding on Issue No. 2, has totally ignored the evidence as well as law laid down by the superior Courts. Further argued that as per Section 3-A(i)(a), there is sufficient evidence available on the record showing that the premises in question are required by the landlord for the personal need of his daughter and the same is covered by law. The learned lower Appellate Court erred in law by holding that the landlord has not mentioned about the property in his possession or in the possession of his daughter in the same locality. Further argued that the daughter in whose need the property in question is required is residing in a rented premises. Further argued that in fact, the property belongs to the daughter of the petitioner landlord but same was rented out by the petitioner to Respondent No. 1 and he being landlord of the property, in question, rightly filed the ejectment petition seeking ejectment for personal need of his daughter, who shifted from abroad to Pakistan and wanted to reside in her house. Further argued that the learned lower Appellate Court had entered into a non issue regarding nomination of landlord mentioned in the ejectment petition or in the rent note that tenancy in any case is not denied by Respondent No. 1 and petitioner is accepted as landlord by Respondent No. 1.
Conversely, learned counsel for Respondent No. 1 argued that the petitioner landlord has not come to the Court with clean hands and the petitioner had deliberately not mentioned the other properties in his possession as well as the possession of his daughter in the same locality and by concealing this fact, he has become disentitled to any relief under the law. Further argued that the learned lower Appellate Court had failed to give any finding regarding this aspect of the case and the learned lower Appellate Court rightly having taken note of this fact, dis-agreed with the finding of learned Rent Controller and set-aside its findings on Issue No. 2. Further argued that though the property, in question was rented out by the petitioner through a rent-note, but since the creation of tenancy, possession of one room was never handed over to Respondent No. 1 and the learned Rent Controller has not given its finding on the same and the learned lower Appellate Court rightly took note of this fact and remanded the case to the learned Rent Controller with the direction to decide this fact after framing issues if required so. Further argued that the landlord miserably failed to prove that the property in question is required by him in good faith for the use and occupation of his daughter. The mere words of the petitioner are not sufficient to prove his contention and it was the duty of the learned Rent Controller to discuss the evidence led by both the parties and gave its findings on the same. It has been brought on the record that the landlord is already in possession of other properties in the same locality and the property in question, is not required by him for his daughter as she is already residing in a house in the same locality. Further argued that the learned Rent Controller proceeded to pass ejectment order without deciding two Miscellaneous applications filed by Respondent No. 1 tenant and this omission on the part of learned Rent Controller reflects non-application of mind by him and the right of the parties to get a decision on each and every issues, which has arisen before the Court or Tribunal. Finally argued that since the ejectment is with regard to residential portion and no appeal is provided against the order of the learned Rent Controller, hence writ petition is not maintainable.
I have heard the arguments of the learned counsel for the parties and perused the record as well as the affidavit submitted by both the parties and the lengthy cross-examination conducted by Respondent No. 1 tenant on the landlord and A.W-1 & AW-2.
From perusal of issues framed by the learned Rent Controller, it is clear that no issue has been framed with regard to not handing over possession of the whole property to Respondent No. 1- tenant. Admittedly, the property was rented out way back in the year 2002 on 21.09.2002. Since then, till, filing of ejectment petition, no application has been moved by Respondent No. 1 tenant to the learned Rent Controller seeking redressal of his grievances that the landlord was under obligation to hand over the possession of the whole of the property and non-delivery of possession of one room by the landlord was in sheer violation of rent note executed between the parties. This issue for the first time was raised in the written reply submitted to the ejectment petition before the learned Rent Controller. The Respondent No. 1 never moved to the learned Rent Controller for framing of issues on this subject. From the conduct of the parties, it appears that the daughter has in-fact never demanded possession of so called master bed room with bath room and store. The landlord denied the suggestion put-forth by the learned counsel for Respondent No. 1 that, it was agreed between the parties that the possession of lower portion which consists of one bed room, one store and bath room would be handed over to the tenant. After denial by the landlord that no such agreement exists between the parties for handing over the possession of lower portion consisting of one bed room, store and bath room, the burden shifted upon the tenant that any such agreement existed between the parties, no such clause is found mentioned in the rent note executed between the parties. Thus, the finding of the learned lower appellate Court that learned Rent Controller should have framed an issue and should have given finding and gave opportunity of producing evidence on the same. However, counsel for Respondent No. 1 had cross-examined AW-1 at length on each and every issue and fact raised in the written reply and this fact that possession of one room, store and bath room was not handed over to the Respondent No. 1 as per agreement was denied by the petitioner and there is no rebuttal of the same from the respondent's side. Thus, the learned Rent Controller was not under obligation to give any finding on the same when no issue was framed or was demanded to be framed from the respondent-landlord.
The main stress of the case in-fact revolved around the personal need of the landlord in the shape of need of his daughter. From, the pleadings of the evidence and cross-examination, it appears that the property in question is owned by the daughter of the landlord. Since she was not in the country, the rent-deed was executed between the petitioner and Respondent No. 1 as well as the property was rented out by him, so the ejectment petition was rightly moved by Asmat Ullah Butt-petitioner, father being landlord, seeking ejectment for the personal need of his daughter. Admittedly, it is not mentioned in the ejectment petition that the landlord or his daughter is in possession of some other property in the same area. It has also been brought on the record that the daughter of the landlord is in possession of House No. 116, Kashmir Block, Allama Iqbal Town, Lahore. The house does not belong to the landlord but the same belongs to father in law of the daughter of the petitioner landlord. Khurshid Ahmad Butt is the owner of the said house who is father in law of the daughter of the petitioner and she was accommodated by her father in law and was provided to reside in the said house till she gets the possession of her house after decision of the ejectment petition. The other question that the landlord deliberately did not mention the other properties in their possession in the plaint, thus personal need could not be treated bona-fidely. It is a basic principal question that evidence is to be recorded to be mentioned therein, therefore, landlord needs not to detail that he owns and occupies some other properties in the urban area. All that is required that landlord should plead that he needs property in occupation of certain tenant for his own need and he does not occupy any other property in the same urban area. Suitability of the landlord should be preferred and not of tenant. There is sufficient evidence on the record to show from the petitioner's side that the daughter of the petitioner requires the property for her personal need and occupation as she is residing in a rented house and the property in possession of Respondent No. 1-tenant is suitable for her need. The landlord was required to prove that certain property was required by him for his personal need and occupation and that he was not in occupation of any property similar in the same urban area. Various ingredients of bona-fide personal need being matter of evidence may be proved at the time of by leading evidence and non-mentioning of the same is not fatal to the ejectment petition. The basic law of pleadings is that, evidence could not be mentioned therein, therefore, the landlord was not obliged under the law to mention detail of every property that he owns or occupies the same. It is the prerogative of the landlord to select any one of his properties for his own use and neither the learned Rent Controller nor the learned lower appellate Court has any right to insist that, he occupy some other property. Here in this case, since the landlord has proved that the property in possession of Respondent No. 1 is required by him for the personal use of his daughter and she is not occupying any property owned by her in the same urban area suitable for her. Presently, she is occupying a rented premises owned by his father in law. Since she is owner of this property, she wanted to reside in the same and this choice of the landlord for the personal need of his disputed property is very much in accordance with law. Evidence on the record proved that the learned Rent Controller correctly found on the basis of material on the record that landlord needed premises in possession of the tenant for the personal need and occupation of his daughter. The learned lower Appellate Court reversed the order of learned Rent Controller on the ground that though the words of petitioner-landlord are sufficient to prove his contention and it was essential for learned Rent Controller to discuss the possible objections of the tenant's side and to deliver conclusion as it is the necessary requirement of law. I have gone through the findings of both the Courts below. The learned Rent Controller while deciding Issue No. 2 in favour of the petitioner observed that the landlord was cross-examined at length by Respondent No. 1-tenant and the lengthy cross-examination shows that all the details came on the record showing that the disputed property is required by the petitioner for personal use of his daughter. It appears that though the learned Rent Controller has not discussed the evidence in detail but he has gone through the same. I have myself gone through the detail cross-examination on AW-1 and due to this cross-examination all the facts that not mentioned in the ejectment petition are stated in the examination-in-chief and during this cross-examination, each and every detail comes forward that the landlord is residing in a different house while his daughter is residing in a different house owned by her father in law. The possession of the upper portion of the property in question was given to Respondent No. 1-tenant on rent. The possession of lower portion was never handed over to the tenant during the period of two years nor raised any objection regarding non delivery of possession or had moved the learned Rent Controller for the possession of the same. In the lengthy cross-examination, all the questions with regard to the same were put to the petitioner landlord and all the questions were cogently replied by the landlord. Nothing has come out from this cross-examination regarding the tenancy showing that the property is not required by landlord or the property in which the landlord or his daughter is residing is sufficient for their personal need or the property in possession of the tenant is not sufficient for the personal need of his daughter. It appears that the learned lower Appellate Court, entered into a argument of non issue which practice is not proved by the superior Courts. It has been consistently observed and held by the High Court as well as by the Supreme Court of Pakistan that it is only the choice of the landlord and the prerogative of the landlord to seek ejectment of a property claiming the same to be suitable if used and occupation. The Respondent No. 1 has failed to cross-examine the petitioner as well as any evidence on the record to show that the property in his possession required by the landlord for the use of landlord of his daughter is not suitable for her need and ejectment is being sought simply with mala-fide intention to seek ejectment and to rent out the same or the intention of landlord to get the higher rent from the same property.
The other question with regard to the pendency of Miscellaneous application filed by Respondent No. 1 or other authorities to be impleaded as party in the ejectment petition being not decided by the learned Rent Controller was held to be fatal by the learned lower Appellate Court. I am afraid, the findings and the observations of the learned lower Appellate Court on this issue is not in consonance with law laid down by the superior Courts. The provisions of C.P.C are not applicable to the ejectment proceedings. The learned Rent Controller being a Tribunal can proceed and hold any method or procedure to decide the application pending before it. The application filed by Excise & Taxation Department to become party in the ejectment petition has no bearing on the ejectment side by the landlord for his personal use and occupation. The WAPDA Authorities or the Taxation Department's application to be impleaded, if are not decided, are not going adversely affect the case regarding the relationship of landlord and tenant. The function of the Tribunal is to decide the dispute between the landlord and tenant and nothing beyond that. Thus, the findings of learned lower Appellate Court remanding the case to the learned Rent Controller to decide the case is not approved and the same is set-aside.
Since, no application was ever moved by Respondent No. 1-tenant to frame any issue besides those already framed, it appears from the lengthy cross-examination that Respondent No. 1 was satisfied with the issues already framed and the whole case of the parties is covered by these issues and he was given all possible time for producing the evidence. Thus framing of additional issues or deciding the matter regarding non-mentioning of the premises or non-handing over one bed room, store and bath room to Respondent No. 1-tenant will not be fatal in this case. The main issue in this case is that landlord required ejectment of the tenant on the ground of personal need, thus issues of default and damages to the property is not necessary. There is sufficient evidence regarding personal need of landlord and the same is proved and it has been reported from the Respondent No. 1 side. Thus the learned trial Court proceeded to accept the ejectment petition and passed the ejectment order against Respondent No. 1 to hand over the vacant possession of the same within one month.
For the foregoing reasons, this writ petition is accepted, the order of remand dated 11.06.2007 passed by learned lower Appellate Court is set-aside and the ejectment order passed by learned Rent Controller is upheld. Respondent No. 1-tenant is directed to hand over the vacant possession of the property, in question, to petitioner-landlord within a period of one month, from the announcement of this judgment.
(T.A.F.) Petition accepted.
PLJ 2008 Lahore 551
Present: Syed Zahid Hussain, C.J.
M/s. ATLAS CABLES (PVT.) LTD., KARACHI through its Director--Petitioner
versus
WATER AND POWER DEVELOPMENT AUTHORITY through its Chairman WAPDA House, Lahore and 2 others--Respondents
W.P. No. 8045 of 2006, heard on 10.3.2008.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Refrain from encashing of performance bond--Maintainability--Matter pertains to question of facts concerning contractual terms and implication--Held: Forum competent to undertake that exercise was the Civil Court--Constitutional petition being not maintainable was dismissed.
[P. 555] A & B
1989 SCMR 379; PLJ 1996 K 86; PLD 1994 SC 311; PLD 2002 SC 1068; 2004 CLC 1967 & PLD 2003 SC 295 rel.
Mr. Ashfaq Qayyum Cheema, Advocate for Petitioner.
Mr. Muhammad Ilyas Khan, Advocate for Respondents.
Date of hearing: 10.3.2008.
Judgment
Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, a direction is sought to the respondents "to refrain from encashing of performance Bond".
According to the learned counsel for the petitioner, though the mode of payment as desired and suggested by the petitioner through L.C., was agreed to by the respondents, the delivery schedule had to be adjusted with the same accordingly. It is contended that by not doing so, the respondents are rather liable to pay damages to the petitioner who, on the other hand are seeking encashment of the security. It is contended that such an action of encashment of security/performance bond can be stayed by this Court. Makes reference to Pakistan Engineering Consultants v. Pakistan International Airlines Corporation and another (1989 SCMR 379), M/s. Zenat Brothers (Pvt.) Ltd. v. Aiwan-e-Iqbal Authority and 3 others (PLJ 1996 Karachi 86) and Messrs National Construction Ltd. v. Aiwan-e-Iqbal Authority (PLD 1994 SC 311). All these cases arose out of interlocutory orders passed in the civil suits.
The learned counsel for the respondents, on the other hand, takes serious objection to the maintainability of the petition which according to him involves purely questions of facts concerning contractual terms and implications. It is contended that it was clearly known to the petitioner that the delivery period was of the essence of the contract which had to be made within the specified schedule. According to the learned counsel, once the petitioner had accepted the award of contract vide their letter dated 19.4.2006, no subsequent term could be introduced therein nor any so called implied condition could be relied upon in presence of express mention of all terms and conditions in the contract. Reliance is placed by him upon Lahore Cantonment Cooperative Housing Society Limited, Lahore, Cantt. through Secretary v. Dr. Nusrat Ullah Chaudhry and others (PLD 2002 SC 1068) and Yousuf A. Haroon v. Custodian of the Karachi Hotel Project through Kamran Shehzad (2004 CLC 1967).
The salient features of the matter briefly mentioned are that Respondent No. 3 invited tenders for the supply of Conductors, Shield Wire and Insulators in which the petitioner participated. The bid of the petitioner was found second lowest. In view of the negotiations between the parties, the petitioner agreed to reduce the prices. Letter dated 30.11.2005 is of some relevance which reads as follows:
"Price
We are pleased to reduce the price per Km of ACSR "LYNX" Conductor under (Lot-III) from Rs. 110,086/- to Rs. 98,000/-excluding 15% Sales Tax.
Payment
Please arrange to make the payment through Inland Letter of Credit.
You are, therefore, requested to please consider our reduced price while finalizing the Tender. "
On 07.02.2006 Notification of Award was issued with reference to the above letter of the petitioner dated 30.11.2005. The significant features of this document were that the delivery period was of the essence of the contract and that performance bond was to be furnished by the petitioner before the issuance of formal Purchase Order. On 17.2.2006 the petitioner took up the matter with the respondents which may be of relevance:
"We hereby acknowledge the receipt of Notice of Award with thanks. However, we have following submissions to make:--
We had reduced our rates with a condition that the payment be made against irrevocable Letter of Credit. Somehow, this condition has NOT been accommodated in the LOI. It is submitted that payment through LC is our earnest need for financing.
We also request to reckon the delivery period from the date of establishment of L/C.
We also request for your kind consideration for provision of workable escalation on the rate of LOI as the LME has increased abnormally.
Submitted for your favourable consideration and approval."
To that, the respondents answered on 23.2.2006 as follows:
"Ref: Your letter No. LHR/ACL/06/5607 dated 17th February 2006.
Para-wise reply to your queries is as under :--
Accepted. However, LC opening charges and subsequent amendment thereof, if any shall be borne by you. Besides delay if any in this account should not be accounted for EOT if claimed as the L.C. is to be opened for your convenience.
Not accepted, because it is not in line with Schedule of Deliveries specified in the Bidding Document.
Not acceptable, as the condition is not the part of the Bidding Documents.
Moreover, your are advised to provide a firm commitment regarding Timely Deliveries Of Conductor against this subject tender to the satisfaction of NTDC. "
In response thereto, the petitioner furnished performance bonds as is evident from letter dated 13.3.2006. The Purchase Order was then issued on 30.3.2006, according to which the payment was to be made by the Budget and Accounts Officer (Clause-3) and delivery schedule was mentioned in Clause-6. According to Clause-16 thereof, in case of failure of supply of goods within the time specified or breach of contract, the security/bank guarantee (performance bonds) was liable to be forfeited. It was accepted by the petitioner who, however, took up the matter that the mode of payment should be through an irrevocable L.C. (Letter of Credit) and that delivery schedule should be reckoned from the opening of L.C. Eventually, Amendment No. 1 dated 18.4.2006 was brought in substituting Clause-3 i.e. the Terms of Payment to the effect that the payment will be made by Budget and Accounts Officer through an irrevocable L.C. It was clarified that delay, if any, in this account should not be counted for extension of time (E.O.T) if claimed as the L.C. is to be opened for your convenience. It was also mentioned that "all other terms and conditions of the Purchase Order shall remain unchanged". This amendment in the Purchase Order was accepted by the petitioner vide letter dated 19.4.2006 with "thanks". Despite that, again an issue was raised for reckoning the delivery period from the date of establishment of L.C. which was not acceded to by the respondents. The respondents then started reminding the petitioner about the non-compliance of contractual obligation. It was, thus, that the respondents urged the relevant banks for the encashment of the performance guarantee which prompted the petitioner to approach this Court through this petition.
From the above narration of factual background and respective contentions of the learned counsel for the parties, it is evident that after participation by the petitioner through tenders for the supply of the goods, the petitioner had been desiring for the change of mode of payment whose request was acceded to i.e. through L.C. He then wanted the delivery schedule to be altered which was not agreed to by the respondents. The formal Purchase Order subject to amendment in the terms of payment was accepted by the petitioner vide its letter dated 19.4.2006. It may be mentioned that while allowing amendment in the terms of payment vide letter dated 18.4.2006 the petitioner was clearly put on notice that all other terms and conditions of the Purchase Order shall remain unchanged. Having, thus, accepted the other terms and conditions, backtracking or unilateral introduction/alteration in the delivery schedule could not be insisted by him. His conduct estopped him from agitating the matter any further.
According to the respondents, time schedule for delivery of goods was of the essence of the contract whereas the petitioner alleges that the breach of contract has been made by the respondents causing losses to the petitioner. In these proceedings under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 such intricate questions pertaining to contractual regime and controversies cannot be gone into or resolved which necessarily entail a thorough trial and recording of evidence. Restraint order as prayed for is not ordinarily issued by the Courts. This case is no exception to the ordinary rule. The rationale behind is that the bank issuing such a document is considered to be bound by its own (documents/terms) irrespective of other disputes between the parties. Such a contract (security/performance bond) is to be construed with reference to its own terms and conditions. In Heavy Mechanical Complex (Pvt.) Ltd. Taxila v. Attock Industrial Products Ltd., Rawalpindi (PLD 2003 SC 295) on consideration of the precedents it was held that "Rights and liabilities of parties in case of a contract of guarantee are determined strictly with reference to terms and conditions of guarantee without recourse to any other instrument or document executed by the parties for any different purposes." Moreover, as held by the apex Court in Lahore Cantonment Cooperative Housing Society Limited Lahore Cantt's case (supra) the terms of contract can only be altered or modified by the parties with mutual consent and whenever there is a dispute arising out of contractual liabilities/obligations requiring extensive recording of evidence, the forum competent to undertake that exercise is the Civil Court. Jurisdiction of the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 in such matters is not invokeable. Similar was the view taken in Yousuf A. Haroon's case (supra). In view of such expression of legal position the other aspects need not to be embarked upon. Therefore, I find it absolutely impermissible for this Court in writ jurisdiction to issue any such restraint order as is being prayed for.
The petition is dismissed accordingly. No order as to costs.
(T.A.F.) Petition dismissed.
PLJ 2008 Lahore 555
Present: Ali Akbar Qureshi, J.
ALLAH DITTA--Petitioner
versus
AIMNA BIBI--Respondent
C.R. No. 2027 of 2007, decided on 29.2.2008.
Specific Relief Act, 1877 (I of 1877)—
----S. 42--Suit for declaration and joint possession--Suit was decreed--Appeal was dismissed--After death of latter plaintiff/respondent being daughter inherited half of the suit land--Defendant/petitioner with the connivance of the revenue functionaries, maneuvered the attestation of mutation of gift--Plaintiff/respondent denied to have appeared before any revenue functionary--Plaintiff/respondent herself appeared before the revenue functionary--Specific query of High Court--Held: No witness was either produced or summoned by the defendant/petitioner to corroborate his assertions--Judgment and decree passed by the lower Courts are not-at-all open to interference was dismissed. [Pp. 556 & 557] A
PLD 1990 SC 1 ref. NLR 1990 Civil 699, PLD 1991 SC 466, rel.
1992 CLC 235, 2007 SCMR 466 & 2007 SCMR 1446.
Mr. Noor Muhammad Awan, Advocate for Petitioner.
Date of hearing: 29.2.2008.
Order
Civil Revision 2027 of 2007 filed by petitioner Allah Ditta has arisen from judgment dated 2.10.2007 whereby learned Additional District Judge, Gujrat dismissed petitioner's appeal to call in question the validity of judgment and decree of Civil Judge Gujrat decreeing the suit of plaintiff/respondent.
Brief resume of the relevant facts are that respondent filed a suit for declaration and joint possession with reference to suit property, as detailed in her plaint, with the averments that the suit property was in the ownership of one Shah Muhamamd and Rehman and after the demise of latter, respondent-plaintiff being his daughter inherited half of the suit land measuring 39 Kanals and 12 Marlas. It was next asserted that petitioner with the connivance of the revenue functionaries, maneuvered the attestation of mutation of gift 1228 on 5.12.1960. The plaintiff reiterated that she being an illiterate and "Parda Nashin" lady never ever made any gift in favour of the petitioner. She also denied to have appeared before any revenue functionary and that petitioner was her real Chachazad (cousin). Lastly, it was canvassed that questioned mutation of gift in the revenue record was an outcome of misrepresentation and fraud, and thus the respondent plaintiff sought its annulment before the trial Court.
Suit was contested by the petitioner on the grounds of limitation, insufficient & incorrect description of the property in addition to inadequacy of the Court fee and that "Hiba" was also rightly made by the respondent/plaintiff in favour of the petitioner.
The learned trial Court recorded evidence of the parties on the issues framed and after evaluating the pros and cons of the case consequently decreed the suit, vide judgment and decree dated 31.3.2005. Being aggrieved thereof, the petitioner preferred an appeal, but the learned Judge of the First Appellate Court dismissed the same by means of judgment and decree dated 2.10.2007. Hence, the instant civil revision.
Learned counsel for the petitioner strenuously argued that land in question was in fact rightly and correctly gifted by respondent in favour of the petitioner and that relevant entries in the revenue record
to that effect speak for themselves. Adds that respondent plaintiff herself appeared before the revenue functionaries to vouch for the validity and genuineness of the alleged gift and that suit instituted by her was an outcome of rivalry between the parties. To substantiate his contentions, learned counsel relies on NLR 1990 Civil 699, PLD 1991 SC 466, 1992 CLC 235; 2007 SCMR 466 and 2007 SCMR 1446.
I have heard the learned counsel for the petitioner and gone through the facts and record of the case. To a specific query by this Court as to whether any male member of the respondent-plaintiff was present at the time of the alleged transaction of the gift and whether any credible proof of the offer of the alleged gift, its acceptance and delivery of possession stand borne out from the record. And further whether any witness was independently examined by the petitioner to have accompanied the respondent at the time of so called execution of the gift by the respondent before the revenue authorities, as she was admittedly an illiterate and "Parda Nashin" lady.
While replying to the aforesaid queries as to the pre requisites and fulfillment of the questioned gift, the learned counsel representing the petitioner frankly conceded that no such witness was either produced or summoned by the petitioner to corroborate petitioner's assertions. In this view of the matter, this Court is enlightened and fortified by the principle of law laid down by the Apex Court in its celebrated judgment reported as PLD 1990 SC 1 (Ghulam Ali and 2 others Vs Mst. Ghulam Sarwar Naqvi).
On careful scrutiny and analysis of impugned judgments, I find that consistent and concurrent findings of both the Courts below are based on independent application of judicial mind and fair evaluation and appreciation of the entire evidence. Not an iota of evidence could be highlighted by the learned counsel for the petitioner even so as to presume that judgments impugned herein suffer from any perversity, misreading and non-reading of evidence. I have further noticed that conclusion drawn are based on sound reasons and are in absolute conformity of the law laid down by the Superior Courts to deal with and cater for such like eventualities.
In nutshell, judgments and decrees impugned herein being free from any jurisdictional defect and illegality are not at all open to any exception and interference by this Court in the exercise of its revisional jurisdiction with the consequence that this petition being devoid of any merit stands dismissed accordingly with no order as to costs.
(T.A.F.) Petition dismissed.
PLJ 2008 Lahore 558 (DB)
Present: Maulvi Anwar-ul-Haq and Zafar Iqbal Chaudhry, JJ.
MAKHDOOM GHULAM ALI SHAH--Petitioner
versus
ELECTION COMMISSION OF PAKISTAN, ISLAMABAD through its Secretary and 4 others--Respondents
W.P Nos. 2152 & 2157 of 2008, decided on 11.3.2008.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Writ of quo warranto--Petitioner was an Advocate and a voter of the constituency--Returnd Member not possess the requisite educational qualifications was not qualified to contest the election--Material appended with writ petition was supplied to petitioner by some one else--locus standi--Person having information need not at all be aggrieved person yet High Court is not to issue of writ of quo warranto as a matter of course the bona fide of a relator can be tested. [P. 559] A
PLD 1969 SC 42, 2004 PLC (CS) 1328 & PLD 1989 SC 166, rel.
Mr. Talaat Farooq Sheikh, Advocate, for Petitioner in W.P. No. 2152/08.
Mr. Shahid Zaheer Syed, Advocate, for Petitioner in W.P.No. 2157/08.
Date of hearing: 11.3.2008.
Order
This order shall decide W.P. No. 2152/08 and W.P. No. 2157/08 as some common questions are involved.
W.P. No. 2152/08 has been filed by the petitioner who is stated to be an Advocate and a voter in NA-68 Sargodha. He has stated that the Respondent No. 5 who has been returned as a Member from the said constituency was not qualified to contest the said election as he did not possess the requisite educational qualifications and the Sanad relied upon by him is bogus, apart from being not meeting the criteria laid down by the Higher Education Commission of Pakistan.
W.P. No. 2157/08 has been filed by a voter in PP-68 Faisalabad to question the election of Respondent No. 1 who has been declared returned from the said constituency. According to this petition, the B.A. degree is bogus and so is the case with the Intermediate as well as the Secondary School Certificates.
A common feature of these two writ petitions is that it is admitted at the bar that all the material appended with W.P. No. 2152/08 was supplied to the petitioner therein by Masood Iqbal Gondal a defeated candidate who has himself filed W.P. No. 254/08 which is pending in this Court. In the matter of W.P. No. 2157/08 the said material has been provided by Faizullah Kamoka a defeated candidate who is contemplating to file an election petition.
It is by now well settled that although a person having information need not at all be aggrieved person yet this Court is not to issue particularly a writ of quo warranto as a matter of course and the bona fide of a relator can be tested. One of the grounds recognized for refusing issuance of such a writ that the relator is acting as an instrument of some one else. We deem it proper to reproduce here the following excerpt from the judgment of the Hon'ble Supreme Court of Pakistan in the case Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42) at pages 51 and 52 of the report :
"Under Article 98(2)(b) "any person and not necessarily an aggrieved person can seek redress from the High Court against the usurpation of a public office by a person who is allegedly holding it without lawful authority." On that account it cannot be doubted that Mr. Siraj-ul-Islam did have the locus standi to file the petition. But the grant of relief in writ jurisdiction is a matter of discretion, wherein it is quite legitimate on the part of the High Court to test the bona fides of the relator to see if he has come with clean hands. A writ of quo warranto in particular is not to issue as a matter of course on sheer technicalities on a doctrinair approach. In the present case, considering all the circumstances I cannot escape the feeling that Mr. Siraj-ul-Islam is not entirely playing his own game, for high altruistic motives, and that he has instituted the writ petition not so much--for the vindication of any public right or the redress of a public wrong as to redeem the discomfiture of the defeated candidates, and to fight their battle on another front which some of them had already waged by the process of the election petitions within its limitations."
We may further note here that the said judgment was quoted with approval and relied upon in the case of Muhammad Liaquat Munir Rao v. Shams-ud-Din and others (2004 PLC (CS) 1328) and Federation of Pakistan v. Haji Muhammad Saifullah Khan and others (PLD 1989 SC 166). Although the above quoted observations were made in a case pertaining to elections of East Pakistan Bar Council yet keeping in view the circumstances of these cases apparent upon bare reading of the contents of the writ petitions, the same are aptly applicable. Both the writ petitions are accordingly dismissed in limine.
(T.A.F.) Petition dismissed.
PLJ 2008 Lahore 560
Present: Maulvi Anwar-ul-Haq, J.
M/s. MALIK COAL CORPORATION (REGD.) through its Partner--Appellant
versus
MUHAMMAD IJAZ and others--Respondents
RSA Nos. 85 and 36 of 2003, heard on 22.2.2008.
Civil Procedure Code, 1908 (V of 1908)—
----S. 100--Suit for specific performance of contract--Defendant being a brick maker required coal from the plaintiff--Agreement was got execute just to secure the price of coal--Parties never intended either to sell or to purchase land--Reference was made to another agreement executed on the same day in such regard--Defendant paid back the price of the Coal before specific date--Suit was dismissed specific date after recording of the evidence of the parties were recorded after framing of issues--Appeal filed by the appellant was also dismissed--Held: Interpretation upon the said documents in that the agreement was got executed to secure the price of Coal--Ex.Dl admittedly executed on the same day, states that on the payment of the coal price up to 30.09.68, the agreement to sell shall stand cancelled--RSAs were dismissed. [P. 562] A & B
Ch. Inayat Ullah & Mr. Ahsan Tayyab, Advocates for Appellant.
Sh. Shahid Waheed, Advocate for Respondents.
Date of hearing: 22.2.2008.
Judgment
This judgment shall decide RSA No. 85/03 and RSA. No. 36/03 as these proceed against the same impugned judgments and decrees having been filed by the same partnership Firm but through different partners.
On 11.3.69 the appellant Firm filed a suit against Ch. Muhammad Siddique, deceased father of the respondents (hereinafter to be referred as the defendants). In the plaint it was stated that the appellant is a registered partnership firm and is filing suit through Malik Allah Ditta partner. The defendant agreed to sell suit land mentioned in Para-2 of the plaint to the appellant for consideration of Rs. 75,000/-. A sum of Rs. 25,000/- was received as earnest and balance was to be paid till 30.9.1968. When the sale-deed was to be executed and got registered. The possession was to be delivered at the said time. Notice was served on 28.8.68 for performance. This was followed by telegram dated 30.9.68. The appellant kept on waiting for respondents on the said date but he did not turn up and has refused to perform his part of contract. A decree for specific performance of agreement dated 15.3.68 was accordingly prayed for. In his written statement the said defendant took plea that he did not agree to sell the land to the appellant. He had brick kiln near the suit land and required Coal. The appellant agreed to supply Coal and as a security for the price of Coal the agreement was got executed. The parties never intended either to sell or to purchase land. Reference was made to another agreement executed on the same day. It was also pleaded that the defendant had paid back the price of the Coal before 30.9.68. Then reference was made to some defects in the account being maintained by appellant and rate at which Coal was to be paid for. Issues were framed. Evidence of the parties was recorded. Learned trial Court dismissed the suit on 5.5.82. A first appeal filed by the appellant was dismissed by a learned Additional District Judge, Gujranwala, on 15.4.2003.
Learned counsel for the appellant contend that the learned Courts below have acted against law while reading the documents Ex.P4 and Ex. D1 together. According to them this was not permissible. Further contend that even upon joint reading of the two documents a valid agreement to sell land subject to the condition i.e. return of price of Coal (earnest money) is clearly spelt out and since the said condition was not performed within stipulated period of time the appellant was entitled to decree for specific performance of agreement Ex. P4. They also contend that the suit filed by the appellant against the respondents for recovery of price of the Coal has wrongly been mixed up with the price of Coal that was given as earnest money in the present case. Learned counsel for the respondents, on the other hand, supports the impugned judgments and decrees with the contentions that only possible interpretation upon the reading of the said documents is that the agreement was got executed to secure the price of Coal and in view of the unchallenged plea and testimony of the respondents that the price had been, paid no case for specific performance stood made out. Further contend that the agreement upon plain reading is unconscionable and could not have been specifically enforced.
I have gone through the records of the case, which were reconstructed, with the assistance of the learned counsel for the parties. I have already referred to the pleadings of the parties in some detail above. The plaint only refers to agreement dated 15.3.68 which is Ex.P. 4 on record and specific performance has been sought on the sole ground that the respondent has refused to perform the same. Written statement, however, categorically referred to all material circumstances including the other agreement of the same date, which is Ex.D1. The respondent has not denied the execution of agreement Ex.P4, while son and attorney of the said Allah Ditta appearing as PW-4 has admitted that Ex. D1 was scribed by him and bore signatures of his father and Muhammad Siddique deceased defendant.
It will thus be seen that both the said documents are admitted. Ex.P4 narrates that Muhammad Siddiqui owner of land mentioned therein has agreed to sell the same to the appellant for consideration of Rs. 75,000/-and has received a sum of Rs. 25,000/- as earnest money. He will receive the balance amount upto 30.9.68 and get a sale-deed registered in favour of the appellant. In case he fails to do so he will not only return the earnest money but will also pay an equal amount as damages. Similarly, in case the appellant does not get the sale-deed registered the earnest money shall stand fortified. Towards the end of said document there is a note that the amount of Rs. 25,000/- has been received in the form of Coal. Ex. D1 admittedly executed on the same day by the parties narrates that the appellant has given Rs. 25,000/- in the form of Coal to Muhammad Siddiqui defendant and it has been agreed that in case Muhammad Siddiqui returns Rs. 25,000/- upto 30.9.68 then a receipt will be executed and agreement to sell shall stand cancelled.
Upon plain reading of two documents there is no manner of doubt in my mind that the real intention of the parties was to secure the price of Coal that was delivered to the defendant by the appellant. Apart from this notwithstanding the fact that respondents had categorically said in the written statement with reference to Ex. P1 that he has paid price of Coal before 30.9.68, said Muhammad Bashir PW-4 in his entire examination-in-chief did not at all refer to said Ex. D1 and did not at all state that the amount had not been paid by the defendant. In his cross-examination he could not tell weight of the Coal supplied and could not refer to any document in this behalf
On the other hand, Muhammad Siddiqui appeared as DW-2 and deposed in absolute accord with the written statement. He categorically stated that he has made payment in accordance with Ex. P1. It was not even suggested that he had not made payment as stated by him.
Having thus examined the record, I do not find any question of law arising in these RSAs, which are accordingly dismissed but without any order as to costs.
Lower Courts records be immediately remitted back.
(T.A.F.) R.S.As. dismissed.
PLJ 2008 Lahore 563
Present: Muhammad Muzammal Khan, J.
WARIS BAIG--Appellant
versus
YOUNIS & 2 others--Respondents
F.A.O. No. 253 of 2007, heard on 22.2.2008.
Civil Procedure Code, 1908 (V of 1908)—
----O. XXXIX, Rr. 1 & 2--Temporary injunction--Refusal of relief--Validity--Held: Undisputedly, appellant/previous lessee was not in possession of suit property and the new lessee was said to have raised certain constructions and was in actual/physical possession--Appellant had no arguable case in his favour--He would not suffer any irreparable loss/injury in case of non-issuance of injunction as the constructions if any, raised by new lessee would be at her own cost/risk--Balance of convenience also lied in favour of the new lessee--No error of law or facts was committed by trial Court--Appeal dismissed. [Pp. 564 & 565] A & B
Ch. Fawad Hussain, Advocate for Appellant.
M/s. Nadeemuddin Malik & Muhammad Hasnat Qasmi, Advocates for Respondents.
Date of hearing: 22.2.2008.
Judgment
Instant first appeal assailed order dated 19.9.2007 passed by the learned Civil Judge, Lahore, whereby application of the appellant under Order XXXIX, Rules 1 and 2 CPC was dismissed.
Succinctly, relevant facts are that appellant filed a suit for declaration and permanent/mandatory injunction with the averments that he is a lessee of 16 Marlas of land in front of Shops No. 5 and 6 of Bollan Block, Fortress Stadium, Lahore, which was granted in his favour by the then Ltd. General Moin-ud-Din Haider Commander of 4 Corps. Appellant further narrated his family relations with Respondent No. 1 and detailed that he was persuaded to construct a restaurant in the name of "Baloch Sajji" at the leased property. According to him, on his inability to transfer the non-transferable leased property, Respondent No. 3 is alleged to have entered into some fresh leased agreement with Mst. Shahnaz Younas who is wife of Respondent No. 1. Appellant attacked authority of Respondent No. 3 to execute any lease agreement during subsistence of lease in his favour. Appellant also moved an application under Order XXXIX, Rules 1 and 2 CPC for grant of temporary injunction in form of "status quo", restraining the respondents from raising constructions or from changing the nomenclature of the lease deed in his favour, by any means whatsoever.
Respondents being defendants contested the suit by filing their written statements and opposed grant of temporary injunction by filing their written replies to the application in this behalf. All the respondents through their distinct replies, refuted the stance of the appellant and pleaded that lease rights in favour of the appellant stood extinguished and thereafter lease rights qua the disputed property have been transferred in favour of Mst. Shahnaz Younas (Defendant No. 4). The learned Civil Judge, who was seized of the suit, after hearing the parties, dismissed the application of the appellant vide his order dated 28.7.2007. Appellant being aggrieved of the order passed by the trial Court, filed FAO No. 208/2007 before this Court, which was disposed of on 12.9.2007 with the concurrence of the learned counsel for the parties, remitting the case to the trial Court for fresh decision of stay application. It was also directed that case shall be entrusted to some Civil Judge other than who earlier decided the matter. In the post remand proceedings, stay application was again dismissed by another learned Civil Judge vide his order dated 19.9.2007. Appellant has now challenged this order again through appeal in hand.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Though appellant has not impleaded Mst. Shahnaz Younas as a party to the instant appeal, who being holder of lease rights at the present, was a necessary party, yet in case she is allowed to be impleaded at this stage, no fruitful purpose will be served because lease in favour of the appellant was executed on 18.7.1995 for a period of one year and this period was never extended, subsequently. Undisputedly, appellant is not in possession of the suit property: and the new lessee is said to have raised certain constructions and is in its actual/physical possession. Prima facie, in absence of any extension of lease in favour of the appellant or his possession over the suit property, he has no arguable case in his favour. He will not suffer any irreparable loss/injury in case of non-issuance of injunction as the constructions, if any raised by the lessee, shall be at her own cost/risk. Learned counsel representing the new lessee (Mr. Nadeemuddin Malik, Advocate) made a categorical statement before this Court that in case of success of the appellant in his suit, he will not claim any compensation for the construction/work done at the suit property. Similarly, balance of convenience also lies in favour of the new lessee, as her right to remain in possession of the property is supported by Respondent No. 3 whereas in case of issuance of injunction prayed, the left out party/lessee is bound to suffer inconvenience. Scan of record and impugned order revealed that controversy was correctly put to rest by the trial Court without committing any error of law/facts.
For the reasons noted above, no case for interference in appellate jurisdiction of this Court was made out and consequently the instant appeal being devoid of any merit, is dismissed. The trial Court is, however, directed to expedite the proceedings in the suit and to decide he same within a period of four months under intimation to the Deputy Registrar (Judicial) of this Court. Parties are left to bear their own costs.
(J.R.) Appeal dismissed.
PLJ 2008 Lahore 565 (DB)
Present: Mian Muhammad Najam-uz-Zaman & Ijaz Ahmad Chaudhry, JJ.
ALLAH DIN--Petitioner
versus
SPECIAL JUDGE ANTI-TERRORISM COURT NO. 1, LAHORE and another--Respondents
Writ Petition No. 12332 of 2006, heard on 17.10.2007.
Bail--
----Effect of delay in trial--Held: Inordinate delay in prosecution of a criminal case amounts to abuse of process of law/Court and in such like situation accused/convict earns the right of bail. [P. 576] A
Anti-Terrorism Act, 1997 (XXVII of 1997)—
----Ss. 25(8) & (5)--Constitution of Pakistan 1973, Art. 199--Grant of bail to convict during pendency of appeal--Held: High Court under its extra ordinary jurisdiction, in exceptional cases can suspend the sentence during pendency of appeal when it is satisfied that it is a case of corum-non-judice, there is an inordinate delay in disposal of appeal or the sentence is short and there is no possibility of hearing of appeal in near future and where the convict develops an ailment of the nature that keeping him in detention/confinement may result into his death and that he cannot be provided requisite treatment under detention in the government or other hospitals.
[Pp. 576 & 577] B
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 25(8)--Suspension of sentence during pendency of appeal--Bar--Held: Provision of S. 25(8) of Anti-Terrorism Act, 1997 is harsh in nature and contrary to the principles of natural justice--High Court recommended for its suitable amendment in the legislation. [P. 577] C
Anti-Terrorism Act, 1997 (XXVII of 1997)—
----S. 7(h)--Constitution of Pakistan, 1973 Art. 199--Conviction & sentence--Pendency of appeal--Suspension of sentence--FIR was absolutely silent about use of fire arms during occurrence nor it had taken place at the place of workship--Case was for re-appraisal of evidence--Conviction & sentence suspended--Bail allowed.
[P. 577] D & E
Anti-Terrorism Act, 1997 (XXVII of 1997)—
----Ss. 6 & 7--Pakistan Penal Code, (XLV of 1860), S. 365-A--Constitution of Pakistan 1973, Art. 199--Conviction & sentence recorded against accused by Anti-Terrorism Court--Challenge to----Suspension of sentence during appeal--Held: Allegation against convict was that he and his co-accused had kept the abductee in their illegal confinement while chaining him with a cot in a Baithak--Accused was also arrested at the spot when the abductee was recovered by the raiding party--No plausible ground made out.
[P. 578] F & G
Anti-Terrorism Act, 1997 (XXVII of 1997)—
----Ss. 6 & 7--Pakistan Penal Code, (XLV of 1860), Ss. 341, 355, 386 & 365--Criminal Procedure Code, (V of 1898), S. 497--Constitution of Pakistan, 1973, Art. 199--Suspension of sentence during appeal--Held: Petitioners had already served out more than one and half year of their sentence--Possibility of hearing of appeal in the near future was not within sight--Bail allowed. [P. 579] H
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 7(b)--Pakistan Penal Code, (XLV of 1860), S. 324, 353 & 34--Pakistan Arms Ordinance 1965, S. 13--Constitution of Pakistan, 1973, Art. 199--Conviction & sentence--Challenge to--Suspension of sentence during appeal--Allegation against both convicted brothers was that they had made firing at the police party but non of the police official received any injury--Sentence of convicts was short and they had already undergone major portion of their sentence--No possibility of hearing in near future was within sight--Bail allowed. [P. 579] I
1991 SCMR 599; 1992 SCMR 2192; PLJ 2000 Lah. 2070; PLD 2003 SC 668; PLJ 2001 SC 817 & 2004 SCMR 12, ref.
Mr. Muhammad Amjad Perviaz, Advocate for Petitioner.
Mr. Sarfraz Ali Khan, A.A.G. for State.
Date of hearing: 17.10.2007.
Judgment
Mian Muhammad Najam-uz-Zaman, J.--This judgment will dispose of W.P. No. 12332/2006 filed by Allah Din, W.P. No. 3076/2007 filed by Zafar Iqbal, W.P. No. 3947/2007 filed by Irfan, W.P.
No. 3618/2007 filed by Salman and W.P. No. 3338/2007 filed by Muhammad Sadiq and Shahzad, because one and the same law point is involved. Through these Constitutional petitions, prayer has been for suspension of sentence awarded by the Special Judges, Anti-Terrorism Courts and release of petitioners on bail because under Section 25 (8) of Anti-Terrorism Act, 1997, the High Court has been restrained from suspending the sentence during the pendency of appeal.
In the light of said settled proposition of law, it is argued that though under Section 25 (8) of Anti-Terrorism Act, 1997, the High Court cannot suspend the sentence during the pendency of appeal but since the legislation is subordinate to the Constitution, thus under Article 199 of the Constitution when the Court is satisfied that it is a case of corum non judice, or no case is made out for conviction, or there is inordinate delay in disposal of appeal and when the accused/convict is suffering from ailment which could not be treated in the jail hospital sentence could be suspended.
On the factual aspect of the case, learned counsel submits that bare perusal of the FIR reveals that the jurisdiction of Special Court is not attracted; petitioner has been convicted and sentenced under Section 7(h) of the Act but there is no allegation against him that of using fire arm during the occurrence nor occurrence had taken place at any place of worship, thus conviction and sentence of the petitioner could be suspended.
On the factual aspect of the case, learned counsel submits that there is no sufficient evidence on the record to show the involvement of the petitioner for the commission of offence failing under Section 365-A PPC. Learned counsel submits that the entire case of the prosecution against the petitioner is that he remained present at the place where Waheed-ud-Din abductee was kept in illegal confinement and that he was arrested from that place. Submits that there is no evidence against the petitioner qua abduction or receiving of ransom money nor any incriminating article was recovered from him.
Learned counsel representing petitioners in W.P. No. 3338/2007 has adopted the arguments of learned counsel for the petitioner in W.P. No. 12332/2006 on the law point involved. With regard to the factual aspect, learned counsel submits that during the investigation nothing was recovered from the petitioners; they have been acquitted from the capital charge i.e. under Section 365-A PPC but convicted and sentenced under Section 386 PPC and there is no evidence on record to show that they had ever used criminal force during the occurrence in order to attract the provisions of said section.
Learned counsel appearing in W.P. No. 3947/2007 and W.P. No. 3618/2007 have also adopted the arguments on the law point involved as addressed by learned counsel in W.P. No. 12332/2006. On the factual aspect of the case, learned counsel submit that it is a case of short sentence; petitioners have already undergone major portion of their sentence and the possibility of hearing of their appeal in the near future is not within sight; none of the petitioners caused any injury to the prosecution witnesses and that they have been involved in this case with mala fide intention by the investigating agency.
Learned law officer has also relied on case titled Amjad Hassan Gurchani Vs. Sajjad Haider Khan and another (2004 SCMR 12). In this case the Honourable Apex Court of this Country has held that in cases of hardship sentences awarded for the offences under the Suppression of Terrorist Activities (Special Courts) Act (XV of 1975) could be suspended and in this way he supports the submissions made by learned counsel for the petitioners.
To appreciate the arguments raised by learned counsel for the petitioners about the jurisdiction of the appellate Court qua the release of a convict during the pendency of appeal, a careful appraisal of Section 25 of Anti-Terrorism Act, 1997 is necessary which reads as under:--
"Appeal.-(1) An appeal against the final judgment of a [Anti-Terrorism Court] shall lie to [a High. Court].
(2) Copies of judgment of [Anti-Terrorism Court] shall be supplied to the accused and the Public Prosecutor free of cost on the day the judgment is pronounced and the record of the trial shall be transmitted to the [High Court] within three days of the decision.
(3) An appeal under sub-section (1) may be preferred by a person sentenced by an [Anti-Terrorism Court] to [a High Court] within seven days of the passing of the sentence.
(4) The Attorney General [Deputy Attorney General, Standing Counsel] or an Advocate General [or an Advocate of the High Court or the Supreme Court of Pakistan appointed as Public Prosecutor, Additional Public Prosecutor] may, on being directed by the Federal or a Provincial Government, file an appeal against an order of acquittal or a sentence passed by [Anti-Terrorism Court] within fifteen days of such order.
(4A) Any person who is a victim or legal heir of g victim, and is aggrieved by the order of acquittal passed by An Anti-Terrorism Court, may within thirty days, file an appeal in a High Court against such order.
(4B) If an order of acquittal is passed by an Anti-Terrorism Court in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf giant special leave to appeal from the order of the acquittal, the complainant may within thirty days present such an appeal to the High Court.
(5) An appeal under this section shall be heard and decided by an Appellate Tribunal within seven working days.
(6) [x x x x x x x x x]
(7) [x x x x x x x x]
(8) Pending the appeal a [High Court] shall not release the accused on bail.
(9) For the purposes of hearing appeals under this section each High Court shall, establish a Special Bench or Benches consisting of not less than two Judges.
(10) While hearing an appeal, the Bench shall not grant more than two consecutive adjournments".
Bare perusal of sub-section (8) of section 25 of the Act reveals that because of the specific bar sentence awarded by a Special Judge cannot be suspended by the High Court during the pendency of appeal and in this view of the matter any application seeking the relief by way of grant of bail are liable to be dismissed straightway but on the other hand, we have observed that such like restriction over the jurisdiction of the Courts qua the grant of bail during the trial as well as qua the suspension of sentence of the convict during the pendency of appeal were introduced in the past but by one way or the other the Courts have been finding ways to grant relief to an accused person in appropriate cases.
For example Section 7 of Suppression of Terrorist Activities (Special Courts) Act, XV of 1975 reads as under:--
"Appeals from sentences passed by Special Court, etc.--(1) a person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under Section 426 or Section 491 or Section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court.
(2) An appeal under sub-section (1) shall be preferred to the High Court within thirty days of the passing of the sentence and shall be heard and decided by a Bench of not less than two Judges of the High Court."
Similarly Section 10 of Offences in respect of Banks (Special Courts) Ordinance IX of 1984 which reads as under:--
"Appeals from sentences imposed by Special Court, etc.--(1) A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under Section 426 or Section 491 or Section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court.
(2) An appeal under sub-section (1) shall be preferred to the High Court within thirty days of the passing of the sentence and shall be heard and decided by a Bench of not less than two Judges of the High Court".
Since the said provisions of both the statutes are almost the same, the legality of both the sections was examined by the august Supreme Court in case titled Allied Bank Ltd. Vs. Khalid Farooq (1991 SCMR 599) and their lordships were pleased to observe that the High Court has the power to grant bail to the accused during the pendency of investigation of the case or trial in respect of case registered against him under the Ordinance but the sentence of the convict could not be suspended as the Court of appeal has no jurisdiction to release the convict on bail pending final determination of the appeal but in the later part of the judgment while discussing the jurisdiction of the High Court under Section 561-A Cr.P.C. the question with regard to the suspension of sentence of the convict, in exceptional case, the matter was kept open for its determination at the proper time. The relevant portion of the judgment reads as under:
"Thus, the High Court basically has no power under Section 561-A of the Code to release a convict on bail pending the disposal of his appeal under the Ordinance, in view of the clear bar contained in Section 10(1) of the Ordinance. However, in an exceptional ease such as where there is complete want of jurisdiction or the evidence on the record does not make out any case for conviction, the High Court would still he barred from releasing the appellant on bail pending the disposal of his appeal is a matter which I would keep open, to he examined at the proper time when such as case is before us".
Later on in case titled The State Vs. Syed Qaim Ali Shah (1992 SCMR 2192), once again the legality of Section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975 came under judicial review before the Apex Court of the Country and it was observed that in spite of specific bar by virtue of Section 7 of the said Act under Section 561-A Cr.P.C. sentence could be suspended in case of hardship by the appellate Court. The relevant portion of the judgment reads as under:--
"Section 561-A Cr.P.C. cannot be invoked in aid where there are express provisions dealing with a particular subject, for example, Section 426, Cr.P.C. empowers an appellate Court to suspend the sentence or to admit a convict to bail during the pendency of a criminal appeal against conviction. In presence of above express provision in the Code, Section 561-A cannot be pressed into service nor the above provision can be used to defeat the express intention of the Legislature, for example, in the present case sub-section (1) of Section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 excludes the application of Section 426, Cr.P.C. during the pendency of an appeal under the Act before the High Court. If the High Court was to invoke Section 561-A Cr.P.C, because of the above exclusion of Section 426, Cr.P.C, it may amount to defeating the legislative intent However, the exclusion of the application of Section 426, Cr.P.C by virtue of Section 7(1) of the Act daring the pendency of an appeal of a convict before the High Court is founded on the assumption that the appeal would be disposed of within three months as provided in sub-section (2) of Section 7 of the Act, but in case an appeal of convict remains pending for a number of years either on account of delaying tactics on the part of the Prosecuting Agency or because of the heavy work load of the Court, would it be fair and just to deny him bail on the ground of delay? The delay in prosecution of a criminal case amounts to abuse of process of Court/law warranting grant of bail, the High Court in a case of above nature may press into service Section 561-A Cr.P.C, but not as a matter of course or as a substitute to Section 426, Cr.P.C. The delay should be of the nature which may be repulsive and unconscionable".
Their lordships further observed that the sentence of convict could be suspended under Section 561-A Cr.P.C. in case of serious kind of ailment of the petitioner. Relevant portion of the said judgment reads as under:
"If a convict during the pendency of appeal before the High Court develops an ailment of the nature that keeping him in detention may result into his death and that he cannot be provided requisite treatment under detention in the Government and/or other hospitals, the High Court may in such a case invoke Section 561-A, Cr.P.C. and May release him on bail, as such an order will be within the ambit of the expression "or otherwise to secure the ends of justice", used in Section 561-A, Cr.P.C."
Keeping in view the said observation of the Apex Court of the Country, the legislatures in order to further curtail the authority of superior Courts qua the grant of relief by way of releasing the accused on bail while enforcing National Accountability Ordinance, 1999 along with other sections also added Section 561-A Cr.P.C, as well in Section 9 (b) of the Ordinance. The relevant portion of the Section 9 of the Ordinance, reads as under:--
"Corruption and Corrupt Practices.--(a)
(b) All offences under this Ordinance shall he non-bailable and notwithstanding anything contained in Sections [426,491,] 497,498 and 561A or any other provision of the Code, or any other law for the time being in force no Court [xxxx] shall have jurisdiction to grant bail to any person accused of any offence under this Order".
The vires of said section came under judicial review before the Full Bench of this Court in case titled Anwar Saifullah. Khan Ex.Federal Minister Vs. State and 4 others [PLJ 2000 Lahore 2070 (FB)] and their lordships declared that under Article 199 of the Constitution of Islamic Republic of Pakistan bail could be granted to a person accused of offences falling under the NAB Ordinance. Relevant portion of the judgment reads as under:--
"It is true that under Section 9(b) all offences under the National Accountability Bureau Ordinance (XVIII of 1999) (briefly referred to as the Ordinance) are non-bailable and it has been stated that notwithstanding anything contained in Sections 426, 491, 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court including the High Court shall have jurisdiction to grant bail to any person accused of such offences. It is also true that Chairman, NAB has been empowered under sub-section (c) of Section 9 ibid to release any accused from its custody/detention after considering the gravity of the charge against such person and where the accusation specifies any amount in respect of which the offence is alleged to have been committed, after the payment of such amount. The underlying objectives of this Ordinance in the words of preamble is "to provide for effective measures for the detention, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse/abuse of power, misappropriation of property, kickbacks, commissions and for matter connected and ancillary or incidental thereto. The supreme purpose of this legislation is to effect recovery of defaulted amounts of lending institutions, money or gains, obtained through corrupt practices, misuse or abuse of powers, kickbacks, commissions and other like amounts. In Mrs. Shahida Faisal v. Federation of Pakistan etc. (W.P. No. 739/2000), the Full Bench of this Court has held that the powers conferred upon the Chairman, NAB, are Draconian in nature, nevertheless these are not un-commensurate with the ground realities obtaining in our cherished State. The Full Bench has further held that the Ordinance is a subordinate legislation and this Court had jurisdiction to review, examine and strike down any act or omission of the NAB as well as that of the Accountability Court if such act or omission is without jurisdiction, in excess of jurisdiction, or is in defiance of patent provisions of law or tainted with mala fides. In this view of the matter, we have no difficulty in holding that this Court has jurisdiction under Article 199 of the Constitution (1973) to grant bail to the petitioner".
In case titled Khan Asfandyar Wali and others Vs. Federation of Pakistan through Cabinet Division Islamabad and others (PLJ 2001 SC 817) once again vires of NAB, Ordinance particularly Section 9 (b) came under judicial review and their lordships while examining Section 9(b) of the ibid Ordinance observed that the superior Courts have the power to grant bail under Article 199 of the Constitution independent of any statutory source of jurisdiction such as Section 497 Cr.P.C. and thus held that Section 9(b) of the NAB Ordinance is ultra vires the Constitution. The relevant portion of the judgment reads as under:--
"It was held in the case of Zafar Ali Shah (supra) that the powers of the superior Courts under Article 199 of the Constitution "remains available to their full extent ... notwithstanding anything contained in any legislative instrument enacted by the Chief Executive." Whereas, Section 9(b) of the NAB Ordinance purports to deny to all Courts, including the High Courts, the jurisdiction under Sections 426, 491, 497, 498 and 561A or any other provision of the Code of Criminal Procedure or any other law for the time being in force, to grant bail to any person accused of an offence under the NAB Ordinance. It is well settled that the Superior Courts have the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction such as Section 497 of the Criminal Procedure Code, Section 9(b) of the NAB Ordinance to that extent is ultra vires the Constitution. Accordingly, the same be amended suitably".
Similarly in case titled Abdul Aziz Khan Niazi Vs. The State through Chairman NAB Islamabad (PLD 2003 Supreme Court 668), the August Supreme Court while entertaining Constitutional petition released the petitioner on bail.
Being guided by the views of their lordships find mentioned in above referred cases we hold that in spite of the bar under Section 25 (8) of the Anti-Terrorism Act, 1997 qua the release of a convict on bail during the pendency of his appeal, High Court is not deprived of the authority/jurisdiction to grant said relief under extraordinary constitutional jurisdiction in view of Article 199 of the Constitution of Islamic Republic of Pakistan. Accordingly we hold that in the exercise of its extraordinary constitutional jurisdiction High Court in exceptional cases can suspend the sentence of a convict during the pendency of his appeal when satisfied that it is a case of corum non judice or there is inordinate delay in disposal of appeal or the sentence is short and there is no possibility of hearing of appeal in near future and where the convict during the pendency of his appeal before the appellate Bench develops an ailment of the nature that keeping him in detention/confinement may result into his death and that he cannot be provided requisite treatment under detention in the Government and/or other hospitals. We are also of the considered view that the said provision of statute i.e. sub-section (8) of Section 25 of the Anti-Terrorism Act, 1997 is harsh in nature and contrary to principles of natural justice. Accordingly we recommend for suitable amendment in the legislation, 9. W.P. No. 12332/2006 titled Allah Din Vs. Special Judge, Anti-Terrorism Court No. 1, Lahore and another.
Through this constitutional petition Allah Din petitioner has asked for suspension of sentence passed by Special Judge, Anti-Terrorism Court No. 1, Lahore vide judgment dated 19.10.2006 in case FIR No. 399/2006 dated 07.08.2006 for the offence under Sections 147/149/511 PPC and Section 7 of Anti-Terrorism Act, 1997 registered at Police Station Old Anarkali, Lahore whereby petitioner has been convicted under Section 7(h) of the ibid Act and sentenced to five years and to pay fine of Rs. 5,000/-.
Allegation against the petitioner and his co-accused is that on 07.08.2006 at about 2:15 p.m. they quarreled with their opposite party in the premises of High Court when they were coming out of the Court room after attending the proceedings. Allegedly during the occurrence petitioner and his co-accused had given kick and fist blows to the complainant party.
We have observed that the learned trial Court has convicted the petitioner under Section 7 (h) of the ibid Act, whereas the bare perusal of the said section reveals that the provisions of the same are not attracted in the circumstances of this case because FIR is absolutely silent about use of fire-arms during the occurrence nor this occurrence had taken place at the place of worship. The case of the petitioner calls for reappraisal of evidence. Accordingly this petition is allowed, conviction and sentence of the petitioner is suspended and he is admitted to bail subject to his furnishing bail bonds amounting to Rs. 100,000/- (rupees one lac) with one surety in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court.
Through this constitutional petition Zafar Iqbal petitioner has asked for suspension of sentence passed by Judge, Anti-Terrorism Court No. II, Gujranwala vide judgment dated 12.01.2007 in case FIR No. 371/2006 dated 05.04.2006 for the offence under Section 365-A PPC and Sections 6/7 of Anti-Terrorism Act, 1997 registered at Police Station Sabzi Mandi. Gujranwala whereby petitioner has been convicted under Section 365-A PPC and sentenced to imprisonment for life and forfeiture of his property. Benefit of Section 382-B Cr.P.C. has also been extended in favour of the petitioner.
It is submitted that the evidence available on the record is not sufficient to uphold the conviction and sentence of the petitioner. Submits that there is no allegation against the petitioner qua demanding and receiving the ransom money and only allegation against the petitioner that the petitioner was seen at the place where Muhammad Waheed-ud-Din (abductee) was under illegal confinement of the accused persons.
We are afraid the contentions raised by learned counsel have no force because bare perusal of the impugned judgment reveals that allegation against the petitioner is that he and his co-accused had kept Waheed-ud-Din (PW.9) in their illegal confinement, allegedly they kept the abductee in a Baithak and chained him with a cot; petitioner was also arrested by the raiding party at the spot when the abductee was recovered and his co-accused managed to escape. No ground for suspension of sentence is made out Dismissed.
Through this constitutional petition Muhammad Sadiq and Shahzad petitioners have asked for suspension of sentence awarded by Special Judge, Anti-Terrorism Court No. 1, Lahore vide judgment dated 06.02.2007 in case FIR No. 298/2006 dated 26.05.2006 for the offence under Sections 341/355/386/365 PPC registered at Police Station Saddar Kasur whereby petitioners have been convicted under Section 341 PPC and sentenced to imprisonment for one month each. Both the petitioners have also been. convicted under Section 355/34 PPC and sentenced to imprisonment for two years each. Trial Court has also convicted the petitioners under Section 386/34 PPC and sentenced them to imprisonment for five years each and to pay a fine of Rs. 5,000/- each. All the sentences have been ordered to run concurrently, benefit of Section 382-B Cr.P.C, has also been extended in favour of the petitioners.
Allegation against the petitioners is that they after abducting Safdar Ali complainant had forced him to sign certain documents as well as deprived the complainant of his cash, mobile phone, wrist watch etc. Allegedly petitioners also after removing the clothes of the complainant took his photographs.
We have observed that the learned trial Court vide the impugned judgment has already acquitted the petitioners from the charge under Section 365-A Cr.P.C. and sentenced them for the offences under Sections 341, 355/34, 386/34. The petitioners have almost undergone the sentence of imprisonment for the offence under Sections 341 and 355 PPC and with regard to Section 386 PPC, we have observed that prima facie the evidence on the record is not sufficient to attract the provisions of this Section and the evidence of the prosecution calls for reappraisal Similarly record of this case reveals that petitioners have already served out more than one and half year of their sentence of imprisonment and the possibility of hearing of their appeal in the near future is not within sight. Accordingly this petition is allowed, conviction and sentence of the petitioners is suspended and they are admitted to bail subject to their furnishing bail bonds amounting to Rs. 100,000/- (rupees one lac) each with one surety each in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court.
We have observed that the allegation against both the petitioners (brothers) is that they made firing at the police party but admittedly none of the police official received any injury during the occurrence; sentence of both the petitioners is short i.e. maximum three years and according to the record both of them have already undergone major portion of their sentence. Similarly the possibility of hearing of their appeals in near future is not within sight. Accordingly these petitions are allowed, conviction and sentence of the petitioners is suspended and they are admitted to bail subject to their furnishing bail bonds amounting to Rs. 100,000/- (rupees one lac) each with one surety each in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court.
(J.R.) Order accordingly.
PLJ 2008 Lahore 580
Present: Sayed Zahid Hussain, CJ.
IRFAN AZIZ and 3 others--Petitioners
versus
SECRETARY LIVESTOCK, GOVERNMENT OF PUNJAB, LIVESTOCK & DAIRY DEVELOPMENT DEPTT. LAHORE and 2 others--Respondents
W.P. No. 8598 of 2006, heard on 2.4.2008.
Constitution of Pakistan, 1973—
----Art. 199--Service matter--Constitutional petition--Recruitment committee recommended appointment on contract basis--Appointees were informed that their appointment orders stand annulled--Orders were assailed on the ground that their appointment was made by the proper procedure and criteria and that orders of appointment, could not be cancelled without any notice or hearing--Validity--Petitioners were appointed on contract basis for a specific period of two years whose orders of appointment were made on different dates--Divergence of view in the matter by High Court, as by means of order some petitions were accepted by High Court, Bench of Bahawalpur and another writ petition was dismissed by Principal Seat--Held: Appointment period cannot go beyond in the appointment order--Even High Court would not be in a position to extend the same as the stream cannot rise higher than its source--No useful purpose would, thus, be served in keeping these petitions pending or passing any other order except that it will be for the relevant Department to take decision as to their continuing in service beyond the contractual period of their appointment--Petitions disposed of. [P. 581] A
Mr. Muhammad Sohail Dar, Advocate for Petitioners.
Mr. Aamir Rehman, Additional Advocate General, Punjab alongwith Muhammad Sharif, Section Officer, Dr. Ehsan-ul-Haq and Dr. Saeed Ahmad, for Respondents.
Date of hearing: 2.4.2008.
Judgment
In the Department of Livestock and Dairy Development, Government of Punjab, the Departmental Selection/Recruitment Committee recommended appointment of certain persons on contract basis for a period of two years. Their posts fall in BS-1 to BS-4 and appointment orders were accordingly issued to them on 25.4.2006. They joined duty and were holding their respective posts. It was, however, on 26.6.2006 when Secretary Livestock, Government of the Punjab "annulled with immediate effect all the recommendations made by any Provincial/District Recruitment Committee or offer of appointments issued by any Appointing Authority for initial appointment against any post in L&DD Department under Recruitment Policy, 2005 Phase-II". It was mentioned therein that "This order shall specifically apply to the posts in BS 1-4 for which no merit/criteria were followed". Pursuant to such a general directive, the appointees were informed that their appointment orders stand annulled. The petitioners in this petition and other petitioners, who were effected thereby, assailed the orders inter alia on the ground that their appointment was made by following the proper procedure and criteria and that orders of appointment, which had been given effect to, could not be cancelled without any notice or hearing them nor such a general order could be passed effecting so many employees without considering their individual cases. Since this common controversy arises in all these petitions, such as W.P. No. 8726/2006, W.P. No. 8728/2006, W.P. No. 8798/2006, W.P. No. 9316/06, W.P. No. 10949/2006, W.P. No. 11892/2006, W.P. No. 2168/2007 and W.P. No. 3142/2007, these will stand disposed of by means of this order.
In the report and parawise comments received from the respondent-Department, the appointment of the petitioners has not been disputed. It has, however, been pleaded that the criteria laid down in the Recruitment Policy had not been followed by the Recruitment Committee. It has not been denied that they were not issued any notice or heard before annulling their appointments.
These petitions came up for hearing before different learned Benches and operation of the impugned orders were suspended. During the course of proceedings today, it has been noted that the petitioners were appointed on contract basis for a specific period of two years whose orders of appointment were made in the month of April, 2006 (on different dates). Though there is a divergence of view in the matter by the learned Benches of this Court, as by means of order dated 14.12.2006 some petitions (W.P. No. 1961/06/BWP, W.P. No. 1962/06/BWP, W.P. No. 1963/2006/BWP and W.P. No. 1964/2006/BWP) were accepted by the Bahawalpur Bench of this Court and W.P. No. 9174/2006 was dismissed by a learned Bench at the Principal Seat, yet the issue as to which view should be followed as correct one, need not be dilated upon as the term of appointment of the petitioners, who have continued to perform their duties during this period, is to expire within this month. Their appointment period cannot go beyond the one mentioned in the appointment order itself. Even this Court would not be in a position to extend the same as the stream cannot rise higher than its source. No useful purpose would, thus, be served in keeping these petitions pending or passing any other order except that it will be for the relevant Department to take decision as to their continuing in service beyond the contractual period of their appointment.
The petitions are disposed of accordingly.
(R.A.) Petitions disposed of.
PLJ 2008 Lahore 585 (DB)
Present: Syed Shabbar Raza Rizvi and Muhammad Akram Qureshi, JJ.
SH. MUHAMMAD MANSOOR--Petitioner
versus
GOVERNMENT OF PAKISTAN through its Secretary, Ministry of Interior, Islamabad and 2 others--Respondents
W.P. No. 9290 of 2007, decided on 25.3.2008.
Constitution of Pakistan, 1973—
----Arts. 4 & 199--Inalienable right of every citizen--Removal of petitioner's name from exit control list was declined--No cogent reason has been offered to decline the deletion of petitioner's name from exit control list--Assailed--Request of the petitioner for deletion of his name from exit control list was declined as co-operative department Govt. of Punjab and NAB authorities did not support the request of the petitioner--Concerned authorities of the Interior Ministry has not applied his mind independently so failed to discharge his function fairly and justly--Art. 4 of the Constitution guarantees as inalienable right of every citizen, to be treated in accordance with law--Held: No action detrimental to the life, liberty shall be taken except in accordance with law--Request of the petitioner failed to get favour with NAB authorities and cooperative department--No cogent reasons to bypass or ignore constitutional provisions enshrined in Arts. 4, 9 & 15 of the Constitution--Name of the petitioner be immediately removed from the exit control list.
[Pp. 584 & 585] A, B & E
Words and Phrases--
----The word "liberty" includes to move within the country or abroad freely and without any restraint unless it is prevented expressly by provision of law. [P. 584] C
Constitution of Pakistan, 1973—
----Art. 15 & 199 Constitutional petition--Freedom of movement--Exit control list--Removal of petitioner's name from exit control list was declined--No cogent reason--Held: Freedom of movement in the context of Art. 15 of the Constitution means to leave the country and also come back into country--Fundamental right cannot be taken away from a citizen on whimsical or capricious reasons as reflect in the impugned order. [P. 584] D
Mr. Muhammad Amjad Pervaiz, Advocate for Petitioner.
Rana Naeem Sarwar, Addl. Prosecutor General for NAB.
Date of hearing: 25.3.2008.
Order
Syed Shabbar Raza Rizvi, J.--The learned counsel for the petitioner has called in question the impugned order dated 23.08.2006 whereby removal of petitioner's name from Exit Control List was declined. According to him no cogent reason has been offered to decline the deletion of petitioner's name from Exit Control List. The petitioner was involved in three references bearing Reference No. 10 of 2003, Reference No. 34 of 2004, Reference No. 43 of 2001 and an inquiry pertaining to National Motors Loan. Pre-bargaining of the petitioner in the above mentioned references was allowed by the Chairman, NAB and subsequently approved by the competent Court vide order dated 06.10.2004 and thereafter he was directed to be released by the learned trial Court. In pursuance of the order of the learned trial Court the petitioner was released. Likewise since petitioner had cleared all his financial liabilities NAB authorities expressed that they had no objection to any transaction by the petitioner in relation to his properties. After obtaining the NOC from the NAB the petitioner approached the respondents authorities for the deletion/removal of his name from the Exit Control List. Since the petitioner failed to receive any response from the NAB Authorities he filed a Writ Petition No. 18279/2005 which was disposed of with a direction to file a fresh representation to the competent authority who will pass an appropriate orders.
Pursuant to the above order, a representation was filed which was disallowed by the impugned order.
Rana Naeem Sarwar, Addl. P.G. had appeared on behalf of the respondent and submitted that Inquiries No. 1/9/HQ/60/NAB/P-investigation, 1/61/HQ/236/NAB authorized on 04.06.2007 and another Inquiry No. 1/9/HQ/327/NAB/P authorized on 03.03.2006 are pending before the NAB Authorities and in the above inquiries/investigation Rs. 43.6, 6.2 and 14 millions are involved.
We have gone through the impugned order according to which request of the petitioner for deletion of his name from the Exit Control List was declined as Co-operative Department, Government of the Punjab and NAB Authorities did not support the request of the petitioner. That means the concerned authorities of the Interior Ministry has not applied his mind independently so failed to discharge his function fairly and justly.
Article 4 of the Constitution guarantees as inalienable right of every citizen, to be treated in accordance with law. In particular, no action detrimental to the life, liberty etc. shall be taken except in accordance with law. Likewise no person can be prevented from doing anything which he can do under a law. Article 9 of the Constitution guarantees life and liberty, save in accordance with law. The word "liberty" includes to move within the country or abroad freely and without any restraint unless it is prevented expressly by a provision of law. Article 15 of the Constitution also ensures freedom of movement. Freedom of movement in the context of Article 15 means to leave the country and also come back into the country. This fundamental right cannot be taken away from a citizen on whimsical or capricious reasons as reflect in the impugned order.
We may refer few judgments already rendered on the subject. For example, in PLD 1997 Lahore 617, petitioner was booked in an FIR and for the same reason his name was placed in the Exit Control List. The learned Court concluded that abridgement of this fundamental right through the legislative or executive measures had to be tested on the touchstone of the constitutional provisions. Similarly in another case, Malik Mushtaq Awan Vs. Government of Pakistan and others (PLD 1999 Lahore 372), pendency of reference against the petitioner was not considered sufficient ground to allow the impugned order of placing the name of the petitioner in the Exit Control List. In another case a reference/investigation was pending before the NAB Authorities against the petitioner when his name was placed in the Exit Control List but the impugned order was set aside by the learned Karachi High Court. (PLD 2005 Karachi 252). Yet in another case, inquiry was pending against the petitioner and on the same ground impugned order was passed which was set aside by a learned Division Bench of the Karachi High Court, (PLD 2006 Karachi 530). As noted above according to the learned Addl. P.G, NAB, two inquiries are pending against the petitioner, thus the impugned order has been passed. The impugned order discloses that it was passed as request of the petitioner failed to get favour with the NAB Authorities and Co-operative Department, Government of the Punjab. The above are not cogent reasons to bypass or ignore the constitutional provisions enshrined in Articles 4, 9 and 15 of the Constitution.
Thus, for the above reasons the impugned order dated 22.08.2006 is set aside and declared unlawful and without lawful authority. It is further directed that name of the petitioner be immediately removed from the Exit Control List and no fetters shall be placed on his movement in any manner. This writ petition is allowed in the above terms.
(R.A.) Petition allowed.
PLJ 2008 Lahore 585
Present: Mian Hamid Farooq, J.
KHURSHID BIBI--Petitioner
versus
MUHAMMAD MUNIR--Respondent
C.R. No. 2567 of 2001, decided on 3.10.2007.
Civil Procedure Code, 1908 (V of 1908)—
----O. XLIV, R. 1 & S. 149--Where an application for exemption of court-fee is dismissed the court should have provided, at least, one opportunity to party concerned to affix or make up the deficiency of court-fee and the dismissal of the application does not ipso facto imply the dismissal of the appeal. [P. 587] A
Syed Kaleem Ahmad Khurshid and Ghulam Rasul Chaudhary, Advocates for Petitioner.
Mr. Niaz Ahmad Khan, Advocate for Respondent.
Date of hearing: 3.10.2007.
Order
The petitioner filed the "application for pauper suit through specific performance of agreement dated 12-4-1993", against the respondent, inter alia pleading that the parties on 12-4-1993 entered into an agreement to sell in respect of suit house for consideration of Rs. 1,40,000; the total consideration amount was received by the respondent and the possession was delivered to the petitioner, however, subsequently the respondent refused to execute sale-deed, which necessitated the suit. The learned trial Court after receipt of the report from the District Collector, Sheikhupura, accepted petitioner's application and she was allowed to sue as pauper. The respondent also filed the suit for cancellation of the said agreement against the petitioner. Both the parties contested each others suits through written statements. Both the suits were consolidated. The learned trial Court framed the consolidated issues, recorded the evidence of the parties and in the ultimate analysis, dismissed petitioner's suit for specific performance of agreement and decreed respondent's suit for cancellation of agreement, vide consolidated judgment and decree dated 20-12-2000. The petitioner challenged the said decree through the appeal, before the learned District Judge, however, did not affix any amount of Court-fee on the memorandum of appeal. The appeal was admitted to regular hearing and notices were issued to the respondent on 26-12-2000 without noticing that the Court-fee was not paid. During the pendency of appeal, the petitioner filed an application under Order XLI Rule 27 C.P.C. for permission to lead additional evidence, but it was rejected by the learned Additional District Judge, vide order dated 13-4-2001. Subsequently, on 29-5-2001, the learned Additional District Judge, after noticing that no Court-fee had been paid, called upon the learned counsel for the parties to argue as to whether the Court-fee on Rs. 1,40,000 is to be levied or not. It appears that subsequently the petitioner filed a miscellaneous application for exemption of Court-fee. After hearing the learned counsel of the parties, the learned Additional District Judge, in the ultimate analysis, dismissed petitioner's application for exemption of Court-fee and the appeal through the impugned single judgment dated 10-7-2001, hence the present revision petition.
Learned counsel for the petitioner contends that the learned Additional District Judge after dismissal of petitioner's application for exemption to pay Court-fee was obliged under the law to provide at least one opportunity to the petitioner to affix the Court-fee, but the learned Additional District Judge dismissed petitioner's application and the appeal simultaneously, which course of action is not recognized under the law. Conversely the learned counsel for the respondent has stated that during the pendency of the appeal, the petitioner was provided numerous opportunities to pay the Court-fee, however, her conduct was contumacious and thus the impugned judgment does not call for any interference by this Court.
The only controversy involved in the present petition is as to whether the petitioner was ever called upon or directed by the learned appellate Court to pay the Court-fee on memorandum of appeal. Upon the examination of the impugned judgment, I find that the learned Additional District Judge dismissed petitioner's application for exemption to pay the Court-fee and the appeal simultaneously through one judgment, in which the petitioner was not directed to pay the Court-fee. Thus, it is evident that the petitioner was not provided any opportunity by the learned appellate Court to pay the amount of Court-fee. I have also examined interim orders ranging from 26-12-2000 (on which date the appeal was admitted) to 10-1-2007 (when the appeal was decided) with the assistance of the learned counsel. None of the order shows that the learned appellate Court ever directed the petitioner or provided him even a single opportunity to affix the Court-fee on the memorandum of appeal. To my mind, when petitioner's application for exemption to pay Court-fee was dismissed, at that point of time, the learned appellate Court should have provided, at least, one opportunity to the petitioner to pay the Court-fee and if still she does not pay the Court-fee, her appeal could have been dismissed. However, in the instant case, no such opportunity was granted to the petitioner and the learned Additional District Judge, while dismissing her application, abruptly dismissed the appeal through single order without realizing that he acted in exercise of his jurisdiction illegally. It is settled law that a case cannot be dismissed on the ground of non-payment of Court-fee until a opportunity is provided to party concerned to affix or make up the deficiency of Court-fee. The impugned judgment is not sustainable in law.
In the above perspective, I have examined the impugned judgment and find that it, to the extent of dismissal of petitioner's application for exemption of Court-fee, does not call for any interference by this Court, however, the judgment regarding dismissal of the appeal is not sustainable in law and thus I am persuaded to set aside latter part of the judgment.
In view of the above, the present petition is decided in the following manner:--
(i) The present petition is partly allowed.
(ii) Impugned judgment dated 10-7-2001, to the extent of dismissal of petitioner's appeal, is set aside.
(iii) Consequently, petitioner's appeal shall be deemed to be pending before the learned District Judge Sheikhupura, before whom the parties shall appear on 10-10-2007.
(iv) The learned District Judge shall determine the amount of Court-fee payable on the memorandum of appeal and provide an opportunity to the petitioner directing her to affix the Court-fee on the memorandum of appeal within a period of one month from 10.10.2007.
(v) If the petitioner, despite providing opportunity, as noted above, does not pay the Court-fee, her appeal shall be deemed to be dismissed.
(vi) If the petitioner affixes the amount of Court-fee within the stipulated period, the learned District Judge shall himself decide the appeal on merits, after hearing the parties and of course in accordance with law within a period of three months from the date of payment of Court-fee.
(vii) No order as to costs.
(R.A.) Order accordingly.
PLJ 2008 Lahore 588
Present: Syed Asghar Haider, J.
AKBAR KHAN--Petitioner
versus
MUHAMMAD KHAN--Respondent
Civil Revision No. 15 of 2006 and Civil Miscellaneous Nos. 242-C and 243-C of 2007, decided on 24.9.2007.
Limitation Act, 1908 (IX of 1908)—
----S. 5--Civil Procedure Code, (V of 1908), S. 115--Dismissal of petition for non-prosecution--Application for restoration--Condonation of delay--Application for its restoration filed with delay of 8 days-Application for condonation of such delay was filed by petitioner contending that his absence was not deliberate or intentional--No date had been mentioned in application for condonation of delay as to when the petitioner discovered dismissal of petition--No explanation was provided as to why application for restoration was not filed within the period of limitation--Effect--Petitioner was required to explain delay of each day as a valuable right had accrued to the other party, which had not been done in the present case--Petition was dismissed. [P. 589] A
Mr. Abdul Rauf Farooqi, Advocate for Petitioner.
Sh. Naveed Shahryar, Advocate for Respondent.
Date of hearing: 24.9.2007.
Order
C.M. No. 243-C of 2007
This is an application under Section 5 of the Limitation Act, 1908 seeking condonation of delay for filing CM. No. 242-C of 2007 for restoration of dismissal of the Civil Revision No. 15 of 2006 for non-prosecution.
The learned counsel for the petitioner contended that he proceeded to Karachi to attend the Urs of his Pir (Hazoor Qalander Baba Auliya Rahmatullah Alaia), thereafter, he had two petitions (C.P. No. 1712 of 2004 and C.P. No. 1713 of 2004) fixed before the Honourable Supreme Court of Pakistan, at Islamabad on 6-2-2007 and therefore, could not appear in this Court on 6-2-2007. He also stated that he has no clerk in his office, therefore, he was not informed of the fixation of the petition in this Court, he received no cause list, therefore, absence was not deliberate or intentional, he, therefore seeks condonation of delay for 8 days for filing the petition belatedly.
The learned counsel for the respondent contends that the application is patently barred by time, there is no adequate explanation for delay in filing the application, law requires that delay of each day has to be explained which has not been done, therefore, petition warrants no indulgence.
Heard.
The petition came up for hearing on 13-1-2006 and pre-admission notices were issued to the respondents and interim relief was also granted to the petitioner. Thereafter, the matter was partly heard on 4-9-2006, proceedings were adjourned to 6-9-2006, none appeared and they were adjourned to 17-11-2006. On this date, Malik Shahid Iqbal Awan, Advocate, appeared and sought adjournment, pleading that the original counsel for the petitioner was not available. The proceedings were again agreed for 6-2-2007 and dismissed for non-prosecution on this date.
The counsel proceeded to Karachi on 27-1-2007 and it appears thereafter he went to the Honourable Supreme Court of Pakistan at Islamabad, and appeared in C.Ps. Nos. 1712 of 2004 and 1713 of 2004 on 6-2-2007. On this date, the proceedings were dismissed for non-prosecution by this Court, normally this is sufficient cause to allow application for restoration. But unfortunately no date has been mentioned as and when the petitioner discovered dismissal of the instant petition, likewise there is no explanation, as to why the application for restoration was not filed within the period of limitation, and above all there is not a word to explain, the admitted delay of eight days. The petitioner is required to explain delay of each day, as a valuable right accrues to the other party, thus balance has to be struck, on this benchmark, the scale leans in favour of the respondent. Therefore, petition is dismissed.
C.M. No. 242-C of 2007.
For the reason stated in the C.M. No. 243-C/2007, this application too is dismissed, being barred by afflux of time.
(R.A.) Petition dismissed.
PLJ 2008 Lahore 590
[Bahawalpur Bench Bahawalpur]
Present: Khurshid Anwar Bhinder, J.
NABI BAKHSH and others--Petitioners
versus
PROVINCE OF PUNJAB through District Collector/D.C.O. Rahim Yar Khan and 5 others--Respondents
C.R. No. 21-D of 2008, decided on 21.1.2008.
Civil Procedure Code, 1908 (V of 1908)—
----S. 115--Canal and Drainage Act, (VIII of 1873), S. 20--Concurrent findings of fact--Based on proper appreciation of evidence, oral and documentary--No case of mis-reading and non-reading of evidence--Neither any legal infirmity pointed out nor illegal exercise, jurisdiction nor failure of exercise of jurisdiction--Held: Concurrent findings of facts based on evidence, are not liable to be interfered in the exercise of jurisdiction u/S. 115, C.P.C.--Revision dismissed.
[P. 592] A & C
Civil Procedure Code, 1908 (V of 1908)—
----S. 115--Revisional jurisdiction--Questions of factor or law--Illegality--Findings on questions of fact or law recorded by Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless the findings suffer from jurisdictional defect, illegality or material irregularities. [P. 592] B
2000 SCMR 346; 2000 SCMR 431; 2000 SCMR 1647; 2000 SCMR 314; 2000 SCMR 329; PLD 1994 SC 291 & PLD 2002 SC 293 rel.
Mr. Mumtaz Ahmad Aamir, Advocate for Petitioners.
Date of hearing: 21.1.2008.
Order
The petitioners, through the present revision petition have called in question the judgment and decree dated 23.11.2007 passed by the learned Additional District Judge, Rahimyar Khan, whereby he dismissed the appeal filed by the petitioners against the judgment and decree dated 23.5.2007 passed by the learned Civil Judge 1st. Class, Rahimyar Khan dismissing the declaratory suit filed by the petitioners.
Briefly stated the facts of the case are that petitioners filed a suit for declaration against the respondents/defendants to the effect that the orders dated 27.11.1998 and 14.10.1998 passed by Respondents/Defendants No. 2 and 3 about alteration of impugned outlets were illegal, against law and facts, without notice, mala fide, without lawful authority hence void, ineffective qua the rights of the plaintiffs and were liable to be cancelled. The case of the petitioners is that they were co-sharers in rights of irrigation of outlet No. 23572/T.R and Respondents/Defendants No. 5 and 6 in connivance with Defendants No. 2 to 4 included their landed property measuring 25 acres from outlet No. 10164/R to the said impugned outlet of plaintiffs without giving any notice to them by decreasing the turn of water of the plaintiffs.
Defendants No. 5 and 6 hotly contested the suit by maintaining that the impugned orders had been passed by the Canal Authorities with notice and due care and caution in accordance with law, as such, the suit was liable to be dismissed. Out of the pleadings of parties, the learned trial Court framed the following issues:--
Whether the plaintiffs have no cause of action against the defendants? OPD
Whether the suit of the plaintiffs is not proceedable in its present form? OPD
Whether the suit of the plaintiffs is false, frivolous and has been filed to harass the Defendants No. 5 and 6 and as such Defendants No. 5 and 6 are entitled to recover special costs? OPD
Whether the orders passed by S.E. and DCO dated 27.11.1998 and 14.10.1998 are without notice, illegal, against the facts and in-operative qua the rights of the plaintiffs and are liable to be set aside? OPP
Relief.
Petitioners examined as many as five witnesses and produced notice to share holders under Section 20 of the Canal and Drainage Act as Ex.P-1, site-plan Ex. P-2 and copy of order dated 14.10.1998 Ex.P-3. Respondents/defendants produced DW-1 and DW-2. The learned trial Court after conclusion of the trial dismissed the suit of the petitioners vide judgment and decree dated 23.5.2007, against which the petitioners filed an appeal before the learned Additional District Judge, Rahimyar Khan, who vide judgment and decree dated 23.11.2007, dismissed the appeal, hence this revision petition.
Learned counsel for the petitioners has submitted that both the Courts omitted to consider the evidence on record and have illegally dismissed the suit and appeal filed by the petitioners.
I have given my anxious thoughts to the submissions of the learned counsel for the petitioners. There is no denying the fact that it is mandatory requirement of law under Section 20 of the Canal and Drainage Act that before passing an order by the irrigation authorities i.e., Divisional Canal Officer the Superintending Engineer for the transfer of outlet from one place to the other, notice to all the shareholder was to be given but it is clear from the statement of Nasrullah, record keeper, who appeared as PW-1, that Muhammad Amjad Patwari had served the notice (Ex.P1) upon the share holders. Moreover, petitioners despite having an opportunity did not cross-examine DW-1 and DW-2 meaning thereby that the statements of the witnesses were understandably admitted. There is sufficient evidence on record particularly the statements of PW-1 and PW-3 that the notices under Section 20 of the Canal and Drainage Act were definitely served on all the share-holders before passing the order by the District Canal Officer.
In view of the contention raised by the learned counsel, I have examined both the judgments and find that both the Courts below have exhaustively embarked upon the issues involved in the case, rightly appreciated the documentary as well as oral evidence produced by the parties and reached to the proper conclusions, which, to my mind, are not open to exception. Although this Court, in exercise of its revisional jurisdiction, is not required to reappraise the evidence, yet in the interest of justice, I have examined the evidence available on record and find that the conclusions arrived at by both the Courts below are not only in accordance with the record of the case but the same are also in consonance with the law on the subject.
It is settled law that the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. Reliance is placed on Muhammad Rafique vs. Aamer Shahzad and others (PLJ 2000 Lahore 157).
The concurrent findings of facts were recorded by both the Courts below which are based on proper appreciation of evidence, oral and documentary, produced by the respective parties before the learned trial Court. No case of mis-reading and non-reading of evidence has been made out, neither any legal infirmity has been pointed out by the learned counsel even during the arguments, nor illegal exercise of jurisdiction nor failure of exercise of jurisdiction by both the Courts below has been attributed.
It is settled law that concurrent findings of facts, based on evidence, are not liable to be interfered in the exercise of jurisdiction under Section 115 C.P.C. Reliance is placed on Abdul Rahim and another vs. Mst. Janatay Bibi and others (2000 SCMR 346), Anwar Zaman and 5 others Vs. Bahadur Sher and others (2000 SCMR 431), Aziz Ullah Khan and others vs. Gul Muhammad Khan (2000 SCMR 1647), Altaf Hussain vs. Abdul Hameed and Abdul Majeed through legal heirs and another (2000 SCMR 314), Haji Noor Muhammad vs. Abdul Ghani and 2 others (2000 SCMR 329), Haji Muhammad Din Vs. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rashid Ahmad Vs. Muhammad Siddique (PLD 2002 SC 293).
Upshot of the above discussion is that the present revision petition is devoid of any merits, thus, the same is dismissed in limine.
(M.A.S.) Petition dismissed.
PLJ 2008 Lahore 593
[Rawalpindi Bench Rawalpindi]
Present: Kazim Ali Malik, J.
ABDUL RAZZAQ--Petitioners
versus
S.H.O. etc.--Respondents
W.P. No. 2469-Q of 2007, decided on 5.3.2008.
Constitution of Pakistan, 1973—
----Art. 199--Pakistan Penal Code, (XLV of 1860), Ss. 506, 447, 448, 379 & 427--Quashing of FIR--Accused acquired interest and title in disputed property by means of registered sale-deeds--Complainant also filed a civil suit for cancellation of registered sale-deed--Accused constructed houses over disputed property many years back and then alienated the same by means of registered sale-deeds after having got approved the site-plan--Complainant alleged in FIR--Request for demarcation of property unsuccessfully--Validity--Request for demarcation by complainant and investigator is an evidence that there was some dispute of demarcation, which falls within exclusion domain of the revenue authorities--With what authority the respondent S.H.O. took cognizance of the controversy--Complainant stated in FIR that accused persons constructed houses in disputed property and alienated same to different person--Then kept quite for years after construction did not stop the construction--Civil suit had also been filed by respondent/complainant for cancellation of registered sale-deeds--High Court cannot assume the jurisdiction of investigation cannot allow I.O. to go beyond allotted area.
[Pp. 597, 598 & 599] A, B & C
Pakistan Penal Code, 1860 (XLV of 1860)—
----Ss. 441 & 447--Criminal trespass--Difference between civil trespass by way of taking possession of property without consent of the person in possession and criminal trespass for which insult or annoyance to person in possession is a condition precedent--S. 441 of PPC show that a person would not be annoyed or intimidated in absentia--Charge of criminal trespass would not be sustainable--Proceedings in impugned FIR stand quashed. [P. 599] D
Mr. Muhammad Ilyas Siddiqui, Advocate for Petitioner.
Syed Shahid Hussain Kazmi, A.A.G for Respondent No. 1.
Mr. Rab Nawaz Noon, Advocate and Mr. Muhammad Kokab Iqbal, Advocate for Respondent No. 2.
Date of hearing: 5.3.2008.
Order
Abdul Razaq, petitioner seeks quashment of proceedings in case FIR. No. 701 dated 8.11.2007 under Sections 506/447/448/379/427 P.P.C. registered at Police Station Waris Khan, Rawalpindi and challaned to the Court of area Magistrate, by invoking the constitutional jurisdiction and inherent powers of this Court.
Brief facts giving rise to this constitutional petition may be given first.
Pervaiz Khalid, respondent got registered above-said case on 8.11.2007, now under judicial scrutiny, with an allegation that residential plot measuring 1 kanal 17 marlas Bearing Khasra No. 139/1, Khewat Nos. 3050/3070 located in Dhok Illahi Bukhsh, Rawalpindi had been purchased by his father Abdul Ghafoor from its original owner Ishtiaq Ahmad on 17.10.1967 by means of registered sale-deed; that Abdul Ghafoor, the vendee raised boundary wall around the plot with an outer gate; that in the year 2004 Abdul Ghafoor died and the plot devolved upon Pervaiz Khalid, respondent-complainant when he got demarcated the plot from the revenue department and learnt that Malik Khuda Bukhsh, Muhammad Rafiq, Muhammad Sharif, Muhammad Siddique, Muhammad Hanif, Sher Dad Khan and Muhammad Yaqoob had occupied different portions of the above said plot, constructed houses and had then alienated to Liaqat Ali, Gulraiz, Musa, Jamal Muhammad Khan, Muhammad Dawood, Muhammad Yaqoob, Muhammad Ramzan, Aurang Zeb, Rehmat Ullah, Muhammad Ali, Habib Ullah (not parties to this petition) and Abdul Razaq, petitioner herein; that after having examined the revenue record, the respondent-complainant approached the above-named accused persons when they extended life threats and that they all forcibly occupied the plot, demolished the four-wall and took away bricks and the gate.
It is not in dispute or disputable and is a matter of record that the transactions in favour of the accused persons given in the FIR. had been affected by means of registered sale-deeds containing altogether different description of the sold properties as under:--
(i) House No. 689-J `Min' located in Street No. 4, Dhok Illahi Bukhsh, Rawalpindi was purchased by Muhammad Yousaf son of Abdul Aziz by means of a registered sale-deed No. 42 dated 5.1.1993 and on his death the property devolved upon his legal heirs including his son Muhammad Yaqoob, who farther alienated his share to Abdul Razaq, petitioner herein vide registered sale-deed No. 3975 dated 26.8.2002.
(ii) Muhammad Rafiq alienated House No. 689-J `Min' located in Dhok Illahi Bukhsh in favour of Gulraiz and Muhammad Mushtaq (accused persons) under registered sale-deed dated 2.9.2004.
(iii) Haji Aman Khan purchased House No. 689-J `Min' situated in Dhok Illahi Bukhsh Rawalpindi from its original owner vide registered sale-deed No. 665 dated 22.2.1967 and then further alienated in favour of Muhammad Rafiq vide registered sale-deed No. 4945 dated 23.10.1973.
(iv) Muhammad Siddique and Muhammad Hanif acquired ownership in House No. 689-J `Min' by means of registered sale-deed No. 10035 dated 24.10.1984 and then sold it in favour of Muhammad Dawood, Muhammad Yaqoob, Muhammad Ramzan and Aurang Zeb vide registered sale-deed No. 1120 dated 28.1.1990.
(v) Sher Dad Khan sold a piece of land Bearing Khasra No. 150 Khewat No. 131/177 of revenue estate Mureerh Hassan in favour of Habib Ullah and Muhammad Ali vide registered sale-deed No. 1692 dated 16.4.1970.
(vi) Aman Khan son of Hameed Khan sold Khasra No. 150, Khewat No. 312/363 of revenue estate Mureerh Hassan in favour of Sher Dad Khan by means of registered Sale-Deed No. 3894 dated 7.11.1967.
(vii) Muhammad Shafi son of Muhammad Ramzan purchased House No. 689-J `Min' vide registered sale-deed No. 338 and then sold in favour of Muhammad Yousaf son of Abdul Aziz vide registered sale-deed dated 5.1.1992.
(viii) Mst. Farida Khanum wife of Fazal ur Rehman sold House No. 689-J `Min' in favour of Muhammad Shafi Bhatti through the registered sale-deed No. 338 dated 3.1.1990.
Learned counsel for the accused-petitioner contended that the respondent-complainant laid a civil dispute before the police and got it challaned to Court after having won the favour of the investigator for some consideration extraneous to the record. On the other hand learned counsel for the respondent-complainant has vehemently argued that the High Court does not have the jurisdiction to investigate the case or to quash the F.I.R. exercising constitutional jurisdiction under Article 199 of the Constitution or under Section 561-A Cr.P.C.. Reliance was placed on the case law laid down in Dr. Ghulam Mustafa v. The State and others (2008 SCMR 76).
I have heard both the sides at some length and have perused the record of ownership in the light of the law governing the subject of investigation and trial of criminal cases. Admittedly, the accused persons acquired interest and title in the disputed property by means of registered sale-deeds long ago. The registered sale-deeds favourable to the accused persons still hold the field. During the course of arguments it was disclosed by both the sides that the respondent-complainant also filed a civil suit tor cancellation of the registered sale-deeds in question. Be that as it may, the fact remains that the registered sale-deeds in question executed and registered many years back have not been cancelled by the Registrar or the Civil Court seized of the trial of civil suit filed by the respondent-complainant. The respondent-complainant called in question legality and correctness of the long standing entries of the registered sale-deeds before the S.H.O., Police Station Waris Khan, without disclosing and explaining as to why and under what circumstances he chose to keep quite for years. At the cost of repetition it is noteworthy that the accused persons constructed houses over the disputed property many many years back and then alienated the same to their co-accused persons long ago by means of registered sale-deeds after having got approved the site-plan. The respondent-complainant alleged in the FIR. that the accused persons constructed houses in his owned Khasra No. 139/1. The registered sale-deeds in question do not bear the description of sold property in line with the complainant's allegation. By means of registered sale-deeds some other property had been alienated. A perusal of the record of the criminal case would show that the respondent-complainant and the respondent-investigator approached the revenue Patwari and the Revenue Officer concerned with a request for demarcation of the disputed property unsuccessfully. The revenue officers expressed their inability in writing that in view of the construction at and around the disputed property it was not possible to carry out demarcation proceedings. The request for demarcation by the complainant and the investigator is an evidence that there was/is some dispute of demarcation, which falls within the exclusive domain of the revenue authorities. My this observation is receiving support from a combined examination of the relevant provisions of Land Revenue Act, Land Record Manual and the Land Revenue Rules. I could not understand as to how and with what authority the respondent-S.H.O. took cognizance of the controversy falling within the exclusive domain of the revenue authorities.
Learned counsel for the respondent/complainant contended that constitutional jurisdiction under Article 199 of the Constitution or under Section 561-A Cr.P.C. can only be exercised when very exceptional circumstances existed on the record. The learned counsel further argued that the High Court has no jurisdiction to assume the role of investigating agency. I am in agreement with the learned counsel for the respondent that the constitutional jurisdiction or the inherent power should not be exercised mechanically by examining the factual side of the case with the yard-stick of trial Court or the investigating agency. But in the case in hand the above-said contentions of the learned counsel do not help the respondent-complainant in any manner. The F.I.R. sought to be quashed has been worded like a plaint in the civil suit. The complainant-respondent himself stated in the FIR that the accused persons constructed houses in the disputed Khasra number and then alienated the same to different persons through different transactions by means of registered sale-deeds. The available record does not show as to what were the circumstances, which persuaded the complainant to keep quite for years after construction of houses in the disputed property. Likewise, there is no answer from the respondent-complainant or the record as to why the complainant did not stop the construction when raised and made by the accused persons. As mentioned earlier, during the course of arguments it was disclosed by the learned counsel tor the respondent-complainant that a civil suit had also been filed by the respondent-complainant before the Civil Court at Rawalpindi for cancellation of the registered sale-deeds in question. Admittedly, the Civil Court has not decided the controversy touching the disputed transactions. After registration of the case, the following important questions arose tor determination:--
(i) Whether the accused persons constructed houses in Khasra No. 139/1 as asserted and alleged by the complainant in the F.I.R. or in the Property No. 689-J and Khasra No. 150 as mentioned in the registered sale-deeds?
(ii) Whether it was permissible under the law to challenge legality and correctness of the sale-deeds before the police by way of a criminal case?
(iii) Whether cancellation of registered documents comes within the exclusive domain of the Civil Court and the Registrar?
(iv) Whether self-assertion by the respondent-complainant that the accused persons demolished the boundary wall allegedly constructed by his father and had taken away building material or that the accused persons extended life threats, can be treated as legal evidence?
I must say without any fear of contradiction that police station is not the proper and competent forum for resolution of the above-said controversial points. I have already observed that the demarcation dispute fells within the exclusive jurisdiction of the revenue authorities. In the case in hand the revenue authorities expressed their inability to carry out demarcation on account of construction at and around the disputed place. I could not understand as to what was the material before the investigating officer which provided a basis to conclude that the houses had been constructed in Khasra No. 139/I and not in Property No. 689-J and Khasra No. 150. It appears that the investigator accepted the version of the complainant set up in the F.I.R. touching the dispute of description and location of the property as gospel truth. Although this Court cannot assume the role of investigator but at the same time cannot allow the investigating officer to go beyond the allotted area by assuming the jurisdiction of Civil Court or the revenue authorities. By taking cognizance in a demarcation dispute the investigating officer encroached upon the powers and functions of the revenue department.
The learned counsel for the respondent-complainant attempted to argue that leaving aside the dispute of title between the parties, there was an allegation that the accused persons took away building material, which constituted an offence under Section 379 P.P.C. I could not persuade myself to attach any importance to the contention. The accused persons took years in constructing their houses over the disputed property after having got approved the site-plans and after having acquired interest vide registered sale-deeds. Some of the accused persons had even purchased the property in the year 1967. This state of affairs stands in the way of the respondent-complainant to allege in the year 2007 that building material had been stolen away. The F.I.R. does not show as to when the building material had allegedly been removed. The complainant also made vague and general allegation of life threats without disclosing as to when, where and before whom the accused persons extended life threats.
The ingredients of the offence of criminal trespass under Section 447 P.P.C. as defined by Section 441 of the same Code are to commit trespass to intimidate, insult or annoy any person in possession of the property in dispute. There is a difference between civil trespass by way of taking possession of the property without the consent of the person in possession and the criminal trespass for which insult or annoyance to the person in possession of such property is a condition precedent. A plain reading of Section 441 P.P.C. would show that a person would not be annoyed or intimidated in absentia and in such a situation the charge of criminal trespass would not be sustainable. I am supported in my view by the case law laid down in Abdul Rasheed and another v. The State reported as 1983 PCr.L.J. 42.
For what has been stated above, I am of the considered and calculated opinion that no useful purpose would be served if proceedings are allowed to continue in the criminal case as it would amount to abuse of process of Court. Resultantly this petition is allowed and the proceedings in the impugned F.I.R. stand quashed.
Before parting with this order it is made clear that the observations made by this Court would not adversely affect the case and cause of either side already laid before the Civil Court.
(M.A.S.) Petition allowed.
PLJ 2008 Lahore 599
Present: Hafiz Tariq Nasim, J.
Mrs. SANJIDA IRSHAD, DIRECTOR NURSING EDO (HEALTH), BAHAWALPUR--Petitioner
versus
SECRETARY TO GOVT. OF THE PUNJAB, HEALTH DEPARTMENT, LAHORE--Respondent
W.P. No. 2573 of 2008, decided on 24.4.2008.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Civil servant--Eligible for promotion--Civil servant was promoted on officiating basis instead of regular promotion, whereas her junior civil servant was promoted on regular basis--Punjab Service Tribunal directing the concerned authorities to reconsider the matter and re-decide the question of promotion afresh keeping in view the seniority of the civil servant--Validity--Minor penalty of censure was available in her record but the minor penalty as well as the pendency of enquiry cannot be treated a hurdle for regular promotion of the civil servant as matter in a case reported as (1991 SCMR 1637, wherein it is held that on all the minor penalties civil servant cannot be ignored and cannot be refused to grant of promotion--Held: Withholding of the petitioner's promotion on regular basis from the date when the civil servant became eligible is practically an outcome of colorable exercise of power and that action of the Departmental Authorities cannot sustain in the eyes of law on two grounds--Pendency of enquiry against a civil servant cannot be treated a bar for further promotion and minor penalty of censure and even the minor penalties cannot become a hurdle in the promotion of any civil servant--Petition allowed. [Pp. 601 & 602] A, B & C
Mr. Asif Nazir Awan, Advocate for Petitioner.
Mr. Naeem Masood, Assistant Advocate General Punjab with Hamid Yaqub Sheikh, Addl. Secretary.
Date of hearing: 24.4.2008.
Order
Facts relating to this writ petition are that the petitioner while serving in the Health Department in BS-17 become eligible for promotion to BS-18 in the year 1997 but she was promoted on officiating basis in BS-18 on 22.6.1998 instead of regular promotion, whereas one of the junior namely Mst. Malika Shaheen was promoted in BS-18 on regular basis vide order dated 18.2.1997. Petitioner filed Service Appeal No. 2592 of 1997 before the Punjab Service Tribunal against the order dated 18.2.1997, whereby the junior was promoted and she was ignored, the said appeal was accepted through judgment dated 30.9.1998, directing the Departmental Authorities to reconsider the matter and re-decide the question of promotion afresh keeping in view the seniority of the petitioner. This judgment was even confirmed by the Hon'ble Supreme Court of Pakistan. According to the learned counsel for the petitioner that despite clear finding and direction of the learned Punjab Service Tribunal, the petitioner is being victimized since 1998 by way of non-promotion and that too on extrenious consideration, whereas the petitioner is still working against BS-18 without any break. Further submits that the case of the petitioner was placed before the DPC but it was deferred on the ground of pendency of certain enquiries. The learned counsel submits that the pendency of enquiry and even the minor penalty cannot come in the way of promotion, whereas the respondent was adamant not to promote the petitioner at any costs due to ulterior motive.
Learned AAG submits that the promotion cannot be asked as a matter of right and even the petitioner is not superseded so there is no question of any grievance, which could entitle her for invocation the jurisdiction of this Court.
The Additional Secretary Health, who is present in Court alongwith the record submits that the reasons of non-promotion of the petitioner is pendency of enquiry against the petitioner as well as the minor penalty of censure, however, after the finding of the enquiry her case shall be submitted before the DPC for reconsideration.
Argument heard. Record perused.
The record reflects that the petitioner is made a subject of repeated enquiries, became eligible for regular promotion in the year 1997 but instead of promoting her on regular basis, she was promoted on officiating basis, whereas her junior was promoted on regular basis, which matter was also adjudicated upon by the learned Punjab Service Tribunal long long ago.
It is also confirmed from the record that one minor penalty of censure is available in her record but the minor penalty as well as the pendency of enquiry cannot be treated a hurdle for the regular promotion of the petitioner as the Hon'ble Supreme Court of Pakistan once for all resolved the matter in a case reported as Captain Sarfaraz Ahmad Mufti vs. Government of the Punjab and others (1991 SCMR 1637), wherein it is held that on all the minor penalties civil servant cannot be ignored and cannot be refused to grant promotion.
It is to be noted that the words used by the Hon'ble Supreme Court of Pakistan in respect of minor penalty is plural i.e minor penalties. In the present case only one minor penalty of censure is available in the record. In another judgment reported as Mina Ali Muhammad vs. Secretary, Establishment Division, Government of Pakistan and 3 others 2003 PLC (CS) 1425, this Court followed the law laid down by the Hon'ble Supreme Court of Pakistan referred above holding:--
"Promotion could not have been withheld on the ground that minor penalty was imposed upon him".
So far the pendency of enquiry against the petitioner is concerned, record reveals that the petitioner is being made a subject of repeated enquiry, which otherwise does not seem fair, particularly, when the proceedings of the enquiry are going on and on for a number of years.
During the pendency of enquiry against the petitioner, she cannot be deprived of her lawful right for his consideration for promotion as held by the Hon'ble Supreme Court of Pakistan in cases reported as Deputy Inspector General of Police, Gujranwala and others vs. Anwar Saeed, Inspector Police and others (1998 SCMR 552) and Maj. Ziaul Hassan, Home Secretary and others vs. Mrs. Naseem Chaudhry (2000 SCMR 645).
After going through all aspects of the case, it is held that withholding of the petitioner's promotion on regular basis from the date when she became eligible is practically an outcome of colorable exercise of power and that action of the Departmental Authorities cannot sustain in the eye of law on two grounds:--
(i) "Pendency of enquiry against a civil servant cannot be treated a bar for further promotion.
(ii) Minor penalty of censure and even the minor penalties cannot become a hurdle in the promotion of any civil servant."
Accordingly the writ petition is allowed and respondent is directed to place the petitioner's promotion case for her regular promotion before the Departmental Promotion Committee within one month positively and the said Committee is directed to consider the petitioner for promotion fairly, justly and without being influenced of the pendency of any enquiry and the minor penalty.
The promotion case be considered from the date of petitioner's eligibility. The Additional Secretary, who is present in Court, shall ensure the compliance of the Court's order and complete the process within one month under intimation to the Deputy Registrar (J) of this Court.
(R.A.) Petition allowed.
PLJ 2008 Lahore 602
Present: Hafiz Tariq Nasim, J.
ABDUL HAMEED--Petitioner
versus
GOVT. OF PUNJAB etc.--Respondents
W.P. No. 1839 of 2007, decided on 26.3.2008.
Pro-forma Promotion--
----Jurisdiction of Punjab Service Tribunal--Age of superannuation--Grievance for grant of promotion did not advert to--Constitutional petition--Withholding proforma promotion--Validity--Action of the departmental authorities for withholding the petitioner's promotion w.e.f. the date of his eligibility and the occurrence of vacancy in his quota is unlawful, violative of all norms of justice--Held: Proforma promotion case be placed before departmental promotion committee--Petition was allowed. [P. 604] A
Mr. Muhammad Amin Goraya, Advocate for Petitioner.
Mr. Naeem Masood, Assistant Advocate General Punjab for Respondents.
Date of hearing: 26.3.2008.
Order
The petitioner has filed writ petition with the prayer that the case of pro forma promotion be ordered to be placed before the appropriate Departmental Promotion Committee for consideration on merits.
The petitioner who was a Librarian in the Government College of Science, Faisalabad, was expecting his promotion but with no fault of him he was singled out without any justification whatsoever.
Aggrieved of this, he filed a representation and even invoked the jurisdiction of Punjab Service Tribunal in Appeal No. 2359/2003 which was disposed of with the direction to the respondents to decide the petitioner's representation through a speaking order, after hearing him.
The learned counsel submits that despite the directions of the Service Tribunal, the respondents kept waiting for the superannuation of the petitioner and did not decide the long outstanding grievance and ultimately the petitioner attained the age of superannuation and was retired but simultaneously his grievance for the grant of promotion did not advert to.
The learned Assistant Advocate General submits that as per new provisions of law and policy, the petitioner cannot ask for pro forma promotion due to his retirement, which is the sufficient ground for dismissal of his writ petition.
Arguments heard. Available record perused.
It is not denied by the learned Assistant Advocate General, after consulting the relevant record that the petitioner was eligible for promotion before his superannuation and it was also not denied that the said benefit was not granted due to any fault of the petitioner. However, the stance taken by the departmental representative as well as the learned Assistant Advocate General does not seem to be justified, particularly when a legitimate expectant for promotion was admittedly an eligible person, the post was available in the petitioner's quota for promotion and only on extraneous consideration the employee is victimized.
It is well settled law laid down by the Hon'ble Supreme Court of Pakistan reported as Dr. Syed Sabir Ali vs. Govt. of the Punjab (2007 PLC (S.C.) 957), wherein it is held:
"The entitlement of the appellant for promotion was not denied rather the process of promotion was withheld on the excuse of above referred order of Tribunal. We having considered the matter, have found that the appellant was wrongly prevented to get next promotion and discharge the higher responsibilities as a result of which he was not only deprived of the legitimate right of promotion but was also caused permanent loss of pensionary benefit of the higher grade. In view of the above, we direct that Departmental Authorities should proceed to consider the case of appellant for pro forma promotion as per his entitlement in accordance with law and complete the process within three months."
Taking strength from the law laid down supra, which of course relates to a retired employee, I hold that the action of the departmental authorities for withholding the petitioner's promotion with effect from the date of his eligibility and the occurrence of vacancy in his quota is unlawful, violative of all norms of justice and it is directed that following the judgment of the Hon'ble Supreme Court of Pakistan referred above, the petitioner's pro-forma promotion case be placed before the Departmental Promotion Committee within one month positively.
The Departmental Promotion Committee is directed to complete this process fairly, justly and without getting influenced from any extraneous matter. The result thereof be conveyed to the petitioner under intimation to the Deputy Registrar (Judicial) of this Court.
Writ petition is allowed in the above terms.
(R.A.) Petition allowed.
PLJ 2008 Lahore 605
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD AKRAM--Petitioner
versus
SYED ZAHEER-UL-HASSAN RIZVI--Respondent
C.R. No. 2047 of 2007, decided on 19.11.2007.
Muhammadan Law--
----Gift--Doctrine of Mushaa--Applicability--Where gift is made by a father to his daughter and he divested himself of all his interest in property in-question, the same vested in donee who would be deemed to have taken over joint possession--Doctrine of Mushaa would not be applicable in such case. [P. 606] A
Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 17--Right of pre-emption--Essentials--Pre-emptor was required to be equipped with superior right of pre-emption right from the date of sale up-to the date of decree. [P. 606] B
Syed Kazim Bukhari, Advocate for Petitioner.
Date of hearing: 19.11.2007.
Order
For purposes of this order, reference to pleaded facts in detail would not be necessary. Suffice it to say that on 30.3.2002 the petitioner filed a suit for possession by pre-emption of the suit land purchased by the respondent vide Mutation No. 1124 attested on 30.11.2001. He claimed superior right of pre-emption on the basis of being Shafi Shark. Khalit and Jar. The suit was contested. On 17.10.2005 an application was filed by the respondent whereby it was reported to the Court that the petitioner has transferred his entire land in favour of his daughter vide gift Mutation No. 1366 attested on 26.7.2004. He filed a reply stating that he bad not transferred his entire land rather some land was transferred but the respondent managed to get entered in the mutation his entire land. In the same breath, it was stated that the land has been re-transferred to him vide Mutation No. 1497. The learned trial Court dismissed the suit on 27.3.2006. A learned ADJ. Sialkot, dismissed the first appeal of the petitioner vide judgment and decree dated 9.6.2007.
Learned counsel contends that a complete gift was never made. His further contention is that the land transferred constituted undivided share of a joint holding and the gift was void.
I have gone through the copies of the records. I have already stated above the contents of the said application and the reply filed by the petitioner. Copy of Mutation No. 1366 is Annex-F. It records a gift of the entire holding of the petitioner in favour of his daughter, namely. Sabreena Ayesha. It was entered on 5.7.2004 and attested on 26.7.2004. Copy of Mutation No. 1497 is Annex-E. It was entered on 18.10.2005 and attested on 29.11.2005 and it records a gift by the said daughter of the petitioner in his favour of the same land. Examining the said documents in the light of the said application and the reply, I have no manner of doubt in my mind that the entire land was transferred by the petitioner to his daughter, and after about a year the same was gifted back by the daughter to the father.
Coming to the said contentions of the learned counsel, so far as the said first contention is concerned, no such plea was taken either in the learned trial Court or the First Appellate Court. So far as the said allegation as to the matters being manoeuvered by the respondent are concerned, the same is wholly improbable and has been rightly rejected by the learned Courts below. The doctrine of Mushaa being relied upon by the learned counsel is not applicable to the present case. In the first instance, it is a gift by a father to his daughter and, in the second, the requirement of law is delivery of such possession as the property admits. The moment the petitioner divested himself of all his interest in the said land, the same vested in the donee who shall be deemed to have taken over the joint possession.
Needless to state that the well-founded rule laid down by the Superior Judiciary of the country including the Hon'ble Supreme Court of Pakistan that a pre-emptor is required to be equipped with the superior right of pre-emption right from the date of sale up-to the date of decree has now received statutory recognition in the form of Section 17 of the Punjab Pre-emption Act, 1991. Consequently, because of the said alienation, his right stood abated. The civil revision is dismissed in limine.
(A.A.) Revision dismissed.
PLJ 2008 Lahore 607
Present: Sayed Zahid Hussain, C.J.
Mst. ZUBIA AJAZ, ADVOCATE GEN. SECRETARY JURIST FORM, LAHORE--Petitioner
versus
FEDERATION OF PAKISTAN through Gen. Secretary Ministry of Law Islamabad and 2 others--Respondents
W.P. No. 1448 of 2008, decided on 24.3.2008.
Constitution of Pakistan, 1973—
----Arts. 51 & 199--Seats reserved for women in National and Provincial Assemblies sought to be declared un-constitutional--Constitutional petition against reserved seats for women was found to be lacking in substance or merit--Women being an important and vital segment of society, their contribution in various spheres of life could not be undermined--Petitioner's plea, that "there shall be no discrimination on the basis of sex alone" in terms of Art. 25(2) of the Constitution, has been explained in Art. 25(3) of the Constitution which ordains, that "Nothing in Art. (25) shall prevent the State from taking any special provision for the protection of women and children--"Principle of Policy as highlighted in Constitution would also obligate the state to take step to ensure full participation of women in all spheres of life--Objection to reserved seats for women, thus, cannot be regarded contrary to the scheme, spirit and rationale of the Constitution--Once having become members of Assembly, women would be entitled to certain perks, privileges and allowances under the law which cannot be considered as mere wastage of resources--Reserved seats for women, therefore, could not be challenged. [Pp. 609 & 610] A & B
2001 SCMR 1161; PLD 2003; SC 163; PLD 1997 SC 426; PLD 2000 SC 869; PLD 2005 SC 710; PLD 1998 SC 1445 & PLD 1993 SC 341, ref.
Mr. Tariq Aziz, Advocate for Petitioner.
Mr. Qamar Zaman Qureshi, D.A.G. for Pakistan for Respondents.
Date of hearing: 24.3.2008.
Judgment
Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, a declaration is sought that the seats reserved for women in the National and Provincial Assemblies as a consequence of Constitutional amendments may be declared as un-Constitutional, unlawful and un-Islamic. Since the import and effect of provisions of Article 51 of the Constitution of the Islamic Republic of Pakistan, 1973 is sought to be assailed, notice, as contemplated by Order XXVII-A of the Civil Procedure Code, 1908, was issued to the Law Officer of the Federation in response to which Mr. Qamar Zaman Qureshi, Deputy Attorney General for Pakistan has appeared, who opposes and contests the petition.
Mst. Zubia Ajaz petitioner is an advocate, who claims to be the Secretary of Jurist Forum for Human Rights. Mr. Tariq Aziz, Advocate, who represents her, has mainly argued that since there is no hindrance or bar for women to contest the election on general seats, reservation of seats for them is contrary to the provisions of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. It is contended that the mode of nomination is also contrary to the principle of equality as, according to him, women belonging to mostly VIPs and leading politicians families are nominated. It is pleaded that "the selection of the women is just a burden on the state exchequer and waste of the revenue of the Public which can be utilized for other useful purposes like health, education and poverty elevation" (alleviation). He cites Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others (2001 SCMR 1161), Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 Supreme Court 1445), Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 Supreme Court 341) and Abdul Baqi and others v. Muhammad Akram and others (PLD 2003 Supreme Court 163).
The learned Deputy Attorney General for Pakistan has, on the other hand, brought forth a chart indicating that seats for women had even been reserved in the Constitution of the Islamic Republic of Pakistan, 1956 (Article 44), in the Constitution of the Islamic Republic of Pakistan, 1962 (Article 20) and in the original Constitution of the Islamic Republic of Pakistan, 1973 having undergone changes subsequently. It is contended by him that the law makers had in their wisdom thought of reserving seats for women for their representation in the Assemblies which cannot be regarded either as un-Constitutional, unlawful or un-Islamic on any ground whatsoever. According to him, amendments made in the Constitution including Article 51 of the Constitution of the Islamic Republic of Pakistan, 1973 since have been validated, no challenge can be thrown to the same. Reference has been made to Mahmood Khan Achakzai v. Federation of Pakistan and others (PLD 1997 Supreme Court 426), Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others (PLD 2000 SC 869), Pakistan Lawyers Forum and others v. Federation of Pakistan and others (PLD 2005 SC 719) and Tika Iqbal Muhammad Khan and others v. General Pervez Musharraf and others (PLD 2008 SC 178).
On consideration of the matter in the light of the Constitutional progression since after the enactment of the Constitution of the Islamic Republic of Pakistan, 1956, I find the petition lacking any substance or merit. The women are an important and vital segment of the society whose contribution in various spheres of life cannot be undermined. That may have been the rationale for reserving some seats in the National and Provincial Assemblies so that they could contribute in the legislative field as well. Adverting to the contention of the petitioner as to provisions of Article 25(2) of the Constitution of the Islamic Republic of Pakistan, 1973 that "there shall be no discrimination on the basis of sex alone", reference may aptly be made to clause (3) of the same provision of the Constitution of the Islamic Republic of Pakistan, 1973 which ordains that "Nothing in this Article shall prevent the State from making any special provision for the protection of women and children ". Likewise is the import of clause (2) of Article 26 of the Constitution of the Islamic Republic of Pakistan, 1973. In the Chapter of Principles of Policy highlighted in the Constitution of the Islamic Republic of Pakistan, 1973, some provisions are of relevance such as Article 32 which obligates the State for the special representation of peasants, workers and women in the local Government institutions. Article 34 provides that steps shall be taken to ensure full participation of women in all spheres of national life. Taken in this context the challenge to reservation of seats for women and increase from time to time in its number cannot be regarded contrary to the scheme, spirit and rationale of the Constitution. In the Constitutional scheme itself, special provisions for the safeguard of women have been made enabling them to participate and make contribution in all walks of life. It is correct that there is no embargo for their participation and contesting the election on general seats. As a matter of fact some lady members have adorned the Houses by winning the election against general seats but that does not mean that the seats cannot be reserved for them in the Assemblies for making available better opportunities of representation to them. For instance in the neighbouring country India, the President of India has been empowered to make nominations in the Council of States under Article 80 of their Constitution. Renowned personalities, ladies like Nargis Dutt, Vyjantimala, Lata Mangeshker and Shabana Azmi were the nominees as Members of Rajya Sabha. In our country the personalities so reaching the Assemblies have not merely adorned the Houses but have performed significantly and made substantial contributions. It is a matter of common knowledge that the first woman Prime Minister of this country Mohtarma Benazir Bhutto (shaheed) and the first Speaker of the National Assembly Dr. Fehmida Mirza, in the Muslim World, belong to our homeland. The Conduct of General Elections Order, 2002 itself prescribes the manner in which the seats reserved for women are to be filled. It is election through proportional representation system of political parties i.e. Article 5 and 8F of the Order. Their election, thus, takes place in accordance with the manner and procedure laid down by law.
The principle laid down in the context of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 in Azizullah Memon's case cannot be stretched to the instant case as in that case the vires of Criminal Law (Special Provisions) Ordinance, 1968 had been assailed whereas in the instant case the seats for women have been reserved by a Constitutional provision (Article 51). There can be no cavil to the general proposition as to equality of citizens and the concept of reasonable classification. The cases relating to reservation of seats for admission to various disciplines in the educational institutions cannot be aptly invoked. Even the precedents in Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others (2001 SCMR 1161) and Abdul Baqi and others v. Muhammad Akram and others (PLD 2003 Supreme Court 163) are also of no relevance to the instant case. In these cases also exception for disabled persons, students domiciled in FATA and underdeveloped districts such as Azad Kashmir and northern areas was approved.
So far as the contention about their perks and privileges is concerned, it may be observed that once having become Members of the Assembly they, of course, are entitled to certain perks, privileges and allowances under the law which cannot be considered as mere wastage of resources.
In view of the above, the petition being without merit is dismissed accordingly.
(A.A.) Petition dismissed.
PLJ 2008 Lahore 610
Present: Syed Shabbar Raza Rizvi, J.
MULAZAM ABBAS KHAN and another--Petitioners
versus
MUDASSAR HUSSAIN KHAN and 2 others--Respondents
W.P. No. 11369 of 2007, decided on 4.4.2008.
Punjab Local Government Ordinance, 2000—
----S. 14--Constitution of Pakistan (1973), Art. 199--Election petition--Respondents were declared returned candidates in place of petitioners in election petition--Assailed--Admittedly question of notoriety/disqualification or doctrine of "throw away votes" was not even discussed by Election Tribunal--Impugned order whereby respondents were declared to be returned candidates, was thus, not valid--Election as a whole of concerned union council was declared to be void--Election Commission was directed to conduct fresh election for the seat in-question. [Pp. 614 & 615] A & B
PLD 2006 SC 78; PLD 2004 SC 526; PLD 2003 Lahore 138; PLD 2004; PLD 1976 SC 6 & (1961) 3 All. ER 354 ref.
Mr. Aish Bahadur Rana, Advocate for Petitioners.
Ch. Muhammad Amin Javed, Advocate for Respondents.
Date of hearing: 4.4.2008.
Order
According to the learned counsel for the petitioners, the petitioners and Respondents No. 1 & 2 contested election for the post of Nazim and Naib Nazim respectively. The petitioners were declared returned candidates. However, the respondents filed an election petition on the ground that Petitioner No. 2 was not a matriculate. The election petition was allowed on the above ground on 20.11.2007. Moreover, Respondents No. 1 and 2 were declared returned candidate in place of petitioners No. 1 and 2.
According to the learned counsel for the petitioners, the principle of sinker is not applicable to the petitioners and in this regard he refers to PLD 2003 Lahore 138. The learned counsel further submits that principle of notoriety is not attracted in the instant case. In this regard, he refers to PLD 2006 SC 78 and PLD 2004 SC 526. According to the learned counsel, at the most, a fresh election of the constituency could have been ordered by the Election Tribunal instead of declaring Respondents No. 1 and 2 as returned candidates.
According to the learned counsel for the respondents, the Petitioner No. 2 was notorious for his disqualification before the election and at the time of filing nomination papers. In this regard, he alludes to order of the Returning Officer dated 31.7.2005. The objection regarding disqualification of Petitioner No. 2 was raised before the learned Returning Officer but the same was rejected after hearing both the parties. The said order was also appealed before the District Returning Officer/District and Sessions Judge. The learned District Returning Officer, T.T.Singh dismissed the appeal as the same was barred by time vide his order dated 9.8.2005. According to the learned counsel for the respondents, the said two orders dated 31.7.2005 and 9.8.2005 were called in question in Writ Petition No. 14463/05 before this Court. Before this Court, question of disqualification, etc. was discussed, relevant portion of the order of this Court in the above writ petition is reproduced as under:--
"In view of the non filing of appeal in time, this writ petition is disposed of with observation that petitioner may avail remedy still available of filing an election petition under Rule 65, to be read with Rule 76 of the Punjab Local Government Election Rules, 2005, on the same grounds, which will remain available to the petitioner. With the above observation, this petition is disposed of."
According to the learned counsel for the respondents, at every level/fora, disqualification of Petitioner No. 2, Muhammad Saleem was agitated and following the order of this Court in Writ Petition No. 14463/05, the election petition was filed before the Election Tribunal. The election petition was allowed and consequent upon the acceptance of the same, the impugned order was passed which has been challenged by the petitioners in the instant writ petition. According to the learned counsel for the respondents, in the above circumstances, it cannot be said that disqualification of Petitioner No. 2 was not notoriously known to the constituency. Finally, on the above grounds, the learned counsel for the respondents supports the impugned order.
The learned counsel for the petitioners adds to his arguments already noted in paras 1 to 3, that orders referred to by the learned counsel in the preceding para were not sufficient to inform electors of the constituency regarding disqualification of Petitioner No. 2. In this regard, he relies upon Section 14 of the Punjab Local Government Ordinance, 2000, PLD 2004 SC 526 and PLD 2006 SC 78.
Ch. Aftab Ahmad and another Vs. Naveed ur Rehman reported in PLD 2004 SC 526 is an elaborated judgment of the Hon'ble Supreme Court on this subject. According to the said judgment, where the disqualification of a returned candidate was not notorious at the time of polling so that the voters could have taken notice of the disqualification; the votes secured by such a candidate could not simply be thrown away for declaring the other candidate with next highest number or votes as elected in his place. Generally, in such a case, the election as a whole is set aside and a fresh election is ordered. In the said judgment previous case law of the country and across the boarder has also been discussed. A particular reference is made to Syed Saeed Hassan Vs. Piyar Ali and 7 others (PLD 1876 SC 6) which is reproduced herein as under:--
"The well known principle in substance is that votes given for a candidate who is disqualified could be deemed to have been cast away only where the disqualification was so notorious that the electors could be presumed to be aware of it. It must be found on some positive and definite fact existing and established at the time of poll as to lead to the reasonable inference or willful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause notes to be thrown away are being an alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office or profit under the Crown. If, however, the disqualification is not notorious and depends on legal arguments or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given for him will not be thrown away so as to give the seat to the candidate with the next highest number of votes."
"However, in Re Bristol South East Parliamentary Election (1961) 3 All E.R. 354), a Peer of the United Kingdom received a majority of votes recorded at the election and was returned as a duly elected member of Parliament in the House of Commons. Prior to the date of election, the election petitioner had sent out notices to all persons entitled to vote stating that the rival candidate being a peer of the United Kingdom, was disqualified from being elected a member of Parliament and that all votes given for him would, therefore, be thrown away. Similar notices were published in newspapers circulating in the constituency and were posted at the entrance of the polling stations. A Queen's Division found, on the basis of evidence, that the facts which in law created the incapacity of the Peer to the elected a member of Parliament were known to the electors before they cast their votes. Therefore, the votes cast for the returned candidate were treated to have been thrown away which entitled the election petitioner to be declared as a duly elected member of Parliament for the constitutency."
"Thus following the above dictum the election as a whole of the constituency i.e. U.C. No. 234 is declared bad as such the Election Commission is directed to take steps to conduct fresh election for the seat of Nazim and Naib Nazim in accordance with law." (PLD 2006 SC 78).
"In view of my findings on the above issues, the election of the returned candidates i.e. the respondents Mulazim Abbas Khan and Muhammad Salim (present petitioners) is declared as void and since the election was contested by the petitioners and the respondents only and since the respondents were not even qualified to contest the election in question, therefore, the petitioners are entitled to be declared as returned candidates for the seat of Nazim and Naib Nazim respecting Union Council No. 38, Tehsil Toba Tek Singh, hence, the instant election petition is accepted and the petitioners (Mudassar Hussain Khan and Gulzar Ahmad) are accordingly declared as returned candidates."
Even no issue was framed on the subject of notoriety. The learned Tribunal framed six issues which are enumerated as under:--
Whether the petitioners do not have any cause of action of file the instant petition? OPR.
Whether the petition is not maintainable on account of non-joinder of necessary parties and is not competently filed under Punjab Local Government Election Rules, 2005? OPR.
Whether the petition is mala fide? OPR.
Whether the respondents were not eligible to contest the election being not Matriculates or haying equal or equivalent qualification as set out by law? OPP.
Whether Notification of the returned candidates is illegal, without lawful authority and of no legal consequence? OPP.
Relief.
I may reiterate that merely judging whether Petitioner No. 2 was disqualified or not was not enough. It was equally important to judge whether his disqualification was notorious in the constituency at the time of polling? That was the basic point, which was not attended to by the learned Election Tribunal at all, in this case.
(A.A.) Petition accepted.
PLJ 2008 Lahore 615
Present: Maulvi Anwar-ul-Haq, J.
KHALIL AHMAD--Petitioner
versus
Mst. SABIRAN BIBI and 13 others --Respondents
W.P. No. 11038 of 2007, decided on 14.11.2007.
Mutation--
----Value of--Mutation is neither a document of title nor evidence thereof--Even if mutation was attested, parties claiming under the same would have to prove transaction of sale, if questioned. [P. 617] A
Specific Relief Act, 1877 (I of 1877)—
----S. 27(b)--Civil Procedure Code, (V of 1908), O. I, R. 10--Claim to be impleaded as a necessary party--Where sale pleaded in application was of a date prior to the institution of suit, such matter would be governed by provision of S. 27(b) of Specific Relief Act, 1877--In view of facts pleaded in plaint and in application for impleadment of necessary parties, applicants would be necessary parties to suit--Applicants are, therefore, ordered to be impleaded in suit. [P. 617] B
2007 MLD 89, ref.
Mian Muhammad Abbas, Advocate for Petitioner.
Date of hearing: 14.11.2007.
Order
On 11.5.2006 the petitioner filed a suit against Respondents No. 1 and 2. It was stated in the plaint that Respondent No. 1 is the owner of suit land mentioned in the plaint. She is his sister while Respondent No. 2 is the husband of Respondent No. 1. Through an oral agreement, his sister agreed to sell the land to him on 3.5.2004 for a consideration of Rs. 5,00,000/- and received Rs. 2,00,000/- by way of earnest. She promised to transfer the land (total measuring 13 kanals 10 marlas) to him upon receipt of the balance amount by executing a sale-deed and getting it registered. However, she has proceeded to transfer 12 kanals 8 marlas out of the said land to her husband i.e. Respondent No. 2 who has proceeded to mortgage the land with the Agricultural Development Bank to obtain a loan. She has refused to perform her part of the contract. He accordingly prayed for a decree for specific performance. It appears that the said Respondents No. 1 and 2 have since been proceeded ex-parte in the suit.
On 10.7.2006 Abdul Salam the predecessor-in-interest of Respondents No. 3 to 12 filed an application under Order I Rule 10 CPC. According to him, the entire suit land has been purchased by him from the said defendants in the case, Mutations No. 2506 and 2507 have been entered on 8.5.2006. The statements of the vendors have since been recorded. The possession has also been delivered. He alleged that the suit is collusive inter se the plaintiff, his sister and brother-in-law. While this application was pending Abdul Salam died on 18.10.2006. His LRs were impleaded. The application was resisted by the petitioner. The learned trial Court allowed the same vide order dated 26.4.2007. A revision filed by the petitioner has been dismissed by learned District Judge, Narowal, on 15.8.2007.
Learned counsel for the petitioner contends that since the mutations have not been attested so far, it will be deemed that the title has not passed to the said Abdul Salam or his LRs. Further contends with reference to the case of Province of the Punjab through Secretary, Sports Government of the Punjab and another v. Messrs Qazi Engineering Pvt. Ltd. through Director and 2 others (2007 MLD 89) that in a suit based on contract, a person who is not a party to the contract is neither a necessary nor a proper party.
I have gone through the copies of the records. I have already narrated above the contents of the plaint as also of the application filed by the said Abdul Salam deceased. It has been categorically stated that the defendants in the case have sold the land to him, they have got their statements recorded and the mutations have been entered. So far as the said first contention of the learned counsel is concerned, nothing turns on the same as a mutation by itself is neither a document of title nor its evidence. Even if the mutation is attested, the said additional parties will have to prove the transaction of sale, if questioned.
So far as the said second contention is concerned, I have examined the said case of Province of the Punjab through Secretary, Sports Government of the Punjab and another. It was a suit for damages on account of breach of contract. One of the defendants in the suit applied for deletion of its name on the ground that it was not a party to the contract and as such there was no question of any breach thereof by it. It was in this background that the said judgment was rendered. In the present case, the sale pleaded is of a date prior to the institution of the suit and the matter will be governed by Section 27(b) of the Specific Relief Act, 1877. In view of the said facts pleaded on record by the plaintiff and the additional parties in their application, by all means, they are necessary parties to the suit. The writ petition accordingly is dismissed in limine.
(A.A.) Petition dismissed.
PLJ 2008 Lahore 617 (DB)
Present: Maulvi Anwarul Haq & Syed Asghar Haider, JJ.
ZAHID AFZAL DAHA--Appellant
versus
HABIB BANK LIMITED, KARACHI and 3 others--Respondents
R.F.A. No. 716 of 2001, heard on 31.10.2007.
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)—
----S. 22--Civil Procedure Code, (V of 1908), S. 13--Decree granted in favour of respondent on basis of foreign judgment, assailed--Impugned judgment does not refer to specific denial of execution of guarantee and assertion of fact of appellant claim that he was not present in Foreign Country when guarantee was stated to have been executed by him--Appellant has, thus, made out plausible defence to entitle him to grant leave to defend suit--Impugned judgment and decree was set aside as against appellant--Judgment and decree in question, would however, remain intact against other defendants--Appellant was granted leave to defend suit and to file written statement. [Pp. 619 & 620] A
2006 CLD 405; 2006 CLD 1592, ref.
Syed Najam-ul-Hassan Kazmi, Advocate for Appellant.
Mr. Wahid Mazhar, Advocate for Respondent No. 1.
Nemo for Respondents No. 2 to 4.
Date of hearing: 31.10.2007.
Judgment
Maulvi Anwar-ul-Haq, J.--On 31.5.2000, the Respondent No. 1 filed a suit against the appellant and the remaining respondents for recovery of Pak rupees equivalent of UAE DHs. 1,602,523.67. In the plaint it was stated that the appellant and the remaining respondents are the customers/borrowers of Respondent No. l. Respondent No. 2 maintained an account with the Bank's branch at Dubai and had been availing various facilities as detailed in para-5 of the plaint. Several documents, mentioned in para-6 were executed by the defendants in the suit. Regarding the appellant who was Defendant No. 2 in the suit, it was urged that he had executed a personal guarantee to discharge the said liabilities of Respondent No. 2. Default was committed and a suit was filed in the Commercial Court at Dubai. The suit was decreed against the defendants jointly and severally. Respondent No. 1 still felt aggrieved and filed an appeal in the Dubai Court of Appeal. The appeal was allowed and ultimately a decree was passed on 14.01.1997 in a sum of DHs 1,535,736.45. The defendants in the suit were stated to have fled from Dubai and to be residing at the address given in the plaint. According to the plaint, the matter had been conclusively and directly determined and adjudicated on merits by the Dubai Court of Appeal. A decree was accordingly prayed for. Only the appellant put in appearance and filed an application for leave to defend the suit. Several objections were raised in the said application which will be referred to in the later part of this judgment. On merits, it was stated that the appellant had never gone to Dubai after 25.03.1993 and the guarantee stated to have been executed by him on 05.06.1993, was never so executed and is forged document. The application was replied by the Bank. Vide judgment and decree dated 30.07.2001, learned Judge Banking Court-II, Lahore, refused to grant the leave and decreed the suit in the sum of Rs. 2,26,64,282.52 against all the defendants with costs jointly and severally.
Mr. Najam ul Hassan Kazmi, Advocate, learned counsel for the appellant contends that the judgment and decree alleged to have been passed by the Court at Dubai had not been certified in the manner prescribed in Article 89(5) of Qanun-e-Shahadat Order, 1984 and as such the said copy did not constitute evidence of the fact that a foreign judgment has been passed in favour of the Respondent No. 1. Further contends that the provisions of Section 13 CPC were not considered at all as to the relevancy of the said judgment. According to him the impugned judgment is completely silent as to the plea of the appellant that he had not executed the guarantee and further that he was not present at Dubai when the guarantee is stated to have been executed by him. He relies on the cases "Nusrat Mehdi Chaudhri vs. Habib Bank Ltd. and another" (2006 CLD 405) and "Naeemullah Malik vs. United Bank Ltd and two others (2006 CLD 1592).
Mr. Waheed Mazhar, Advocate, learned counsel for contesting Respondent No. 1 insists that since copy of the judgment of Dubai Court had been attested by the Consular of Pakistan Embassy, the same sufficiently meets the requirement of Article 89(5) of Qanun-e-Shahadat Order, 1984.
We have gone through the records with the assistance of the learned counsel for the parties. It is evident on record that the respondent-Bank sued on the basis of said foreign judgment stating that the cause of action has also arisen because of the said fact. We also find that the mode of proof of such a document is prescribed in Article 89(5) of Qanun-e-Shahadat Order, 1984 which is as follows:--
"(5) Public documents of any other class in a foreign country, by the original, or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public, or of a Pakistan Counsel or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document accordingly to the law of the foreign country."
The foreign judgment relied upon by the respondent-Bank bears the following legend both in Arabic as well as in English version:--
PHOTO COPY ATTESTED
S. AFZAL HUSSAIN SHAH
Consular Officer.
Office stamp of Consulate General of Pakistan in Dubai is also affixed. To our mind, prima facie, said attestation or certificate does not meet the requirements of the said provision of law and it needs to be determined as to whether the person issuing the said certificate was the legal keeper of the said document or having the legal custody of the original and if not what is the effect. After the determination of the said primary fact, the Court will further have to determine whether the said foreign judgment is conclusive within the meaning of Section 13 CPC. We may note here that the impugned judgment does not at all refer to the specific denial of the execution of the guarantee and the assertion of the fact that the appellant was not present in Dubai when the guarantee is stated to have been executed by him. Having thus examined the records, we do find that the appellant had made out a plausible defence to entitle him to grant leave to defend the suit. We find that the suit was filed and decided before the promulgation of Financial Institutions (Recovery of Finances) Ordinance, 2001. RFA accordingly is allowed. The impugned judgment and decree of learned Judge Banking Court-II, Lahore is set aside as against the appellant only which will remain intact against other defendants in suit. The appellant is granted leave to appear and to defend the suit filed by Respondent No. 1. The appellant and the Bank shall appear before learned Judge Banking Court-II Lahore on 10.12.2007. The appellant shall file his written statement and learned Judge Banking Court shall proceed to decide the matter in accordance with law.
No orders as to costs.
A copy of this judgment alongwith records be remitted back immediately by the office.
(A.A.) Appeal accepted.
PLJ 2008 Lahore 620 (DB)
Present: Syed Hamid Ali Shah and Syed Shabbar Raza Rizvi, JJ.
SHAHID MAHMOOD KHAN--Petitioner
versus
GOVERNMENT OF PUNJAB through Chief Secretary, Punjab and 4 others--Respondents
W.P. No. 9529 of 2007, decided on 19.11.2007.
Provisional Constitution Order, 2007 (I of 2007)—
----Art. 2--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Maintainability--Art. 2 of Provisional Constitution Order, 2007, would indicate that jurisdiction of High Court under Art. 199 of the Constitution, can still be exercised except in matters covered by Provisional Constitution Order, 2007--Subject matter of Constitutional petition being not subject to Provisional Constitution Order 2007--Constitutional petition was maintainable.
[Pp. 622 & 623] A
Punjab Public Defenders Service Ordinance, 2007—
----S. 18--Pakistan Penal Code, (XLV of 1860), S. 21--Public servant--Chief Public Defenders' Additional Chief Public Defenders and District Public Defenders were deemed to be public servants within meaning of S. 21 of Pakistan Penal Code, 1860. [P. 623] B
Constitution of Pakistan, 1973—
----Arts. 27 & 199--Discrimination to appointment in civil service on basis of race, religion, caste, sex, residence or place of birth, prohibited if person concerned was otherwise qualified for appointment--Expression "service" would include all kinds of service, permanent, temporary, on contract etc.--While making appointment, respondents were directed to make the same through process prescribed under the law and rules and call all eligible candidates for interview, written test etc.--Any list already provided to respondents would be totally disregarded--Copy of successful candidates would be displayed at a place where interviews etc. would be conducted--Copy of the same was also directed to be submitted to the High Court--Aggrieved persons would have option to have recourse to High Court by filing fresh writ petition. [Pp. 624 & 626] C & D
PLD 1988 Lahore 49; PLD 1999 SC 57; PLD 2000 SC 889; 1993 SCMR 1287 and PLD 1995 SC 530, ref.
Mr. Khurram Khan, Advocate for Petitioner.
Mr. Khurshid Anwar Bhinder, Addl. A.G. for Respondents.
Mr. Farooq Altaf, Addl. Secretary Law, Punjab.
Date of hearing: 19.11.2007.
Order
The petitioner has filed the instant writ petition whereby he seeks a mandamus that public defenders be selected as required by "The Punjab Public Defender Service Ordinance, 2007 (Punjab Ordinance XVI 2007) to be read with the "Contract Appointment Policy" issued by the Government of the Punjab, dated 29th December, 2004.
Briefly, according to the learned counsel for the petitioner, the Government advertised the posts for Chief Public Defender, Addl. Chief Public Defenders, District Public Defenders and Public Defenders. The last date to apply for the above mentioned post was 17.9.2007. The petitioner also applied for the post of Public Defender vide his Application No. 2529. It is provided in Section 4(3) of the Punjab Public Defenders Service Ordinance, 2007, hereinafter referred to the Ordinance, that the Government shall make appointments under the Ordinance in accordance with the "Contract Appointment Policy" of the Government. A Committee has also been constituted in pursuance of the Recruitment Policy, 2004 consisting of respondents mentioned in the title of the instant writ petition. According to the learned counsel the Committee has already short-listed candidates who were qualified to be invited for interview. However, according to the petitioner, Respondent No. 2 has already been provided a list of candidates recommended by Ministers, MNAs, MPAs and other political entities annexed herewith as Annexure-D. According to the learned counsel, the appointment of such candidates/persons would be grave miscarriage of justice and offensive to the fundamental rights of the petitioner and other deserving candidates. If the respondents are not forbidden, their conduct would be violation of the Constitution and the laws. It would also be disobedience and disrespect to a number of decisions already delivered by the Superior Courts of the country on the subject which shall be mentioned in this judgment in coming paragraphs.
To respond to the above statement of facts, the learned Addl. Advocate General, Punjab contends that present writ petition is not maintainable in view of the issuance of Proclamation of Emergency dated 03.11.2007 and Provisional Constitution Order 1 of 2007.. He also contends that appointments shall be made according to the Contract Appointment Policy. Addl. Secretary Law and Parliamentary Affairs is also present and according to him the posts were duly advertised as required under the law and the list of candidates has also been short-listed in accordance with the qualifications already mentioned in the advertisement and Contract Appointment Policy.
We have heard the learned counsel for the petitioner, learned Addl. Advocate General, Punjab and Addl. Secretary Law and Parliamentary Affairs. We have also perused the record produced by the Addl. Secretary.
Proclamation of Emergency was issued on 3rd November, 2007 by General Pervez Musharraf, Chief of the Army Staff, whereby it was proclaimed that the Constitution of Islamic Republic of Pakistan would remain in abeyance. However, Provisional Constitution Order 1 of 2007, also issued on 3rd November, 2007 provides as under:--
"Notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, Pakistan shall, subject to this Order and any other order made by the President be governed as nearly as may be, in accordance with the Constitution."
The above mentioned Article 2 of the Provisional Constitution Order 1 of 2007 leaves no doubt that the jurisdiction of this Court under Article 199 of the Constitution can still be exercised except in matters covered by the P.C.O. 1 of 2007. The subject-matter of the instant petition, i.e. selection of Public Defenders under the Ordinance, 2007 is not subject to the Provisional Constitution Order etc. Thus, we have no reservation in our mind regarding our jurisdiction in this matter, so we hold that the instant writ petition is maintainable. At this point we may also mention a Full Bench Judgment of this Court published in PLD 1988 Lahore 49 wherein it was held that power of judicial review cannot be easily abandoned or ousted. In this regard, Sardar Farooq Ahmad Khan Leghari vs. Federation of Pakistan, PLD 1999 SC 57, would also be relevant to be mentioned. In Zafar Ali Shah case, the Hon'ble Supreme Court held, as under:--
"We are of the considered view that changing the form of oath will neither take away power of judicial review nor the jurisdiction of the Court. Notwithstanding the new oath or its language, the Courts shall continue to have jurisdictions to decide the controversy involved as if the new oath and the new Constitutional documents under which the oath is administered, do not adversely affect the jurisdictions and power of the Court" (PLD 2000 SC 889).
"(i) Under the Chapter titled "Fundamental Rights" of the Constitution Pakistan, equality of citizens and safeguard against discrimination in services has been guaranteed. Article 25 of the Constitution provides that all citizens are equal before law and are entitled to equal protection of law while Article 27 provides that no citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against.
(ii) Supreme Court of Pakistan in its judgment dated 19.01.1993 in Human Rights Case No. 104 of 1992 stated that recruitments, both adhoc and regular, without publicly and properly advertising the vacancies, is violative of fundamental rights. As such no post could be filled in without proper advertisement, even on adhoc or contract basis.
(iii) Under the provisions of Rule 17 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974 no post can be filled in without proper advertisement.
(iv) Recruitment Policy, 2004 does not allow appointment of any person without advertisement and in violation of any procedural formalities laid down in the policy.
(v) All posts to be filled on contract shall be advertised properly in at least two leading newspapers, as per rules.
(vi) No relaxation of qualification, experience, physical criteria etc. as provided in the relevant service rules or as determined by the Government shall be allowed, except as prescribed under the rules.
(vii) The relevant Selection Committees shall ensure that contract appointments are made strictly on merit and in accordance with the rules, selection criteria and other provisions of this policy as well as the prevailing Recruitment Policy."
Article 27 of the Constitution clearly lays down that no citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only for race, religion, caste, sex, residence or place of birth. The expression `service' does not mention a permanent service or a contractual service; therefore, it would include all kinds of service, permanent, temporary, on contract etc. In the above backdrop, we took cognizance of this writ petition and stopped the process of the appointment on 01.10.2007.
However, as noted above, the learned Addl. Advocate General, Punjab and the Addl. Secretary Law and Parliamentary affairs have given undertaking that the appointments shall be made strictly in accordance with the Contract Appointment Policy, 2004 which was prepared in the light of Constitutional provisions as well as provisions of the Punjab Civil Servants Act, 1974. The two gentlemen mentioned above have also assured that list of candidates, Annexure-D, according to their knowledge, does not exist. They further assure that no political interference shall be conceded/allowed in the recruitment and it shall be completed strictly on merit. At this stage, it would be pertinent to remind to the respondents finding of the Hon'ble Supreme Court, in Munawwar Khan vs. Niaz Muhammad etc., 1993 SCMR 1287. The allotment of quota of posts in civil service was severely deprecated by the Hon'ble Supreme Court of Pakistan in these words:--
"As regards the allocation of quota of posts to the local M.P.As or M.N.As for recruitment to the posts, we find it offensive to the Constitution and the law on the subject. The Ministers, the Members of National and Provincial Assemblies, all are under an oath to discharge their duties in accordance with the Constitution and the law. The service laws designate, in the case of all appointments, a departmental authority competent to make such appointments. His judgment and discretion is to be exercised honestly and objectively in the public interest and cannot be influenced or subordinated to the judgment of anyone else including his superior. In the circumstances, allocation of such quotas to be Ministers/MNAs/MPAs and appointments made there under are all illegal ab initio and have to be held so by all Courts Tribunals and authorities."
"We need not stress here that a tamed and subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration. Good governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as in charge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is, to apprise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats which may not be justifiable on the plane of hierarchical discipline. It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior which are legal and within his competence. Compliance of an illegal or an incompetent direction/order can neither be justified on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action." (PLD 1995 SC 530).
According to the preamble of the Constitution:
"whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority be exercised by the people of Pakistan within the limits prescribed by Him in a sacred trust."
(i) All appointments shall be made through the process prescribed under the law and rules. No appointment shall be made otherwise.
(ii) All eligible candidates shall be called for interview/written test etc. as provided under the law and rules;
(iii) If there was any list already provided to the respondents, the same would be totally disregarded;
(iv) A copy of list of successful candidates shall be displayed at a place where interviews etc. shall be conducted. A copy of successful candidates shall also be submitted to this Court through the Deputy Registrar (J).
In event of violation of this order, the petitioner or any other aggrieved person may recourse to this Court by filing a fresh writ petition.
(A.A.) Petition Accepted.
PLJ 2008 Lahore 626
Present: Syed Asghar Haider, J.
TARIQ MAHMOOD--Petitioner
versus
GOVERNMENT OF PAKISTAN through Joint Secretary, Ministry of Minorities (Minorities Affairs Division) Islamabad and 3 others--Respondents
W.P. No. 7131 of 2007, heard on 30.10.2007.
Evacuee Trust Properties (Management and Disposal Act, 1973—
----S. 17--Scheme for the Lease of Evacuee Trust Agricultural Land 1975, S. 18(a)--Constitution of Pakistan (1973), Art. 199--Power to grant extension of lease rights to successors of a deceased lessee--Scheme to grant lease rights to successors of a deceased lessee was incorporated on 12.4.1994, while father of respondent expired in 1990; lease rights were up to 1992, therefore, the same lapsed in 1992, almost two years earlier to the incorporation of S. 18(a) in the Scheme--Respondent having accepted such position had repeatedly participated in auction proceedings for lease rights of land in question--Respondent had thus, himself accepted that benefits of scheme were not available to him at relevant time in 1992 and he rightly did not raise such issue in earlier proceedings--Sub-ordinate delegated legislation was not retrospective unless power to such effect was incorporated which is not the case in present matter.
[Pp. 629 & 630] A & B
Scheme for the Lease Evacuee Trust Agricultural Land, 1975—
----S. 18(a)--Extension of lease rights--Power to grant such rights stood bestowed upon Administrator--Award of lease rights by respondent Government was thus, without jurisdiction. [P. 630] C
Constitution of Pakistan, 1973--
----Art. 199(a)(i)--Evacuee Trust Properties (Management and Disposal) Act, 1975, S. 17--Constitutional petition relating to matters of Evacuee Trust Properties--Maintainability--High Court has ample powers under Art. 199 of the Constitution of Pakistan to direct any person performing functions in connection with affairs of Federation, Province or a Local Authority to refrain from doing anything which he is not permitted by law to do, or to do anything he is required to do by law--Order in-question, being illegal and not tenable in law, was set aside in circumstances. [P. 631] D
PLD 1976 SC 410; PLD 1974 SC 139; 1992 SCMR 1313; 2005 CLC 1584; AIR 1956 Allahabad 35, ref.
Ch. Muhammad Jehangir Wala, Advocate for Petitioner.
Rao Muhammad Jamil, Advocate for Respondent No. 3 and 4.
M. Aslam Zar, Standing Counsel for Respondent No. 1.
Rana Muhammad Nasim Sahir, Advocate for Respondent No. 2.
Date of hearing: 30.10.2007.
Judgment
Respondent No. 3 got published an advertisement in the Daily "Jang" regarding auction of lease rights of the disputed property. The petitioner participated in the auction proceedings and being highest bidder was granted lease rights of the disputed property. The petitioner duly complied with the conditions and was, therefore, handed over possession of this property. Respondent No. 2 filed an appeal against the grant of lease rights to the petitioner, the same was dismissed by Respondent No. 3. Aggrieved thereof Respondent No. 2 filed a revision petition under Section 17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 to the Federal Government. It was adjudicated by Respondent No. 1, who allowed the revision petition, set aside the auction proceedings and the order of the Administrator and awarded lease rights on extension basis to Respondent No. 2. Hence the present petition by the petitioner.
Learned counsel for the petitioner contended that the petitioner obtained lease rights qua the disputed property pursuant to the auction proceedings in accordance with law, he was highest bidder, paid the requisite dues and was handed over possession and is in possession since then. The impugned order is bad in law and is violative of Secs. 18 and 18(a) of Scheme for the Lease of Evacuee Trust Agricultural Land, 1975. Father of Respondent No. 2 expired in 1990 and his lease rights were to expire in 1992, till then Respondent No. 2 retained the property on these basis as ordained as by Section 18 (ibid). Thereafter the disputed property was put to repeated auctions, Respondent No. 2 participated in these auctions and he was granted lease rights on said basis, therefore, holding him qualified for lease rights in terms of Section 18(a) is illegal as the amendment to Section 18 (ibid) incorporated by Sec. 18(a) was made on 12.4.1994, earlier to which the lease rights of the father of Respondent No. 2 had lapsed. Therefore, the provisions of Section 18(a) are inapplicable to the present controversy. Further the impugned order has been passed without judicial application of mind and has, in fact, referred to an order passed in another proceedings and reasons based on that order. There absolutely is no reasoning for passing the impugned order in terms of the present controversy on independent basis.
Pursuant to the direction of this Court Respondents No. 1, 3 and 4 filed parawise comments, wherein they vigorously defended the impugned order for the grant of lease rights on the basis of extension, in consonance with the provisions of Sec. 18(a) of the Scheme for the Lease of Evacuee Trust Agricultural Land, 1975, as incorporated in 1994, amending Sec. 18 (ibid). According to the respondents after incorporation of amendment in Sec. 18 and the effect thereof Respondent No. 1 was bound to grant extension in lease rights and, therefore, the order of auction of lease rights was illegal and thus set aside.
Learned counsel for Respondents No. 1, 3 and 4 also vehemently argued that the petition is not maintainable as exclusive jurisdiction in this context vests with Respondent No. 1 and therefore, the impugned order is in consonance with law and is also in harmony with the scheme enacted, the order for auction was bad and without jurisdiction as it is proved from record that Respondent No. 2 is successor of the deceased lease holder and, thus, was entitled to the grant of lease rights (on extension basis as incorporated in Section 18(a) and exercising revisional jurisdiction error of law committed by Respondent No. 3 was rectified. To fortify his contention the learned counsel relied on the following precedents:--
(i) Settlement Authority through the Chief Settlement Commissioner, Lahore and another Versus Mst. Akhtar Sultana (P.L.D. 1976 S.C. 410), (ii) Muhammad Husain. Munir and others Versus Sikandar and others (P.L.D. 1974 S.C 139), (iii) Evacuee Trust Property Board Versus Mst. Zakia Begum and others (1992 S.C.M.R. 1313).
(iv) Safdar Javed and another Versus Lahore Development Authority through Director General and 3 others (2005 C.L.C. 1584).
Counsel for Respondent No. 2 also defended the impugned order and stated, that he was entitled to lease rights of the disputed property which were rightly granted by Respondent No. 1. The learned Standing Counsel by and large adopted similar arguments.
I have heard the learned counsel for the parties and perused the impugned order. Record reflects that father of Respondent No. 2 was lessee of the disputed land, he had been granted lease rights of this land and could hold them till 1992, he expired in 1990. At this juncture it would be relevant to point out that the lease rights were at this point in time governed by the provisions of Sec. 18 of the Scheme for the Lease of Evacuee Trust Agricultural Land, 1975.
Amendment to Sec. 18 was enacted on 12.4.1994, by incorporating Sec. 18(a), according to this enactment Respondent No. 1 was bestowed with the powers to grant extension of lease rights to the successors of a deceased lessee subject to the fulfillment of the conditions contained in Sec. 18(a).
As Sec. 18(a) of the Scheme was incorporated on 12.4.1994. therefore, its benefit could not be granted to Respondent No. 2 because his father expired in 1990 and his lease rights lapsed in 1992. almost two years earlier to the incorporation of Sec. 18(a). Further Respondent No. 2 accepted this position as he repeatedly participated in the auction proceedings for lease rights of this land and obtained these rights on auction basis. Therefore, he himself clearly accepted the fact that the benefit of the provisions of Sec. 18(a) of this scheme was not available at the relevant time (1992) and, therefore, did not raise issue in this context.
Right to obtain lease rights on the basis of extension as incorporated by Sec. 18(a) was agitated for the first time, after the petitioner was granted lease rights pursuant to the auction proceedings referred earlier for the period Kharif 2006 to Rabi 2009 by filing an appeal with Respondent No. 3, he took cognizance of the matter, considered the claim and assertions of Respondent No. 2 and rejected them. Aggrieved thereof Respondent No. 2 filed a revision petition before Respondent No. 1 who accepted the same, annulled the auction proceedings and awarded lease rights on extension basis to Respondent No. 2. This precise order is under challenge in these proceedings.
It is a settled proposition of law that subordinate delegated legislation is not retrospective unless a power to this effect is incorporated, this is not the case in the present matter. Reference Modi Food Products Ltd., Vs. Commr. of Sales Tax U.P.(A.I.R. 1956 Allahabad 35) therefore, benefit of incorporation of Sec. 18(a) could be available only to the successors of the deceased lessee who were holding lease rights on 12.4.1994. any transaction which culminated earlier thereto, could not be reopened and questioned, the persons who were not in possession of lease rights earlier to the said date could not claim any benefit as they were governed by the provisions of Sec. 18 of the scheme, which contemplated that lease rights could be awarded to the successors of the deceased lessee for the un-expired period of lease rights, in which category Respondent No. 2 falls.
It is also worthwhile to mention here that Respondent No. 1 adverted to the proceedings taken by the Chairman. Evacuee Trust Property Board, in similar matters and referred to and dilated in detail upon proceedings in this context. Even matter has its own features and peculiarities, as to whether the present matter and the referred matter were wholly identical is not decipherable from the contents of the impugned order. Respondent No. 1 was required to take stock of the facts of the present controversy, the order of the Administrator and give reasons for upsetting the challenged order. This is conspicuously missing.
Lastly the learned counsel for the petitioner placed on record copy of SRO No. 14(KE) 2006. dated 3.2.2006, according to which powers to grant extension rights under Sec. 18(a) have now been bestowed upon the Administrator (Respondent No. 3). This position could not be controverted by the learned Standing Council or the counsel for the respondent-department, thus award of lease rights by Respondent No. 1 himself is also without jurisdiction.
Lastly adverting to the objections of the learned counsel for the respondents qua non-maintainability of this petition in view of exclusive jurisdiction granted to Respondent No. 1, the contention is without any force as this Court has ample powers under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, to direct any person performing functions in connection with the affairs of the Federation, Province or a Local Authority to refrain from doing anything which he is not permitted by law to do, or to do anything by law he is required to do. It is absolutely clear from the above discussion that lease rights granted to the father of Respondent No. 2 were governed by Sec. 18 of the Scheme for the Lease of Evacuee Trust Agricultural Land, 1975, and not by Sec. 18(a) (ibid) as held by Respondent No. 1, therefore, the order in question is illegal and not tenable in law as such Respondent No. 1, did not exercise jurisdiction as required by law therefore, the order can be interfered into by this Court under Article 199(a)(i) of the Constitution of the Islamic Republic of Pakistan, 1973, hence this petition is maintainable. The precedents referred to by the learned counsel for Respondents No. 1, 3 and 4 are distinguishable on facts and deal with propositions extraneous to the present controversy, hence are inapplicable. Resultantly, this petition is allowed and the impugned order is set aside with all consequences. No order as to costs.
(A.A.) Petition accepted.
PLJ 2008 Lahore 631
[Rawalpindi Bench Rawalpindi]
Present: Kh. Farooq Saeed, J.
Raja SHAMSHER MEHDI--Petitioner
versus
MALIK MUHAMMAD RIAZ and another--Respondents
C.R. No. 70 of 2005, heard on 17.3.2008.
Specific Relief Act, 1877 (I of 1877)—
----S. 12--Civil Procedure Code, (V of 1908), S. 115--Suit on basis of agreement to sell--Amount fixed by Court on basis of agreement of parties--Plaintiff was to pay such fixed amount within specified days--Plaintiffs suit was dismissed on his failure to pay fixed amount within target date--Plaintiffs having given consent to pay specified amount within target date, his failure to pay the same against agreement between parties and judgment and decree of trial Court on basis of such agreement agitated in revision was thus not proper. [P. 644] A
Civil Procedure Code, 1908 (V of 1908)—
----S. 115--Preliminary judgment--Time fixed for payment of specified amount--Judgment/decree would become final after expiry of fixed time by default of plaintiff for non-payment of specified amount within fixed period. [P. 635] B
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)—
----S. 13--Specific Relief Act, (I of 1877), S. 12--Eviction of tenant--Pendency of suit for specific performance of agreement would be no ground to avoid eviction of tenant by Rent Controller, if other requirements of law have been fulfilled--Mere agreement to sell would not confer any right of ownership or right to possess property without fulfilling other requirements like payment of rent etc. as per agreed relationship prior to such agreement. [P. 636] C
Specific Relief Act, 1877 (I of 1877)—
----S. 12--Suit on basis of agreement to sell--Time fixed by Court on basis of agreement of parties for payment of specified amount--Plaintiff failed to pay agreed amount within agreed time--Application by plaintiff for extension of time after expiry of the same was not warranted, as trial Court had become functus officio after expiry of fixed date. [P. 636] D
1974 SCMR 74; PLD 1965 Lahore 59; PLD 1988 Karachi 429 ; 2005 SCMR 1664; 2004 YLR 985; NLR 1987 Civil 160, ref.
M/s. Malik Qamar Afzal, Malik Nasrullah Awan & Malik Jawwad Khalid, Advocates for Petitioner.
Malik Saadat Hussain, Advocate for Respondents.
Date of hearing: 17.3.2008.
Judgment
By this single judgment, I would like to dispose of Civil Revision No. 70/2005, as well as Writ Petitions Bearing Nos. 785/2005 and 2155/2005.
In Civil Revision No. 70/2005 filed by the petitioner, judgments and decrees of Senior Civil Judge, Chakwal, dated 2.12.2004 and of Additional District Judge, Chakwal, dated 3.2.2005 are assailed.
Brief facts are that the petitioner filed a suit for specific performance of the oral agreement of the sale of House Bearing No. 794-B/MCB situated at Mohallah Shaheen Abad, Jehangir Town Bhoon Road, Chakwal, before the Senior Civil Judge, Chakwal. The claim of the petitioner was that the respondent agreed to sell the house at the value of Rs. 6,50,000/- and the earnest money of Rs. 20,000/- has been received by him. The controversy was, however, on the difference in the value and on 21.10.2004, the petitioner requested for fixation of the value by the Court. Consequently, the value was fixed at Rs. 7,20,000/- and the petitioner was asked to pay Rs. 7,00,000/-, after adjustment of Rs. 20,000/- within 15 days. The agreement arrived at was dated 2.12.2004 and the payment was to be made within fifteen(15) days of the said agreement. The petitioner, however, could not fulfill the obligation. On his failure to make the payment within the specified period, the order of the trial Court passed on 2.12.2004, with its rider became a decree operative after 17.12.2004. Against the said judgment and decree, an Appeal Bearing No. 124, dated 24.12.2004 was filed before the Additional District Judge, Chakwal. The learned First Appellate Court observed that the judgment and decree was on the basis of the consent, hence under Section 96(3) of the Code of Civil Procedure (V of 1908), no right of appeal was available to the appellant. Before the learned Additional District Judge, the petitioner's counsel filed another application for the extension of time under Section 148 C.P.C. to deposit the sale consideration, which was also dismissed after holding that no such powers being available for the reason of non-availability of an appeal against the judgment impugned, further time for filing the money could not be allowed. The learned Additional District Judge, however, gave an observation for the petitioner to approach the trial Court once again, if so desired by him.
Before me, the petitioner's prayer is that the order dated 2.12.2004 was arbitrary. He has argued that the trial Court should have decreed the original agreement and should not have entered into new controversy with regard to valuation once again. Moreover, while announcing the judgment and passing decree, the mode of payment and place of payment was not mentioned, hence the order passed by the Senior Civil Judge, Chakwal, dated 2.12.2004 may be cancelled and the agreement dated 9.7.2003 may kindly be declared as valid.
Supporting the claim of the petitioner, it was inter-alia also argued that since no mode was decided for payment of the amount, the petitioner was not in a position to deposit the same. The presumption that the right of the petitioner to make the payment no more existed after 17.12.2004, therefore, is not correct. The petitioner referred 1985 CLC 1429 in the case of Abdul Haq and another vs. Syed Basharat Ali, which holds that:
"No agreement existing between the parties about mode of payment of rent and ejectment application filed before expiry of sixty days from date when rent became due, ejectment application was held premature."
Reference of the judgment is quite surprising. In the present case not only there was an agreement between the parties for payment of the agreed amount, yet period for payment had also expired.
"that a Rent Controller acting under Section 13(6) of the West Pakistan Rent Restriction Ordinance, 1959, cannot direct the tenant to deposit rent in respect of which the legal remedy to recover has become barred under the statute of limitation. Further when rent is sought to be recovered by a legal process be it before a Court or a tribunal the word `due' would carry the connotation of "due in law" or recoverable in an action at law."
The claim was that since for the reason of another agreement, which was subsequently modified, the amount was not lawful, hence its non-payment does not become a mistake as the same was not lawful.
The judgment is distinguishable. The petitioner had given consent for a figure. His failure to pay the same subsequently is against the contract agreed between the two parties and the judgment and decree of the trial Court on the basis of such contract agitated in this civil revision under Section 115 C.P.C, therefore, is not proper. Moreover, the petitioner having failed before the Additional District Judge cannot now challenge the same through this civil revision. Similarly, the other judgments in terms of 1974 SCMR 75 re: Barkat Ali vs. Messrs Pakistan Sanitary & Drainage Works; PLD 1965 (W.P.) Lahore 59 in the case of Ashfaq-ur-Rehman Khan vs. Ch. Muhammad Afzal, Mutwalli, Waqf Property, being in respect of time barred rent also does not apply on the facts of this case. The other judgments also are not direct on the issue, hence I ignore the same.
Respondent No. 1, on his turn, said that it is a case of contract between the two parties, which was finally agreed after visit of the trial Court of the premises under discussion. The contract and judgment and decree is dated 2.12.2004, which has been violated. The petitioner now cannot challenge the same having failed to comply with the same. The enlargement of time even otherwise cannot be done as it is a case in which consent of the parties was involved, whereas in PLD 1988 Karachi 429 re: Synthetic Chemicals Company Ltd., it was held--
"that once a time for deposit of sale was fixed by Court on consent of parties, the Court is not entitled to extend time for deposit of sale price where same had been fixed with consent of the parties."
Another judgment produced by the respondent says that a consent decree in pre-emption suit effected through compromise requiring pre-emptor to deposit decretal amount within specified time became operative on failure of the pre-emptor. Pre-emptor did not comply with the decree, but prayed for extension of time in a time barred appeal. The High Court in revision non-suited pre-emptor on the ground that a valuable right had accrued in favour of vendee by non deposit of decretal amount within time and filing of belated appeal, the judgment of the High Court was found to be as legal and without infirmity warranting interference by the Hon'ble Supreme Court and the petition was dismissed by refusing leave to appeal. This was held in the judgment reported 2005 SCMR 1664 in the case of Riaz Hussain vs. Nazar Muhammad and others. Similarly in 2004 YLR 985, in the case of Haji Abdul Latif and 4 others vs. Ateeq Ahmad and 3 others, similar observations have been given by this Court. This Court in categorical terms held--
"that in the case of specific performance, if the decretal amount has not been paid within fixed time, refusal to extension does not amount to any irregularity or illegality."
The judgment under discussion was though preliminary in nature saying that the amount shall be paid within fifteen(15) days became final on default on the last date. Such decree obviously, therefore, is final in all respect unless it was reversed by any superior authority.
The upshot of the above discussion, therefore, is obvious. In fact the case law produced by the respondent counsel are direct on the issue and by virtue of the principle of stare decisis are binding on this Court. There is, therefore, no need of going into much detail. This civil revision petition has been filed against the order of the Additional District Judge, who had refused to entertain the appeal against the judgment and decree passed by the trial Court by holding that no appeal lies against the same. The petitioner has not challenged the same. Even otherwise, there was no question of any interference for the reason of a very clear judgment and decree passed on 2.12.2004. The agreement was after making all concerned a party and in fact it was on the basis of the visit of the Senior Civil Judge, Chakwal, of the premises by himself. This Civil Revision as such is liable to rejection factually and legally on both counts.
The other two writ petitions, which are also on the basis of same set of circumstances, therefore, are of no help to the petitioner. In fact, since no relief was allowed to the petitioner by the Additional District Judge in the first appeal, in the case of specific performance and there was no stay order by this Court, the subsequent proceedings conducted are fully lawful. Even on fact there is nothing on record to convince this Court that the jurisdiction has not lawfully been exercised by the subordinate Courts.
On facts the reason is that the chapter with regard to specific performance stood closed after 17.12.2004. In another application before the Rent Controller on 21.12.2004 for restoration of the ejectment petition was also rejected by the learned trial Court. Since this petitioner had defaulted in payment of the rent and there was no doubt as to the relationship of landlord and tenant, obvious proceedings for ejectment were to continue. The petitioner's counsels reliance upon Khan Muhammad vs. Additional District Judge, etc. re: NLR 1987 Civil 160 is also of no help. Obviously, pendency of suit for specific performance of an agreement would be no ground to avoid eviction of tenant by the Rent Controller, if the other requirements of law have been fulfilled. Mere agreement to sell does not confer any right of ownership or right to possess a property without fulfilling requirements like payment of rent etc. as per agreed relationship prior to the said agreement. Moreover, in this case agreement had already been declared as rescinded and obviously after its confirmation by this Court, no further benefit can be allowed to the petitioner through such flimsy petitions. The reliance of the learned trial Court of the judgments at page 5 of its order, in Writ Petition No. 2155/2005 is also fully justified.
Similarly, request for extension of time refused by the trial Court was well within its discretion. Had the petition been filed before the expiry of time, it could have been entertained. After the expiry of the period mentioned in the order dated 2.12.2004, which was fifteen(15) days, the trial Court became functus ofificio, hence there was no question of any interference at that stage. Its confirmation by the Additional District Judge vide order dated 7.3.2005 also is unexceptional.
Since, circumstances do not warrant interference by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, two writ petitions also are dismissed.
(A.A.) Petitions dismissed.
PLJ 2008 Lahore 637
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD JAVED AKHTAR--Petitioner
versus
PROVINCE OF PUNJAB through Secretary Housing & Town Planning Agency, Lahore and 2 others--Respondents
W.P. No. 1262 of 2005, heard on 18.04.2008.
Industrial and Commercial Standing Order, 1969—
----Ss. 2 & 25--Constitution of Pakistan,1973, Art. 199 Workman--Employee working for indefinite period--Whether the employee is to be considered on work charge or permanent workman after the service of indefinite period--Held: No concept of person being work charged indefinitely--Continuous service for period of about 20 years cannot be at all to be deemed on work charge basis--A permanent workman having employed against a job, which has certainly continued for more than 9 month. [P. 639] A
Sh. Iftikhar Ahmad, Advocate for Petitioner.
Mr. Mudassar Khalid Abbasi, AAG for Respondents.
Zia-ud-Din Sathi, Dy. Director PHTPA, Sub Region Rawalpindi with Record.
Date of hearing: 18.4.2008.
Judgment
According to the contents of this writ petition, the petitioner was employed with respondent department as supervisor in grade-I in the year 1981. The initial salary was Rs. 527/- per month and after periodical increase he was receiving Rs. 2922/- per month in the year 2003. He is continuously serving the department but his services have not been regularized. He has not been paid salary since December 2002 but after receipt of funds, he has been paid 7 months salaries in March 2005. Further states that there were about 145 work charged employees in the department, many of whom were transferred to Municipal Corporation Rawalpindi, within present TMA. Forty-three employees filed grievance petition under Section 25-A IRO, 1969 before Labour Court No. 6 Rawalpindi. These petitions were accepted and the department was directed to regularize their services and the appeal filed before this Court was dismissed on 28.1.2004. Similarly, 262 employees at Lahore filed grievance petition, which was dismissed by the learned Labour Court at Lahore, but the appeals were allowed by the Punjab Labour Appellate Tribunal on 5.5.1985 and W.P. No. 3488/95 filed by the department was dismissed on 29.8.01. Apart from the said judicial proceedings, on representation, a scheme was devised to regularize the services of 30 employees per year and it was in fact implemented for sometime. The Chief Minister of Punjab also issued directive to the said effect on 22.3.93 (Annex-J). With these averments the petitioner prays for a direction to be issued for regularization of his services and payment of salary till June 2005.
In their written statement the respondents have admitted that the petitioner was appointed in 1981 and continued to work as supervisor till 30.6.2003 when area development scheme against which the petitioner was working was handed over to TMA/WASA alongwith work charged employees. The rest of the factual averments as noted above have also been admitted. However, it has been insisted that since the petitioner was work charged employee no right vests in him to make prayer for regularization of his services.
Learned counsel for the petitioner contends that the services of the petitioners were never transferred or taken over by TMA/WASA. According to him admittedly the petitioner has been working since 1981 and as such he cannot be denied his right on the ground that he is work charged. He also draws my attention to some departmental correspondence regarding payment of dues of the petitioner even after 30.6.03. He further argues that his client is entitled to benefit of the judicial decisions given in similar circumstances on the basis of case of Tara Chan and others v Karachi Water and Sewerage Board Karachi and others (2005 PLC (S.C) 368). On the other hand, the learned AAG urges that the petitioner being the member of work charged establishment, which is project specific, cannot claim the said relief in constitutional petition if at all he should adopt grievance procedure under IRO. He insists that notwithstanding the said correspondence relied upon by the learned counsel the petitioner has not been doing any work at least after 30.6.03.
I have gone through this file in the light of submissions noted above of the learned counsel and learned Law Officer. As noted by me above there is no denial that the petitioner was employed in the year 1981 and continued till 30.6.2003. Thereafter the case of the respondent is that the scheme alongwith work charged employees was transferred to TMA/WASA. I have examined the documents shown to me by the learned AAG. I find that so far as the petitioner is concerned his services were neither transferred nor were taken over by TMA/WASA. So far as the matter of continuous service after 30.6.03 is concerned, I find on record a letter dated 13.7.05 addressed by the Deputy Director of the respondents to the Director requesting for release of monthly wages of the petitioner for period 1.7.03 to 30.6.04 at the rate of Rs. 2922/ per month. There is yet another letter dated 21.10.05 addressed by the same Deputy Director to the Director stating that although salary was released but the amount was utilized against some other head and requested for release of the said amount to be paid to the petitioner. At the moment the learned AAG is not in a position to controvert the said documents. However, prima facie these do go to negate the plea taken by the respondents in the written statement.
Having, thus, examined the file, I do find that the petitioner remained employee since the year 1981. He was prima facie working till 30.6.2005 i.e at a point of time after the institution of this writ petition. By now it is well settled that there is no concept of person being work charged indefinitely. In the present case, admittedly continuous service for period of about 20 years cannot be at all to be deemed on work charge basis. Another aspect of the case is that admittedly the petitioner is a worker. This being so, applying criteria laid down in the Industrial and Commercial Standing Order Ordinance, 1968 the petitioner certainly in a permanent workman having employed against a job, which has certainly continued for more than 9 months. So for as the said contention of the learned AAG suggesting that he should approach the learned Labour Court concerned, to my mind a question of law stands admittedly settled in the judgment of the learned Labour Court, learned Labour Appellate Tribunal and then this Court as a result whereof similar relief was granted. In the said case of Tara Chand being relied upon by the learned counsel for the petitioner it has been observed by the Hon'ble Supreme Court with reference to the case Hameed Akhtar Niazi v. The Secretary; Establishment Division Government of Pakistan and others (1996 SCMR 1185) as follows in Para 10 of the judgment:
"10. To further elaborate the above aspect, it would be relevant to refer the case of Hameed Akhtar Niazi (supra) wherein this Court has held that when Tribunal or Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of the Civil servants who litigated, but also of other civil servants, who may have not taken any legal proceedings, the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other civil servants, who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum ".
(W.I.B.) Petition accepted.
PLJ 2008 Lahore 640
Present: Hafiz Tariq Nasim, J.
CH. MUHAMMAD KHAN--Petitioner
versus
CHIEF SECRETARY, etc.--Respondents
W.P. No. 3392 of 2007, heard on 26.3.2008.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Re-employed on contract basis for a period of two years--Age of superannuation--Period of contractual appointment of respondent was extended through another order and that two was passed in relaxation of the provisions of Reemployment Policy of Government of the Punjab--Validity--Respondent/civil servant exerted political influence and got another notification issued in his favour whereby his contract of appointment was further extended for two years--Virtually the impugned action of the department is violative of reemployment policy issued by Government of Punjab and even the relaxation in rules/policy against all canons of justice rather beyond the parameters of the policy being a case of no hardship at all--While passing the impugned order not even a single reason is mentioned which is a sufficient ground for interference of High Court--Respondent was retired from service long ago on attaining the age of superannuation--Civil servant was reemployed not only once but thrice--Held: Virtually the powers exercised in the impugned matter was a colourable, basing on pick and choose, whims and modes and the element of transparency is missing, which is a sufficient ground for interference by High Court--Petition allowed. [Pp. 642 & 643] A, B & E
Punjab Civil Servants Act, 1974 (VIII of 1974)—
----S. 13(1)--Constitution of Pakistan, 1973--Art. 199--Reemployment policy of retired government servants--Public interest--Retired civil servant would not be reemployed unless such reemployment is necessary in the public interest and it is further emphasized that no department or authority shall reemploy a retired Government servant without placing his case before Re-employment Board--Reemployment shall only be made in very exceptional cases particularly where suitable officer to replace the retiring officer is not available and the retired officer is highly competent person with distinction in his professional field, the period of reemployment shall not exceed three years. [Pp. 642 & 643] C
Re-employment--
----Period of contractual appointment of respondent was extended through another order and that too was passed in relaxation of the provisions of Reemployment Policy of the Government of Punjab--Held: Reemployment of respondent is virtually against the policy of Government of Punjab and instructions issued which have otherwise have force of rule and law. [P. 642] D
Promotion--
----Process of promotion--Right to contest--Colourable exercise of powers--No can be benefited at the cost of legitimate expectants who have every right to contest, whereas in the present controversy apart from the petitioner there might be certain others who are in the run for posting as Principal through the process of promotion but all of them have been denied their lawful right of consideration for promotion--Impugned order of reemployment of civil servant which is an outcome of colourable exercise of powers is declared to be without lawful authority and is set aside. [P. 642] F
M/s. Nazir Ahmad Javed & Sajjad Hussain Naqvi, Advocates for Petitioner.
Mr. Naeem Masood, Assistant Advocate General Punjab for Respondents No. 1-4.
Mr. Masood A. Malik, Advocate for Respondent No. 5.
Date of hearing: 26.3.2008.
Judgment
The facts leading to this writ petition are that Professor Maqsood-ul-Hassan Bokhari Respondent No. 5 attained the age of superannuation and was retired on 31.3.2004. However, he was re-employed on contract basis for a period of two years.
Interestingly, the period of contractual appointment of Respondent No. 5 was extended from 15.3.2006 to 30.3.2007 through another order and that too was passed in relaxation of the provisions of Re-employment Policy of the Government of the Punjab.
One Professor Muhammad Gulzar Ahmed filed Writ Petition No. 13415/2006, which was dismissed vide order dated 20.3.2007 and according to the learned counsel for the petitioner the same was dismissed on the disclosure of the departmental authorities that Respondent No. 5's tenure/contract period is going to be expired only after ten days i.e. 30.3.2007.
The moment the writ petition was dismissed, the Respondent No. 5 exerted political influence and got another notification issued in his favour on 29.3.2007 whereby his contract of appointment was further extended for two years with effect from 31.3.2007. The learned counsel for the petitioner submits that virtually the impugned action of the department is violative of re-employment policy issued by the Government of Punjab and even the relaxation in rules/policy in respect of Respondent No. 5 is against all canons of justice rather beyond the parameters of the said policy being a case of no hardship at all. Further submits that while passing the impugned order not even a single reason is mentioned which is a sufficient ground for the interference of this Court.
The learned counsel for Respondent No. 5 opposes the contentions of the learned counsel for the petitioner and submits that Respondent No. 5 is an expert in his field, put his blood to the institution, earned hundreds of thousands of rupees for the benefit of institute and as such the impugned orders whereby the contract was extended is to be upheld.
Arguments heard. Record perused.
It is an admitted position that Respondent No. 5 was retired from service long ago on attaining the age of superannuation. He was re-employed not only once but thrice. It is not understandable that how Respondent No. 5 is such an important expert without whom the Education Department or the institute cannot run smoothly.
Another important aspect of the matter is that it was specifically mentioned in Re-employment Policy of Retired Government Servants dated 11.3.2004 that Section 13(1) of the Punjab Civil Servants Act, 1974 provides that a retired civil servant shall not be re-employed unless such re-employment is necessary in the public interest and it is further emphasized that, "No department or authority shall reemploy a retired Government Servant without placing his case before the Re-employment Board/Committee.
Re-employment shall only be made in very exceptional cases particularly where suitable officer to replace the retiring officer is not available and the retired officer is highly competent person with distinction in his professional field.
The period of re-employment shall not exceed three years."
Viewing from all angles the re-employment of Respondent No. 5 is virtually against the policy of the Government of Punjab and the instructions issued which have otherwise have force of rule and law.
The departmental representative who is present in the Court could not deny that before giving re-employment to Respondent No. 5 his case was not presented before the Provincial Re-employment Board.
It is also not disputed that no other suitable officer was available in the department who could replace to the Respondent No. 5.
It is also an admitted position that the time stipulated in the Re-employment Policy i.e. three years has already been expired in case of Respondent No. 5's re-employment.
Virtually the powers exercised in the impugned matter was a colourable, basing on pick and choose, whims and modes and the element of transparency is missing, which is a sufficient ground for the interference by this Court.
It is well settled law that no one can be benefited at the cost of legitimate expectants who have every right to contest, whereas in the present controversy apart from the petitioner there might be certain others who are in the run for posting as Principal through the process of promotion etc. but all of them have been denied their lawful right of consideration for promotion/posting. As discussed above, the impugned order of re-employment of Respondent No. 5 which is an outcome of colourable exercise of powers is declared to be without lawful authority and is set aside.
The post of Principal held by Respondent No. 5 shall be treated as vacant, which is to be filled within two weeks strictly in accordance with law and rules by the competent authority, after considering all eligible persons including the petitioner.
The writ petition is allowed in the above terms.
(R.A.) Petition allowed.
PLJ 2008 Lahore 644
Present: Muhammad Akram Qureshi, J.
MALIK MUHAMMAD NAEEM AWAN--Petitioner
versus
MALIK ALEEM MAJEED and 5 others--Respondents
W.P. No. 12212 of 2007 decided on 08.04.2008.
Illegal Dispossession Act, 2005 (XI of 2005)—
----Ss. 3, 5 & 7--Constitution of Pakistan, 1973. Art. 199--Dismissal of complaint--Pendency of civil suit--Effect--Held: Continuation of civil suit is no bar to criminal proceedings even though both cases relate to the same subject matter--Complaint can continue side by side and that no bar existed to decide it even prior to the decision of civil suit.
[P. 647] A & B
Illegal Dispossession Act, 2005 (XI of 2005)—
----S. 3--Constitution of Pakistan, 1973, Art. 199--Applicability--Land grabbers--Qabza groups--Illegal Dispossession Act, was not only applicable to the land grabbers, Qabza groups or the persons habitually indulged in such activities but to all persons illegally occupying or possession any premises--Petition accepted. [P. 648] C
PLD 2007 SC 423, Ref.
Pir S.A Rashid, Advocate for Petitioner.
Mr. Muhammad Hussain Chotiya, Advocate for Respondents No. 1 to 4.
Date of hearing: 8.4.2008.
Order
Malik Muhammad Naeem Awan, petitioner has assailed the order dated 13.11.2007 passed by learned ASJ, Lahore, dismissing complaint u/S. 3 of the Illegal Dispossession Act, 2005 read with Sections 5 and 7 of the same Act.
Two of the brothers Muhammad Naseer and Muhammad Naseem appointed and constituted Mrs. Amjad Majeed and husband of Mst. Shahida Aslam, as their general attorney with regard to land measuring 7 Kanals 16 Marlas, from their share of gift.
Mrs. Amjad Majeed, mother of Malik Aleem Majeed, filed a suit on 21.4.2007 for invalidation of the gift-deed before a learned Civil Court at Lahore, but subsequently, withdrew the same on 24.7.2007. Thereafter, she filed another suit through her son Aleem Majeed for administration, partition, and declaration through specific performance with consequential relief relating to the property left by Malik Muhammad Shafi, her father, at the time of his death.
On 21.7.2007, the petitioner filed a complaint before the learned Sessions Judge, Lahore u/S. 3 of the Illegal Dispossession Act, 2005 read with Sections 5 and 7 of the same Act alleging that on 1.8.2007 at about 5 p.m Aleem Majeed, Respondent No. 1, Hamid Majeed Respondent No. 2 armed with deadly weapons along-with 12 unknown persons, forcibly destroyed the standing crops, in the fields of the complainant and committed theft of six Shesham trees grown in the fields of the complainant. They also destroyed the water course (Khaal) and filled it up and illegally occupied the land of the complainant. It was further alleged that the accused mentioned in the complaint have committed the offences quoted in the complaint.
SHO, submitted his report in favour of the said respondents.
After hearing the complainant, learned Judge opted to dismiss the complaint while observing as under:--
"After promulgation of the Illegal Dispossession Act, 2005, Honourable Lahore High Court Lahore, provided guidance in case titled Zahoor Ahmed and five others vs. The State, reported in PLD 2007 Lahore 231, to the Court of Sessions in the Province of Punjab. According to which, the complaint under the Illegal Dispossession Act, 2005, cannot be entertained where the matter of possession of relevant property is being regulated by civil or revenue Courts. This is an admitted fact that litigation regarding land in dispute is pending in the Civil Court. Moreover, there is nothing on record to reveal whether the respondents belong to Qabza group and have been previously involved in such like activities to grabs the property of other. Hence, in this situation, keeping in view the principle laid down in case law cited supra, the instant complaint is not maintainable and there is no ground to summon the respondents and to proceed against them under Illegal Dispossession Act, 2005, hence the instant complaint is hereby dismissed."
Hence the present writ petition.
Learned counsel for the petitioner submits that from the perusal of the evidence of the petitioner, and the other material, it is proved on record that the Respondents No. 1 to 4 while armed with fire-arms resorced to indiscriminate firing and thereby forcibly took possession of the portion of land fallen to the shares of the petitioners and occupied by them and that while committing theft of the property of the petitioner, he also made them liable to punishment provided for the offence u/S. 3 of the Illegal Dispossession Act, 2005, and that the Respondents No. 1 to 4 be summoned. He quoted the precedent of the Apex Court in case reported as Rahim Tahir vs Ahmed Jan and 2 others (PLD 2007 SC 423) and states that the judgment reported as Zahoor Ahmed and 5 others vs. The State and 3 others (PLD 2007 LAHORE 231) is no more in the field and that it has been over ruled by the judgment of the Apex Court supra. He also mentioned that the Courts are supposed to observe as to whether the case in hand relates to unauthorized occupancy and whether it is supported by the judgment of the Apex Court referred to above. He submits that sufficient material was available in the shape of evidence and that learned Judge, committed an error by dismissing the complaint despite the quoting of the above mentioned judgment of the Apex Court.
Conversely, the learned counsel for Respondents No. 1 to 4 vehemently opposed this writ petition contending that civil litigation was pending between the parties and on the score of the same allegations, the complainant has approached the learned ASJ, Lahore to redress the civil grievance to the criminal one. He also states that the complaint consists of false and fabricated allegations and that the SHO, has endorsed the falsehood of the complaint and that as a matter of fact, no offence stood established from the available material and that the complaint was filed to force the said respondents to withdraw themselves from pursuing the civil suit. He also states that it is well established principle of law that in the presence of civil proceedings, criminal Courts cannot step forward and the criminal proceedings about the same points in issue merits dismissal. He prays for the dismissal of the writ petition.
I have heard the lengthy arguments of both the learned counsel for the parties and perused the record with their able assistance.
In the cases reports Rehmatullah. Vs. Abdul Aziz and another (PLJ 1974 Criminal Cases 331) and Rehmatullah. Vs. Abdul Aziz and another (1974 P.Cr.L.J 541) it has been observed by the High Court that continuation of civil suit is no bar to criminal proceedings even though both cases relate to the same subject matter. In another case, reported as Sh. Ahmad vs. Sh. Muhammad Yunus (1971 P.Cr.L.J 331), it was held:-
"Having heard the learned counsel for the parties, I am clearly of the view that no case is made out for quashing of criminal proceedings simply on the ground that civil litigation is also pending between the parties. However, it would be pertinent to consider the question of the stay of these proceedings till the disposal of the civil cases pending between the parties. In support of this learned counsel has drawn my attention to Muhammad Akbar vs. The State and another (1) and N. Manak Ji vs Fakar Iqbal and another (2) wherein their lordships have held that in cases which are intimately connected with a view to avoid a possibility of conflicting decisions, it would be appropriate to stay criminal proceedings till the decision of the civil matter."
In another case reported as Muhammad Shafi vs. Deputy Superintendent of Police (Malik Gul Nawaz) Narowal and 5 others. (PLD 1992 Lahore 178) a learned Full Bench of this Court held that the pendency of a civil suit is no bar for the initiation of criminal proceedings and that both the cases may continue side by side.
While interpreting the Illegal Dispossessions Act, 2005, a Full Bench of this Court reported as PLD 2007 Lahore 231 held as under:
"The Illegal Dispossession Act, 2005 applies to dispossession from immovable property only by property grabbers/Qabza groups/land mafia. A complaint under the Illegal Dispossession Act, 2005, can be entertained by a Court of Sessions only if some material exists showing involvement of the persons complained against in some previous activity connected with illegal dispossession from immovable property or the complaint demonstrates an organized or calculated effort by some persons operating individually or in groups to grab by force or deceit property to which they have no lawful, ostensible, or justifiable claim. In the case of an individual, it must be the manner of execution of his designs which may exposed him as property grabber.
(ii) The Illegal Dispossession Act, 2005 does not apply to run of the mill cases of alleged dispossession from immovable properties by ordinary persons having no credentials or antecedents of being property grabbers/Qabza groups/land mafia i.e cases of disputes over possession of immovable properties between co-owners or co-sharers between landlords and tenants, between persons claiming possession on the basis of inheritance, between persons having for possession on the basis of competing title documents, contractual agreements or revenue record or cases with a background of an ongoing private dispute over the relevant property."
This judgment was pronounced by a Full Bench of this Court on 19.1.2007.
In case of Rahim Tahir. Vs. Ahmed Jan and two others, reported as PLD 2007 SC 423, it was held by the Apex Court as under:--
(b) Illegal Dispossession Act, (IX 2005)--
----Section 3--Prevention of illegal possession of property, etc. Expression "Grab", control or occupy" used in Section 3 of Illegal Dispossession Act, 2005, cannot be restricted to the illegal occupants who entered in the premises subsequent to the promulgation of the Act, rather all cases of illegal and unauthorized occupants would be subject to the Illegal Dispossession Act, 2005 except the cases which were pending adjudication before other forum."
It was also observed by the Apex Court in the same judgment:--
---Mere filing of the suit subsequent to the filing of complaint on the basis of a document having no legal foundation, was of no consequences and significant to protect the illegal and unauthorized possession.".
In the above circumstances, it is clear that Illegal Dispossession Act, was not only applicable to the land grabbers, Qabza groups or the persons habitually indulged in such activities but to all the persons illegally occupying or possession any premises. While holding so, I am inspired by the supra judgments of the Apex Court.
The contents of the complaint, summary of evidence and the documents filed by the complainant, sufficient reasons existed to proceed with the trial of the present case. The complainant has specifically leveled allegations of forcible dispossession his land from the hands of the respondents and thus brought such evidenced on record which if not rebutted would have been sufficient to convict the said Respondents No. 1 to 4. In case of Zeeba Bakhtiar vs. Idnan Sami reported as (1998 SCMR 922), the Apex Court held that:--
"Although there can be no cavil with the view taken by the Calcutta High Court and the Court upon he material placed before it by the complainant in support of the allegations may issue process to the accused named in the complaint if a case is made out against him on first impression nevertheless, the Court would be duty bound to exercise such discretion with great care and caution. Unless evidence produced before the Court is such that, if un-rebutted, conviction may be based thereon, the Court would be justified to decline issue of process to the person complained against."
The contentions raised by learned counsel for Respondents No. 1 to 4 are not well founded and thus cannot be exceeded to.
In the above circumstances, this writ petition is accepted, the impugned order dated 13.11.2007 is set aside, being illegal.
The instant case is remanded to the learned trial Court, who shall hear the arguments of the parties and pass appropriate orders while proceeding further in the case keeping in view the above mentioned dictums of the Apex Court and the observation of this Court.
(W.I.B.) Petition accepted.
PLJ 2008 Lahore 649
Present: Syed Hamid Ali Shah, J.
IBRAHIM FLOUR & GENERAL MILLS GUJRANWALA through its Chief Executive--Petitioner
versus
GOVERNMENT OF PUNJAB through SECRETARY TO THE GOVERNMENT OF PUNJAB FOOD DEPARTMENT, LAHORE and another--Respondents
W.P. No. 10197/07, decided on 11.01.2008.
Constitution Of Pakistan, 1973—
----Art. 199--Foodgrains (Licensing Control) Order, 1957--Scope--Notification--Policy for issuance of quota for flour mills--Prescribed criteria--Functional roller body unequal treatment--Non production of Membership Certificate of PFMA--Effect--Denial of quota--Held: No ground for refusal of the quota as, according to the policy the department has to see the functional roller bodies in a flour mill--Any negligible lapse in completion of the form can be no valid ground for refusal of quota--Similarly some of petitioners have been denied quota they have not produced membership certificate of PFMA, which too is not a condition notified in the policy--Denial of issuance quota on these grounds has no justification. [P. 654] A
Constitution of Pakistan, 1973—
----Arts. 199, 18 & 25--Plea of shortage of wheat--Issuance of quota to some flour mills and denial to others discrimination--Unequal treatment--Violation of fundamental right--Held: Restrictions of wheat quota imposed equally on the flour mills without any discrimination can legitimize the action of the respondents on the plea of acute shortage of wheat--Issuance of quota, almost during the same period, to other flour mills, is unreasonable and arbitrary selection or differentiation--Supply of wheat quota to one set of mill owners and refusal to the petitioners is sheer discrimination, conceived and tainted with the defect of naked and unbridled discretion. [Pp. 655 & 656] B & C
1991 YLR 42, PLD 1997 Pesh. and PLD 1997 SCMR 1804, ref.
Mr. Muhammad Shehzad Shaukat, for Petitioner.
Mr. Najeeb Faisal Chaudhry, Additional Advocate General for State.
Date of hearing: 11.1.2008.
Order
This single order will dispose of W.P .No. 10197-2007 titled "Ibrahim Flour & Otieral Mills Vs Govt. of the Punjab", W.P. No. 11058-2007 titled "M/s Ali Flour Mills Vs Province of Punjab", W.P. No. 220-2008 titled "M/s Gorchani Flour and General Mills Vs Province of Punjab etc.", W.P .No. 10732-2007 titled "M/s Malik Flour Mills Vs Govt. of the Punjabi W.P. No. 11025-2007 titled "New Fine Flour & General Mills vs. Govt. of Punjab", W.P. No. 10986-2007 titled "OK Flour & General Mills Vs Govt of the Punjab", W.P. No. 10325-2007 titled "Wasif Flour Mills Vs Govt. of the Punjab". W.P. No. 10366-2007 titled "M/s Sona Flour & General Mills Vs Govt. of the Punjab", W.P. No. 11060-2007 titled "M/s Al-Mumtaz Flour Mills Vs Province of Punjab etc.", W.P. No. 11201-2007 titled "Vehari Flour Mills Vs Govt. of the Punjab etc.", W.P. No. 11222-2007 titled "Tufail Flour & General Mills Vs Govt. of the Punjab etc.", W.P. No. 11264-2007 titled "Hasnat Flour Mills Vs Province of Punjab etc.", W.P. No. 11026-2007 titled "Shan Flour & General Mills Vs Govt of the Punjab etc.", W.P. No. 10371-2007 titled "Al-Ghani Flour & General Mills Vs Govt. of the Punjab", W.P. No. 11059-2007 titled "Mubarik Flour Mills Vs Province of Punjab etc.", W.P. No. 11067-2007 titled "Pak Millat Flour & General Mills Vs Govt. of the Punjab" & W.P. No. 75-2008 titled "Chishtia Flour Mills Vs Govt. of the Punjab", as common questions of law and facts are involved in all these petitions. The petitioners, in these petitions, are licencees under the Foodgrains (licensing Control) Order, 1957 and after obtaining No Objection Certificate from the relevant authorities, they have installed their project i.e. Viz Flour Mill, for the purposes of making of wheat into flour and cleaning etc.
The Food Department of the Punjab Government prepares and announces its policy and in view whereof, grants requisite quota to the applicants/flour mills. The quota can be enhanced, according to the prevailing circumstances. Respondent No. 1, vide Notification No. 1 SOF-IV/3-8/2006 dated 16.08.2006, released its policy for the issuance of quota to the flour mills, whereby the quota of 50 bags per functional roller body was approved alongwith the facility of enhancement in the allocated quota, keeping in view the demand and availability of wheat. Flour mills, which had previously lifted wheat quota, were allowed issuance of wheat, quota, while quota to the new flour mills was made subject to fulfillment of codal formalities, on case to case basis. The facility remained available during the relevant time.
A flour mill, applies to the Director Food for the issuance of requisite wheat quota, according to the prevailing milling policy. The application is processed and inspection is conducted by a Sub-Divisional Committee to verify the factum of number of functional bodies in a mill. A report as to the functional position of a mill is submitted, whereafter the quota is allocated to such applicant. Various petitioners applied for the quota during 2007 and their applications were processed. Inspection was conducted, but no quota was allocated/issued. The petitioners were denied issuance of wheat quota on the plea that a new policy was notified vide Notification No. FOS-lV/3-8/2006 dated 01.09.2007. According to this policy, wheat quota was allocated to the functional flour mills of the approved capacity, who had lifted wheat quota during the preceding year. Verification of grinding of the wheat was made ascertainable on the electricity consumed the corresponding period. A quota of 25 bags of 100 kg of wheat per body was allocated to the flour mills having electricity connection of WAPDA as well as generator powered flour mills.
The petitioners have voiced their grievance against the respondents that in the exercise of issuance of quota to various flour mills, the respondents have acted illegally and the applicants before the department were treated discriminatory. Unequal treatment by the respondent department is aimed at, to favour a set of persons at the cost of rights of the petitioners. The respondents, in response to the notice, entered appearance and filed parawise comments and reply. The mill owners, who are enjoying the facility of quota, were informed about the instant proceedings through, the Director Food and also through all Pakistan Flour Mills Association. Subsequently, a notice to the mill owners was published in "Daily Naw-e-Waqt" in its print dated 14.09.2007 in Lahore, Rawalpindi and Multan Editions, but no one turned up in response to the citation published in the newspaper.
Mr. Muhammad Shehzad Shaukat, Advocate, representing various petitioners in this matter, has submitted that the petitioners run their flour mills, which are functional and the applications for issuance of the quota, were processed within the prescribed period. Their cases after inspection and verification were transmitted to the Director Food, who was to pass a formal order for issuance of the wheat quota. Speaking for Ibrahim Flour and General Mills, learned counsel convicted that petitioner's application was moved on 10.03.2007, the inspection was conducted on 21.03.2007. The inspection report reflects that the mill is functional with 12 roller bodies, but the respondents have not proceeded further in the matter. While referring to letter dated 03.09.2007. learned counsel has submitted that issuance of quota was denied to the petitioner merely on the ground that volume of bins have not properly been worked out in B Form, ignoring the fact that according to the policy of the respondents, which is reflected in letter dated 03.09.2007 that wheat will be issued to the functional flour mills. The petitioner is eligible. He signed Form B and placed the same on record, but his request for issuance of the quota was declined illegally. Learned counsel then submitted that aforementioned letter dated 03.09.2007 is a communication between the Deputy Director (Food), to all the Food Directors and District Food Controllers in Punjab and it is not a matter relating to policy of the Government. Learned counsel has referred to Section 3 of the Foodstuff (Control) Act, of 1958 and has submitted that the respondents are bound, under the law, to maintain supplies of any foodstuff for securing its equal distribution and availability. Learned counsel added that the respondents have failed in securing equitable distribution and availability of the supply within the contemplation of the aforementioned provision of the law. Learned counsel while placing reliance on the case of "Al-Mutwakkal Flour Mills Vs. Province of Punjab and another" (1991 YLR 42), has submitted that a policy, which is notified in official gazette, has the legal force and any letter issued by the Department which offends the notified policy, has no value in the eye of law. Learned counsel, while pleading unequal treatment, has submitted that quota to a flour mill in Rawalpindi was enhanced from 25 bags to 40 bags and then to 60 bags per roller body, but the petitioners were deprived of a normal quota. Learned counsel, vehemently argued that supply of wheat to one and it's refusal to another has been held sheer discrimination by this Court in the case of Al-Mutwakkal Flour Mills (supra). Learned counsel has further submitted that the dictum laid down in the case of "M/s Asif Flour Mills Vs. Government of N.W.F.P." (PLD 1997 Peshawar 5), has not been followed by the respondent Department.
Other Advocates, in the connected petitions, have adopted the line of arguments of Mr. Muhammad Shehzad Shaukat, Advocate.
The respondent Department submitted parawise comments and reply, which reflects that liberal issuance of wheat quota was allowed in the preceding year as the department had wheat stocks of 3.9 million tons, but during the current year, the available stocks are 2.65 million tons only, in view whereof, quota to the new flour mills cannot be allowed. According to the statistics provided in the reply, the department has contended that 634 flour mills, with daily grinding capacity of 101340 million tons, are functional in Punjab. The requirement of wheat, according to the grinding capacity, is 36.99 million tons, which is not possible for the department to provide to new flour mills. According to these statistics of the department, 41 cases of new flour mills are lying with the department, besides, 97 cases of enhancement of grinding capacity are pending decision. The reply reflects that the quota to the new flour mills was withheld due to the shortage of available stocks.
Learned Additional Advocate General has submitted that the policy for the year 2007 was duly notified through Notification No. SOF-IV/3-8/06 dated 03.09.2007. He has submitted that the case of Al-Mutwakal Flour Mills (supra) referred to by learned counsel for the petitioners has no application to the case in hand as in the instant case, the policy for the year 2007 had duly been notified. There is no discrimination inter se the flour mills owners and the quota was not issued to the petitioners, as either they were not eligible or the objection raised by the department was not removed by these petitioners.
Heard learned counsel for the parties and record perused.
The petitioners, in these cases, are categorized into two categories. Firstly those who have applied for the issuance of the quota before the new policy, while the others have applied after the new policy was notified. Certain objections, which were raised and were not removed by the petitioners, are not material. In the case of Ibrahim Flour Mill, the quota has been denied on the ground that volume of bins have not been worked out in Form B. This appears to be no ground for refusal of the quota as, according to the policy, the department has to see the functional roller bodies in a flour mill and any negligible lapse in completion of the form can be no valid ground for refusal of the quota. The respondents, at the most, could call the petitioners to rectify the omissions. Similarly, some of the petitioners have been denied quota as they have not produced membership certificate of PFMA, which too is not a condition notified in the policy. Denial of issuance of quota on these grounds has no justification.
The question of issuance of quota on, "pick and choose basis", came up for consideration before the superior Courts:--
(i) In the case of "M/s. Asif Flour Mills Vs. Govt. of N.W.F.P." (1997 Peshawar 5), summary was not submitted to the Chief Minister on the ground that the Provincial Cabinet in its meeting, imposed ban on issuance of wheat quota to the new flour mills. Learned Court observed that numerous business concerns were involved in similar business and production, but the petitioner was prevented from carrying on his business while the other rival concerns were facilitated to go into production and to remain in production, which is a discrimination seriously offending Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. The authorities were directed to release wheat quota to the petitioner.
(ii) In the case of "Al-Mutwakkal Flour Mills Vs. Province of the Punjab" (1999 YLR 42), non-issuance of enhanced wheat quota was claimed by the petitioners on the basis of added roller bodies and in the same case, while some petitioners challenged the reduction made by the department in the allocated quota. It was observed by the Court that enhanced quota allowed to certain selected people at the discretion of the department, would lead to ruthless, naked and unbridled discretion which cannot be countenanced in the days of fundamental rights and their enforcement. The Court, while appreciating that the person similarly situated cannot be distinguished or discriminated while making or applying the law, which is to be applied equally to the persons situated similarly. Any law made or action taken in violation of these principles, is liable to be struck down. Resultantly, the department was directed to enlist the petitioners before it and grant wheat quota while treating the applicants equally.
(iii) In the case of "Government of N.W.F.P. through Secretary and 3 others Vs. Mejee Flour & General Mills (Pvt.) Ltd." (PLD 1997 SCMR 1804), the question "whether the refusal to grant wheat quota was either repugnant to clauses of 'equality before law' and `equal protection of law' guaranteed by Article 25(1) or was it violative of Article 18 of the Constitution", was answered by the Apex Court that it amounts to injustice, inequality and characterized as arbitrary authority in singling out some persons for discriminatory treatment, they would be acting counter to the ideal of equality before law. The Apex Court enunciated that the Courts have ample jurisdiction for interference in the illegality and procedural impropriety bordering on the irrationality in an official action through the judicial review of the impugned action.
The above survey of law brings me to conclude that restriction of wheat quota imposed equally on all the Flour Mills, without any discrimination can legitimize the action of the respondents, on the plea of acute shortage of wheat. But issuance of quota, almost during the same period, to other Flour Mills, is unreasonable and arbitrary selection or differentiation. Government is not supposed to discriminate between the citizens, who are placed in similar circumstances and functionaries of the Government cannot be allowed to exercise discretion at their whims, sweat will or in a manner as it pleases them.
Wheat quota of certain mills has been enhanced to those, who had applied for it, after the release of new policy.
Iqbal Flour Mills, Jhang, Suriya Flour Mills, Jhang, Azeem Flour Mills. Mianwali and Derashik Flour Mills, D.G. Khan, are enjoying the facility of enhanced quota. Their quota was enhanced, when the petitioners were declined routine quota. New Hussain Flour Mills, Jhelum, Mehkam Flour Mills, Bahawalpur & Haris Flour Mills, Bahawalpur, were newly established flour mills. They applied for quota, at a point of time, when the inspection of the petitioners had already been conducted. Respondents had issued quota to other mills while the petitioners, who are placed in identical situation, on the other hand, were refused the quota of wheat. The applications of the applicants were turned down and the respondents have not even cared to reply to the petitioner, regarding refusal of quota. The impugned action of the respondents qua the issuance of wheat quota, is, therefore, arbitrary and perverse classification as against reasonable classification. Supply of wheat quota to one set of mill owners and it's refusal to the petitioners, is sheer discrimination, conceived and tainted with the defect of naked and unbridled discretion. The act of omission, on the part of the respondents, in ignoring the petitioners for grant of wheat, is declared as unlawful, discriminatory and of no legal effect.
The petitioners are entitled to the equal treatment and the discrimination in issuance of wheat quota to the petitioners., calls for interference and exercise of powers of judicial review.
Resultantly, these petitions are allowed and the respondents are directed to re-consider the applications of the petitioners and issue them wheat quota, according to the prevalent policy, without any discrimination or unequal treatment. The respondents will call the petitioners, scrutinize their case and decide the question of grant or refusal of quota, strictly within the parameters of existing policy and in a fair and transparent manner. The respondents will complete the task of issuance of wheat quota to the petitioner within a period of 2 weeks from today. In this exercise, the petitioners will be provided the opportunity of being heard.
(W.I.B.) Petition allowed.
PLJ 2008 Lahore 656
[Multan Bench Multan]
Present: Sh. Azmat Saeed, J.
DR. MUHAMMAD SADIQ SALEEM, SR. MEDICAL OFFICER, SAHIWAL--Petitioner
versus
SECRETARY HEALTH, GOVT OF PUNJAB LAHORE and others--Respondents
W.P No. 4739 of 2006, decided on 29.10.2007.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Maintainability--Jurisdiction of High Court--Appointment on contract basis--A self Contained Policy--Process of recruitment was tainted with mala fides and nepotism--Condition precedent of contract--Age limit--Presence of stranger in Selection Committee--Letter of appointment and posting of civil servant--Challenge to--Held: Petition could not be fail on the hyper technical objection raised by the respondent--High Court has ample jurisdiction to mould relief in accordance with the facts and circumstances emerging from the case--High Court finds that the appointment of respondent is illegal on account of being above the upper age limit and the entire proceedings for the recruitment were tainted with malafides and even otherwise suspect, of the case.
[P. 660] A
Mr Muhammad Khalid Ramzan Joyya, Advocate for Petitioner.
Syed Aqa Jafri, Advocate for Respondent No. 7.
Ch. Muhammad Rafique, Advocate for Respondents No. 2 & 5.
Mr. Zafarullah Khan Khakwani, AAG.
Date of hearing: 29.10.2007.
Order
Writ Petition 4739 of 2006 has been filed to call in question the "posting order" dated 1.9.2006 issued by Respondent No. 1 in favour of Respondent No. 7 appointing and posting Dr. Karim Shah Faizi as General Surgeon at District Headquarters Hospital Sahiwal.
Precisely, the facts of the case are that Respondent No. 3 issued advertisement in the press soliciting applications for appointment of various posts on contract basis including the post of General Surgeon DHQ Hospital Sahiwal. Pursuant thereto, petitioner alongwith a dozen or so other doctors including Respondent No. 7 applied for the said post. Apparently, a selection committee was constituted, which is alleged to have gone through the recruitment process, whereafter, vide the impugned letter dated 1.9.2006, Respondent No. 7 was selected, appointed and posted as the General Surgeon, DHQ Hospital Sahiwal, on contract basis for a period of two years.
It is contended by the learned counsel for the petitioner that Respondent No. 7 was not qualified to be considered for selection and appointment being more than 45 years old the maximum upper age limit prescribed by the advertisement and the instructions issued by the Government of the Punjab in this behalf. It is next asserted that the entire process of recruitment was tainted with mala fides and nepotism. In fact, even much prior to the commencement of the recruitment process, Respondent No. 7 had been selected on the recommendation of the Agriculture Minister Punjab, and in this regard, learned counsel has drawn this Court's attention to the letter dated 25.1.2005. Adds that persons who were strangers to the constituted selection committee participated in the selection process thereby vitiating the entire proceedings. This fact, it is contended is evident from the interview list prepared which purportedly bears the name of such stranger. In these circumstances it is prayed that impugned letter of appointment of Respondent No. 7 be set aside and the person falling next on the merit list be appointed in his stead.
Whereas, learned counsel for Respondent No. 7 controverts the assertions as being canvassed by the learned counsel for the petitioner by contending that since he was already in service of the Government of the Punjab, his period of service is liable to excluded from the prescribed upper age limit, hence, he was eligible for being selected and appointed. Adds that Respondent No. 7 is better qualified than the petitioner and the other contesting candidates, thus, was eminently eligible for appointment. Allegations of mala fide and nepotism were denied by the learned counsel for Respondent No. 7 and it was contended that recruitment process was adhered to by the selection committee and the Members nominated and appointed as such. The additional person whose name figures in the interview list acted only as a secretary to the said committee.
Learned counsel has also taken the preliminary objection as to the maintainability of this writ petition contending that petitioner has an alternate remedy by approaching the relevant complaint redressal cell specifically constituted in this behalf. It is next asserted that in fact this petition is also not maintainable as the posting and not the initial appointment of Respondent No. 7 which is being called in question.
Learned counsel for rest of the respondents including the learned AAG has adopted the arguments of the learned counsel for Respondent No. 7.
In rebuttal, learned counsel for the petitioner asserts that in fact the petitioner has already availed of the alternate remedy by approaching the relevant complaint redressal cell and that, in fact, an application in this regard was filed even much prior to the appointment of Respondent No. 7 which has since been admittedly decided against the petitioner, and that too without affording him any opportunity of hearing. Further adds that through this writ petition letter dated 1.9.2006 is being called in question which is the letter of appointment and posting of Respondent No. 7, hence, this petition is not only maintainable but liable to be accepted.
In the advertisement in issue, the maximum age limit for appointment is clearly shown as 45 years. It is not disputed between the parties that on the date of the interview and appointment, Respondent No. 7 was more than 45 years old. The appointment in question is to be affected on the contract basis. A self contained policy i.e. the contract appointment policy dated 29.12.2001 has been issued by the Govt of the Punjab in this behalf. The question of upper age limit is catered for in clause (x) thereof. Clause (x) (iv) ibid clearly provides that where an upper age limit has been given, shall be shown as part of the advertisement and shall not be relaxed in individual cases. Sub-para (v) no doubt stipulates that for a person already employed on contract/regular basis with the Govt. of Punjab, the period spent by him in service, shall be excluded. It is the said provision which has been relied upon by the learned counsel for Respondent No. 7. Unfortunately, for Respondent No. 7 said provision i.e. para (x)(v) has a rider mentioned therein to the effect that upper age limit shall not exceed 35 years for recruitment of any post. The said provision is of no avail to Respondent No. 7 as a bare reading thereof makes it clear and obvious that no relaxation is available to a candidate under the said provision beyond the age being 35 years.
The upshot of the above discussion is that in the facts and circumstances of the case, Respondent No. 7 had broken the barrier of the upper age limit at the time of his appointment, hence, was ineligible.
Reverting now the question of mala fides and the caption of the letter of Minister of Agriculture dated 25.1.2005 for all practical purposes clinches the issue. Said caption reads as opening of second surgical unit in DHO Hospital Sahiwal to accommodate Dr. Karim Shah FRCS MO same hospital. It leaves no room for any doubt that the entire recruitment procedure smacks of mala fides and was tailored to benefit Respondent No. 7 who even otherwise was ineligible having crossed the upper age limit. It is admitted on record that at least one person who was not the member of appointed/designated selection committee participated in the meeting. There is nothing on the record to suggest that he participated as a secretary of the said committee, as alleged, and the learned counsel for Respondent No. 7 has been unable to point out any document on record to support his contention. Mere presence of an alien/stranger in the proceedings manifestly denudes the same of its validity, transparency and fairness.
As regards preliminary objection as to the maintainability of this petition on account of the alleged alternate remedy, I would only add that admittedly the matter had been referred to the complaint redressal cell even prior to the issuance of the appointment letter in question. It is the case of the respondents, as is evident from the reply/parawise comments, that said complaint was dismissed after considering the result of relative merits of the candidates. It leaves no room for any doubt that said complaint was decided after the process of interview had been completed. Thus, for all practical purposes petitioner has availed of the alternate remedy before approaching this Court. Even otherwise since the grievance redressal cell has already expressed its views, therefore, dispatching the petitioner to the same forum would be an exercise in futility and would by no stretch of the imagination be termed as an efficacious remedy. In the relevant clause of the petition, it has been noted that letter dated 1.9.2006 is being challenged, which is the letter of appointment and posting of Respondent No. 7, thus, in these circumstances, this petition cannot fail on the hyper technical objection raised in this behalf by respondents. This Court has ample jurisdiction to mould the relief in accordance with the facts and circumstances emerging from the case. Hence, this Court finds this petition as maintainable and appointment of Respondent No. 7 as illegal on account of being above the upper age limit and that entire proceedings for his recruitment were tainted with mala fides and even otherwise suspect. Consequently, by accepting this petition set aside the order of appointment of Respondent No. 7 dated 1.9.2006 with direction that next person falling on the merit list be appointed on contract basis as General Surgeon District Headquarters Hospital Sahiwal.
Petition accepted in terms reflected ibid.
(W.I.B) Petition Accepted.
PLJ 2008 Lahore 660
[Rawalpindi Bench Rawalpindi]
Present: Ali Akbar Qureshi, J.
SH. MUHAMMAD NOMAN and 3 others--Appellants
versus
RAHIM DAD KHAN--Respondent
FAO No. 10 of 2008, heard on 23.4.2008.
Cantonments Rent Restriction Act, 1963 (XI of 1963)—
----Ss. 17(8)(9) & 24--Eviction of tenant--Appeal against--Non-impleading all the legal heirs of deceased tenant--No summary as to willful default--Effect of--Held: Delay of one day default in deposit of rent does not appear to be chronic and incurable--Further held: No inquiry was conducted by Additional Rent Controller so as to ascertain with exactitude whether the appellants were in fact willful defaulter and that only the appellants have been arrayed as respondents of the original deceased tenant and the remaining have not been impleaded as party--Case remanded for decision afresh.
[P. 664] A
1984 CLC 2196 & PLJ 1992 Kar. 424.
Mr. Muhammad Zaheer Khan and Mr. Waqar ul Haq Sheikh, Advocates for Appellants.
Syed Muzammil Shah, Advocate for Respondent.
Dates of hearing: 22 & 23.4.2008.
Judgment
Facts giving rise to the filing of FAO 10 of 2008 are that respondent filed an ejectment petition against the father of the appellants with reference to Property No. M/44-H Haidar Road Rawalpindi on the basis of agreement dated 16.9.2003, reiterating that premises was required for his personal need. Ejectment petition was resisted and contested by late father of the appellants on factual as well as legal grounds. Unfortunately, the original tenant Sh.Muhammad Iqbal, father of appellants expired on 29.5.2007, and thus, the appellants alone were impleaded as respondents being the legal heirs of the original tenant.
That in terms of order dated 29.5.2007, the learned Additional Rent Controller directed the appellants in terms of Section 17(8) of the Cantonment Rent Restriction Act, 1963, hereinafter to be referred as the Act, to deposit the arrears as also the monthly rent of the premises in question @ Rs. 34,250/- per month from March 2007 to May 2007 totaling to Rs. 1,02,750/- before 20.6.2007 and also to deposit the future monthly rent before the 5th day of each succeeding month, and the appellants deposited the same on 9.6.2007.
It was the case of the appellants that whole family was under shock and grief on account of the demise of the original tenant/father of the appellants, and his Chehlum was to be held on 4th of July 2007 at Attock. And in connection with the preparation of the aforesaid Chehlum of their late father, the appellants forgot to deposit the monthly rent for the month of June 2007 before 5th day of July 2007 viz 4.7.2007. However, the same was deposited following day i.e., on 5th of June 2007.
On account of the aforesaid default, respondents filed an application under Section 17(9) of the Cantonment Rent Restriction Ordinance seeking striking off appellants' defence on account of default of one day in depositing the rent for June 2007, which was replied to by the appellants reiterating that on 4th of July 2007 being preoccupied in the Chehlum of their father at Attock, they could not deposit the rent on the said date. And the learned Judge by accepting the aforesaid application of the respondent struck off appellants' defence and directed them to hand over the vacant possession of the premises to the respondent, vide the order impugned dated 9.1.2008.
Learned counsel for the appellants contends that the appellants are not the wilful defaulters, that no inquiry whatsoever was conducted by the learned Additional Rent Controller before passing the eviction order of the appellants from the premises in question; that the application filed by the respondents as duly replied to by the appellants has not been disposed of in accordance with law. That towards the compliance of the order of the learned Additional Rent Controller, the appellants did deposit the arrears of rent within the time stipulated by the Additional Rent Controller. And that the monthly rent for the month of June 2007 could not be deposited before 5th day of July 2007 i.e., on 4.7.2007 on account of the Chehlum of the father of appellants, which was neither intentional nor deliberate lapse, rather a bona fide mistake, whereas, it is reiterated that respondents complied with the order of the learned Additional Rent Controller by depositing the arrears of rent in letter and spirit. It was also asserted on behalf of the appellants that their late father was survived by as many as 12 legal heirs, whereas, only the appellants four in number, were impleaded and in absence of rest of the legal heirs even otherwise, the order impugned is not sustainable in law. To substantiate his contentions learned counsel relied on PLD 1968 Karachi 521 (Visumal Chatumal Khilnan Vs Ali Bakhsh and others), 1980 CLC 848, NLR 1981 AC 327, 1988 CLC 245, 1984 CLC 2196, NLR 1989 AC 820 and 1993 SCMR 1584.
Whereas, conversely learned counsel for the respondent contends that it is manifest from the record that the appellants committed default in the payment of rent as directed by the learned Additional Rent Controller, and hence, precluded from seeking any relief from this Court. Adds that under the law, the learned Additional Rent Controller is not authorized to extend the time as the order impugned was totally valid and unambiguous and for non compliance thereof, the appellants have become defaulter, so they cannot be granted any relief. To support his contentions, learned counsel relies on 2004 SCMR 1453, PLD 2006 Lahore 684 and PLD 2005 SC 34.
Arguments heard. Record perused. Record reveals that order impugned was passed in absence of the learned counsel for the appellants on 9.6.2007 directing the appellants to deposit the arrears of rent as well as the monthly rent, which was complied with by the appellants by depositing the arrears of rent amounting to Rs. 1,02,750/-, whereas, the monthly rent was deposited on 5th of June 2007 with a delay of one day. Appellants appear to have complied with the impugned order partly in letter and spirit, whereas, because of the Chehlum of their late father, they could not deposit the monthly rent on 4th of June 2007 because of the reasons disclosed in their reply to the application filed by respondent. In this view of the matter, it is to be seen whether the appellants in the facts & circumstances emerging from the instant case, could the appellants be considered as wilful defaulters in absence of any inquiry to this regard by the learned Additional Rent Controller. Admittedly, an application was filed on behalf of the respondent to initiate proceedings for the eviction of the appellants from the premises in question obviously on the ground of having committed default by them in the payment of rent for the month of June 2007 due on 4th of June 2007. The appellants furnished their reply to the aforesaid application disclosing their bona fides and reasons, but the learned Additional Rent Controller disposed of the same in a very casual manner, even without holding a summary inquiry so as to ascertain whether the appellants had in fact become willful defaulter, and no finding to this effect was recorded by the learned Additional Rent Controller. In the case reported as PLD 1968 Karachi 521 supra, while dealing with similar situation that failure in deposit of monthly rent, it has been observed that the Court has to see whether "default imports element of negligence or fault and means something more than mere non compliance". Whereas, in this case, the learned Additional Rent Controller has not exercised the jurisdiction vested with him by withholding even the summary inquiry. In anther case reported as NLR 1981 AC 327, the High Court under similar situation as prevalent in the instant case, remanded the case to the learned Rent Controller so as to establish the default in the payment of rent after providing fair opportunity to the parties. The intention of the Legislature and the interpretation of the term "default and wilful default", the first and foremost consideration is to ascertain after conducting at least summary inquiry as to whether a tenant in fact is a wilful defaulter in the payment of monthly rent. Admittedly, in this case no such inquiry or even the summary inquiry was conducted.
Judgments cited at the bar by the learned counsel for the respondent are distinguishable on facts. In the case reported as 2004 SCMR 1453, tenant deposited the rent after delay of three days for the first month and with a delay of 10 days for the subsequent month, so in that case, the Rent Controller rightly struck off tenant's defence and passed the eviction order because of the fact that the tenant committed successive default in the payment of rent, whereas, in this case, tenant admittedly deposited arrears of rent within the stipulated period of time, and could not deposit the monthly rent on 4th of July 2007 for the reasons disclosed in their application. In another case cited by learned counsel for the respondent reported as PLD 2005 SC 34, the facts of that case are altogether different as in that case the learned Rent Controller directed to deposit the rent to the original tenant and not her son, whereas, the original tenant taking the plea, that during the relevant period her son met with an accident, hence, could not deposit the rent in time as given by the Court. In the aforesaid judgment, the learned Rent Controller also conducted summary inquiry by calling upon the tenant and also granted opportunity of hearing, whereas, in the present case, learned Additional Rent Controller did not conduct the summary inquiry.
Dealing with the second limb of the arguments raised by the learned counsel for the appellants that ejectment proceedings and consequently the eviction order passed by the learned Additional Rent Controller is untenable in law as the respondent did not implead all the legal heirs of deceased tenant Sh. Muhammad Iqbal. Record shows and it is not denied by the respondent that original tenant is survived by as many as 12 legal heirs, whereas, respondent only impleaded the appellants four in number, so on the fact of it, the eviction order suffers from illegality and irregularity by the Additional Rent Controller. Dictum of law as laid down in the case reported as 1984 CLC 2196 and PLJ 1992 Karachi 424 is fairly applicable to the facts and circumstances of the present case.
On 22.4.2008, both the learned counsels for the parties sought adjournment to seek instructions from their respective clients for the remand of the case to the learned Additional Rent Controller to decide the controversy as to whether the appellants were in fact willful defaulters keeping in view the contents of the application filed by the respondent and reply thereto furnished by the appellants. And on 23.4.2008 both the learned counsels for the parties stated that the case be decided on its own merit.
For the foregoing facts and reasons, it becomes clear and obvious that the appellants partly complied with the order of the learned Additional Rent Controller and deposited the arrears of rent and also deposited the monthly rent with a delay of one day and thus the default does not appear to be chronic and incurable. And that admittedly, no inquiry was conducted by the learned Additional Rent Controller so as to ascertain with exactitude whether the appellants were in fact wilful defaulter and that only the appellants have been arrayed as respondents of the original deceased tenant and the remaining have not been impleaded as party. In these circumstances and to ensure safe dispensation of justice, I am of the considered view that it is a fit case for interference with the result that impugned order is set aside, case is remanded to the learned Additional Rent Controller to decide the aforesaid application of the respondent afresh by providing fair opportunity of hearing to the parties within a period of 15 days of the receipt of this order, and thereafter to pass the final order strictly in accordance with law. Compliance report be transmitted to this Court through the Deputy Registrar Judicial of this Court.
(M.A.K.Z.) Case remanded.
PLJ 2008 Lahore 665
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwarul Haq, J.
SHOUKAT SULTAN & others--Petitioners
versus
CONTRACTOR HAJI MUHAMMAD ASLAM (deceased) through Legal Representation & others--Respondents
W.P. No. 1542 of 2000, heard on 28.4.2008.
Constitution of Pakistan, 1973—
----Art. 199--Specific Relief Act, (I of 1877) S. 9--Question of--Dispossession by co-sharer--Suit for recovery of possession was decreed--Revision against and order of trial Court set aside--Challenge to--Constitutional jurisdiction--Question of--Once co-sharer entered into possession then he cannot be dispossessed even if he has taken possession forcibly was not tenable--Held: Where co-sharer in possession is dispossessed by another co-sharer then he has two options--He can either wait and file suit for partition or he can file a suit under Section 9 of the Specific Relief Act, 1877--Constitutional petition accepted. [P. 667] A
NLR 1980 AC 243.
Mr. Abdul Rashid Awan, Advocate for Petitioners.
Mr. Basharat Ullah Khan, Advocate for Respondents No. 1c, 1d, 1g, 1h.
Remaining respondents are proceed against ex-parte today through a separate order.
Date of hearing: 28.4.2008.
Judgment
On 14.5.89 the petitioners filed a suit against Respondents No. 1 and 2. In the plaint, it was stated that the petitioners are continuing in possession of the suit land mentioned in the plaint since 1995. Respondent No. 1 has taken forcible possession on 4.5.89 and constructed a boundary wall and Khothari. He claims to be vendee from Respondent No. 2, who has never been in possession. With these averments decree for possession under Section 9 of the Specific Relief Act, 1877 was prayed for. The Respondent No. 1 in his written statement took the plea that the land was sold to him by Respondent No. 2 who had been in possession for 20 years and the same possession was delivered to him. Whereas the petitioners have never been in possession. The same was plea of the Respondent No. 2, who further stated that in the revenue record they got themselves recorded in possession since 1975 illegally. Following issues were framed by the learned trial Court:--
Whether the suit has been filed with malafide intention, if so, its effect? OPD.
Whether the plaintiffs are estopped by their words and conduct to institute the present suit based on preliminary Objection No. 2 ? OPD.
Whether the suit is bad for non-joinder of necessary parties? OPD
Whether the suit is barred by time ? OPD
Whether the Plaintiff No. 3 is not in a position to file this suit based on preliminary Objection No. 6, if so, its effect ? OPD
Whether the plaintiffs being the owner of the suit property are entitled to the decree claimed for in the main suit? OPP
Relief.
Evidence of the parties was recorded. Learned trial Court decreed the suit on 7.1.96. The revision filed by respondents was allowed by a learned Additional District Judge, Jhelum, on 19.6.2000, who dismissed the suit of the petitioners.
Learned counsel for the petitioners contends that the learned Additional District Judge has misread the evidence on record and has further misconstrued the law on the subject and as such, the impugned judgment passed by him is without lawful authority. Learned counsel for the contesting respondents, on the other hand, supports the impugned judgments and decrees. According to him only suit for partition was competent.
I have gone through the copies of the record with the assistance of the learned counsel for the parties. I have already reproduced above the material contents of the pleading of the parties. The suit land admittedly comprises in Khasra No. 262 min and 262 measuring 1 kanal 4 marlas. The description with reference to boundaries wall has not been questioned. Ex.P4 is register haqdaran zamin for the year 1986-87. According to this document Shaukat Sultan Petitioner No. 1 is recorded in possession alongwith Mst. Balqees Petitioner No. 2 in Khasra No. 262 min measuring 12 marlas while Kalsoom Begum Petitioner No. 3 is recorded to be in possession of 262 min measuring 12 marlas. Habib-ur-Rehman Respondent No. 2 and consequently Muhammad Alam Resondent No. 1 are not recorded in possession of any portion of the land. Ex.P2 is the Khasra Girdawri from Kharif 1983 to Rabi 1987 while Ex.P3 is Khasra Girdawri from Kharif 1987 to Rabi 1989 Nazar Muhammad and Kalsoom Begum are recorded as in possession and later Shakuat Sultan and Balqees Begum Petitioners No. 1 and 2 and Kasloom Begum Petitioner No. 3 are recorded in possession. The said Nazar Muhammad had transferred the land to Petitioners No. 1 and 2 vide registered sale deed dated 2.12.85 Ex.P1.
The petitioners examined Mian Zahoor, Advocate, Jhelum as PW-1 while Shaukat Sultan petitioner appeared as PW-2. On the other hand, Muhammad Anwar was produced as DW-l and he admitted without any demur that Mirza Habib-ur-Rehman had never been in possession of the suit land.
Now coming to the impugned judgment of the learned Additional District Judge. Although he has noted said pieces of evidence but has proceeded to discard the same for the reasons that according to him once co-sharer entered into possession then he cannot be dispossessed even if he has taken possession forcibly. I am afraid, the learned Additional District Judge has acted in oblivion of law. It is well settled proposition that where co-sharer in possession is dispossessed by another co-sharer then he has two options. He can either wait and file suit for partition or he can file a suit under Section 9 of the Specific Act, 1877. Reference be made to the case of Muhammad Shafi, etc. v. Collector, etc. (NLR 1980 AC 243) The petitioners have proved on record they were in possession when they were dispossessed on 4.5.89. It is not even the case of the respondents that the possession was taken over with consent of the petitioners. The suit was filed after 10 days i.e. 14.5.89. All the ingredients of Section 9 having been established, the learned trial Court had lawfully decreed the suit.
The writ petition is accordingly allowed. The impugned judgment and decree of the learned Additional District Judge, Jhelum, dated 19.6.2000 is declared to be without lawful authority and is set aside. The result would be that the decree passed by the learned trial Court on 7.1.96 decreeing the suit of the petitioners against the respondents shall stand restored. No order as to costs.
(M.A.K.Z.) Petition accepted.
PLJ 2008 Lahore 668
Present: Sardar Muhammad Aslam, J.
MUHAMMAD ANWAR--Petitioner
versus
POSTMASTER GENREAL, LAHORE--Respondent
W.P. No. 4581 of 2007, decided on 16.1.2008.
Service Tribunal Act, 1973 (LXX of 1973)—
----S. 4--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Barred by time--Seeks direction to respondent for giving personal hearing and decide after giving proper and careful consideration--Received monetary benefits without protest and questioning the seniority--Challenge to--Limitation of 120 days--Retired employees cannot seek promotion from back date--Question of--High Court cannot direct the respondent authority to decide the representation of the petitioner--Held: Representation on the face of record is barred by time--Petition dismissed. [P. 669] A & B
Mr. Ghulam Sarwar, Advocate for Petitioner.
Mr. Tahir Mahmood Khokhar, Advocate for Respondent.
Date of hearing: 16.1.2008.
Order
With the consent of learned counsel for the parties this writ petition is admitted to regular hearing and is being disposed of as notice case.
The petitioner, through this writ petition, seeks direction to the respondent for giving personal hearing to him and decide his representation after giving proper and careful consideration to the facts in accordance with law.
I have heard the learned counsel for the parties at length and perused the record.
The petitioner was appointed as Postman in Delivery Branch, G.P.O., Lahore on 27.8.1968. He was promoted as Clerk and sent to STG & A Division G.P.O., Lahore in 1980 and was retired on 13.8.2006. Mujahid Hussain was appointed as Sorter on 10.12.1970. He was promoted as Sorter on 3.12.1974. He was confirmed on 1.6.1976 firstly. His revised date of confirmation is 10.2.1977.
The respondent while denying the averments stated that Mujahid Hussain was senior to the petitioner as he on promotion entered cadre of Sorter on 4.12.1974 and was confirmed on 10.2.1977 whereas the petitioner entered on 7.12.1980 was confirmed on 1.4.1982. The petitioner was thus, junior to Mujahid Hussain. He was granted Selection grade. He had received all monetary benefits without protest and questioning the seniority of Mujahid Hussain. Seniority of Mujahid Hussain was challenged through representation, at a belated stage, which remained unheeded. If decision was not being rendered on his representation, under Section 4 of the Service Tribunal Act, he had a right to approach the Tribunal within a period of 120 days Retired employees cannot seek promotion from back date. See Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative Walton Training, Lahore and others (PLD 2003 SC 110).
In nutshell this Court cannot direct the respondent authority to decide the representation of the petitioner in view of law laid down in Lt. Cdr. (Rtd. P.N) Engineer Abdul Aziz Narejo v. Karachi Port Trust and 2 others (2006 PLC (C.S.) Karachi 88) and Muhammad Sharif Sindhu v. Habib Bank Ltd. through its President and others (2006 PSC 202), more particularly when the representation on the face of record is barred by time. Reference can be had to Inayatullah and others v. Director General and others (2006 SCMR 535).
For what has been discussed above, this constitutional petition merits dismissal and is, thus dismissed.
(R.A.) Petition dismissed.
PLJ 2008 Lahore 669 (DB)
Present: Maulvi Anwar-ul-Haq and Syed Asghar Haider, JJ.
RUSTAM KHAN--Appellant
versus
ZARI TARIQIATI BANK LIMITED, KOT RADHA KISHAN TEHSIL & DISTRICT KASUR through its Manager--Respondent
R.F.A. No. 81 of 2007, heard on 5.9.2007.
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLV of 2001)--
----Ss. 10(8) & 22--Suit for reduction of accounts--Appellant was sanctioned a loan by the bank--Notice for recovery--Requested for issuance of clearance certificate by bank, which was declined--Suit for rendition of accounts, declaration was filed--Suit was dismissed--Assailed--Contents--Defendant filed an application for leave to defend the suit but he failed to appear--Whether leave was granted or not or even if leave application was considered--Held: Mandatory requirements of law were not fulfilled--Banking Court shall decide the leave application as required by law and thereafter if leave is granted, it will proceed to follow the procedure as contained in S. 10 (10) of Financial Institutions (Recovery of Finances) Ordinance, 2001.
[P. 670] A
Rao Abdul Jabbar Khan, Advocate for Appellant.
Respondent proceeded ex-parte vide order dated 17.4.2007.
Date of hearing: 5.9.2007.
Judgment
Syed Asghar Haider, J.--Through this appeal the appellant assails the order/decree dated 6.11.2006, passed by the Banking Court-III, Lahore whereby his suit for rendition of accounts etc. was dismissed.
The appellant was sanctioned a loan of Rs. 2,22,500/- (rupees two lac twenty two thousand and five hundred only) by the respondent back. According to the appellant the respondent bank issued him a notice for recovery of Rs. 2,94,499/- (rupees two lac ninety four thousand four hundred and forty nine only) although he had liquidated the liability interest, etc. He required for issuance of clearance certificate by the bank, which request was declined. Therefore, he filed a suit for rendition of accounts, declaration etc. The respondent bank contested the suit by filing PLA. The appellant filed replication thereto. The learned trial Court after hearing the arguments, dismissed the suit.
The learned counsel for the appellant contended that the Banking Court had no powers in law to dismiss the suit without framing issues and recording evidence, as postulated by Section 10(10) of the Financial Institutions (Recovery of Finances) Ordinance, 2001. The appellant had raised fundamental questions of law and facts, therefore, the trial Court was bound to record evidence. Even otherwise the impugned order/decree is based on assumptions; reference is made to record, to which the appellant had no access, nor was provided any opportunity to question its veracity or otherwise.
We have heard learned counsel for the appellant.
Contents of the order reflect that the defendant filed an application for leave to defend the suit but thereafter failed to appear. It is, however, not clear from the contents of the order as to whether leave was granted or not, or even if the leave application was considered. Section 10(8) of the Ordinance XLVI mandates the Banking Court to consider the contents of the plaint, the application for leave to defend and the reply thereof. This was not done. Thus mandatory requirements of law were not fulfilled. Therefore, this appeal is allowed. The impugned order and decree is set aside. The Banking Court shall decide the leave application as required by law and thereafter if leave is granted, it will proceed to follow the procedure as contained in Section 10(10) of the Financial Institutions (Recovery of Finances) Ordinance 2001.
(R.A.) Appeal allowed.
PLJ 2008 Lahore 671
Present: Maulvi Anwar-ul-Haq, J.
MUNICIPAL COMMITTEE KASUR through Tehsil Nazim, Kasur--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, KASUR and 3 others--Respondents
W.P. No. 5492 of 2007, heard on 25.2.2008.
Punjab Urban Rent Restriction Ordinance, 1959 (Amendment) Ordinance (IX of 1979)--
----S. 17--Civil Procedure Code, (V of 1908), O.XXI, Rr. 99, 100 & 101--Ejectment petition--Execution of orders--Objection petition--Applicability--Whether it was a Civil Court or a Rent Controller the order had to be executed as a decree of a Civil Court--All provisions applicable to execution of a decree of a civil Court would be applicable including those under which the objections were filed and under the law the same have to be decided by Executing Court--Petition allowed. [P. 672] A
Mr. Shehryar Kasuri, Advocate for Petitioner.
Mr. Shamim Abbas Bokhari, Advocate for Respondent No. 3.
Nemo for others Respondents.
Date of hearing: 25.2.2008.
Judgment
An application filed by Respondent No. 3 for ejectment of Respondent No. 4 from a shop located in Kasur urban area was contested. It was allowed by the learned Rent Controller on 10.2.2005. A first appeal was dismissed on 11.5.2005. Second appeal was dismissed by this Court on 2.11.2006. Execution process was commenced. On 10.3.2007 the petitioner filed objection petition within the meaning of Order XXI Rules 99 to 101 CPC. The objections were contested and were dismissed by the learned Executing Court on 8.5.2007. A revision filed by the petitioner has been dismissed by a learned ADJ, Kasur, on 21.5.2007.
Learned counsel for the petitioner contends that the impugned order dated 21.5.2007 of the learned ADJ, Kasur, is without lawful authority inasmuch as he has refused to exercise jurisdiction vesting in him under the law and has advised the petitioner to file a civil suit. According to the learned counsel, the claim of title/possession being raised by the petitioner can be decided only by the Executing Court and not through a civil suit, which is barred by law. He relies on the case of Mst. Khurshid Begum, etc. v. Mr. Ghulam Kurra, etc. (1982 SCMR 90). The learned counsel for Respondent No. 3, on the other hand, contends that the said judgment would not be applicable after the amendment of Section 17 of the Punjab Urban Rent Restriction Ordinance, 1959, vide amendment Ordinance No. IX of 1979.
I have gone through the copies of the documents, appended with this writ petition. Section 17 as it stood pre and post the said amendment is hereunder:--
Pre-Amendment.
"17. Execution of Orders. Every order made under Section 10 or Section 13, and every order passed on appeal under Section 15 shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court."
Post-Amendment.
"17. Execution of Orders. Every order made under Section 10, Section 13, Section 13-B and every order passed in appeal under Section 15, shall be executed by the Controller as if it were a decree of a Civil Court."
Upon a plain reading of the amended provision in juxta position to the earlier wordings of the same, I am not in agreement with the said contention of the learned counsel for the respondent. What is of significance is that whether it was a Civil Court or a Rent Controller the order had to be executed as a decree of a Civil Court. This being so, all provisions applicable to execution of a decree of a Civil Court would be applicable including those under which the objections were filed and under the law the same have to be decided by the learned Executing Court.
In the present case, the learned Executing Court, in fact, had decided the objections vide order dated 8.5.2007 and dismissed the same after stating reasons. The learned ADJ instead of adjudicating the appeal with reference to the said reasons stated by the learned Executing Court, of course, after hearing the parties has proceeded to dispose of the appeal and in the process the parties have been made to embark upon a long litigation. I, therefore, do find that the impugned order passed by the learned ADJ in refusing to decide the matter is without lawful authority and is accordingly declared as such. The writ petition accordingly is allowed. The impugned order dated 21.5.2007 of the learned ADJ, Kasur, is set aside. The result would be that the revision filed by the petitioner shall be deemed to be pending. The parties shall appear before the learned District Judge, Kasur, on 3.4.2008. The learned District Judge shall requisition the record and proceed to decide the revision himself or entrust it to a learned ADJ who will decide the revision on its merits. No orders as to costs.
A copy of this judgment be remitted to the learned District Judge, Kasur, immediately.
(J.R.) Petition allowed.
PLJ 2008 Lahore 673
Present: Khurshid Anwar Bhinder, J.
Mst. SHAHEEN AKHTAR--Petitioner
versus
MUHAMMAD ARIF and another--Respondents
W.P. No. 9578 of 2007, heard on 15-05-2008.
Guardian and Wards Act, 1890 (VIII of 1890)--
----S. 25--Civil Procedure Code, (V of 1908), O.XVII, R.3--Constitution of Pakistan, 1973, Art. 199--Applicability--Closing of right of cross-examination--Validity--No provision in the Guardian and Wards Act, authorizing the Family Court to close the evidence of a party before it or to strike out right of cross-examining witnesses but there is also no provision to the effect that party's evidence shall not be closed or strike out his right of petitioner to cross-examine the witnesses, even if that party fails to produce evidence without sufficient cause, despite having availed several opportunity to do so--Held: Trial Court was justified to struck off the right of the petitioner to cross-examine the witnesses. [P. 675] A & B
Guardian and Wards Act, 1890 (VIII of 1890)--
----Ss. 25 & 47--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Closing of right of cross-examination--Interlocutory orders--Maintainability--Held: No doubt impugned orders are interlocutory orders in the sense that they did not dispose of the whole gamut of dispute between parties--Final decision on the suit would be open to appeal by virtue of Section 47 of the Guardian and Wards Act 1890--Held: Being order of interlocutory nature, cannot be interfered with by High Court in exercise of its Constitutional jurisdiction.
[P. 675] C & D
1996 SCMR 1165, Ref.
Syed Shabahat Hussain Tarmizi, Advocate for Petitioner.
Mr. Zahid Iqbal Malik, Advocate for Respondents.
Date of hearing: 15.5.2008.
Judgment
Mst. Shaheen Akhtar petitioner, through the present constitutional petition has called in question the order dated 15.2.2007 passed by the learned Judge Family Court, Lahore whereby he struck off the right of the petitioner to cross-examine the witnesses of Respondent No. 1 and the order dated 6.9.2007 dismissing application of the petitioner for recalling the aforesaid order dated 15.2.2007.
Briefly the facts leading to the filing of this constitutional petition are that Respondent No. 1 filed an application under Section 25 of the Guardian and Wards Act for custody of minor, namely, Mst. Arooba Arif before the learned Guardian Judge, Lahore. The application was contested by the petitioner by filing a written reply whereupon the learned trial Court framed issues. Respondent No. 1 filed affidavits of the witnesses on 23.11.2006 but the counsel for the petitioner failed to cross examine the witnesses and the learned trial Court struck off the right of cross-examination of the petitioner vide order dated 15.2.2007 whereafter the petitioner filed an application for recalling the aforesaid order which was dismissed by the learned trial Court vide order dated 6.9.2007, hence the present constitutional petition.
Learned counsel for the petitioner submits that the impugned orders passed by Respondent No. 2 are illegal, void, arbitrary, perverse, nullity in the eyes of law and are contrary to the facts on record. He further submits that the learned Judge Family Court should have proceeded ex-parte against the petitioner instead of striking her right of cross-examining the witnesses of Respondent No. 1 by invoking the provisions of Order XVII Rule 3 CPC which provisions of law are inapplicable in the family suit.
Learned counsel for the Respondent No. 1 has supported the impugned orders.
I have heard the learned counsel for the parties and have perused the available record. The petitioner was afforded a number of opportunities for cross-examining the witnesses of the respondents but she failed to cross examine the witnesses of the respondents, as such, the learned trial Court had left with no option but to strike out the right of the petitioner for cross examining the witnesses of the respondents. The impugned orders passed by the learned trial Court are just, fair and call for no interference by this Court in its constitutional jurisdiction.
As far as the contention of the learned counsel for the petitioner that the order by which the petitioner's right to cross-examine the witnesses was struck off is without jurisdiction is concerned, it is true that there was no provision in the Guardian and Wards Act authorizing the Family Court to close the evidence of a party before it or to strike out right of cross-examining the witnesses but there is also no provision to the effect that a party's evidence shall not be closed or strike out his right to cross examine the witnesses even if that party fails to produce evidence, without sufficient cause, despite having availed of several opportunities to do so. Here the question arises that if a Guardian Judge adjourns a case for hundred times with a view to enabling a party to lead evidence or to cross-examine the witnesses but even then that party does not produce evidence, without any reason whatsoever, will the Guardian Judge not be able to refuse any more opportunity to the party at fault and proceed to close the evidence or strike out the right of cross-examining the witnesses, as such, the learned trial Court was justified to struck off the right of the petitioner to cross-examine the witnesses of the respondent.
There is yet another aspect of the case that no doubt the impugned orders are interlocutory orders in the sense that they do not dispose of the whole gamut of dispute between the parties. Final decision on the suit would be open to appeal by virtue of Section 47 of the Guardian and Wards Act, 1890 and, therefore, if the petitioner fails before the learned Guardian Court she will be able to assail before the appellate Court, the orders now being challenged by her. To my mind the orders which have been assailed by means of this constitutional petition, being order of interlocutory nature, cannot be interfered with by this Court in exercise of its constitutional jurisdiction. Reference can be made to Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary S & GAD Karachi etc. (1996 SCMR 1165).
For what has been discussed above, I hold that the instant constitutional petition is not competent, therefore, this writ petition is dismissed with no order as to costs.
(W.I.B.) Petition dismissed.
PLJ 2008 Lahore 676
Present: Hafiz Tariq Naseem, J.
ABDUL GHAFFAR MIAN, ASSISTANT INSPECTOR GENERAL (TRAINING), CPO, PUNJAB, LAHORE--Petitioner
versus
CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE
and 4 others--Respondents
W.P. No. 3175 of 2008, decided on 08-05-2008--
Constitution of Pakistan, 1973--
----Art. 199--Efficiency and Discipline Rules, 1973, Scope of--Constitutional petition--Maintainability & jurisdiction--Withholding of promotion--Element of transparency was missing--Paramount importance for good governess--Civil servant whose promotion was withheld and suppressed on the basis of average annual report--Held: In case of withholding the promotion is major penalty as per provisions of Efficiency and Discipline Rules, 1973 and the penalty could not be imposed on any civil servant without the recourse to the procedure--Further held: Withholding of promotion in violation of law in excess of jurisdiction, without jurisdiction or in colorable exercise of power extra-ordinary jurisdiction of High Court in terms of Art. 199 of Constitution can always be invoked for redressing the wrong. [P. 679] B & C
2000 PSC 599, 2003 PLC (CS) 203, 2006 PLC(CS)564, 2007 SCMR 682, 2007 PLC CS 1076, ref.
Seniority--
----Average reports in his A.C.R. and he did not carry reputation of clean officer--Validity--Average reports cannot be termed adverse, rather fall within the category of good. [P. 678] A
Mr. C.M. Sarwar, Advocate for Petitioner.
Mr. Qamer-Uz-Zaman, DAG and Mr. Naeem Masood, Assistant Advocate-General Punjab.
Date of hearing: 8.5.2008.
Order
Facts leading to this writ petition are that the petitioner became eligible for promotion to the rank of DIG in the Police Group of Pakistan in the year 2000, when his case for promotion was considered alongwith his batch mats in the meeting of Central Selection Board held on 20.6.2000. However, the petitioner was recommended for supersession.
Aggrieved by the supersession of the year 2000 the petitioner filed appeal before the Federal Service Tribunal the same was accepted and it was ordered to promote the petitioner with all consequential benefits. However, the Government filed CPLA before the Hon'ble Supreme Court of Pakistan, where it was noticed that the Tribunal could not pass a direction for promoting a civil servant and at the most the Tribunal could refer back the case to the Central Selection Board for reconsideration, thus during the course of arguments, with the consensus of the parties the judgment of the Tribunal was set aside and the matter was remanded back to the Central Selection Board for reconsideration of the petitioner's case.
In compliance to the direction of the Hon'ble Supreme Court of Pakistan, the petitioner's case was placed before the Central Selection Board in its meeting held on 11.2.2008 for re-consideration for promotion to BS-20, however, through letter dated 8.3.2008, the petitioner was informed in the following terms:--
"The Board wanted to further watch the performance of the officer."
The learned counsel for the petitioner submits that the petitioner, who is at the verge of retirement is being victimized with no fault of him since the year 2000 when his colleagues were promoted, leaving the petitioner to run from pillar to post for his lawful right of promotion. Further submits that the impugned letter, whereby the petitioner is conveyed the reasons of non-suiting the petitioner is neither here nor there, particularly when it is viewed from the available record that the petitioner is performing his duties as Assistant Inspector General of Police for the last more than three years and earned excellent reports as well as not even a single adverse entry is available in his record through out his service.
On the other hand the learned Deputy Attorney General, learned A.A.G. and the departmental representative submit that the petitioner's case shall be presented in the next meeting of the Central Selection Board again and it is the Board, who can assess the suitability of the petitioner not any Court, so filing of this writ petition against the minutes of the Central Selection Board is not warranted under law.
Arguments heard. Record perused.
So far the record of the petitioner is concerned it clearly transpires that the entire service record of the petitioner is clean, no penalty whatsoever is available in his record, his seniority amongst his batch mats is admitted but it is surprising that in the year 2000 the petitioner was superceded without any reason whatsoever except an observation that there are some average reports in his A.C.R., and "he did not carry reputation of a clean officer."
The law laid down by the Hon'ble Supreme Court of Pakistan in a number of cases still holds the field that average reports cannot be termed adverse, rather these fall within the category of good, thus the findings of the Central Selection Board in respect of availability of average reports in the service record of the petitioner cannot be termed a convincing one for non-suiting the petitioner. So far non-carrying the reputation of a clean officer is concerned, not a single instance is quoted by the representative of the Department during the course of argument, which could establish such like unfounded observations because without any material and without any documentary evidence no one can be presumed to be unclean officer and if the department had any material regarding petitioner's reputation, the best course was to initiate enquiry against the officer and take action against him under the rules, but admittedly in the present case this was not happened, thus the supersession of the year 2000 in respect of the petitioner is held to be a nullity in the eye of law. So far the letter dated 8.3.2008 issued by the Establishment Division communicating the decision of CSB, whereby CSB wanted to further watch performance of the officer is concerned it is really astonishing one, particularly when the petitioner is performing his duties for the last more than three years as AIG and his last three ACRs are good, which is confirmed by the departmental representative present in the Court. The only impression, which could be gathered from the impugned controversy is that the Departmental Authorities are adamant not to promote the petitioner on one pretext or the other, which otherwise cannot be termed a fair treatment.
Such like situation already dilated upon by this Court as well as by the Hon'ble Supreme Court of Pakistan in different cases like Government of Punjab Vs. Dr. Aman-ul-Haq (2000 PSC 599), Mr. Zafer Abbasi vs. Government of Pakistan (2003 PLC (CS) 503), Khan M. Matiullah and others vs. Government of Pakistan (2006 PLC (CS) 564), Muhammad Iqbal vs. Executive District Officer (Revenue) Lodhran (2007 SCMR 682), and Muhammad Shahid Zaheer vs. Government of Pakistan (2007 PLC (CS) 1076), (this judgment is approved by the Hon'ble Supreme Court of Pakistan and even Muhammad Shahid Zaheer is promoted to the rank of Commissioner Income Tax in compliance to the judgment reported supra).
After hearing both the parties and examining the record it is held that the petitioner's supersession of the year 2000 was in a "subjective" manner as the respondent could not advance any reason to justify the said supersession. It is noticed that the petitioner's promotion is withheld since the year 2000, ignoring that withholding of promotion is major penalty as per provisions of Efficiency and Discipline Rules, 1973 and that penalty could not be imposed on any civil servant without the recourse to the procedure, even in the year 2008 when the petitioner is denied the right of promotion, the element of transparency is missing, rather it speaks otherwise ignoring that the promotion of the civil servant in just and fair manner is a paramount importance for good governess, otherwise his commitment to job, dedication to duty, and even his integrity might be confined to casualty ward. It is to be observed that in case of with holding promotion in-violation of law, in excess of jurisdiction, without jurisdiction or in colorable exercise of power extra ordinary jurisdiction of the High Court in terms of Article 199 of the Constitution can always be invoked for redressing the wrong. For the foregoing reasons, this writ petition is allowed, the decision to superced the petitioner for promotion to BS-20 in the year 2000 is declared as without lawful authority, the reasons mentioned in the letter dated 8.3.2008, whereby the Board wanted to further watch the performance of the officer is declared in excess of jurisdiction being based on extraneous consideration. The case is remanded to the Secretary Establishment Division, Islamabad with a direction to place the same before the Central Selection Board in its forthcoming meeting for reconsideration of the petitioner's case afresh for promotion to BS-20, in the light of observations recorded in this judgment and particularly the promotion case be considered w.e.f. year 2000, when the colleagues of the petitioner were promoted and the petitioner was wrongly superceded.
If Central Selection Board is not holding its meeting in the next two months then in the circumstances of the case the petitioner's promotion case be finalized by circulation. The entire exercise be completed within a period of two months from today positively under intimation to the Deputy Registrar (J) of this Court. The writ petition is allowed in the above terms.
(W.I.B.) Petition allowed.
PLJ 2008 Lahore 680
[Rawalpindi Bench Rawalpindi]
Present: Mauvli Anwar-ul-Haq, J.
RAJA MUHAMMAD--Petitioner
versus
Mst. SHAMIM AKHTAR and 2 others--Respondents
W.P. No. 2020 of 1999, decided on 07-05-2008.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Notification--Constitution of Khidamat Committee--Validity--Jurisdiction--Order granting maintenance allowance--Challenge to--Khidmat Committees were found to have been constituted in exercise of executive powers through a notification--Ever executive action should have the backing of some law--In the absence of any such law, the establishment of Khidmat Committees was held to be wholly illegal--Order granting maintenance allowance was held without lawful authority--Petition allowed. [P. 681] A
PLD 2000 Lah 251 and 1999 CLC 570, ref.
Raja Muhammad Faraz, Advocate for Petitioner.
Mr. Viqas Rauf, Federal Counsel (on Court Call).
Date of hearing: 7.5.2008.
Judgment
According to the contents of this writ petition, the Respondent No. 1 was married to the petitioner in the year 1978 and the couple was blessed with two sons. Unfortunately, the marriage ended in a divorce and the lady filed a suit for maintenance for herself and the two children. The suit was not contested by the petitioner and on the basis of the statements of the parties, a decree was passed by the learned Judge, Family Court, on 27.5.1998. The maintenance allowance was awarded to the minor son of the parties at the rate of Rs. 500/-- per month. The respondent and the said sons filed an appeal which was dismissed by a learned ADJ, Rawalpindi, on 28.10.1998.
The grievance being made out in this writ petition is that after the said inter partes decisions, the Respondent No. 1 approached Respondent No. 2 stated to be Chairman of a Khidmat Committee who proceeded to award maintenance to both the sons at the rate of Rs. 1,000/- per month and to the Respondent No. 1 at the rate of Rs. 800/- per month and further directed that the maintenance be paid on 13.9.1999. A direction was issued to the Respondent No. 3 SHO to enforce the said order.
This writ petition was taken up by this Court on 22.9.1999 when it was admitted to hearing and the said order was suspended. The Respondent No. 1 has been served through her son Raja Irfan for today but she has not turned up. She is proceeded against ex parte.
Learned counsel for the petitioner although is stating that the impugned order of the Respondent No. 2 is without lawful authority but express inability to substantiate the said contention. Mr. Viqas Rauf, learned Federal Counsel, has put in appearance on Court call. He has brought to my notice judgment a learned Division Bench of this Court in the case of M.D. Tahir. Advocate v. Federal Government through Secretary, Cabinet Division, Pakistan Secretariat, Islamabad and 2 others (PLD 2000 Lahore 251) and the case of Ch. Muhammad Idrees, Advocate v. S.H.O., Police Station, Pattoki, District Kasur and others (1999 CLC 570) to state that the Constitution of Khidmat Committee was declared to be without lawful authority being without backing of any law. According to learned Federal Counsel, the Khidmat Committees have no jurisdiction to interfere in any matters that are pending in or decided by the Courts established under the law.
I have gone through the said judgments and do find that the Khidmat Committees were found to have been constituted in exercise of executive powers through a notification. It has been observed that every executive action should have the backing of some law. In the absence of any such law, the establishment of Khidmat Committees was held to be wholly illegal.
The above reproduced contents of the writ petition are supported by the certified copies of the judgments and decrees passed by the learned Judge Family Court who had the exclusive jurisdiction to decide the question of maintenance as also the order of the learned appellate Court dismissing the appeal of the respondent-lady.
The writ petition is accordingly allowed and the impugned order of the Respondent No. 2 is declared to be without lawful authority and the Respondent No. 3 is prohibited from enforcing the same. I deem it appropriate to thank the learned Federal Counsel for his industry in the matter of assisting this Court on the said point. No orders as to costs.
(W.I.B) Petition allowed.
PLJ 2008 Lahore 682
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
INTISAR HUSSAIN--Petitioner
versus
FEDERATION OF PAKISTAN, etc.--Respondents
W.P. No. 2053 of 2004, heard on 15.5.2008.
Constitution of Pakistan, 1973--
----Art. 199(3)--Retention and termination--Petitioner was junior clerk in Pakistan Air Force who was sentenced to death by trial Court whereas High Court acquitted him in appeal--Departmental inquiry was also instituted and the inquiry officer hold that the petitioner was falsely implicated--Refusal of the department to reinstate--High Court directed the authority to strictly act in accordance with the provisions of policy letter--Objection to competency of Constitutional petition--Held: Jurisdiction of Courts under the Constitutional provision can never be taken away and is always available in case of acts, proceedings or orders which inter-alia, are coram non-judice--Petition was allowed. [P. 684] A
Nemo for Petitioner.
Mirza Viqas Rauf, Federal Counsel.
Date of hearing: 15.5.2008.
Judgment
The admitted facts of this case (with reference to the contents of the writ petition and the reply filed by the respondents) are that the petitioner was serving as a Junior Technician in the Pakistan Air Force when he was accused of murder of one Zawar Hussain vide case FIR No. 257 dated 27.9.1998 at P.S. Saddar, Chakwal. He was sent up for trial. Learned Sessions Judge, Chakwal, vide judgment dated 29.11.1999 convicted him and sentenced him to death. With reference to the said conviction and sentence, the petitioner was dismissed from service vide order dated 23.6.2000 (Annex-A). He filed Criminal Appeal No. 295/99 in this Court which was allowed by a learned Division Bench on 28.7.2003 and he was acquitted. A departmental inquiry was also instituted and the Inquiry Officer concluded vide report dated 31.10.1998 (Annex-C) that the appellant has been falsely implicated in the said murder case. The grievance being made out is that in the afore-noted admitted circumstances, the respondents have refused to reinstate the petitioner in service vide order dated 31.10.2003.
This case was directed to be fixed for hearing on the request of the petitioner vide order dated 18.4.2008 in C.M. No. 288/08. No one has turned up for the petitioner. However, having examined this file, I am not inclined to dismiss this case for non-prosecution. I have accordingly heard the learned Federal Counsel for the respondents.
The reasons stated by the respondents for not reinstating the petitioner despite the said admitted facts of the case are that according to the Air Headquarters Policy whenever a PAF person remains locked up for more than six months in civil prison he is dismissed from service and is not re-instated in the service even if he is subsequently acquitted by the Court, as such re-instatement is considered a detriment to the security and discipline of the service.
On the other hand, I find a Policy letter dated 13.12.1992 issued by the Air Headquarters, Chaklala (Annex-H) on record. In this letter general principles have been laid down for the guidelines of the Commanders in such like matters. The issuance of the said letter has not been denied and I also find that this Court in its judgment dated 10.5.2004 in W.P. No. 2808/2000 (Raja Muhammad Ishaque Qamar v. Chief of Air Staff; Pakistan Air Force, Chaklala) considered the same and passed orders accordingly. I also find that in ground-xiv of the grounds narrated in the writ petition, reference has also been made to the said Policy letter and the judgment. I have examined the said Policy letter and I find that the case of the petitioner falls under para-3(c) of the same. The relevant directives issued by the Air Headquarters are laid down in Para-4 (c) of the said letter, which are reproduced hereunder for facility of reference:--
"(c) In cases falling in category 3(c) above if, the man is convicted, he will have to be administratively dismissed/removed/discharged from service depending upon the nature of offence and the sentence awarded. If, however, the man has been acquitted, his retention or termination should be considered in the light of the following:--
(i) The nature of the offence;
(ii) whether the man has been honourably acquitted or was given benefit of doubt;
(iii) the time spent by the individual in the civil custody;
(iv) his past service record; and
(v) his future utility in the service."
The reasons for denying the request of the petitioner for reinstatement have already been stated above.
To my mind while passing the said order of refusal, the records were not at all examined by the concerned Authority. Had the judgment of acquittal been examined, the said observations could not have been made. Copy of the judgment dated 18.7.2003 is on record as Annex-B. The case of the petitioner was discussed at pages 18 and 19 of the said judgment as follows:--
"As regards Intisar Hussain-appellant, it may be seen that he had no previous enmity with the deceased. There is no evidence of his having indulged into conspiracy with his co-accused. He came to the venue of occurrence, started performing his duty as such for a sufficient long time and it was much after that Muhammad Ali-appellant arrived at the spot from side of village Marri. Intisar Hussain-appellant had absolutely no knowledge that Muhammad Ali-appellant was retaining in his possession a pistol, which was lying concealed in his Dub. Immediately on his arrival, he asked the deceased to alight from his tractor and resorted to firing to teach him a lesson, for the previous insults. Exhorting of lalkara at that stage by Intisar Hussain-appellant is open to severe criticism. This accusation does not appear to be real or legitimate. There was absolutely no reason for him to act as an incitor to incite his co-accused to launch an attack upon the deceased and till then he did not know that the incitee had a weapon with him. Muhammad Ali-appellant for his own personal motive launched an attack and fired at the deceased."
In view of the considered finding of the learned Division Bench of this Court that the accusation against the petitioner was neither real nor legitimate and was open to severe criticism can lead only to one conclusion that the ultimate acquitted was honourable.
There is not even a slightest allegation in the matter of performance of his duties by the petitioner or otherwise as to his character generally.
At this stage, learned Federal Counsel objects that this Court would not be having the jurisdiction to issue a writ in view of the provisions of Article 199(3) of the Constitution. I have given some thought to the said contention of the learned Federal Counsel. However, as noted by me above, the impugned order dated 31.10.2003 refusing to reinstate the is coram non-judice inasmuch as the said order does not at all disclose that the matter was considered by the concerned Authority in accordance with the said directives. As noted by me above, prima facie, that the case of the petitioner requires consideration on the said guidelines which has not been done. Needless to state that it has been the consistent view of the Hon'ble Supreme Court of Pakistan that jurisdiction of Courts under the said Constitutional provision can never be taken away and is always available in case of acts, proceedings or orders which, inter alia, are coram non-judice.
For all that has been discussed above, the writ petition is allowed. The impugned order dated 31.10.2003 (Annex-E) is set aside being without lawful authority and void. The result would be that the appeal/representation (Annex-F) shall be deemed to be pending. The same shall be considered by the competent Authority strictly in accordance with the provisions of the policy letter dated 13.12.1992 (Annex-H) after examining the concerned records more particularly the judgment of acquittal passed by this Court in Criminal Appeal No. 295/99 on 28.7.2003 (Annex-B). Thereafter, in case the competent Authority comes to the conclusion that the petitioner is entitled to be reinstated orders will be passed accordingly with all due benefits. In case the competent Authority comes to the conclusion that he cannot be reinstated, for reasons to be recorded in writing, then an order for administrative discharge of the petitioner shall be passed with all due benefits. The needful to be done within eight weeks of this judgment, a copy whereof shall be remitted to the respondents by the office immediately. No orders as to costs.
(W.I.B.) Petition allowed.
PLJ 2008 Lahore 685
Present: Hafiz Tariq Nasim, J.
LIAQAT ALI--Petitioner
versus
GOP etc.--Respondents
W.P. No. 9214 of 2007, decided on 12.3.2008.
Punjab Civil Servants Act, 1974 (VIII of 1974)--
----S. 16--Objection of maintainability--Withholding of emoluments and those too in violation of Section 16 of Punjab Civil Servants Act, 1974 in fact suffer from inherent vice. [P. 687] A
Administration of Justice--
----Principal object behind all legal formalities is to safeguard the paramount interest of justice--Legal precepts were devised in order to view to impart certainty, consistency and uniformity to the administration of justice and to secure same against arbitrariness, errors of individual judgment and malafides. [P. 687] B
1991 SCMR 135, ref.
Constitution of Pakistan, 1973--
----Arts. 189 & 190--Duty of Court--No Court or authority can deviate from the dictum laid down by Supreme Court rather it is the foremost duty of every Court/executive authority to follow and implement the same in letter and spirit--Petitions allowed.
[Pp. 687 & 688] A, B & C
2007 PLC (CS) 632, ref.
Malik Ahsan Mehmood, Advocate for Petitioner.
Mr. Naeem Masood, Assistant Advocate General Punjab with Parvez Mehmood, OSD (Litigation) for Respondents.
Date of hearing: 12.3.2008.
Order
Through this single judgment I propose to decide Writ Petitions No. 9215/2007 to 9219/2007 alongwith this petition, as common questions of facts and law involve.
Petitioners in all these petitions pray that respondents be directed to implement the judgment of the Punjab Service Tribunal dated 22.1.2004 in Appeals No. 1947/2003 to 1949/2003 as upheld by the Hon'ble Supreme Court of Pakistan vide judgment dated 23.1.2006 in Civil Appeals No. 1259-I/2004, 1286-I/2004 and 1287-I/2004 by granting the annual increment to the petitioners for the period during which they served as untrained PTC teachers i.e. from 2.6.1983 to 21.3.1989 and also by fixing the pay of the petitioners accordingly. Learned counsel for the petitioners submits that the petitioners were appointed as untrained PTC teachers in BS-7 in their respective schools on the recommendations of Department Selection Committee particularly keeping in view the qualification of a PTC teacher as matriculate plus certificate of PTC but at the time of selection they were only matriculate. However, with the passage of time all the petitioners obtained PTC qualification by undergoing a course successfully which resulted in the grant of certificates of PTC in their favour.
It is submitted by the learned counsel that the dispute has arisen in the present controversy is that all the petitioners during the period when they were untrained PTC teacher demanded annual increments but the same were refused with the remarks that untrained teachers are not entitled to annual increments for the period they served as untrained teachers. Aggrieved by this, the petitioners persuaded the departmental authorities but with no result. However, certain colleagues of the petitioners filed appeals before the Punjab Service Tribunal who vide its judgment dated 22.1.2004 held those appellants entitled for the increments claimed for and while deciding the appeals it was held by the Service Tribunal that any deviation from the law fixing the pay of the PTC teacher would amount to a big infraction and the specific provisions of Punjab Civil Servants Act which are applicable in the petitioners' case cannot be deviated in any manner because in Section 16 of the said Act the word `pay' used was interpreted as raising by periodical increments from minimum to a maximum, so in view of that there is no reason why the said dictum may not be followed in the present cases particularly in presence of a corresponding provision in Section 16 of the Punjab Civil Servants Act, 1974. This judgment was challenged before the Hon'ble Supreme Court and vide order dated 23.1.2006 the Apex Court dismissed the Government's civil petitions and confirmed the judgment of the Punjab Service Tribunal holding that the Government cannot go beyond the scope of Section 16 of the Punjab Civil Servants Act, 1974 by fixing pay to the PTC teachers, meaning thereby that the Apex Court once for all decided a question of law i.e. salary is to be fixed according to Section 16 of the Act of 1974 and no one can deviate from that.
The learned counsel further submits that he is before this Court only for the enforcement of settled law in cases of his clients.
The learned Assistant Advocate General, assisted by the departmental representative, opposed the writ petitions on a sole ground that there is a bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, in disposal of these cases by the High Court and as such the writ petitions are liable to be dismissed on this short ground.
Arguments heard. Available record perused.
The learned Assistant Advocate General after consulting the record could not controvert the judgment of Punjab Service Tribunal and its confirmation by the Hon'ble Supreme Court of Pakistan in identical cases of similarly placed employees. However, in respect of his objection of maintainability, suffice it to say that withholding of emoluments and those too in violation of Section 16 of the Punjab Civil Servants Act, 1974 in fact suffers from inherent vice.
It is well settled by now that "principal object behind all legal formalities is to safeguard the paramount interest of justice--legal precepts were devised in order to view to impart certainty, consistency and uniformity to the administration of justice and to secure same against arbitrariness, errors of individual judgment and malafides."
In support of this proposition, the reliance can be safely made on a reported judgment in the case of Mrs. Munawar Sani vs. Director Army Education (1991 SCMR 135). This case was related to a civil servant and the aggrieved civil servant approached the High Court for the redressal of grievance. The point of jurisdiction was raised even up to the level of Hon'ble Supreme Court and the same was resolved in the following terms:--
"Question whether she should approach the Civil Court or the Service Tribunal for this purpose was not very pertinent in the face of bound down obligation of the authorities to satisfy her claim themselves without the necessity of driving a needy litigant from pillar to post."
In another case reported as Administrator, District Council Larkana and other vs. Ghulab Khan and 5 others (2001 SCMR 1320) the objection of bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is repelled.
So far the claim of the petitioners is concerned, not only in CPLAs No. 1259 and others of 2004, the Hon'ble Supreme Court of Pakistan resolved the matter through order dated 23.1.2006 in favour of the PTC teachers but earlier in Civil Appeals No. 117, 118 and 595 to 613 of 2000, three Member Bench of the Hon'ble Supreme Court decided the same relying on different judgments and held that "if a civil servant is made to work against a post, he becomes entitled to the running pay scale of that post".
Apart from this, there is another aspect of the case that according to Articles 189 and 190 of the Constitution of Islamic Republic of Pakistan, 1973, no Court or authority can deviate from the dictum laid down by the Hon'ble Supreme Court of Pakistan rather it is the foremost duty of every Court/executive authority to follow and implement the same in letter and spirit and undisputedly in the present case a question of law was resolved once for all by the Hon'ble Supreme Court of Pakistan not only once but twice, hence the provisions of Articles 189 and 190 of the Constitution of Pakistan cannot be over looked in any manner which are reproduced as follows:--
"189. Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan.
All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court."
I can also take strength for resolving the present controversy from the law laid down by the Hon'ble Supreme Court of Pakistan in the case of Hameed Akhtar Niazi vs. Secretary Establishment Division (1996 SCMR 1185) and can safely hold that the benefits once extended in similar cases to the employees but of course on the directions of the Tribunal and the Apex Court does not call for being ignored in other similar situations/causes as held in Hameed Akhtar Niazi's case supra.
So far the proposition of Articles 189 and 190 of the Constitution of Islamic Republic of Pakistan, 1973 is concerned i.e. that the decisions of the Supreme Court are binding throughout Pakistan, reliance can be made on a judgment reported as Syed Nazar Abbas Jaffri vs. Secretary to Government of the Punjab and another (2007 PLC(C.S.) 632).
Keeping in view all the circumstances of the case and the law laid down by the Hon'ble Supreme Court of Pakistan, the writ petitions are allowed, the respondents are directed to pay the annual increments to the petitioners for the period during which they served as untrained PTC teachers and then fix their pay accordingly.
It is also directed that the arrears of the said period be released to the petitioners within a period of three months positively under intimation to the Deputy Registrar (Judicial) of this Court.
The writ petitions are allowed in the above terms.
(M.S.A.) Petitions allowed.
PLJ 2008 Lahore 689 (DB)
Present: Syed Asghar Haider & Hafiz Tariq Nasim, JJ.
MUHAMMAD YAHYA AKBAR--Appellant
versus
MUSLIM COMMERCIAL BANK LIBERTY MARKET BRANCH, LAHORE through its MANAGER and 6 others--Respondents
E.F.A. No. 85 of 2007, heard on 1.4.2008.
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)—
----Scope--Auction through sale of guaranter's property--Objection petition was dismissed by Banking Court--Assailed--Held: Satisfaction of the decree against a customer of a bank should be through the sale/auctioning of properties of the customer/principle debtor primarily if thereafter the decree is not satisfied, the properties of the guarantors be sold--Appeal dismissed. [P. 691] A
Sh. Azhar Salam, Advocate for Appellant.
Mr. Shahzib Masud, Advocate for Respondent No. 1.
Syed Haider Ali Shah, Advocate for Respondent No. 6.
Mr. Tasawar Hussain Shah, Advocate for Respondent No. 7.
Date of hearing: 1.4.2008.
Judgment
Hafiz Tariq Nasim, J.--The backdrop of this appeal is that a decree for a sum of Rs. 46,29,221.71 including mark up and costs were passed against the appellant as well as Respondents No. 2, 3 and 4 and in favour of Muslim Commercial Bank, Respondent No. 1 on 25.8.2005.
The appellant was a guarantor of Respondent No. 2, he mortgaged his property/Shop No. 4, Ground Floor, Imtiaz Plaza, Shahra-e-Quaid-e-Azam, Lahore, whereas Respondents No. 3 and 4 also mortgaged their property/Shop No. 25, Ground Floor, Gulberg Plaza Liberty Market, Lahore.
Respondent No. 1 initiated execution proceedings against the appellant and Respondents No. 2, 3 and 4.
Respondents No. 5 and 6, who were appointed as Court Auctioneers filed the schedule of auction including the properties belonging to the appellant and fixed 25.7.2006 for auction of both the properties. The appellant filed an objection petition before the Banking Court contending that the property belonging to the appellant be excluded from the auction schedule. However, the objection petition was dismissed vide order dated 14.7.2006.
The Court Auctioneers submitted auction report dated 25.2.2007 contending that the property belonging to Respondents No. 3 and 4 could not be auctioned but the property belonging to the appellant was auctioned for a sum of Rs. 100,25,000/- in favour of one Muhammad Tariq, who has deposited the 1/4th of the auction price at the spot. The appellant filed an objection petition against the auction dated 25.6.2006 but as the auction purchaser failed to deposit the remaining the 3/4th of the bid price within time so the learned Banking Court forfeited the 1/4th amount deposited by the auction purchaser, so the objection petition filed by the appellant became infructuous.
On 10.10.2006 the Executing Court ordered re-auctioning of the properties and to file fresh auction schedule. On 30.11.2006 the Court Auctioneers submitted auction report explaining that the property belonging to the Respondents No. 3 and 4 could not be auctioned due to non-participation of bidders. The property belonging to the appellant was auctioned in favour of Rizwan Ahmad Chaudhry, Respondent No. 7 for a bid of Rs.95,00,000/-.
The appellant filed an objection petition against the auction dated 27.11.2006 but the same was dismissed and auction of property belonging to the appellant in favour of Respondent No. 7 was confirmed through the impugned order dated 8.2.2007.
The learned counsel for the appellant argued the case at length, submits that the learned executing Court did not consider the important points raised, no issue was framed, no evidence was recorded, which has caused the serious prejudice to the appellant's case.
Further submits that the very inclusion of the appellant's property in the auction held on 27.11.2006 was illegal, particularly when the Respondents No. 3 and 4's property was available for auction and the decree could be satisfied if the property of Respondents No. 3 and 4, who are the actual borrowers was auctioned. Further submits that the appellant's properties' value is more than Rupees Two Crore and has been sold at a much lower value and that too without any notice to the appellant and without any advertisement in the newspapers.
The learned counsel for the Respondent No. 1 supported the impugned judgment on the ground that the decree was passed not only against the Respondents No. 3 and 4 rather the same was also passed against the present appellant and it is well a settled principle of law that the liability of guarantor is co-extensive with that of principle debtor.
Argument heard. Record perused.
During the argument the learned counsel for the appellant leveled certain allegations against the Court Auctioneers. Suffice it to say that before the learned Executing Court the correctness of averments made in the objection petition were denied and it is much clear from the record that the Court Auctioneers were present at the spot at the time of auction proceedings accompanied by the bank officials for the auction of properties. All possible attempts were made by the auctioneers for the sale of properties belonging to Respondents No. 3 and 4. However, no one participated in the auction of properties belonging to the Respondents No. 3 and 4. So far the auction of present appellant's property is concerned, at the time of auction the appellant was present at the spot with the Court Auctioneer as well as representatives of the bank, where the prospective bidder paid the surety amount of Rs. 1,00,000/- in presence of the appellant, the auction was conducted and the highest bid was accepted in his presence.
Rizwan Ahmad Chaudhary, Respondent No. 7 the successful bidder deposited 25% of the bid money at the spot and even the said bidder deposited the balance of 3/4th bid money in the Court within the stipulated time.
In our view the satisfaction of the decree against a customer of a Bank should be through the sale/auctioning of properties of the customer/principal debtor primarily if thereafter the decree is not satisfied, the properties of the guarantors be sold. However, in the present case, the properties belonging to Respondents No. 3 and 4, who are the borrowers were put up for auction by the Court Auctioneers but no one turned up for the auction of their properties. Therefore, property belonging to the appellant was put to auction, which is legal, as liability is co-extensive qua principal debtor and surety, thus there is no illegality on this count.
The Court Auctioneer took all reasonable steps for auctioning the properties belonging to Respondents No. 3 and 4 but no one participated in the auction of those properties as mentioned above, the Court Auctioneers were left with no other alternative but to sell the property of the appellant for the satisfaction of the decretal amount. As the Court Auctioneers tried their level best for the satisfaction of decree through the proposed auction of properties of principal debtor i.e. Respondents No. 3 and 4 and no one came forward to purchase the same, hence the Auctioneers were left with no option, except to sell the property of the guarantor, who had mortgaged it with the Bank for securing the loan in question. Thus no illegality was committed by the Court Auctioneers the impugned order of the learned Executing Court is therefor unexceptionable. Resultantly the appeal is dismissed.
(M.S.A.) Appeal dismissed.
PLJ 2008 Lahore 692
Present: Syed Hamid Ali Shah, J.
Dr. SHAGUFTA SHAHJEHAN DIRECTOR (E.P.A.)
PUNJAB--Petitioner
versus
GOVT. OF PUNJAB through Chief Secretary, Civil
Secretariat, Lahore and another--Respondents
W.P. No. 7490 of 2007, decided on 31.1.2008.
Constitution of Pakistan, 1973--
----Art. 199--Writ of quo warranto--Calling in question the appointment of respondent who was re-employed on contract for one year in relaxation of the Environmental Protection Department Service Rules, 1997 as the Director General, Environmental Protection Agency Punjab--Requisite qualification for the appointment of Director General, Environmental Protection Department Punjab in Environmental Science and Environmental Engineering with seven years experience in research of managing of projects concerning pollution control--Respondent possess neither--Requisite qualification nor the experience. [P. 695] A
Laches--
----Appointment of ineligible person and his holding public office, without requisite qualification, do not attract application of principles of laches to the case in hand. [P. 695] B
PLD 2003 SC 143.
Ch. Mushtaq Masood, Advocate for Petitioner.
Mr. Ali Akbar Qureshi, Advocate for Respondent No. 2.
Date of hearing: 23.1.2008.
Judgment
The present petition, in the nature of quo warranto, has been filed to call in question the appointment of Respondent No. 2, who vide Notification dated 30.06.2001, was re-employed on contract, for a period of one year, in relaxation of the Environmental Protection Department Service Rules, 1997 and also in violation of the provisions of Re-employment Policy of the Govt. of the Punjab, as the Director General, Environmental Protection Agency, Punjab, Lahore.
It is contended by learned counsel for the petitioner that the appointment of Respondent No. 2 as the Director General, Environmental Protection Agency, Punjab, was made in gross violation of the rules i.e. Environmental Protection Department, Punjab Service Rules, 1997, which provide that qualification for the post of Director General is PHD in Environmental Science and Environmental Engineering or equal qualification from a recognized University with seven years experience in research of management of projects, concerning pollution control relating to air, noise, water, solid and hazardous wastes. etc. Learned counsel went on to argue that Respondent No. 2 does not possesses the requisite qualification and he has served in the ministry of information. He lacks educational qualification as well as requisite experience. While referring to Section 4 of the Punjab Civil Servants Act. 1974, it is contended that appointment in the service of the province is to be made in accordance with the prescribed manner. The manner prescribed by law has not been followed in the appointment of Respondent No. 2 Learned counsel submitted that the impugned appointment of Respondent No. 2 has been made ignoring Rule 3(3) of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974. Respondent No. 2 being M.A. (Economics), L.L.B., does not possess any education concerning Environmental Science or Environmental Engineering, while his service is not concerning pollution control relating to air, noise, water, solid and hazardous wastes.
It is contended that as against Respondent No. 2, the petitioner possesses Ph.D. degree, which was awarded to her in the year 1991. She has held various positions in the relevant field of Environmental Science and Environmental Engineering. She has joined trainings in the relevant field within the country and abroad. Her research papers and project reports are well recognized. At present she is looking after various projects including Ambient Air Surveillance Programme in big cities of Punjab, Task Force on Sub Soil Water monitoring. Feasibility Study for Establishment of Multan Tannery Zone, Monitoring of Industrial Gaseous Emission in Punjab and Environmental Education and Communication Programme. Learned counsel has referred to the cases of "Maqsood-ul-Hassan Vs. Khadim" (PLD 1963 SC 203), "University Vs. CD Government" (AIR 1965 SC 491), "Atta Muhammad Vs. Settlement Department" (PLD 1971 SC 61), "Muakhan Vs. M. Sultan" (PLD 1974 SC 228), "Dr. Afzal Vs. University" (1999 PLC (CS) 60), "Muhammad Shafi Vs. Secretary" (2000 YLR 206), "Muhammad Nasim Vs. Province" (2000 SCMR 1720), "Abdul Bashir Vs. Government" (PLD 2001 (CS) 771), "Muhammad Azhar Vs. Tariq Mahmood" (2002 PLC (CS) 57), "Muhammad Akram Vs. Province" (2002 PLC (CS) 1037) & "Muhammad Azam Vs Government" (2004 SCMR 1299) to contend that Respondent No. 2 does not possess requisite qualification and as such is usurping the public office. His appointment being void ab initio, is required under the law to be declared illegal.
Learned counsel for Respondent No. 2, on the other hand, has submitted that the petition is barred by laches. Respondent No. 2 was appointed as the Director General on 24.06.2006 to 14.06.2007 and second extension was accorded to him from 30.06.2007 to 30.06.2008. His first term was never challenged by any one and as such, at this stage, when Respondent No. 2 is completing his second term, instant petition is not competent. Learned counsel has referred to the cases of "Syed Ahmad Ali Vs. Ch. Amir Afzal (Rtd.) Chief Engineer, Public Works Department/Ex-Officio Secretary Planning and Development, Azad Jammu and Kashmir Government Mirpur and others" (PLD 2006 SC AJK 69) & "Muhammad Nawaz Khan, Assistant, T & T, Directorate General, Islamabad and another Vs Muhammad Ijaz Rashid, Assistant T & T Directorate General, Islamabad and others" (PLD 1993 SC 10) and has submitted that the writ petition, under reference, is required, under the law, to be dismissed on the question of laches. Learned counsel has submitted that Respondent No. 2, possesses 35 years of experience on the administrative side and is quite capable of managing the task, against which his appointment has been made. Learned counsel has submitted that Punjab Public Service Commission advertised the post and in response thereto various applicants submitted their applications including the petitioner, but none could qualify. Since no person having requisite qualification and experience was found, therefore, the appointment of Respondent No. 2 was made.
Heard learned counsel for the parties and record perused.
The requisite qualification for the appointment of Director General, Environmental Protection Punjab, is Ph.D. in Environmental Science and Environmental Engineering, with seven years experience in research of managing of projects concerning pollution control etc. Respondent No. 2 possesses neither the requisite qualification nor the experience. His appointment was made in relaxation of Environmental Protection Department, Punjab Service Rules, 1997 and the provisions of Re-employment Policy of Govt. of the Punjab.
The Honourable Supreme Court of Pakistan, in the case of "Dr. Muhammad Hussain Vs Principal Ayub Medical College and another" (PLD 2003 SC 143), has held that appointment to a particular post cannot be made in violation of prevalent rules and regulations. The apex Court did not approve the idea of allowing to continue, in the job, a person, who did not possess the requisite qualification. Relevant para of the judgment is reproduced:
"The degree of M.Sc. can by no stretch of imagination be equated with M.B.B.S. or equivalent thereto irrespective of the fact when the petitioner was appointed or regulation amended. A non-qualified person cannot be appointed as professor as it would not be in the interest of students and institution. The appointment or promotion to a particular post cannot be made in violation of the prevalent rules and regulations. The previous appointment if any made in violation of regulation cannot be made a ground to continue such illegal practice. We cannot endorse the unique idea and novel concept as put forth by Sheikh Mehmood Ahmad, learned Advocate Supreme Court on behalf of petitioner that since no other applicant is available the petitioner may be appointed as Professor for the simple reason that he does not possess the requisite qualifications. "
PLJ 2008 Lahore 696
Present: Syed Asghar Haider, J.
NAZAR MUHAMMAD--Petitioner
versus
AYESHA BIBI (WIDOW) and 3 others--Respondents
Civil Revision No. 418 of 2007, decided on 15.1.2008.
Muhammadan Law--
----Inheritance--Childless widow--Fiqh Jafria--Entitlement for--Precise proposition whether under the Shia Fiqa a childless widow is not entitled to inheritance in the lands etc. of the deceased--Held: Ouster of a childless widow is only from the landed property and not from the other moveable assets of the deceased husband, in the Shia Fiqh--Case remanded. [P. 699] A
Sheikh Naveed Shahryar, Advocate for Petitioner.
Exparte for Respondent.
Date of hearing: 5.12.2007.
Judgment
The Respondent No. 1 filed a suit for declaration pleading that she is widow of deceased Muhammad Khan, the owner of disputed land, he was a Sunni Muslim by faith, and, therefore, she is entitled to inheritance in his estate. The mutations, whereby she was deprived of inheritance in his estate, on basis of being a childless widow, on the presumption of deceased being a Shia Muslim be, therefore, annulled.
The petitioner/defendant filed written statement, inter alia pleading that Muhammad Khan (his father), was a Shia Muslim, the Respondent No. 1, being a childless widow was not therefore, entitled to inheritance, the impugned mutations thus are in consonance with law, and therefore, unexceptionable. Of the divergent pleadings of the parties, issues were framed and they were put to trial. The trial Court dismissed the suit, aggrieved thereof the Respondent No. 1 filed appeal, which was allowed, hence the present petition, by the defendant/petitioner.
Contesting respondent despite notice did not enter appearance, therefore, she was proceeded against ex-parte on 11.09.2007.
The learned counsel for the petitioner contended that under Fiqa Jafria a childless widow is not entitled to inheritance in the estate of the husband, in the present matter there is preponderance of evidence that deceased Muhammad Khan was a Shia, he specifically adverted to an inquiry conducted by the concerned Magistrate, wherein scores of people appeared and supported the version of the petitioner/defendant, that the deceased was a Shia and professed Fiqa Jafria. The defendant was also able to prove his contentions and assertions by producing quality evidence, his witnesses fully supported the fact that late Muhammad Khan deceased was a Shia, while the evidence produced by the plaintiff is discrepant and the witnesses produced by her, are not residents of the said locality. They also are interested because they have a paramount interest with the plaintiff/respondent being her relatives. He laid much emphasis on the fact that the defendant/petitioner produced all residents of the village Salima while the plaintiff produced all witnesses of Mauza Khem Khurd where the deceased was not resident, thus their evidence is not credible. To fortify his contentions, he relied on the following precedents:--
(i) "Mst. Sharif Bibi versus Munir Hussain Shah and 7 others" (PLJ 2001 Lahore 284);
(ii) "Mst. Aisha Bibi (deceased) through Legal Heirs and others versus Muhammad Malik and others" (PLJ 2003 Lahore 995).
(iii) "Bhojraj versus Sita Ram and others" (AIR 1936 Privy Council 60);
(iv) "Malik Khan Muhammad versus Haji Sikandar Khan" (1989 CLC 2412);
(v) "Mahmood-ul-Hassan deceased through legal heirs and others versus Yateem Bibi and others" (PLJ 2004 Lahore 1177) and
(vi) "Syed Lal Hussain Shah versus Mst. Robina Shaheen and another" (PLD 2000 SC (AJK) 25);
I have heard the learned counsel for the petitioner, perused the impugned judgment and decree and also the judgment and decree of the trial Court.
Before dilating on the facts, the material evidence produced by the parties, apprising and deciphering it, it is essential to reproduce the issues framed by the trial Court:--
Whether the plaintiff has got no cause of action? OPD-4.
Whether the plaintiff is estopped by her words and conduct from bringing the instant suit? OPD-4.
Whether the suit is not maintainable in its present form? OPD-4.
Whether the plaintiff has not come to the Court with clean hands, if so, its effect? OPD-4.
Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD-4.
Whether the defendant is entitled to any special costs u/S. 35-A of CPC? OPD-4.
Whether the suit is bad for mis-joinder of Defendants No. 1 to 3 ? OPD-4.
Whether the suit is time barred? OPD-4.
Whether the plaintiff being the widow of Muhammad Khan is entitled to get her share of inheritance from the property of the deceased fully described in the head note of the plaint? OPP
Whether the deceased Muhammad Khan belonged to Shia Sect? OPD-4.
Whether the deceased Muhammad Khan belonged to Sunni Sect? OPP
Whether the plaintiff is the owner of 1/8 share in the property of the deceased Muhammad Khan being his widow? OPP
Whether the Mutation No. 1462 dated 25.11.99 and Mutation No. 846 dated 26.11.999 in favour of Defendant No. 4 are illegally, against law and facts, mala fide and result of collusion with Defendants No. 2 and 3 and as such they are liable to be set aside? OPP.
Relief.
Issues No. 9, 10, 11 and 12 are of paramount importance as they relate to the Fiqa of deceased Muhammad Khan, and also, whether the plaintiff being widow is entitled to inheritance in his estate. Issue No. 9 reads: "Whether the plaintiff being the widow of Muhammad Khan is entitled to get her share of inheritance from the property of the deceased fully described in the head note of the plaint?" while Issue No. 12 reads: "Whether the plaintiff is the owner of 1/8 share in the property of the deceased Muhammad Khan being his widow?"
The contents of the plaint reflect that the plaintiff had claimed share not only in the agricultural land of the deceased Muhammad Khan located in village Salima and village Mirakh, but also in the other moveable assets of the deceased including his tube-well, dera, agricultural utensils, buffalos, etc. The defendant while filing written statement categorically pleaded that deceased Muhammad Khan was a Shia Muslim and, therefore, the plaintiff was not entitled to inheritance being a childless widow in anything in his estate. The precise proposition whether under the Shia Fiqa a childless widow is not entitled to inheritance in the lands etc of the deceased has been interpreted by eminent jurists. Tayab Jis Muhammedan Law IIIrd Edition page 908 states that "But when she has no child, or when a child was born to her, but died before the demise of her husband, then she is entitled to a fourth share in the personal estate only, including household effects, trees, buildings, etc. She takes no interest in the landed property."" D.F.Mulla in Principles of Muhammadan Law Chapter VIII states "A childless widow takes no share in her husband's lands, but she is entitled to her one-fourth share in the value of trees and buildings standing thereon, as well as in his moveable property including debts due to him though they may be secured by a usufructuary mortgage or otherwise". Syed Ameer Ali in Muhommedan Law (Chapter VI, page 1112) states "But when she has no child, or when a child was born to her, but died before the demise of her husband, then she is entitled to a fourth share in the personal estate only, including household effects, trees, buildings, etc. She takes no interest in the landed property." Therefore, it is clear the ouster of a childless widow is only from the landed property and not from the other moveable assets of the deceased husband, in the Shia Fiqh. A bare reading of the plaint reflects that the plaintiff had claimed share in entirety from the estate of the deceased, while defendant had denied the claim in entirety. The trial Court proceeded to frame Issues No. 9, 10, 11 and 12 in this context after examining the contents of the plaint, wherein a specific claim was made qua the tube-well/peter engine, dera, farm, animals etc, thus the word property was used intentionally in Issue No. 9.
The parties led evidence on issues framed by the trial Court, although Issue No. 9, contained the word "property" which obviously covered both the moveable and immovable assets of the deceased but the trial Court narrowed down its scope and proceeded to examine and appraise the evidence placed before it on the erroneous view that the "property" was limited only to the "lands" of the deceased and thus the suit of the plaintiff was dismissed, without addressing the correct legal proposition as regards the rights of a childless widow in Shia Law. Unfortunately the lower appellate Court on appeal though took cognizance of this error and rectified it too, to this extent, but it also transgressed its authority and jurisdiction and did not adhere to the correct legal proposition as enunciated in Fiqh Jafria qua a childless widow, it granted her inheritance in the landed property, which is not only against the settled principles of Shia Law but also is violative of the law as interpreted by the Hon'ble Supreme Court of Pakistan in "Syed Muhammad Munir versus Abu Nasar, Member (Judicial) Board of Revenue, Punjab, Lahore and 7 others" (PLD 1972 SC 346), therefore, it, too, proceeded on incorrect premises. Thus, both Courts exercised jurisdiction not vested in them and committed a material illegality. Resultantly both judgments are not tenable in law.
Therefore, this petition is allowed, the impugned judgment and decree as well as the judgment and decree of the trial Court are set aside. The proceedings are remanded to the trial Court to decide the matter afresh, keeping in view the principles of inheritance as enunciated in Fiqh Jafria qua the rights of a childless widow, on basis of evidence already on record, and also permitting parties, if they so desire, to produce any further evidence to augment the proposition laid. No order as to costs.
(M.S.A.) Case remanded.
PLJ 2008 Lahore 700 (DB)
Present: Khurshid Anwar Bhinder &
Muhammad Muzammal Khan, JJ.
Syed ASIF AKHTAR HASHMI--Petitioner
versus
MALIK MUHAMMAD RIAZ and 3 others--Respondents
W.P. No. 1643 of 2008, decided on 26.2.2008.
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 14(5)--Objection on the degree should have been raised at the time of scrutiny of the nomination papers as enunciated by Section 14 of the Representation of the People Act, 1976 and u/S. 14(5) of the aforesaid Act, a candidate may prefer an appeal against the decision of the returning officer rejecting or, as the case may be, accepting the nomination paper of the candidate to the tribunal constituted for the constituency to which the nomination relates--Petition dismissed in limine. [P. 702] A
Mr. Muhammad Haroon Mumtaz, Advocate for Petitioner.
Date of hearing: 26.2.2008.
Order
The grievance voiced by the petitioner in the present constitutional petition is that Respondent No. 1 be declared disqualified from contesting the general election and becoming a member of the National Assembly, the candidature and unofficial election of Respondent No. 1 be declared illegal, unlawful, null, void and of no legal effect as Respondent No. 1 does not possess the requisite qualification as required by Section 99(1)(cc) of the Representation of the People Act, 1976 (Act No. LXXXV of 1976).
Briefly the facts, necessary for the disposal of this petition are that petitioner and Respondent No. 1 alongwith other candidates contested the general election held on 18.2.2008 from NA-118-Lahore-I. Respondent No. 1, while filing his nomination papers, filed a bogus result card bearing Serial No. 9698 issued by the University of Azad Jammu and Kashmir in favour of Muhammad Riaz son of Malik Abdul Rahim Roll No. 13640 for BA/BSc., Annual, 2006. It is asserted that according to the unofficial results for the constituency, Respondent No. 1, despite his patent disability has been declared as the returned candidate. The petitioner filed a complaint before the Controller of Examinations, University of Azad Jammu and Kashmir challenging the authenticity of the result card issued in favour of Respondent No. 1 by the said University. The Controller of Examinations of the said University vide Letter No. 1796/CE/2008 dated 23.2.2008, denied the result card issued in favour of Respondent No. 1. On the basis of the aforesaid letter, issued by the Controller of Examinations, University of Azad Jammu and Kashmir, the petitioner has prayed in this constitutional petition that since Respondent No. 1 was not qualified to be elected as Member National Assembly, therefore, he be declared disqualified from contesting the general election and becoming a member of the National Assembly, the acceptance of the nomination papers of Respondent No. 1 be declared illegal, unlawful, null, void and of no legal effect, the candidature and unofficial election of Respondent No. 1 be declared illegal, unlawful, null, void and of no legal effect, respondent 1 & 2 be restrained from issuing the official notification of election of Respondent No. 1 and the petitioner may be declared successful candidate from NA-118-Lahore-I and Respondent No. 2 be directed to issue the official notification to this effect.
We have heard the learned counsel for the petitioner and have also perused the available record. The petitioner has challenged the B.A. degree of Respondent No. 1, who is a returned candidate, to be a fake and fictitious. He has referred to a letter issued by the Controller of Examinations, University of Azad Jammu and Kashmir in response to the complaint lodged by the petitioner to determine the authenticity of the result card at Serial No. 9698 issued in favour of Muhammad Riaz under Roll No. 13640 of B.A/B.Sc. Annual Examination, 2006. The Controller of Examinations of the aforesaid University has denied the authenticity of the result card on the following reasons:--
"1. Despite our request, the Board of Intermediate and Secondary Education, Gujranwala has not yet certified the authenticity of the intermediate certificate of the candidate.
The Roll No. Slip submitted by the candidate in examination hall bears different photograph vis-a-vis admission form of this office.
Various discrepancies have been found in the record of the above mentioned candidate available in the examination department of this university.
Hence in light of the above mentioned facts the Result Card Serial No. 9698 issued in favour of Mr. Muhammad Riaz, Roll No. 13640 of B.A/B.Sc. Annual Examination 2006 is hereby denied."
We have seen the verification letter issued by the Controller of Examinations, University of Azad Jammu and Kashmir which does not bear any official stamp. This verification letter requires to be proved through evidence which exercise cannot be undertaken in the constitutional jurisdiction. It is settled law that this Court can, in exercise of its jurisdiction vested under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, neither enter into factually controversies nor decide disputed questions of facts.
Even otherwise the objection on the degree of Respondent No. 1 should have been raised at the time of scrutiny of the nomination papers as enunciated by Section 14 of the Representation of the People Act, 1976 and under sub-section (5) of Section 14 of the aforesaid Act, a candidate may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination paper of the candidate to the Tribunal constituted for the constituency to which the nomination relates. The petitioner having failed to raise objection on the nomination of Respondent No. 1 at the time of scrutiny of the nomination papers cannot agitate the same in this constitutional petition because the letter issued by the Controller of Examinations, University of Azad Jammu and Kashmir, on which the entire case of the petitioner is based, has to be proved by the petitioner by adducing evidence which exercise cannot be undertaken in these proceedings under the constitutional jurisdiction. The petitioner may seek his remedy at the proper available forum.
For what has been discussed above, this petition has no merit and the same is hereby dismissed in limine.
(M.S.A.) Petition dismissed.
PLJ 2008 Lahore 703
Present: Tariq Shamim, J.
MUHAMMAD SADIQ and another--Petitioners
versus
CAPITAL CITY POLICE OFFICER, LAHORE
and 4 others--Respondents
W.P. No. 9689 of 2007, heard on 21.11.2007.
Constitution of Pakistan, 1973--
----Art. 199--Quashment of FIR--Mere pendency of civil suit between the parties cannot be made a basis for stalling the process emanating from the FIR as civil as well as criminal proceedings can continue side by side--Matter essentially pertains to disputed questions of fact as the allegations levelled by the complainant have been denied by the petitioners--Therefore, the same can neither be agitated before High Court nor can the same be resolved in exercise of constitutional jurisdiction--Quashment of FIR would amount to short circuiting the normal procedure of law as provided under criminal procedure code and police rules--Petition dismissed. [P. 704] A & B
2006 SCMR 512, 2000 SCMR 1619 and 2006 SCMR 276, rel.
Mr. Shahid Zaheer Syed, Advocate for Petitioner.
Pir. S.A. Rasheed, Advocate for Respondents No. 1 & 2.
Mr. Amjad Ali, Chatha, AAG with Nasim Sawar, SI for Respondents No. 3 to 5.
Date of hearing: 21.11.2007.
Judgment
The petitioners seek quashing of case F.I.R, No. 899 of 2007 dated 26.08.2007 for offence under Sections 420. 467, 468 and 471 P.P.C. registered at Police Station Islampura, Lahore, inter alia on the grounds that the petitioners are owners of the land in question, therefore, there was no necessity for the petitioners to have prepared a bogus document; that the matter is pending before the Civil Court which is fully competent to decide the dispute between the parties; that the F.I.R. had not been competently lodged as Jamabandi in question had been appended with the civil suit filed by the petitioners and in such a situation it is only the Civil Court which is competent to direct registration of a criminal case and that the allegations levelled in the F.I.R. are totally false and fabricated.
The learned Assistant Advocate General as well as the learned counsel for Respondents No. 3 to 5 has contended that forged was committed by the petitioners much prior to the filing of the civil suit and, therefore, the provisions of Sections 195 and 476 Cr.P.C. are not applicable to the facts of the case; that the concerned Tehsildar conducted an inquiry in which he found that the petitioners did not own any land in the area and Jamabandi in question was false and fabricated; that the matter entails factual controversy which could not be agitated through a writ petition; that the suit in which the petitioners had obtained stay order from the learned Civil Court on the basis of the documents in question had been dismissed and that the petitioners despite a specific direction given by this Court have failed to join the investigation.
I have heard the learned counsel and gone through the record.
Serious allegations have been levelled against the petitioners of preparing Fard Malkiat of property in respect of which they had no proprietary rights. The Fard jamabandi does not even relate to Khasra No. 2030 but in fact, pertains to another land in the area. On inquiry conducted by the Tehsildar, a report was submitted by the Halqa Patwari which was concurred with by the Tehsildar in which it was revealed that the petitioners did not own any land in the area and that Fard Jamabandi had been forged and fabricated by the petitioners. The argument of the learned counsel that since Fard Jamabandi had been appended with the civil suit filed by the petitioners and, therefore, it was only the Civil Court which could order registration of a criminal case is totally unfounded as, according to the record, the Fard Jamabandi was prepared much before the civil suit was filed. I agree with the arguments advanced by the learned counsel for the respondents that in the given facts and circumstances of the case the applicability of Sections 476 and 195 Cr.P.C. is doubtful. Further, mere pendency of civil suit between the parties cannot be made a basis for stalling the process emanating from the F.I.R. as civil as well as criminal proceedings can continue side by side as has been held by the Hon'ble Supreme Court of Pakistan in the cases of Rafique Bibi v. Muhammad Sharif and others (2006 SCMR 512) and M. Aslam Zaheer v. Shah Muhammad (2000 SCMR 1619). The matter essentially pertains to disputed questions of fact as the allegations levelled by the complainant have been denied by the petitioners. Therefore, the same can neither be agitated before this Court nor can the same be resolved in exercise of constitutional jurisdiction. The police officer present in the Court with record has categorically stated that the petitioners have not joined the investigation. It may be pointed out that the petitioners had been specifically directed by this Court to join the investigation which is apparent from the order dated 13.11.2007, thus they have willfully failed to comply with the order and on account of their conduct no relief can be granted in equity. Since the investigation has not been finalized, therefore quashing of the FIR. at this stage would amount to stilling the prosecution in its infancy. Further, the Hon'ble Supreme Court of Pakistan in the case of Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276) has deprecated the quashing of F.I.R. and has held that quashing of F.I.R. would amount to short circuiting the normal procedure of law as provided under Criminal Procedure Code and Police Rules.
For what has been stated above, this petition being without any merit is dismissed.
(M.S.A.) Petition dismissed.
PLJ 2008 Lahore 705
Present: Maulvi Anwar-ul-Haq, J.
FIRST CAPITAL EQUITIES LTD., LAHORE--Appellant
versus
Mrs. ISHRAT SALEEM--Respondent
S.A.O. 75 of 2007, heard on 18.1.2008.
Punjab Urban Rent Restriction Ordinance, 1959 (VI of 1959)—
----S. 13--Civil Procedure Code, (V of 1908), O.XIX--Ejectment petition--Dismissed by rent controller--Order for ejectment was passed by First Appellate Court--Second appeal--Held: No procedure is prescribed in the matter of ejectment petition under the Punjab Urban Rent Restriction Ordinance, 1959 under Order 19, CPC evidence by affidavits is permissible subject to the option of the opposite party to cross-examine the witnesses--Rent Controller had, therefore, erred in law while refusing to read the evidence in the form of affidavits, as the respondent had complied with directive of the Supreme Court and had made her witnesses present--SAO allowed.
[P. 707] A
Mr. Ali Asim Syed, Advocate for Appellant.
Mr. Muhammad Iqbal Akhtar, Advocate for Respondent.
Date of hearing: 18.1.2008.
Judgment
On 4.6.2006 the respondent filed an application for ejectment of the appellant from the building located in Lahore urban area and described in the ejectment petition. The ejectment petition was sought on the ground of default in payment of rent w.e.f., 14.3.2004. According to the petition the rate of rent with effect from said date was Rs. 93,500/-per month. The bonafide need for personal use and occupation of son of the respondent was also pleaded. Following issues were framed by the learned Rent Controller on 4.11.2004:--
Whether the respondent is willful defaulter in payment of rent, if so for what period and for what amount? OPA
Whether the disputed premises is required in bonafide by the petitioner for her personal need? OPA
Relief.
The case was adjourned to 8.12.2004. The witnesses of the respondents were present and their affidavits were filed. The case was adjourned for cross examination for 8.1.2005. On this date the witnesses were present but the case was adjourned on joint request to 27.1.2001. On this date again witnesses were present but an adjournment was sought by the appellant and the case was adjourned to 23.2.2005 subject to cost of Rs. 500/- with warning that this will be the last opportunity. On 23.2.2005 the witnesses were present. However, the appellant again made a request for adjournment it was disallowed and right of cross-examination was closed. The documentary evidence was recorded on 10.5.2005. I may note that a document which was a power of attorney Ex. A1 was produced by attorney of the respondent on oath. The request was made and he was cross-examined by the appellant. A witness for appellant was also examined by tendering of affidavit and the cross-examination. The remaining evidence was closed on 3.1.2006. Vide order dated 5.5.2006 learned Rent Controller answered both the issues against the respondent and dismissed the ejectment petition. A first appeal filed by the respondent has been allowed by a learned Additional District Judge, Lahore, on 10.5.2007 who has reversed findings on both issues and passed an ejectment order.
Learned counsel for the appellant contends that the impugned order is against law inasmuch as although it has been observed that the finding on Issue No. 1 pertaining to the default is reversed yet no reasons have been stated as to how the appellant is guilty of default in paying or tendering rent. In the matter of bonafide personal requirement he urges that neither the learned Rent Controller had recorded any finding nor the learned Additional District Judge has said a word as to how the said issue stands proved. Learned counsel for the respondent has made a clean breast of the matter. He concedes that the rent had been regularly paid or tendered. As to the matter of bona fide personal requirement he states that the learned Additional District Judge ought to have decided the matter on the basis of evidence on record. At this stage learned counsel for the appellant rejoins to contend that the right of cross-examination was illegally closed and that affidavits cannot be read into the evidence.
I have gone through the records of the learned lower Courts with the assistance of the learned counsel for the parties. I have already reproduced above the entire proceedings, which took place before the learned Rent Controller, and as noted by me above, the affidavits were duly filed and the witnesses were present in Court on all said dates of hearing but they were not cross examined. Not a single reason is forthcoming as to why the witnesses were not cross-examined when the respondent was producing her witnesses on every date, so fixed for the purposes. No procedure is prescribed in the matter of ejectment petition under the Punjab Urban Rent Restriction Ordinance, 1959. Under Order 19 CPC evidence by affidavits is permissible subject to the option of the opposite party to cross-examine the witnesses. In the case in hand the learned Rent Controller proceeded in the manner ordained by the Hon'ble Supreme Court in the case of Barkat Ali v. Muhammad Ehsan and another (NLR 2000 Civil (SC) 282). The learned Rent Controller had, therefore, erred in law while refusing to read the said evidence in the form of affidavits, as the respondent had complied with directive of the Hon'ble Supreme Court and had made her witnesses available.
However, I do agree with the learned counsel for the appellant that whereas the learned Rent Controller had not stated a word as to why he is answering the issue pertaining to personal requirement against the respondent. The same is case with the learned Additional District Judge while answering issue in favour of the respondent. The matter of default has already been conceded. Only objection is that before depositing rent in Court, the appellant ought to have tendered the rent to the landlady. This objection, however, has no force, as Section 13 of the said Ordinance, 1959 recognizes deposit with the learned Rent Controller as valid tender of rent. I, therefore, affirm finding of the learned Rent Controller on Issue No. 1 pertaining to default. So far as Issue No. 2 pertaining to bona fide personal need is concerned, it does require a speaking finding by the learned First Appellate Court in the light of evidence available on record SAO is accordingly allowed. The result would be that the first appeal filed by the respondent lady shall be deemed to be pending. The parties shall appear before the learned District Judge, Lahore, on 4.3.2008. The records shall also be immediately remitted to the learned District Judge. The learned District Judge shall himself proceed to decide the first appeal or to entrust it to a learned Additional District Judge, who shall decide the appeal after hearing the parties and examining the evidence available on record. No order as to costs. A copy of this judgment be also remitted to the learned District Judge.
(M.S.A.) SAO allowed.
PLJ 2008 Lahore 708
Present: Kh. Farooq Saeed, J.
SAUDI PAK KALABAGH LIVE STOCK COMPANY LTD. through DIRECTOR and 2 others--Petitioners
versus
JUDGE BANKING COURT NO. II, LAHORE and another--Respondents
W.P. No. 12454 of 2004, decided on 20.2.2008.
Financial Institutions (Recovery of Finances) Ordinance, 2001--
----Ss. 5, 7(6) & 12--Jurisdiction & transfer of cases--Section 5 and 7 of the Ordinance of 2001 under discussion are to be read together--None of the provisions are to be read and interpreted in isolation being a part of the sequence in the law--Jurisdiction has been assigned by the law and it is subsequently to be explained by the Federal Government in respect of territory--Role of High Court shall come after and it may transfer a the jurisdiction of one Court to another after the same has come to place as per original directions of the Federal Government--Petition dismissed in limine. [P. 711] A
Mr. Shahid Ikram Siddiqui, Advocate for Petitioners.
Mian Nasir Mehmood, Advocate for Respondents.
Date of hearing: 20.2.2008.
Order
The petitioner in this case is a private limited company having its head office at Islamabad, The petition is against an ex-parte decree passed on 25.6.1993 against which an application under Section 12 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 was filed on 20.1.2004 for setting aside the said ex-parte judgment and decree dated 26.6.1993. The respondent found that by virtue of Section 7(6) of the Ordinance, 2001, the jurisdiction in the said case was no more available with him, hence he transferred the application to the Banking Court, Rawalpindi for appropriate decision in accordance with law.
This writ petition has been filed on the ground that the Respondent No. 1 has misinterpreted Section 7(6) for the reasons that this case was not pending at the time of promulgation of the Financial Institutions (Recovery of Finances) Ordinance, 2001. In this case the matter had been disposed of by the predecessor of Respondent No. 1 under the Act of 1984. The matter, therefore, was not pending in terms of Section 7(6). Furthermore the Respondent No. 1 had no jurisdiction to transfer the case. In the opinion, of the petitioner it is the Section 5(3) of the Ordinance of 2001 which is applicable as the same provides for the jurisdiction to transfer the case from one Court to another if it is in the interest of justice and for the convenience of the parties or the witnesses, He, therefore, urged that the writ petition should be admitted and the Respondent No. 1 be advised to dispose of the application on merits.
The respondent, however, reiterated that the petitioner is only using the delaying tactics and he has already availed almost four years through filing this writ petition. Even otherwise he said that the Ordinance of 2001 was introduced in super-session to all earlier Ordinances, Acts and such other laws, hence they were not in field on the day of promulgation of the Ordinance of 2001. Regarding judgments referred by the petitioner in terms of Muhammad Rezzanullah Khan Vs. Abdul Khayer and others" (PLD 1956 Dacca 285) and "Messrs Sialkot Dairies Ltd. and 8 others Vs. Agricultural Development Bank of Pakistan through Manager, A.D.B.P and 3 others" (2003 C.L.D 67) he said that both are not direct on the issue. The power of transfer of jurisdiction for the convenience of the parties concerned, by undoubtedly with the High Court but that also does not restrict the original jurisdiction provided under the law itself. The Ordinance 2001 has repealed the earlier Act of 1997 and subject to the provisions of General Clauses Act Section 6 has taken place respect of all the proceedings. On the day when this C.M., was filed, the jurisdiction of the case had already been transferred as the execution of the decree was in the field. Thus on one hand the proceedings practically were still pending while on the other hand legislature itself assigned jurisdiction on the basis of the location of the parties concerned. This was for the obvious reason that prior to the said Ordinance Banking Courts were available at few places of Punjab. It was for the convenience of the parties in such suits that new Banking Courts were placed at various parts of the province of Punjab. In view of assignment of specific territorial jurisdiction through the new law to various parties in suits, no exception was required.
Learned counsel for the petitioner insisted that Section 7(6) should be totally ignored and the provision of Section 5(3) should be considered as valid and applicable in this case. He, however, has totally ignored that Section 5(1) & (2) has provided the power to the Federal Government to establish through notification in official gazette the Banking Courts and appoint judge or judges and specific territorial limits with which each, of the Banking Court shall exercise. Besides the Federal Government also has the power to define the territorial jurisdiction of each of the Court. This is in continuation whereof that the power of banking Courts have been defined in Section 7. The same starts with the language `subject to the provision of this Ordinance', which obviously means that all other provisions of this Ordinance are to be read alongwith this provision. In its sub-section (6) which has been referred by the petitioner, it clearly defines that all proceedings pending in any banking Court constituted under any Banking Company law of Pakistan shall stand transferred to or be deemed to be transferred to the banking Courts having jurisdiction under this Ordinance. The language of law leaves no doubt as to the assignment of jurisdiction and an automatic transfer of the cases in which proceedings are pending to the area of jurisdiction assigned by the Federal Government.
The provision of law speaks as follows:--
(6) "All proceedings pending in any Banking Court constituted under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (XV of 1997) including suits for recovery of "loans" as defined under that Act shall stand transferred to, or be deemed to be transferred, to, and heard and disposed of by, the Banking Court having jurisdiction under this Ordinance. On transfer of proceedings under this sub-section, the parties shall appear before the Banking Court concerned on the date previously fixed.
(7) In respect of proceedings transferred to a Banking Court under sub-section (6) the Banking Court shall proceed from the stage which the proceedings had reached immediately prior to the transfer and shall not be bound to recall and re-hear any witness and may act on the evidence already recorded or produced before the Court from which the proceedings were transferred".
Above provision, of law is clear and it applies on all proceeding including on suits of recovery of loan which are pending in any Banking Court. In the presence of this language it shall be naive to quote the provision of Section 5(3). This Court while interpreting the above language of law is guided by the golden rule of interpretation which has the approval of the Courts in Pakistan. The said rule in the language of J. Parke B in Grey Vs Pearson (1987) 6 H.Z Cas 61 which is probably most commonly cited today, speaks as follows:--
"I have been long and deeply impressed with the wisdom of the rule, now I believe, universally adopted, at least in the Courts of law in Westminster Hall, that in construing wills and indeed, statute, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency but no farther".
(M.S.A.) Petition dismissed.
PLJ 2008 Lahore 712
Present: Khurshid Anwar Bhinder, J.
MUHAMMAD ARIF--Petitioner
versus
Mst. SHAHEEN AKHTAR and 2 others--Respondents
Writ Petition No. 11567 of 2006 and W.P. No. 646 of 2007, heard on 15.5.2008.
Civil Procedure Code, 1908 (V of 1908)—
----O.XVII, R. 3--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Question of law and facts--Suit for recovery of maintenance allowance--Petitioners' right of cross examination has been struck off by the trial Court--Petitioner filed an application for the recalling of the order which too was dismissed--Petitioner called in question two orders passed by trial Court--Held, Petitioner was afforded a number of opportunities for cross-examining the witnesses of the respondents and for producing his evidence but he failed to cross examine the witnesses of the respondents and producing his evidence, as such, the trial Court had left with no option but to struck off the right of the petitioner for cross examining the witnesses of the respondents and to close his evidence--Impugned orders passed by trial Court are just, fair and calls for no interference by High Court in its Constitutional jurisdiction. [P. 713] A
Punjab Family Courts Act, 1964--
----S. 14 & Scope--Powers of the Family Court--No provision in the Punjab Family Courts Act, 1964 authorizing the Family Court to close the evidence of a party before it but there is also no provision to the effect that a party's evidence shall not be closed even if that party fails to produce evidence, without sufficient cause, despite having availed of several opportunities to do some trial Court justified in closing the evidence of the petitioner. [P. 714] B & C
Mr. Zahid Iqbal Malik, Advocate for Petitioner.
Mr. Muhammad Tahir Sultan Khokhar, Advocate for Respondent.
Date of hearing: 15.5.2008
Judgment
Through this single judgment. I intend to dispose of Writ Petition No. 11567/2006 and writ petition No. 646/2007 as both of them arise from the same suit and involve common questions of law and facts.
Through the present constitutional petitions, Muhammad Arif petitioner has called in question the order dated 23.1.2006 passed by Respondent No. 3 whereby the right of petitioner for cross-examination of the PWs has been struck off, order dated 23.5.2006, whereby he dismissed the application filed by the petitioner for recalling the order dated 23.1.2006 and the order dated 12.10.2006 closing evidence of the petitioner.
Briefly the facts leading to the filing of these constitutional petitions are that Respondents No. 1 and 2 filed a suit for recovery of maintenance allowance against the petitioner. The petitioner contested the suit and out of the divergent pleadings of the parties the learned trial Court framed issues whereafter respondents produced Ghulam Anwar whose statement was recorded on 14.3.2005 as PW-1. The respondents produced witnesses on many dates but the petitioner's counsel sought adjournments for cross examining them. So constrained with the situation, the learned trial Court struck off the right of petitioner for cross-examination vide order dated 23.1.2006. The petitioner filed an application for recalling the aforesaid order which too was dismissed by the learned trial Court vide order dated 23.5.2006. Thereafter the petitioner failed to produce his evidence and his evidence was closed by the learned trial Court vide order dated 12.10.2006, hence the present constitutional petitions.
Learned counsel for the petitioner submits that the impugned orders passed by Respondent No. 3 are illegal, void, arbitrary, perverse, nullity in the eyes of law and are contrary to the facts on record. He farther submits that the learned Judge Family Court should have proceeded ex-parte against the petitioner instead of striking his defence and closing his evidence by invoking the provisions of Order XVII Rule 3 CPC which provisions of law are inapplicable in the family suit.
Learned counsel for the respondents has supported the impugned orders.
I have heard the learned counsel for the parties and have perused the available record. The petitioner was afforded a number of opportunities for cross-examining the witnesses of the respondents and for producing his evidence but he failed to cross examine the witnesses of the respondents and producing his evidence, as such, the learned trial Court had left with no option but to struck off the right of the petitioner for cross examining the witnesses of the respondents and to close his evidence. The impugned orders passed by the learned trial Court are just, fair and calls for no interference by this Court in its constitutional jurisdiction.
As far as the contention of the learned counsel for the petitioner that the orders by which the petitioner's right to cross-examine the witnesses was struck off and the petitioner's evidence was closed are without jurisdiction is concerned, it is true that there was no provision in the Punjab Family Courts Act, 1964 authorizing the Family Court to close the evidence of a party before it but there is also no provision to the effect that a party's evidence shall not be closed even if that party fails to produce evidence, without sufficient cause, despite having availed of several opportunities to do so. Here the question arises that if a Family Court adjourns a case for hundred times with a view to enabling a party to lead evidence but even then that party does not produce evidence, without any reason whatsoever, will the Family Court not be able to refuse any more opportunity to the party at fault and proceed to close the evidence, as such, the learned trial Court was justified in closing the evidence of the petitioner.
There is yet another aspect of the case that no doubt the impugned orders are interlocutory orders in the sense that they do not dispose of the whole gamut of dispute between the parties. Final decision on the suit would be open to appeal by virtue of Section 14 of the West Pakistan Family Courts Act, 1964 and, therefore, if the petitioner fails before the learned Family Court he will be able to assail before the appellate Court, the orders now being challenged by him. To my mind the orders which have been assailed by means of these constitutional petitions, being orders of interlocutory nature, cannot be interfered with by this Court in exercise of its constitutional jurisdiction. Reference can be made to Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary S & GAD, Karachi etc. (1996 SCMR 1165).
For what has been discussed above, I hold that the instant constitutional petitions are not competent, therefore, both the writ petitions are dismissed with no order as to costs.
(M.Y.B.) Petition dismissed.
PLJ 2008 Lahore 714
Present: Zafar Iqbal Chaudhry, J
ALI RAZA ZAMIR--Petitioner
versus
UNIVERSITY OF THE PUNJAB through its Vice Chancellor , Quad-e-Azam Campus, Lahore and another--Respondents
Writ Petition No. 8829 of 2007, decided on 13.5.2008.
Educational Institutions--
----Constitution of Pakistan, 1973, Art. 199--Petitioner appeared in L.L.B Part-Ill, First Annual Examination, 2006 and M.A Political Science Part-1, First Annual Examination, 2006 in the same Sessions (2006)-Violation of the University Regulation Calendar Volume-1 (2002)--Show cause notice issued--Held: Petitioner was afforded proper opportunity of being heard by the Disciplinary Committee and on his request the result of the M.A Political Science Part-1, First Annual Examination, 2006 was quashed according to the Regulation--Petition was dismissed. [P. 717] A
Mr. Muhammad Amin Goraya, Advocate for Petitioner.
Mr. Muhammad Arif Raja, Advocate for Respondents.
Date of hearing: 7.5.2008.
Judgment
Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, Ali Raza Zamir petitioner has challenged the impugned letter dated 2.4.2007 whereby Respondent No. 2 cancelled and quashed the result of M.A. Political Science Part-I, First Annual Examination, 2006 under Roll No. 34873 and also retain the result of LLB Part-III, First Annual Examination, 2006 under Roll No. 2051 of the petitioner.
"While checking the office record it has been detected that you appeared in L.L.B. Part-III, First Annual Examination, 2006 and in M.A. Political Science Part-I, First Annual Examination, 2006 under Roll No. 2051 and 34873 respectively in the same Sessions (2006). Thus you used unfair means in the examination violating the Regulation 3 page 590 of the University Calendar Volume-I (2002)".
It is further stated in the said letter that the petitioner should submit explanation and to show cause as to why he may be not disqualified under regulation.
The petitioner was issued another letter dated 22.3.2007 by Respondent No. 2 directing him to appear before the Disciplinary Committee on 30.3.2007 at 9.00 a.m. to avail opportunity of being heard in person and he appeared and defended the case. Respondent No. 2 through letter dated 2.4.2007 informed the petitioner that the result of M.A. Political Science Part-I Annual Examination 2006 under Roll No. 34873 was cancelled and quashed while the result of LLB Part-Ill Annual Examination 2006 under Roll No. 2051 was retained under Regulation No. 3 Page 590 of the University Calendar Vol-I (2002) in the context of unfair means case registered against the petitioner.
Learned counsel for the petitioner submits that the impugned letter dated 2.4.2007 passed by Respondent No. 2 is without lawful authority and the result of the petitioner could not be quashed as per rules and regulations of the Calendar of the University of the Punjab and no reasonable opportunity of showing cause was provided to the petitioner. It is further submitted that the case of the petitioner does not come within the purview of Disciplinary Committee dealing with the cases of alleged use of unfair means in connection with the examination and other matters affecting the discipline of the students as contained in Section 26 of the University of Punjab Act, 1873 read with Regulation. As such the impugned order/letter is illegal, without lawful authority and erroneous in the eye of law which is liable to be set aside.
Learned counsel for the respondents has submitted that the petitioner appeared in two examinations in violation of Regulation 3 Chapter VII of the Calendar of the University of the Punjab, Lahore which was not denied by the petitioner. The petitioner was properly given show-cause notice dated 22.3.2007 (Annex: R/3) to appear before the Disciplinary Committee and in response to the said notice he appeared before the Committee on the said date. He was given proper hearing by the Committee and when confronted with the allegation he himself requested the Committee to cancel his result of M.A. Political Science and declare his result of LLB Part-III First Annual Examination 2006. In view of his request the Committee decided to cancel/quash his result of M.A. Political Science Part-I First Annual Examination 2006 and the petitioner was informed by the decision of the Committee vide letter dated 2.4.2007. In support of his contention learned counsel for the respondents placed reliance on Chapter VI General Regulations Empowering the Syndicate to quash the result or withdraw the Degree, Diploma or Certificate of a candidate and submits that the case of the petitioner fall within Clause 3 of the said Regulation and no illegality has been committed by the respondents in the case of quashing the result of the petitioner of M.A. Political Science.
I have heard the learned counsel for the parties at length and also perused the record as also the impugned letter. It is very much clear in the impugned letter dated 2.4.2007 that the appearance in two examinations i.e. LLB Part-III. First Annual Examination, 2006 and M.A. Political Science Part-I, First Annual Examination 2006 is not disputed which is in violation of the Calendar of the University of the Punjab. The petitioner was issued show-cause notice who in response to the said notice he appeared before the Disciplinary Committee and himself requested to quash the result of M.A. Political Science and retain the result of LLB Part-III, First Examination, 2006. The arguments of the learned counsel for the petitioner that the respondent has no power to cancel or quash the result of M.A. Political Science is not tenable in the light of the Regulation VI of the Calendar of the University which is reproduced as under:-
All examination shall be held at such centers as may be appointed by the Vice-Chancellor.
No one, who has passed an examination of the University, shall be permitted to reappear at the same examination except as specifically provided in the Regulation for the examination concerned.
A candidate permitted to take a degree examination of the University shall not be permitted to take another degree examination in the same year."
As the petitioner was afforded proper opportunity of being heard by the Disciplinary Committee and on his request the result of M.A. Political Science Part-I, First Annual Examination, 2006 was quashed according to the Regulation mentioned above, I see no force in this petition which is hereby dismissed with no order as to costs.
(M.Y.B.) Petition dismissed.
PLJ 2008 Lahore 718
Present: Hafiz Tariq Nasim, J.
Rana ASIF NADEEM--Petitioner
versus
EDO etc.--Respondents
W.P. No. 352 of 2007, decided on 12.3.2008.
Constitution of Pakistan, 1973--
----Art. 199--Civil servants were appointed on contract basis for three years--Ousted from service by impugned orders--Constitutional petition--Maintainability--Held: High Court is established to provide justice to an aggrieved party albeit on merits and on law--Before passing the impugned order neither any inquiry was conducted nor the petitioners were served with show-cause notice, even they were not heard by the authorities concerned, meaning thereby that the petitioners were condemned unheard--Petitioners were reinstated into service. [P. 722] A & B
Principle of Locus Poenitentiae--
----After the issuance of appointment orders the civil servants joined, performed their duties, drew their salaries and as such a valuable right had been accrued in favour of the petitioners which could not be recalled in view of well established principle of locus poenitentiae.
[P. 722] C
1991 SCMR 2434; 1994 PLC (CS) 880; 1994 SCMR 2232; 2000 PLC (CS) 796; 2001 SCMR 1320; 2004 SCMR 468; 2005 PLC (CS) 1300 & 1991 SCMR 135, ref.
Mrs. Rizwana Anjum Mufti, Advocate for Petitioner.
Mr. Naeem Masood, Assistant Advocate General Punjab for Respondents.
Date of hearing: 12.3.2008.
Order
In view of the similarity of facts and questions of law, I propose to decide all the Writ Petitions No.352/2007, 11215/2006, 1080/2007, 7960 to 7971/2007, 2225/2007, 6723/2007, 6724/2007, 6828/2007, 8189/2007, 7028/2007, 6292/2007, 7993/2007 & 11015/06 through this single order.
In response to the advertisement in Press all the petitioners applied, for the advertised posts, they were called for interview by the duly constituted Committee, who after examining the eligibility of the petitioners, determined their suitability, recommended for their appointments and ultimately the petitioners were appointed but of course on contract basis for a period of three years in the year 2006. Accordingly the petitioners joined, performed their duties but unfortunately without any complaint whatsoever all of them were ousted from service through the impugned orders whereby the petitioners' appointments were cancelled from the date of its issuance treating these appointments as illegal and without merit.
Aggrieved by this, the petitioners filed departmental representations/appeals but with no result and as such approached this Court through these present writ petitions.
The learned counsel for the petitioners submit that while canceling the appointment orders, neither the petitioners were served with a Show-Cause Notice, nor they were provided an opportunity of hearing and even the provisions of contract was not adhered to resulting into serious miscarriage of justice.
On the other hand, the learned Assistant Advocate General Punjab Lahore opposed the writ petitions with vehemence and submits that the writ petitions are not maintainable because the petitioners are regulated by the principle of Master and Servant, it is the domain of the competent authority either to retain the petitioners or to cancel their contract because a contract employee have no right for continuation in service.
Arguments heard; record perused.
So far the objection of law of Master and Servant's applicability and non-maintainability of the writ petitions is concerned, it is repelled on the short ground that there are series of judgments whereby this Court can interfere in such like controversy which is under dispute.
In support of my view, reliance can be made on those very judgments wherein even the employees of the statutory corporations having non-statutory rules when felt aggrieved of the orders of the management, approached the High Court, the High Court in exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 came for their rescue, whereas in the present controversy the matter is between the Government and the employees and there is no question of any statutory or non-statutory organizations and rules meaning thereby that the cases of the present petitioners are on better footing then the cases of statutory corporations.
As mentioned above, that in cases of statutory corporations, this Court interfered on different occasions and for that the following judgments can be quoted.
Karachi Development Authority and another v. Wali Ahmed Khan and others (1991 SCMR 2434), wherein it is held,--
"If the statutory body is amenable to the writ jurisdiction the remedy under Article 199 would be available to challenge the mala fides exercise of statutory authority. "
Lal Din v. Vice-Chancellor and others (1994 PLC (C.S) 880) wherein 880) it was held,--
"Employee's service being governed by the rules and regulations framed under the statute, relationship of Master and Servant was not applicable--premature retirement of an employee being not warranted by law, order of his retirement was without lawful authority and of no legal effect and thus quashed."
Mrs. Anisa Rehman v. P.I.A.C and another. (1994 SCMR 2232), it is held that,--
"Maxim "audi alteram partem" would be applicable to judicial as well as to non-judicial proceedings and it would be read into every statute as its part if right of hearing has not been expressly provided therein--Violation of the Maxim could be equated with the violation of a provision of law warranting pressing into service Constitutional jurisdiction."
Muhammad Ashraf v. Director General, Multan Development Authority, Multan and another (2000 PLC (C.S.) 796) a Division Bench of this Court held,--
"Law of Master and Servant is a notion of English common law and does not emanate from any Constitutional provision or even a statute or some injunctions of Holy Qur'an or Sunnah of the Holy Prophet (p.b.u.h).--Resort to rule of English Common Law could not be taken in view of Art. 2-A of the Constitution of Pakistan.
Rule of master and servant--where jurisdictional bars have been enacted, against superior judiciary, in legislative measures, such bars and fetters, if within the legislative and Constitutional bonds, may take effect with exception of an action which was mala fide; an action which was without jurisdiction and an action which was coram non judice--where relationship between the parties was governed by the rule of master and servant, action adverse to the servant falling with such three exceptions would not be exempted from scrutiny of High Court--Constitutional petition, therefore, was maintainable. "
Administrator, District Council Larkana and other v. Ghulab Khan and 5 others (2001 SCMR 1320) it was held that,--
"High Court would become competent in issuing a direction to the respondents who are admittedly persons performing functions in connection with the affairs of the Federation/Provinces, to do a thing which they are required by law to do within the jurisdiction of the High Court."
Arshad Jamal v. N.-W.F.P Forest Development Corporation and others (2004 SCMR 468), it is categorically held,--
"The question arises whether the appellant can maintain Constitutional petition even if no statutory rules had been framed by the Provincial Government if the above said rules are deemed to have not been framed properly as they had not been notified through official Gazette. It has been held in Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCMR 934 and Abdul Hafeez Abbasi and others v. Managing Director Pakistan International Airlines Corporation and others 2002 SCMR 1034 that where a removal order of such an employee of corporation even in the absence of statutory rules is made on particular grounds which are in the nature of charges, the employee has a vested right of hearing before any order adverse to his interest was passed by virtue of principle of audi alter am partem which was the least requirements."
Muhammad Mushtaq v. Chancellor, Government College University, Faisalabad (2005 PLC (C.S) 1300), it is held,--
"Absolute power and authority cannot be arrogated to or exercised by any State functionary--Concept of Master and Servant relationship has undergone a change and the relationship of Master and Servant does not confer unbridled or unfettered powers to act whimsically or capriciously in violation of the principles of natural justice and well-settled norms of justice."
"The question whether she should approach the Civil Court or the Service Tribunal for this purpose was not very pertinent in the face of bound-down obligation of the authorities to satisfy this claim themselves without the necessity of driving a needy litigant from pillar to post. "
To my mind this objection of the learned Assistant Advocate General Punjab Lahore is repelled; that in my understanding the High Court is established to provide justice to an aggrieved party albeit on merits and on law.
Now coming to the merits of the case, suffice it to say that the impugned termination/cancellation of appointment letters' plain reading reveals that allegedly some illegality or irregularities were found by the authorities in the original orders of the petitioners' appointments. In such like controversy it is well settled law laid down by the Hon'ble Supreme Court of Pakistan that, "whenever there is some element of allegation in the termination order, without resorting to the procedure of regular inquiry, no one can be non-suited despite the fact that the employee is even on contract. " Reliance in this respect can be made on a judgment of Hon'ble Supreme Court of Pakistan reported as Muhammad Amjad v. WAPDA (1998 PSC 337).
Admittedly in the present cases the record produced by the departmental representative reveals that before passing the impugned order neither any inquiry was conducted nor the petitioners were served with Show-Cause Notice, even they were not heard by the Authorities concerned, meaning thereby that the petitioners were condemned unheard which otherwise is a violation of law laid down in Pakistan International Airlines (PIAC) through its Chairman and others v. Nasir Jamal Malik and others (2001 PSC 1).
It is also an admitted fact that after the issuance of appointment orders the petitioners joined, performed their duties, drew their salaries and as such a valuable right had been accrued in favour of the petitioners which could not be recalled in view of well established principle of locus poenitentiae. On this principle reliance can be placed on Liaquat Ali Memon and others v. Federation of Pakistan and others (PLD 1994 SC 556), Secretary to Government of N-.W.F.P. and another v. Muhammad Nawaz and another (PLD 1996 SC 837), Rukhsar Ali and 11 others v. Government of N-.W.F.P. through-Secretary Education, Peshawar and 3 others (2003 PLC (CS) 1453), Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another (2004 SCMR 158) and Chairman/Managing Director, Pakistan International Airlines Corporation and another v. Nisar Ahmad Bhutto (2005 SCMR 57) and as such the impugned orders being violative of law (supra) cannot hold the field.
There is another aspect of the matter and that is, that if at all it is found that at the time of appointments, the then authorities made illegal or irregular appointments, even then in that eventuality the petitioners cannot be held responsible for the same and cannot be made sufferers whereas it is a well settled law laid down by the Hon'ble Supreme Court of Pakistan in a number of judgments like, Director Social Welfare, N-.W.F.P., Peshawar v. Sadullah Khan (1996 SCMR 1350), Chairman, Minimum Wage Board Peshawar and another v. Fayyaz Khan Khattak (1999 SCMR 1004), Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others (2004 SCMR 303), Muhammad Akhtar Shirani and others v. Punjab Text Book Board and others (2004 SCMR 1077), and Abdul Salim v. Government of N-.W.F.P. through Secretary, Department of Education Secondary, N-.W.F.P., Peshawar and others (2007 PLC (CS) 179) wherein it is held that instead of penalizing the employees, the responsibles be taken to task.
It is not the case of the respondent/department that any of the petitioners was not eligible at the time of appointment as per requirement of the advertisement and the post.
It was specifically asked to the departmental representative that if some of the petitioners is found ineligible for the said posts it be mentioned even before this Court but the departmental representative after consulting the record could not controvert the eligibility of any petitioners so in the presence of such record, I have left no other option except to set aside the impugned orders whereby the petitioners were terminated/their appointment orders were cancelled.
Resultantly, all the petitioners are reinstated into service with effect from the date of their termination.
It is clarified that in compliance to the orders of this Court, the petitioners shall be entitled for the pay of the intervening period from the date of their termination to the date of reinstatement because they could not perform their duties with no fault of them rather, they remained out of service due to the inaction of the departmental authorities which is declared illegal. With these observations all the writ petitions are accepted with no order as to costs.
(M.S.A.) Petitions accepted.
PLJ 2008 Lahore 723
Present: Hafiz Tariq Nasim, J.
MUHAMMAD IKRAM--Petitioner
versus
B.I.S.E. etc.--Respondents
W.P. No. 11553 of 2006, decided on 22.2.2008.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Malafide act can be challenged by writ jurisdiction--Question of--Rules are statutory or non-statutory--Service in WAPDA was pensionable--Protection of pay--Employees who are working and being regulated under non-statutory rules--Whether High Court in Constitutional jurisdiction can entertain their complaints--Held: Petition by the employees or by any aggrieved party against any statutory body irrespective of their rules of statutory or non-statutory in nature, High Court can assume and exercise its jurisdiction because any lacuna or other technicalities should not come in the way of provision of efficacious and speedy justice because if technicalities of law are allowed to prevail over those who are subject to the law then the ends of justice will become impossible to meet that--Art. 199 of Constitution of Pakistan, if read in its plain sense is enough to confer jurisdiction upon the High Court to intervene/direct on the application of "Any aggrieved party--Petition was allowed. [Pp. 731 & 732] A & B
1998 SCMR 1618; 1994 PLC (CS) 880; 1994 SCMR 2232; 1991 SCMR 2434; 2004 SCMR 468; 2005 PLC (CS) 1300; 2000 PLC (CS) 796; 2003 PLC (CS) 1508; 1992 SCMR 1206; PLD 1997 SC 823; PLD 2003 SC 724, ref.
Malik Noor Muhammad Awan, Advocate for Petitioner.
Dr. M. Mohy-ud-Din Qazi, Advocate for Respondents.
Mr. Naeem Masood, Assistant Advocate General Punjab.
Date of hearing: 22.2.2008.
Order
The petitioner is aggrieved of the orders passed by the Board of Intermediate and Secondary Education, Faisalabad for non-counting of petitioner's service rendered with WAPDA for pension purpose.
The learned counsel for the petitioner submits that the petitioner joined Board of Intermediate and Secondary Education, Faisalabad through proper channel from WAPDA, but the petitioner was denied the pay protection and the same was challenged in WP. No. 7346/2000 which was admitted after hearing both the parties and the order refusing the said protection was suspended by this Court, however, the Board realized its fault and allowed pay protection but unfortunately the relief of pensionary benefits in that respect is declined in violation of the instructions of the Government of the Punjab.
The petitioner moved before the Board for the redressal of his grievance and accordingly a Committee was constituted who recommended the petitioner's claim on the strength of a Circular of WAPDA dated 30.6.1986 observing that the service in WAPDA was pensionable and there was no break of the petitioner's service of WAPDA and as such that very service rendered by the petitioner in WAPDA is countable towards pensionary benefits provided the petitioner is prepared to deposit his own contribution of Rs. 2,09,727.98.
The petitioner was asked to deposit the aforesaid amount on account of said Committee's recommendations the petitioner complied with the directions and the said amount was deposited but surprisingly keeping in view aside all these developments the petitioner's claim was not actualized, which the action of the Board is neither justified nor covered under law rather it is a deviation to the well settled law laid down by the Hon'ble Supreme Court of Pakistan reported as Nafees Ahmad v. Pakistan (2000 PSC 50).
On the other hand, the learned counsel for the respondents after consulting the record with the help of Board's representative did not controvert that the petitioner's pay was protected during the pendency of W.P. No. 7346/2000 as well as the availability of recommendations of the duly constituted Committee by the Board of Intermediate and Secondary Education, Faisalabad in respect of petitioner's claim for counting the period of service rendered with WAPDA for pensionary benefits as well as the deposit of contribution of pension by the petitioner himself but he submits that the refusal by the Board for non-accepting to the petitioner's request is the only domain of the Board Authorities and the present writ is not competent on the sole ground that the rules governing the Board are not statutory and in this respect he relies on a judgment reported as University of the Punjab Lahore v. Ch. Sardar Ali (1992 SCMR 1093). Further submits that the petitioner is regulated by the principle of Master and Servant and as such could not invoke the jurisdiction of High Court.
Arguments heard. Record perused.
As already noted above that the petitioner's request for the protection of pay was acceded to by the respondents/Board and for the grievance of petitioner's pensionary benefits a duly constituted Committee by the Board recommended with reasons for the redressal of petitioner's grievance in the following words :--
"In view of the above discussion and the references brought by the officer on the file, the instant committee feels inclined on merit to recommend to count his previous service rendered with WAPDA (an autonomous body) towards future pensionary benefits especially under the circumstances when the W.P. No. 7346/2000 filed by him in the High Court was finally disposed of while accepting the appeal of the appellant (Mr. Muhammad Ikram, System Analyst) and the Board consequently granted him the right of pay protection .....
The appellant deposits pension contribution for the previous service according to prescribed rate/rules from his own resources as the previous employer-WAPDA had shown its inability to this effect in the event of his selection when the N.O.C. was issued. Making payment from ones own pocket towards pension contribution for the service rendered with previous employer (Government) is prevalent with the State Bank of Pakistan as contained in Circular No. PD. 77/Reg. 11 (viii)-96 of 11.08.1996. "
The moot point for the determination in the present writ is that whether in the presence of judgment of Ch. Sardar Ali (Supra) and whether in the light of respondent's objection in respect of applicability of law of Master and servant, this Court can interfere in the impugned matter or not.
In case of Ch. Sardar Ali he was appointed as Lecturer on two years probation and his appointment was terminable on one month's notice during the period of probation and three month's notice after confirmation from either side or pay in lieu thereof but Ch. Sardar Ali's appointment was terminated by the Punjab University as terms of his appointment.
The termination was challenged by said Ch. Sardar Ali in a writ petition which was dismissed by a learned Single Judge, however, the Intra Court Appeal was accepted which was assailed before the Hon'ble Supreme Court of Pakistan. The Hon'ble Supreme Court of Pakistan being a case of termination of a University employee interfered in the matter and upheld the termination order, whereas the present controversy do not involve the termination or reinstatement etc rather it is a case where the Board is not performing its functions according to the instructions/regulations as well as the law laid down by the Hon'ble Supreme Court of Pakistan.
Even otherwise taking the strength from the law laid down by the Hon'ble Supreme Court of Pakistan reported as Hitachi Limited and another v. Rupali Polyester and others (1998 SCMR 1618) wherein it is held,--
"Courts are not slaves of the doctrine of stare decisive--Court may change or modify its views with the passage of time Development of jurisprudence is an ongoing process."
"199. (1) Subject to the Constitution, a High Court may, if it is satisfied, that no other adequate remedy is provided by law,---
(a) on the application of any aggrieved party, make an order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(5) In this Article, unless the context otherwise requires,--
"person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan; and
There is no doubt in my mind that the Constitution of Pakistan is the supreme law and it is also undisputed fact that the provisions of Article 199 can be invoked against a "person" but it is also an admitted fact that in the said Article there is no other clog or bar which may restrain the High Court to exercise its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
With utmost respect to all the previous judgments contrary to my view, I may quote a series of judgments wherein the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was invoked, High Courts exercised the jurisdiction in favour of the aggrieved persons against the University/Boards of Intermediate and Secondary Education, and other statutory bodies having non-statutory rules/regulations and these very judgments remained uninterrupted by the apex Court.
To the strengthen my view, the judgments reported like (Lal Din v. Vice-Chancellor and others (1994 PLC (C.S) 880) wherein it was held,--
"Employee's service being governed by the rules and regulations framed under the statute, relationship of Master and Servant was not applicable--premature retirement of an employee being not warranted by law, order of his retirement was without lawful authority and of no legal effect and thus quashed."
In another case titled as Mrs. Anisa Rehman v. P.I.A.C and another (1994 SCMR 2232), it is held that,--
"Maxim "audi alteram partem" would be applicable to judicial as well as to non-judicial proceedings and it would be read into every statute as its part if right of hearing has not been expressly provided therein--Violation of the Maxim could be equated with the violation of a provision of law warranting pressing into service Constitutional jurisdiction."
In another case reported as Karachi Development Authority and another v. Wali Ahmed Khan and others (1991 SCMR 2434), a Division Bench of the Karachi High Court held,--
"If the statutory body is amenable to the writ jurisdiction the remedy under Article 199 would be available to challenge the mala fides exercise of statutory authority."
In another case reported as Arshad Jamal v. N.-W.F.P Forest Development Corporation and others (2004 SCMR 468), it is categorically held,--
"The question arises whether the appellant can maintain Constitutional petition even if no statutory rules had been framed by the Provincial Government if the above said rules are deemed to have not been framed properly as they had not been notified through official Gazette. It has been held in Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCMR 934 and Abdul Hafeez Abbasi and others v. Managing Director Pakistan International Airlines Corporation and others 2002 SCMR 1034 that where a removal order of such an employee of corporation even in the absence of statutory rules is made on particular grounds which are in the nature of charges, the employee has a vested right of hearing before any order adverse to his interest was passed by virtue of principle of audi alteram partem which was the least requirements."
In another case reported as Muhammad, Mushtaq v. Chancellor, Government College University, Faisalabad (2005 PLC (C.S) 1300), it is held,--
"Absolute power and authority cannot be arrogated to or exercised by any State functionary--Concept of Master and Servant relationship has undergone a change and the relationship of Master and Servant does not confer unbridled or unfettered powers to act whimsically or capriciously in violation of the principles of natural justice and well-settled norms of justice."
In another case reported as Muhammad Ashraf v. Director General, Multan Development Authority, Multan and another (2000 PLC (C.S.) 796) a Division Bench of this Court held,--
"Law of Master and Servant is a notion of English common law and does not emanate from any Constitutional provision or even a statute or some injunctions of Holy Qur'an or Sunnah of the Holy Prophet (p.b.u.h).--Resort to rule of English Common Law could not be taken in view of Art. 2-A of the Constitution of Pakistan.
Rule of master and servant--where jurisdictional bars have been enacted, against superior judiciary, in legislative measures, such bars and fetters, if within the legislative and Constitutional bonds, may take effect with exception of an action which was mala fide; an action which was without jurisdiction and an action which was coram non judice--where relationship between the parties was governed by the rule of master and servant, action adverse to the servant falling with such three exceptions would not be exempted from scrutiny of High Court--Constitutional petition, therefore, was maintainable."
In a famous case reported as Rizwan Akhtar v. University of the Punjab through Vice-Chancellor, Quaid-e-Azam Campus, Lahore and 4 others (2003 PLC (C.S.) 1508), it is held,--
"Authority who had framed regulations, was bound to follow said regulations and a departure there from, would amount to exercise of the power in an arbitrary and unregulated manner defeating the very purpose for which regulations were framed. Even if services of an employee of a statutory corporation were not governed by statutory rules the employer amenable to constitutional jurisdiction was under a duty to act justly and fairly in accordance with mandate of Article 4 of the Constitution."
"deciding the cases the Courts should always avoid technicalities as held in Sultan Mir and 18 others v. Umar Khan and 10 others (1992 SCMR 1206), "Anglo Saxon approach on the question of technicalities where litigants were trapped in technicalities rather than permitted to take advantage of procedural laws in order to advance the cause of justice--Such branch of legal thought, held, had to be filled by the rules of Islamic Philosophy and arguments based on said technicalities were to be repelled."
In other cases reported as PLD 1997 SC 823, PLD 2003 SC 724, wherein it is categorically held that,--
"decisions of cases on merits always to be encouraged instead of technicalities non-suiting the litigants for technical reasons."
It is also to be taken into count that the apex Court repeatedly held that,--
"in a contest between two possible interpretations one favouring rights and interest of the employees and the other favourable to the State, interpretation favourable to and more beneficial to the employee should be adopted."
In the present controversy this Court has been called upon to exercise its inherent power to adjudicate and provide justice in the impugned matter. The basic objections of the respondents before this Court pertains to the availability of a remedy to the Nichi class of people who strive and work for the betterment of education and all its related aspects. The problem facing these people i.e. employees of the Board since a long has been that they have been refused a remedy under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on the principle that the employees of the Board being regulated by non-statutory rules are excluded from availing a remedy from the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and consequently they claim that the High Court has no jurisdiction to entertain complaints made by employees who are working and being regulated under non-statutory rules.
To my mind this objection of the respondents is neither here nor there and is repelled that in my understanding the High Court is established to provide justice to an aggrieved party albeit on merits and on law.
Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is the fundamental provision enunciated the jurisdiction of the High Courts and of course it is mandatory upon the High Court to confine itself within its jurisdiction as provided in Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
There is no difficulty to arrive on the conclusion that the plain reading of the Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 contemplates that writ by the employees or by any aggrieved party against any statutory body irrespective of their rules of statutory or non-statutory in nature, the High Court can assume and exercise its jurisdiction because any lacuna or other technicalities should not come in the way of provision of efficacious and speedy justice because if technicalities of law are allowed to prevail over those who are subject to the law then the ends of justice will become impossible to meet that.
Taking this discussion further, I myself have experienced watching people struggling and striving to achieve a conclusion to their work related problems and this struggle is often prolonged by letting technicalities prevail over substantive justice. The effects of such prolonged judicial struggle are consequently felt and borne by not only the employee of such a Board but also the family members of the aggrieved have to suffer dire consequences for very long period of time and this practice of exploiting technicalities has been resultantly lead to the exploiting of the genuine concerns of many.
It is astonishing to see that on the one hand any person who is not an employee of the Board but is aggrieved by any action of the Board can invoke the jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for example a person can invoke jurisdiction of High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 without any hindrances if he is aggrieved to the extent of checking and marking his exam papers or any other actions taken by the Board but on the other hand the employees of the Board are barred from invoking the writ jurisdiction just on the ground that the rules/regulations under which the employees of the Board are governed and regulated are non-statutory in nature, as a surprising situation.
In my opinion the High Court is the same Court when adjudicating upon any person who is not an employee of the Board and on the other hand when it is adjudicating upon maintainability of a writ petition of an employee of the Board. The High Court is the same for both classes of people and both the classes of persons are ensured proper, efficacious and speedy redressal of their grievances under the fundamental rights as guaranteed under the Constitution of Islamic Republic of Pakistan, 1973. Even the law laid down by the Hon'ble Supreme Court of Pakistan reported as PLD 2001 SC 531 and 2005 SCMR 605 is sufficient to strengthen my views.
In view of the prevailing albeit disappointing practice to allowing technicalities to prevail over substantial justice, I think it is my duty to interfere in the matter before this Court and to provide justice which is free from the ailment of technicalities.
Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 if read in its plain sense is enough to confer jurisdiction upon the High Court to intervene/direct on the application of "any aggrieved party" as laid down in paragraph (a) of clause (1) and also as provided in paragraph (c) of clause 1.
It is a right ensured to every person under the Constitution of Islamic Republic of Pakistan, 1973 to seek justice. These are the reasons for acceptance of writ vide short order dated 22.2.2008.
For the foregoing reasons the order dated 15.9.2006 and 10.10.2006 are declared illegal and are set aside.
The Respondent No. 1 is directed to allow the pensionary benefits as prayed in the writ petition within a period of one month positively. The writ petition is allowed in the above terms.
(M.S.A.) Petition allowed.
PLJ 2008 Lahore 732
Present: Hafiz Tariq Nasim, J.
ROBINA ASLAM NOORANI--Petitioner
versus
D.E.O. etc.--Respondents
W.P. No. 1350 of 2008, decided on 15.2.2008.
Service Tribunals Act, 1973--
----S. 4--Constitution of Pakistan, 1973, Arts. 199 & 212--Show cause notice--Excess of jurisdiction without application of mind--Validity--Constitutional petition--Maintainability--Petitioner seeking direction to the respondent that instead of resorting to the procedure of show-cause notice, full opportunity of defence conducting a regular inquiry through an independent injury officer be provided to civil servant--Bar of--Held: In respect of terms & conditions of a civil servant the jurisdiction rests with Service Tribunal, however before invoking the same, any aggrieved civil servant is to fulfill the requirements of Section 4 of Service Tribunals Act--In present case no final order or appellate order is passed to extend the jurisdiction of service tribunal--So the objection of Art. 212 of Constitution is repelled being not attracted in the present case. [Pp. 734 & 735] A, B, C & D
1991 SCMR 1014, 1998 SCMR 1605; 2001 SCMR 1320, ref.
Administration of Justice--
----Courts are not only duty bound to ensure that justice prevails without crossing the limits and boundaries settled by law but are also under the restraint of ensuring that the essence of fundamental rights i.e. justice, fairplay and equity as guaranteed under the Constitution of Pakistan, 1973, is preserved and provided where demanded--Petition allowed. [P. 739] E
Mr. Asghar Ahmad Kharal, Advocate for Petitioner.
Mr. Naeem Masood, Assistant Advocate General Punjab for Respondents.
Date of hearing: 15.2.2008.
Order
The petitioner's learned counsel submits that the impugned Show-Cause Notice dated 6.2.2008, is issued by the respondent in excess of his jurisdiction, without application of independent mind, virtually an outcome of colorable exercise of power and as such is liable to be interfered with.
Further contends that the Show-Cause Notice is just a formality and nothing else whereas respondent is adamant to oust the petitioner from service by adopting the shorter procedure of Show-Cause Notice instead of holding regular inquiry.
The petitioner seeks only a direction to the respondent that instead of resorting to the procedure of Show-Cause Notice, full opportunity of defence conducting a regular inquiry through an independent Officer be provided to her as the allegations are false and same have already been refuted specifically through reply to the Show-Cause Notice.
It is further submitted that the impugned Show-Cause Notice is complete departure from the law laid down by the apex Court wherein it is repeatedly held that in case the allegation is refuted specifically then resorting to the procedure of Show-Cause Notice is not justified whereas the propriety demands that inquiry be conducted through an independent Officer affording a chance of defence to the petitioner and then the competent authority is at liberty to pass any order as deemed proper because the petitioner is not praying for a clean chit rather, she is only requesting for the enforcement of law laid down by the Hon'ble Supreme Court of Pakistan which otherwise is binding as per provisions of the Article 189 of the Constitution of Islamic Republic of Pakistan, 1973.
On the other hand, the learned Assistant Advocate General Punjab, Lahore contends that the writ is barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and it is the competent authority to decide whether the petitioner should have been proceeded through a Show-Cause Notice or through the procedure of regular inquiry and the petitioner cannot insist for the holding of regular inquiry being the only domain of the competent authority.
Arguments heard, available record is perused.
First of all the objection of maintainability of writ is to be addressed being an important objection.
There is no dispute that in respect of terms and conditions of a civil servant the jurisdiction rests with Service Tribunal, however before invoking the same, any aggrieved civil servant is to fulfill the requirements of Section 4 of the Service Tribunal Act, which is reproduced as follows:
"Appeals to Tribunals: (1) Any civil servant aggrieved by any order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him [or with six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal.]
Provided that :
(a) where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974 or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade."
"if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, the jurisdiction of the other Courts remained intact--Service Tribunal has jurisdiction against a final order, whether original or appellate, made by a departmental authority in respect of any terms and conditions of service."
"that the High Court in exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 can direct the authorities to perform the acts in accordance to law. "
So the objection of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is repelled being not attracted in the present case. Reliance can be placed on the law laid down by the Hon'ble Supreme Court of Pakistan in case of Pakistan Railways v. Muhammad Allauddin Babari (1998 SCMR 1605), in this case the employee being aggrieved of withholding of salaries approached the learned Wafaqi Mohtasib who directed the department to release the salary however, the department did not honour the direction of the learned Wafaqi Mohtasib and as such the employee filed writ petition in the Lahore High Court for the implementation of the order of the Wafaqi Mohtasib. The High Court allowed the writ petition but it was challenged before the Hon'ble Supreme Court of Pakistan wherein it was held,--
"the impugned order appears to be fair and proper on the face of record to meet the ends of justice. The direction having been issued by the High Court to the department to pay the arrears to the employee is fully warranted in law as the High Court through its order has done substantial justice-----".
"High Court would become competent in issuing a direction to the respondents who are admittedly persons performing functions in connection with the affairs of the Federation/Provinces, to do a thing which they are required by law to do within the jurisdiction of the High Court."
"this is correct that authorize Officer has to be decided that which of the two procedures provided in the rules, was to be adopted and if he is in favour of conducting the summary proceedings he must have exercised this discretion with extra care so that no prejudice is caused to the civil servant facing departmental proceeding for the charge of misconduct. The decision regarding dispensation of regular inquiry always depends on the nature of charge and circumstances of each case. This is settled law that in a case in which charge cannot be established without recording evidence and providing a proper opportunity to civil servant to cross-examine the witnesses and also produced evidence in defence, dispensation of regular inquiry is not justified except in extra ordinary circumstances. "
In the present case if the contents of the Show-Cause Notice in juxta position with the reply of the petitioner is perused; there shall be no difficulty to arrive at the conclusion that not only the petitioner has refuted the allegations rather, she requested for the holding of inquiry through an independent inquiry officer instead of adopting the shorter procedure of Show-Cause Notice.
"for resolving controversy, questions of fact where evidence has to be recorded and opportunity of cross-examination has to be given, the proper course is always to hold a full-fledge inquiry. Otherwise, the findings recorded, as in this case, will be based on mere conjectures than on evidence-------."
"the question as to whether the charge of a particular misconduct needs holding of a regular inquiry or not will depend on the nature of the alleged misconduct. If the nature of misconduct is such a finding of fact could not be recorded without examining the witnesses in support of the charge or charges, the regular inquiry cannot be dispensed with. "
"although in instant case stand of the department is that it is in possession of documentary evidence to establish that the petitioner is guilty of impersonation but at the same time the petitioner is also in possession of the document to negate the allegation as it is evident from the reply of Show-Cause Notice. Therefore, on having gone through such material the competent authority may have not dispensed with the inquiry, which was necessary to probe into charge, particularly in view of the fact that there was likelihood of imposing major penalty upon her if allegation of impersonation is proved on record. It is well settled by the time that in such like cases, instead of condemning the government official unheard, the department is required to conduct a regular inquiry instead of removing government official from service on the basis of fact of finding of inquiry report------,"
It is to be noted that as per dictates of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 the judgments/law laid down by the Hon'ble Supreme Court of Pakistan is binding on all the organs of the State and the deviation from this cannot be allowed in any manner.
As discussed above, the petitioner seeks only a direction to the respondent to act strictly in accordance to the judgments of the Hon'ble Supreme Court of Pakistan whereby the petitioner could defend her case reasonably through a process of regular inquiry and as such I am inclined to interfere in the impugned matter.
The sole purpose for interference in the impugned matter is that the petitioner seeks justice for which she has posited her confidence in the judiciary. The Courts are not only duty bound to ensure that justice prevails without crossing the limits and boundaries settled by law but are also under the restraint of ensuring that the essence of Fundamental rights i.e. Justice, fair play and equity as guaranteed under the Constitution of the Islamic Republic of Pakistan 1973, is preserved and provided where demanded.
In my view an employee should not be denied practical Justice by letting him/her seek and hunt her remedy through a lengthy and unnecessarily extended process of litigation. In effect, an employee should not be discourteously thrown on the road for the search of justice.
For example in the present case, if the authorities are allowed to continue with the proceedings, the ultimate result would be the dismissal from service of the petitioner and to reach the stage of vindication she would have to undergo a very lengthy and tiresome process of having recourse, firstly to the Service Tribunal and then ultimately to the apex Court and this process starting from the Authorities and ending up at the Court of last resort i.e. the Supreme Court of Pakistan would take a number of years.
Keeping in view the series of judgments of the Hon'ble Supreme Court of Pakistan, I can safely observe that once the petitioner reaches the apex Court, it would finally accept her appeal purely on technical grounds which shall in effect hold that due to non-holding of regular inquiry, the petitioner's case has been prejudiced and as such the case would be remanded back to the first stage from where the petitioner came i.e. the Departmental Authorities for de novo proceedings meaning thereby that the steps which were to be taken at the first instance shall be taken at the last stage after a lapse of several years.
At the end of the day the entire exercise would not only defeat the ends of justice but would also force the petitioner and her whole family, which may be dependent on her alone, to go through a lengthy and severe period of financial turmoil which would also include humiliation among society and mental agony for the petitioner and her family members. Last but not the least the petitioner in starting from the Departmental Authorities and agitating her way up to the Supreme Court of Pakistan, would have lost a considerable period of her valuable time for which no Authority or Court would allow any compensation.
It is well settled law laid down by the Hon'ble Supreme Court of Pakistan in case reported as Mst. Razia Jaffer v. Government of Baluchistan (2007 SCMR 1256) wherein it is held that,--
"nobody shall be prejudice by the act of Court or act of public functionaries. "
Keeping in view all the circumstances of the case and the law laid down in this respect the best possible option for this Court is to interfere right at this stage and stop the petitioner from going through the cumbersome process of losing her valuable time and money, stopping her and her family from going through the mental agony of waiting for her to be dismissed in the end and simultaneously on the other hand to restrain the Departmental Authorities from violating the well settled law which of course is the duty to abide.
In the above stated scenario, the case is remanded to the respondent with a direction to withdraw the impugned Show-Cause Notice, frame charge sheet/statement of allegation, appoint an independent inquiry officer higher in rank the petitioner, communicate the charge sheet/statement of allegations to the petitioner, obtain her reply and direct the inquiry officer to hold the inquiry strictly in accordance to law and rules affording a chance to the petitioner to cross-examine the witnesses produced by the department and also to have an opportunity to rebut the documentary evidence if the same is produced by the department, in addition to providing the petitioner an opportunity to produce her defence.
After the completion of inquiry proceedings the competent authority is required to provide the copy of the inquiry report to the petitioner if the allegations are held to be proved against her and then of course the competent authority shall be at liberty to issue her Show-Cause Notice and then proceed strictly in accordance to law and pass an appropriate order against the petitioner.
Till such time, the directions mentioned above are not complied with in letter and spirit; no adverse order shall be passed against the petitioner. With these observations the writ petition is disposed of.
(M.S.A.) Petition disposed of.
PLJ 2008 Lahore 739
Present: Tariq Shamim, J.
Mst. SHAMIM BIBI--Petitioner
versus
ADDL. SESSIONS JUDGE, LAHORE and 2 others--Respondents
W.P. No. 702 of 2008, decided on 13.5.2008.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898)--Ss. 22-A & 22-B--Constitutional petition--Justice of Peace--Authority to order addition or delete any offence--Order is illegal and corum non-judice--Validity--Justice of Peace cannot make any observation with regard to nature of offence or direct addition or deletion of a penal provision as the exclusively falls within domain of the investigating officer before challan is submitted and trial Court which is fully competent to add any offence if made out from FIR, report tendered in terms of S. 173, Cr.P.C. and material available on the record at time of framing of the charge--Petition was accepted. [P. 741] A
Mr. Justin Gill, Advocate for Petitioner.
Mr. Shahzad Hassan Sheikh, Advocate for Respondent No. 2.
Mr. Amjad Ali Chattha, Assistant Advocate General for Respondents.
Date of hearing: 13.5.2008.
Order
Through this petition, the petitioner has challenged the order of the learned Additional Sessions Judge/Ex-Officio Justice of Peace, Lahore, dated 11th of August 2007, whereby on a petition filed by Respondent No. 2 in terms of Sections 22-A/22-B Cr.P.C. the Investigating Officer of case F.I.R. No.418 dated 25th of May 2007 was directed to insert Sections 365-B, 324, 34 & 109 P.P.C.
The learned counsel for the petitioner contends that the impugned order is illegal and corum non judice; that it is the prerogative of the police after recording of the F.I.R, statements of witnesses u/S. 161 Cr.P.C. and on the basis of other material available on the record to add or delete any offence; that the learned Ex-Officio Justice of Peace is not conferred with any authority in terms of Sections 22-A/22-B Cr.P.C., to order addition of any offences as it is only the trial Court which can frame charge in respect of any offence disclosed by the record even though the same is not mentioned in the report submitted in terms of Section 173 Cr.P.C., and that Respondent No.2 can avail remedy available to her before the learned Magistrate or the trial Court if any mistake has been committed by the police in incorporating offences in the F.I.R.
Conversely, the learned counsel appearing on behalf of Respondent No.2 contends that the direction issued by the learned Ex-Officio Justice of Peace is in accordance with law and does not call for any interference by this Court.
The learned Assistant Advocate General while adopting the arguments advanced by the learned counsel for the petitioner contends that the learned Ex-Officio Justice of Peace has no jurisdiction under the law to pass an order with regard to addition of offences in the F.I.R.
I have heard the learned counsel for the parties and perused the record.
Section 22-A(6) Cr.P.C. is re-produced hereunder for easy reference:--
"An Ex-Officio Justice of Peace may issue appropriate directions to the police authorities concerned on a complaint regarding:
(i) non-registration of criminal case;
(ii) transfer of investigation from one police officer to another; and
(iii) neglect, failure or excess committed by a police authority in relation to its functions and duties."
From the above, it is evident that the learned Ex-Officio Justice of Peace cannot make any observation with regard to the nature of offence or direct addition or deletion of a penal provision as the same exclusively falls within the domain of the Investigating Officer before the challan is submitted and thereafter the trial Court which is fully competent to add any offence if made out from the F.I.R, report tendered in terms of Section 173 Cr.P.C., and other material available on the record at the time of framing of the charge. Further, the parties also have the right to address arguments at the time of framing of charge in support of their contentions. Reliance is placed on cases of Muhammad Javed Khan Vs. Additional Sessions Judge, Multan and two others (2007 PCr.LJ 124) and Ghulam Haider Vs. Additional Sessions Judge etc. (NLR 2006 Crl. 345).
In view of the above legal position, this petition is accepted and the impugned order dated 11th of August 2007 is set aside. There shall be no order as to costs.
(R.A.) Petition accepted.
PLJ 2008 Lahore 741
Present: Hafiz Tariq Nasim, J.
Brig. Retd. SAFDAR HUSSAIN AWAN, DIRECTOR PROJECTS (MP-II) EVACUEE TRUST PROPERTY BOARD, GOVT. OF PAKISTAN, LAHORE--Petitioner
versus
GOVERNMENT OF PAKISTAN through PRINCIPAL SECRETARY TO THE PRIME MINISTER, PRIME MINISTER'S SECRETARIAT (PUBLIC) ISLAMABAD and 3 others--Respondents
W.P. No. 8556 of 2007, decided on 18.4.2008.
Evacuee Trust Properties (Management and Disposal) Act, 1975 (XIII of 1975)--
----S. 4(2)(p)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Maintainability--Petitioner being highly qualified Engineer is appointed as Director General in Evacuee Trust Properties Board--Notification was issued whereby contract period of the petitioner was fixed for one year--Decision to appoint the petitioner as Director was placed before Board of E.T.P, but Secretary Minority took it a matter of personal prestige and opted to perceive--Petitioner was terminated and asked the reason for transgression of authority--Termination of contract is against principle of audi alterm partem--Validity--Contentions that the petitioner will not insist for reinstatement, but he needs vindication because despite termination of contract the petitioner faced humiliation amongst family, colleagues and the society because the petitioner is highly qualified Engineer served Pakistan Army for a considerable time rose up to level of Brigadier virtually put his blood to E.T.P. Board by way of working day and night, whereas he was rewarded by way of termination and that too by order of Prime Minister who was not competent--Whether an Autonomous Body was competent to appoint/terminate the petitioner's category's officer without intervention of Federal Govt. or approval of Federal Govt./Prime Minister is mandatory--Question of--Held: Termination of the petitioner was made by Prime Minister meaning thereby that the termination order was passed by an incompetent Authority--Further held: Petitioner was not interested to rejoin its assignment, hence no order for petitioner's reinstatement was passed--Petition was allowed. [Pp. 744 & 745] A, D & E
Words and Phrases--
----Autonomous--The word Autonomous is derived from the word Autonomy which is defined in Black's Law Dictionary VIII Addition in following terms, the right of self-Government, A self governing state. [P. 744] B
Words and Phrases--
----Autonomous Body--An Autonomous Body is essentially such a Body that works and carries on its business independently without any impediment in its way. [P. 744] C
Dr. A. Basit, Advocate for Petitioner.
Syed Iftikhar Hussain Shah, Deputy Attorney General for for Respondents No. 1 and 2.
Mr. Qamar-uz-Zaman, Advocate for Respondents No. 3 and 4.
Date of hearing: 18.4.2008.
Judgment
The backdrop of this writ petition is that the petitioner being a highly qualified Engineer is appointed as Director General (Technical) in BS-20 in the Evacuee Trust Properties Board till further orders on 29.7.2005, however, an other Notification dated 15.9.2005 was issued whereby the contract period of the petitioner was fixed initially for one year with effect from 4.1.2007 in MP-II at monthly salary of Rs. 90,000/-. Needless to mention that the decision to appoint the petitioner as Director Projects was placed before the full board of E.T.P. Board on 14.12.2006 who unanimously approved as agenda Item No. 13 in its 260th meeting, but surprisingly the Secretary, Minority Division Islamabad took it a matter of personal prestige and opted to perceive the petitioner's appointment by the Board by transgression of limits on the part of the Chairman, so the Secretary initialized a summary for Prime Minister describing the petitioner's appointment as irregular with a proposal to regularize the petitioner's appointment but got issued a memorandum dated 23.7.2007 whereby the petitioner was terminated and as well as the Chairman of E.T.P. Board was asked to explain the reasons for transgression of authority.
The learned counsel for the petitioner submits that the termination of contract is against the principle of Audi alteram partem as admittedly before passing the said order neither the petitioner was served with a notice nor he was allowed to explain his case in person.
Further submits that the provisions of Section 4(2)(P) of 1975 Act empowered the E.T.P. Board to appoint the petitioner on contract basis in its own assessment and discretion and no prior approval of the Federal Government was required for such appointment because the Board is a statutory Autonomous Body and is under a statutory duty to take all such action as it deems fit for discharge of proper Management Function entrusted to it unless there is a prior restraint placed on these powers by means of any Rules, Scheme or direction made or issued in terms of E.T.P. (Management and Disposal Act) 1975 (Act No.XIII of 1975).
Further submits that the impugned memorandum was obtained by the respondent Secretary Minorities Affairs by presenting a distorted version of law and facts relating to the service status of the petitioner to the Prime Minister, particularly destroying the autonomy of the Board which otherwise is repugnant to the statute which governs the Functions of the Board.
On the other hand, the learned counsel for the respondents submits that practically the writ has become infructuous because the contract period started from 4.1.2007 has already been expired on 3.1.2008 being one year contract and it is just a frivolous litigation and nothing else. Further submits that the E.T.P. Board was constituted under the provisions of the E.T. Properties (Management and Disposal) Act 1975 (Act of XIII of 1975) and to regulate the Board, the Recruitment and Service Regulation E.T.P. Board were made in exercise of powers conferred under Section 29 of the Act ibid, but with the approval of the Federal Government and according to Rule 1(b)(ii) the said Rules are not applicable to the contract employees and despite the Rules ibid, the petitioner cannot agitate his grievance through this writ petition.
Further submits that as the petitioner's appointment was a violative of Office Memorandum dated 1.4.2006 (Annex-VI attached with the reply to the writ petition), hence it cannot sustain in the eye of law.
Arguments heard; record perused.
After hearing the learned counsel for the respondent, the petitioner's learned counsel at the very outset categorically stated that he will not insist for reinstatement, but he needs vindication because despite termination of contract the petitioner faced humiliation amongst family, colleagues and the society because the petitioner is highly qualified Engineer, served the Pakistan Army for a considerable long time, rose up to the level of Brigadier virtually put his blood to the E.T.P. Board by way of working day and night whereas he was rewarded by way of termination and that too by the order of Prime Minister who was not competent in that matter.
The petitioner's learned counsel submits that his client wants a decision on the core issue that "whether in such like appointments the E.T.P. Board which is admittedly an Autonomous Body was competent to appoint/terminate the petitioner's category's officer without intervention of the Federal Government or the approval of Federal Government/Prime Minister is mandatory."
To resolve the present controversy first of all I have to advert the plain meaning of the Autonomous Body and its concept.
The word Autonomous is derived from the word Autonomy which is defined in Black's Law Dictionary VIII addition in the following terms:--
(i) The right of self-Government.
(ii) A self-governing State.
This essentially means the key element in an "Autonomous Body" is its Autonomy and in other words its independence. An Autonomous Body is essentially such a Body that works and carries on its business independently without any impediment in its way.
Once the Government has granted an Autonomous status to the Body as in the present case to ETP Board, it is assumed and implied that it had stepped back from any interference in that Body from that points on words and that the Body being given the Autonomous status was free to conduct its business according to its own independent decision. Any further interference by the Government in the matter of Autonomous Body tantamount to Breach its independent Autonomy therefore, such Breach would be unwarranted and illegal. It is not at all obligatory upon the Autonomous Body to appoint/remove employees at the whims of the Federal Government/Prime Minister when specific Rules have been made for the appointment and for the removal of its employees, because if such interference is allowed the word Autonomous/self-governing would certainly become meaningless and the status of being Autonomous would not be much different from that wholly Governmental Control Body. In the present controversy it is an admitted position that the petitioner was appointed on contract but by the Board and it is also an admitted position that the termination of the petitioner was made by the Prime Minister/Federal Government meaning thereby that the impugned termination order was passed by an incompetent Authority.
It is settled law laid down by the Hon'ble Supreme Court of Pakistan in case of PLD 1987 SC 421, that any order of termination/Removal by an incompetent authority cannot hold the field, so far the contentions of the learned counsel for the respondents that the writ is not maintainable seems to be without force on the sole ground that ETP. Board undisputedly falls within the definition of "Person" as per the provisions of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and is amenable to the writ jurisdiction thus this contention is repelled.
As noted above, that the petitioner is not interested to rejoin its assignment, hence no order for the petitioner's reinstatement is passed, however, keeping in view the above discussions and findings, the impugned orders dated 23.7.2007 and 31.8.2007 are declared without lawful authority being an outcome of extraneous consideration and are hereby set aside.
The writ petition is allowed in the above terms.
(R.A.) Petition allowed.
PLJ 2008 Lahore 745 (DB)
Present: Syed Hamid Ali Shah & Ali Akbar Qureshi, JJ.
ABDUL MAJEED and others--Petitioners
versus
GOVT. OF PUNJAB through Secretary Higher Education Civil Sectt., Lahore and another--Respondents
W.P. No. 143 of 2004, decided on 24.3.2008.
Punjab Civil Servants Act, 1974 (VIII of 1974)--
----Ss. 2(i) & 10--Constitution of Pakistan 1973, Art. 199--Adhoc appointment--Regularization of--Petitioners were appointed as lecturers on ad hoc basis--Government declined to regularize them--Supreme Court directed to decide the matter under the legal policy--Punjab Public Service Commission declared them fail--Challenged through Constitutional petition--Held: Petitioners were not required to be tested on the standard laid down for the direct recruits, rather their case was required to be sent to Punjab Public Service Commission for confirmation--Respondents instead of seeking guidance from the scheme of regularization of ad hoc employees of Federal Govt. adopte its own procedure different from the direction of Supreme Court & policy/scheme--They adopted the method by allocating 50 marks to the interview and 50 marks for academic/educational qualifications--Case remanded to re-decide the matter according to Supreme Court direction and the policy scheme.
[P. 750] A & B
2003 SCMR 291 & AIR 1981 SC 487, ref.
M/s. Muhammad Akram Sheikh, Khawaja Mohsin Abbas, Ahsan Naveed Farooqi, Sharjeel Adnan Sheikh and Malik Matee Ullah, Advocates for Petitioners.
Mr. Muhammad Hanif Khatana, AAG with Mr. Nemat Ali, Under Secretary Education, Mr. Muhammad Farooq Raja, Deputy Director Legal (PPSC) for Respondents.
Date of hearing: 24.3.2008.
Judgment
Syed Hamid Ali Shah, J.--This single judgment will dispose of Writ Petitions Nos. 143, 6365, 7216, 8529 and 10720 of 2004 as the matter in issue, in all these petitions is the same.
The synoptic resumption of the matter, in issue is that the petitioners, were appointed as Lecturers on ad hoc basis in different subjects on the basis of selection, on merit by the respondents' Divisional Selection Board, in the year 1993 and 1995. The petitioners served in different colleges, under the control of Education department, without any break till their services were terminated vide order dated 05.8.2000.
The petitioners approached the Punjab Service Tribunal and assailed their termination through service appeals, which were dismissed. Thereafter the petitioners assailed the orders of Service Tribunal before the Hon'ble Supreme Court, where Civil Petitions for leave to appeal were converted into appeals and were disposed of through order dated 25.9.2002, with the following mandate:--
"We do not deem it proper to direct that the respondents while seeking guidance from the scheme for regularization of ad hoc employees of Federal Government referred above will initiate through process of regularization of the petitioners through Punjab Public Service Commission giving the concession as mentioned in the reply filed by the respondents in the Punjab Service Tribunal within a period of one month."
The judgment was assailed by way of Review Petition by the Government before the Hon'ble Apex Court, which was dismissed on 09.01.2003 with a direction to the Government to comply with the orders dated 25.9.2002 within one month.
The respondents then at a low pace, invited the applicants for interview. Public Service Commission earmarked 100 marks by allocating 50 marks for educational qualification and 50 marks for interview.
The petitioners were declared "fail" by the Public Service Commission. Hence this petition with the prayer:--
(a) that process adopted by the respondents in violation of judgments of Supreme Court dated 25.9.2002, which culminated in the non-regularization of the petitioners be declared void and without lawful authority and
(b) direction be issued to the respondents to implement the judgment dated 25.9.2002 and dated 09.01.2003 in letter and spirit so as to consider the petitioners for regularization on reasonable objective criteria.
(i) That the respondents are bound to act in aid of the Supreme Court as envisaged in Articles 187, 189, 190 of the Constitution.
(ii) That criteria of M.A. English as prescribed at the time of the original induction on ad hoc basis could not be changed to the detriment of the petitioner as the policy, rule/notification cannot operate retrospectively.
(iii) That the policy of incorporating 50 marks for interview to the petitioners, who had the experience of 5 to 7 years of teaching various under graduate classes, was not only unreasonable but was also violative of the mandate of the judgment of the Hon'ble Supreme Court.
(iv) That the right to work/service is a source of livelihood of a person, which is a fundamental right of a person as enunciated by the Hon'ble Apex Court in the case of Dr. Naveeda Tufail Vs. Government of Punjab (2003 SCMR 291).
(v) That prescribing/allocating 50% marks for interview, not only offends direction of Hon'ble Supreme Court but amounts to unfairly prejudice the rights of employees and equip the employer to oust its employee and tilt the balance in favour of the later. Learned counsel supported this contention by referring to the case of Ajaz Hasain Vs. Khalid Mujib (AIR 1981 S.C 487).
(vi) That the policy decision chalked out by the respondents is arbitrary, bias and unreasonable.
(vii) That a reasonable expectation to be regularized, stands frustrated through the process of a short interview of 10 to 15 minutes.
The learned Addl. Advocate General has controverted the above arguments and has submitted that the Public Service Commission acted strictly in accordance with the policy framed by the Government of Punjab; that no bias and malice has been proved on the record and that the petitioners failed in the interview on objective consideration. He has submitted that large number of candidates were selected and only those (petitioners herein) were left out, as they were not found suitable. He has submitted that a very liberal policy was adopted and more than 70% of the applicants were regularized.
We have heard the learned counsel for the parties and perused the record.
The record reveals a protracted litigation, which has elaborately been explained by the learned counsel for the petitioners, in chronological order. Admittedly the case of the petitioners had been remanded by the Hon'ble Supreme Court for the purpose of regularization, of course subject to the requisite qualifications. The intrinsic mandate of the Hon'ble Supreme Court is fortified by the observations made in Dr. Naveeda Tufail's case (supra). Relevant para of the judgment reads as under:--
"11. The concept of regularization of ad hoc employees is evident from the above referred policies of the Federal Government and in the light of these precedents, the petitioners would be justified to ask for regularization. We have been informed that the petitioners have served on ad hoc basis for a number of years without break and some of them were in service as ad hoc employees since long. The employment for a common person is the source of livelihood and right of livelihood is an undeniable right to a person. If the work is the sole source of livelihood of a person, the right to work shall not be less than a fundamental right which should be given protection accordingly. Therefore, the petitioners who have served the education department for such a long period, would deserve to be given fair chance of regularization in the given situation. The learned Advocate General, Punjab, without offering any explanation of keeping the petitioners in service on ad hoc basis for such a long period and not fulfilling the vacancies on regular basis, submitted that in absence of policy of regularization, certain concessions, as mentioned in the reply submitted on behalf of the respondents before the Tribunal, were given to the petitioners to appear before the Public Service Commission for selection with direct recruits but except of few none has availed this opportunity. The learned counsel for the petitioners at this stage has submitted that if the cases of the petitioners are referred to the Public Service Commission for regularization in the light of policy of regularization of the Federal Government, they shall be satisfied."
"(i) Cases of ad hoc appointees who were fully qualified and recruited after properly following the prescribed procedure including invitation of applications through advertisement and observance of Provincial quotas .... it was agreed that such cases may be referred to the FPSC for confirmation."
According to the afore-mentioned scheme of regularization, the petitioners were not required to be tested on the standard laid down for the direct recruits. The case of the petitioners was required to be sent to the Punjab Public Service Commission for confirmation, in view of the above quoted policy. The respondents instead of seeking guidance from the scheme of regularization of ad hoc employees of the Federal Government, adopted its own procedure and laid standard for selection, different from the direction of the Hon'ble Supreme Court and also the above referred policy/scheme. They adopted the method of selection by allocating 50 marks to the interview and 50 marks for the academic/educational qualification. Allocation of 50 marks for interview had neither been provided in the policy letter dated 21.10.1997 nor in Martial Law Instructions No.21 (ibid) for regularization of ad hoc appointees. We have already discussed in the earlier part of this judgment that allocating 50 marks unfairly arm the Public Service Commission to exercise its unbridled powers. Thus, we have no hesitation to hold that the impugned scheme and policy adopted by the respondents for regularization of the ad hoc employees is not in consonance with the direction and mandate of the judgment of Hon'ble Supreme Court (in the case of Dr. Naveeda Tufail (Supra). The petitioners are made victim of discretion, which is derogatory of the advancement of justice, fair-play and the direction of the Hon'ble Supreme Court.
Requirement of Masters in Second Division in English and further requirement of additional diploma in English for the appointment of Lecturer in English was not the requirement or eligibility criteria for the appointment, at the time when the petitioners in W.Ps. No. 6365 and 7216/2004, were inducted into service though on ad hoc basis in 1993 and 1995. Any change in qualification, therefore, at the time of regularization could not be made applicable to the detriment of the petitioners retrospectively.
For the foregoing, we accept these petitions, direct the respondents to consider the case of the petitioners strictly in accordance with the scheme of regularization of ad hoc employees of the Federal Government, referred by the Hon'ble Supreme Court in Dr. Naveeda Tufail's case (supra). The respondents shall complete this exercise within a period of one month and they will not make any appointment to fill these vacancies till the time the case for regularization of the petitioners is finalized.
(J.R.) Petitions accepted.
PLJ 2008 Cr.C. (Lahore) 751 (DB)
Present: Tariq Shamim and Muhammad Ahsan Bhoon, JJ.
MUHAMMAD YOUNAS alias JOONA--Appellant
versus
STATE--Respondent
Crl. A. No. 259-J of 2002 with M.R. No. 521 of 2002, heard on 12.5.2008.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(a)--Criminal Procedure Code, (V of 1898), S. 410--Conviction and sentence--Challenge to--Appreciation of evidence--Quantum of sentence--Prosecution has successfully proved its case through ocular as well as medical evidence--Motive in the case stood shrouded in mystery--Recovery has been found of no consequence and ocular account has been furnished by the close relatives--Death sentence converted into life imprisonment for the safe administration of justice and as an abundant caution--Appeal dismissed. [P. 755] A
Mr. Abdul Majid Chishti, Advocate for Appellant.
Mr. Faisal Raza Bokhari, DPG for State.
Date of hearing: 12.5.2008.
Muhammad Ahsan Bhoon, J.--This appeal is directed against the judgment dated 8.6.2002 passed by the learned Addl. Sessions Judge, Pasrur District Sialkot whereby Muhammad Younas alias Joona appellant was convicted under Section 302(a) PPC and sentenced to death. He was also ordered to pay Rs. 50,000/- as compensation to be paid to the legal heirs of the deceased as required under Section 544-A Cr.P.C., in default whereof to undergo 6 months S.I. Benefit of Section 382-B Cr.P.C. was extended to the appellant provided his sentence of death would be altered by the High Court. The learned trial Court has sent Murder Reference No. 521/2002 for confirmation of death of the convict or otherwise. Both the matters are being disposed of through this judgment.
As per FIR (Ex.PA/1), brief facts of the case as narrated by the complainant are that he had goats to whom he used to take for grazing early in the morning and come home in the evening. His son named Khalid Hussain aged 26 years was a mason by profession. On the morning of fateful day, his son went to village Thatha Baawa for working and he (complainant) went out for grazing goats. At sunset time, the complainant after grazing goats was coming back to his village, when he reached near the "Maktab School" at Dhoda Road, Mst. Robina Bibi and Mst. Nusrat Bano his daughters joined him who were also coming back after taking firewood. He along with his daughters was coming back to village. Meanwhile, his son Khalid Hussain also joined them while he was on a bicycle, and when his son went a little ahead of them, Younas alias Joona son of Bashir caste Jolaha armed with .12-bore double barrel gun, Muhammad Boota son of Farid caste Arain armed with .12-bore double barrel gun and Khalid son of Suleman caste Rajput armed with pistol, all residents of Dhariwal raised lalkaras on seeing Khalid Hussain. Younas alias Joona (appellant) fired with his .12-bore double barrel gun which did not hit Khalid Hussain fortunately. His son, after leaving his bicycle ran away to western side of "Maktab School". All the three accused chased his son and when his son reached near "Maktab School", Younas alias Joona fired from his .12-bore double barrel gun which hit him on back left side of his chest. His son seriously injured and fell on the ground. His daughter raised hue and cry and accused fled from the spot while making firing. The complainant removed the injured to the Civil Hospital, Pasrur where his son succumbed to the injury. Besides him, the occurrence was witnessed by his daughters Mst. Robina Bibi and Mst. Nusrat Bibi.
The motive behind the occurrence was that Younas alias Joona was habitual thief and prior to this occurrence Younas alias Joona committed a thief of he-goat of Arif Chungar. The complainant had called him as their upon which Younas alias Joona had beaten the complainant prior to this occurrence and due to this revenge Younas alias Joona had committed the murder of Khalid Hussain son of complainant by sharing the common intention along with his co-accused. It is further alleged by the complainant that Younas alias Joona had been residing with Abdul Haq son of Abdul Majeed accused and Abdul Haq accused had made Younas alias Joona a rascal. Younas alias Joona along with his co-accused has committed the murder of Khalid Hussain on the abetment of Abdul Haq accused. The complainant made request for legal proceedings.
After due investigation, report under Section 173 Cr.P.C. was submitted in the learned trial Court. Charge was framed against the appellant and acquitted accused who denied the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. The accused were examined under Section 342 Cr.P.C. Muhammad Younas appellant/accused in answer to question as to why this case was against him and why the PWs deposed against him stated as under:
"I am innocent person in this case. In fact I was a witness in murder case registered by Abdul Haq accused (P.O) against Muhammad Khan etc. r/o village chak Ishaq who is an influential person of locality and due to this enmity, the complainant involved me in this case with the connivance of said Muhammad Khan. I appeared before the DSP, Crime Branch Range, Gujranwala in that murder case as prosecution witness against Muhammad Khan etc. prior to occurrence."
The appellant opted to appear as his own witness in disproof of the allegation levelled against him as required under Section 340(2) Cr.P.C. However, he did not do so but he produced Muhammad Shaukat Hayat DSP (DW. 1) in his defence.
The learned trial Court after hearing the parties passed the above said conviction and sentence through the impugned judgment, which has been assailed by the appellant.
Learned counsel for the appellant contends that the PWs were interested witnesses and no independent witness was produced by the prosecution particularly when the occurrence took place on the road; no empty was recovered from the place of occurrence while accused had allegedly been making aerial firing; the bicycle of the deceased was not recovered and in fact the deceased was done to death by unknown robbers as it had come in evidence that many robberies were committed on Dodha Road which was the place of occurrence. He has further argued that recovery of .12-bore gun is doubtful as no empty was recovered from the spot and no public witness was associated with the recovery proceeding; the prosecution version was found false to the extent of co-accused Khalid Mehmood and Muhammad Boota who were acquitted by giving the benefit of doubt.
Learned DPG has supported the impugned judgment passed by the learned trial Court, and argues that the prosecution has proved its case against the appellant beyond any shadow of doubt and prayed for dismissal of the appeal.
We have heard the learned counsel for the parties and perused the evidence carefully.
The ocular account in this case was furnished by Talib Hussain (PW-1), Mst. Nusrat Bano (PW. 2) and Mst. Robina Bibi (PW.3). Talib Hussain (PW.1) is an eye-witness as well as complainant of the case and he is also father of Khalid Hussain deceased. He while appearing before the learned trial Court corroborated the story of FIR Ex.PA/1 lodged on the basis of complaint Ex.PA. He has given a very natural story that he saw the occurrence when he was coming back after grazing goats and in the way his two daughters who are the eye-witnesses and appeared as PW. 2 and PW. 3 joined him. Meanwhile, his son Khalid Hussain (deceased) came on a bicycle and waylaid by the accused and appellant Muhammad Younas alias Joona fired first shot to his son but he was saved fortunately. Then his son ran to save his life, appellant Younas alias Joona fired from back side hitting on back side of Khalid Hussain deceased. The above narration was supported by Mst. Nusrat Bano (PW. 2) and Mst. Robina Bibi (PW.3) who are real sisters of the deceased and daughters of the complainant. Their testimony cannot be termed as interested or inimical when they had no ill will or motive for false implication of the appellant particularly they would not let off the real culprits who was murderer of only son of the complainant and brother of aforesaid PW.2 and PW.3. We may observe here that substitution is a rare phenomena when the identity of the culprit is mistaken but the instant occurrence took place when the sun set was not complete so there was no possibility of any mistaken identity. The ocular account furnished by the eye-witnesses is also supported by the medical evidence as Dr. Gul Nawaz (PW.7) conducted post-mortem examination who found single firearm injury on the back side of the chest of Khalid Hussain deceased and pellets were also recovered from the interior chest wall under the skin. The place of occurrence in this case is not disputed one and the same is further corroborated by the recovery of blood stained earth from the place of occurrence. Same was found stained with human blood as proved through the report of Chemical Examiner and report of Serologist Ex.PO and Ex.PP respectively.
The motive alleged by the prosecution was that the accused-appellant was involved in a theft case and he had also stolen he-goat of one Arif Changar and complainant had called the accused appellant thief upon which he gave beating to the complainant and due to that reason an enmity was going on, between the complainant and the accused, but in the instant case the prosecution was unable to bring on record any type of involvement of accused in any theft case. It is also worth note that when the appellant had grudge against the complainant as to why he instead of firing at the complainant killed his son. It can, therefore, be safely held that the prosecution has failed to establish the story of motive.
As far as the recovery of gun is concerned, same was found in working order as reflected from the report of Forensic Science Laboratory (Ex.PQ) but no empty was recovered from the spot, so the gun recovered was of no consequence particularly when no respectables of the locality joined with the recovery proceedings nor the I.O. summoned Lambardar or any other person from the locality and Khadim Hussain constable (PW.9) who appeared to prove the recovery of gun was even unable to depose about the description of the place from where the same was recovered, so we disbelieve the recovery of weapon of offence also.
So far as case of acquitted co-accused is concerned, they were not attributed effective role by the eye-witnesses and were also declared innocent by the police, so acquittal of co-accused will not give any premium to the appellant as his case is altogether is on different footing.
In view of the above discussion, we find that the prosecution has successfully proved its case against the appellant through ocular as well as medical evidence. However, so far as quantum of sentence is concerned, we find that the motive in the case stood shrouded in mystery, similarly recovery has been found of no consequence and ocular account has been furnished by the close relatives of the deceased, for the safe administration of justice and as an abundant caution we convert the death sentence into life imprisonment but the amount of compensation is maintained. Benefit of Section 382-B Cr.P.C. is also granted to the appellant.
With the above modification, this appeal is dismissed and Murder Reference No. 521/2002 is answered in the negative.
(M.A.K.Z.) Appeal dismissed
PLJ 2008 Lahore 753
Present: Khalil Ahmad, J.
SAIMA ASLAM--Petitioner
versus
ASIF TUFAIL--Respondent
W.P. 5574 of 2008, decided on 26.5.2008.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 491--Suckling baby--Welfare of minor--Petitioner filed an application for recovery of minor from illegal custody--Held: Minor was a suckling baby and interest and welfare of minor demanded that custody be given to the mother who has not married till date as compared to the father--Further held: Respondent can approach the Guardian Court for custody who shall decide the same keeping in view the welfare of the minor--Petition was allowed
PLJ 2008 Lahore 754
Present: Sardar Muhammad Aslam, J.
WATER AND POWER DEVELOPMENT AUTHORITY through its Chairman, Lahore and 4 others--Petitioners
versus
ABDUL SHAKOOR (deceased) through his Legal heirs--Respondents
C.R. No. 2185 of 2000, heard on 9.1.2008.
Electricity Act, 1910 (LX of 1910)—
----S. 26(6)--Jurisdiction--Plaintiff/respondents challenged demand of bill--Slowness of meter--Exclusive jurisdiction to an electric inspector--Held: Case falling under S. 26(2) of Act, 1910, are cognizable by an electricity inspector while u/S. 26-A are to be dealt with by a Court of plenary jurisdiction of an electric inspector and Advisory Board--Non raising of objection to the jurisdiction before Court of first instance will not confer jurisdiction upon the Court--Jurisdiction is conferred by law and not by concept of the parties--Revision allowed. [P. 756] A & B
PLD 1965 SC 690; 2006 MLD Lah. 636 & PLD 1995 Lah. 56, rel.
Mian Khurshid Alam Ramay, Advocate for Petitioners.
Ch. Hafeez Ahmad, Advocate for Respondents.
Date of hearing: 9.1.2008.
Judgment
This judgment shall dispose of Civil Revision No. 2185 of 2000 and Civil Revision No. 2186 of 2000, as common question of law and facts are involved.
This civil revision is directed against concurrent findings of fact recorded by the learned Courts below in suit filed by the respondent for declaration along with permanent injunction against the petitioners to the effect that the meter reading be declared to be correct at the multiplying factor-2 instead of 2.85 and similarly the MDI meter reading with the multiplying factor-20 be declared to be the true one, instead of 29.500 and that the impugned bill for the month of July, 1997 at the excessive rate due to the incorrect multiplying factor be declared as null and void. The petitioners contested suit. Controversy gave rise to framing of issues. Parties produced their respective evidence oral as well as documentary. The learned trial Court decreed the suit vide its judgments and decree dated 28.07.1998. An appeal was preferred, which came up for hearing before the learned Additional District Judge, Sialkot, who vide his judgment and decree dated 12.10.1999 dismissed the same. This civil revision calls in question both judgment and decrees passed by learned Courts below.
Learned counsel for the petitioners argued that judgments and decrees of both the Courts are without jurisdiction, in terms of Section 26(6) of Electricity Act, 1910, and thus, nullity in law. Relies on Messrs Narowal Flour Mills through Managing Director V. WAPDA through Chairman and 3 others (2006 MLD-Lahore 636).
Conversely, the learned counsel for the respondent/plaintiff argued that question of jurisdiction was neither raised in the written statement nor any evidence was laid and even arguments were not addressed on the question. Relies on Multan Electric Power Company Ltd. through Chief Executive and another v. Muhammad Ashiq and others (PLD 2006 SC 328).
I have heard the learned counsel for the parties and gone through the evidence with their able assistance.
The plaintiff/respondents challenged demand of Bill Exh.P.2, raised on basis of Exh.D.1, recording slowness of meter. It squarely fall under Section 26(6) of the Electricity Act, 1910, conferring exclusive jurisdiction to an Electric Inspector. Reference can be had to Messrs Norwal Flour Mills through Managing Director V. WAPDA through Chairman and 3 others (2006 MLD Lahore 636) and a full bench judgment of this Court in Water and Power Development Authority and another v. Mian Muhammad Riaz and another (PLD 1995 Lahore 56). In Messrs Narowal Flour Mills' case (supra) it was observed in the following words:--
"Since the very jurisdiction of the Court did not extend to try such a lis, the assumption of jurisdiction, the trial of the suit and the judgments recorded by both the Courts stand on no better footing than without jurisdiction".
The judgment relied upon by the learned counsel for the respondent is not helpful to him, wherein it was held that the cases falling under Section 26(2) of Electricity Act, 1910 are cognizable by an Electric Inspector while those under Section 26-A are to be dealt with by a Court of plenary jurisdiction barring jurisdiction of an Electric Inspector and Advisory Board. Judgment of Full Bench of this Court in WAPDA and another v. Mian Muhammad Riaz and another (PLD 1965 Lahore 56) was affirmed.
"It may be noted that it is the duty of the Court itself to apply the law. A party is not bound to engage a counsel. Whatever law becomes applicable on the admitted or proved fact law has to be given effect to whether or not it has been relied upon by a party."
In view of bare reading of Section 26(6) of the Electricity Act, 1910, and the case law cited above, I am of the firm view that the Civil Court lacked jurisdiction in the matter.
For what has been discussed above, these civil revisions are allowed, the impugned judgments and decrees of both the learned Courts below are set aside. The respondents, however may recourse to the remedy available to them under the law, if so advised.
(M.A.K.Z.) Revision allowed.
PLJ 2008 Cr.C. (Lahore) 757
Present: Muhammad Ahsan Bhoon, J.
IQBAL HASSAN @ BALA--Petitioner
versus
STATE--Respondent
Crl. Misc. No. 2748-B of 2008, decided on 23.4.2008.
Bail--
----Proposition--Further inquiry--Ground--If the case of further inquiry is made out then one cannot be kept behind the bars on the ground that trial has commenced because in a case of further inquiry, grant of bail is right of an accused which cannot be denied merly on the ground that trial has commenced. [P. 758] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 324, 337-D & 34--Bail, grant of--Accused was arrested and behind the bars since last one year and four months--So, accused cannot be kept behind the bars as pre-mature punishment--Bail allowed. [P. ] B
Mr. Gulzar Hussain Taqi, Advocate for Petitioner.
Ch. Muhammad Zafar Khan, DPG for State.
Ch. Sameed Ahmad Wains, Advocate for Complainant.
Date of hearing: 23.4.2008.
Order
Petitioner (Iqbal Hassan @ Bala son of Abdul Waheed) seeks post arrest bail in case F.I.R. No. 848/2006 dated 15.12.2006 offence under Sections 324, 337-D and 34 PPC registered with Police Station, Factory Area, District Faisalabad.
Briefly the allegation against the petitioner is that alter the occurrence he alongwith un-known accused advanced threats to complainant and P.Ws that if they came forward they would be done to death.
After hearing the learned counsel for the parties and going through the record, I have found that main role of causing injury to injured P.W Muhammad Saleem as per FIR is attributed to co-accused, Sarfraz Khan, whereas the petitioner has been only attributed role of threats that also after the commission of occurrence by the co-accused. So the petitioner has not played any effective role in the alleged occurrence. As far as the contention of learned counsel for the complainant is concerned that trial have commenced and statements of two formal P.Ws has been recorded. It is settled proposition of law that, if the case of further inquiry is made out then one cannot be kept behind the bars on the ground that trial has commenced because in a case of further inquiry, grant of bail is right of an accused which cannot be denied merely on the ground that trial has commenced. The petitioner was arrested in the case on 18.12.2006 and is behind the bars since last one year and four months. So he cannot be kept behind the bars as pre-mature punishment.
For what has been discussed above, this petition is allowed and petitioner is granted post arrest bail subject to his furnishing bail bonds in the sum of Rs. 2,00,000/- (Rupees Two Lacs only) with one surety each in the like amount to the satisfaction of the learned trial Court.
(A.S.C.) Bail allowed
PLJ 2008 Lahore 760
[Rawalpindi Bench Rawalpindi]
Present: Zubda Tul Hussain, J.
MUHAMMAD ALSAM (AAMER ASLAM) and 3 others--Petitioners
versus
DISTRICT POLICE OFFICER, RAWALPINDI and 2 others--Respondents
W.P. Nos. 55 & 179 of 2008, decided on 28.04.2008.
Constitution of Pakistan, 1973—
----Arts. 4, 9, 10, 14 & 199--Constitutional petitions--Applicability of--Commonality of law--Involvement in multiple litigation with police--Violation the privacy of house--Petition was filed for registration of criminal case against police--Petition was disposed of for approaching the Court of Sessions--Refusal of--Petitioners filed application for the registration of criminal case against police officials before Justice of Peace which was dismissed--Petitioner claimed that two FIR's against the petitioner is false and based on malafide--Validity--Held: No doubt a bounden duty to safeguard the legal and Constitutional right of the citizen but such function cannot be performed in aid of an assertion which is to be determined by means of factual enquiry during the trial of a case and the Courts may have to show restraint where the matters seem to be tainted with malafide--In such situation a direction for registration of a case was not warranted under the law--Petition was dismissed. [P. 766] B
1994 SCMR 1283, 2002 SCMR 1076, PLD 2007 SC 85, PLD 1989 Lah. 513 and PLJ 1988 Quetta ref.
Constitution of Pakistan, 1973—
----Art. 199--Control of Narcotic Substances Act, (XXV of 1997), S. 9-C--Quashment of FIR--Question of fact--Chemical examiner initial report that the traces of charas were not found and he asked for fresh sample--Petitioners prayed for quashing of FIRs on such initial report--Held: Question of fact is not to be dilated upon in the present proceedings but where the petitioners have asserted their claim for registration of the case specifically with reference to a question of fact based upon the report of the chemical examiner, the facts which are relevant to the counter situation cannot be ignored altogether--Where the facts are undisputed and are available on the record and reference thereto does not need probe or enquiry--There shall be no bar under the law to consider them for arriving at a just conclusion--Held: Case where prima facie an offence had been committed ordinary course of trial before the Court should not be allowed to be deflected by resorting to Constitutional jurisdiction of High Court.
[Pp. 765 & 766] A & C
2006 SCMR 276; 2006 SCMR 152 and 2006 SCMR 76, ref.
Constitution of Pakistan, 1973—
----Art. 199--Extra-ordinary jurisdiction--Extra-ordinary jurisdiction of High Court under Art. 199 of Constitution may be used only in extra-ordinary circumstances and it may not be exercised to obviate the normal process of law. [P. 766] D
Sardar Muhammad Latif Khan Khosa, Advocate for Petitioners.
Raja Muhammad Abid, AAG for Respondents.
Date of hearing: 28.4.2008.
Judgment
For the similarity of the facts and commonality of the law applicable the two Writ Petition Nos. 55/2008 and 179/2008 filed by Muhammad Aslam (Aamer Aslam) and others against the District Police Officer, Rawalpindi shall be decided by this single order.
The petitioners seem to be involved in multiple litigation with the police. It has been stated in the writ petitions that the house of the petitioners was raided on 28.5.2005 at about 11.00 p.m by the Civil Lines Police and violated the privacy of the house. Muhammad Imran. petitioner, was mercilessly beaten and his right leg was fractured, against which Writ Petition No. 1508/05 was filed before this Court for the registration of a criminal case against the police officials. This writ petition was disposed of for approaching the Court of Sessions in the first instance. Therefore a petition under Section 22-A of the Cr.P.C. was brought before the Justice of Peace/learned Additional Sessions Judge, Rawalpindi who by order dated 28.06.2005 referred the matter to DPO, Rawalpindi for proceeding in accordance with law in the light of the averments made in the said petition under Section 22-A Cr.P.C. According to the petitioners, nothing came out of the reference of the matter to the DPO and the petitioners were constrained to file W.P. No. 3293/Q/05 which was admitted to regular hearing and is pending adjudication.
According the petitioners, Civil Lines Police has constantly been threatening the petitioners of dire consequences and pressing them hard to withdraw the said writ petition but as a sequel to the refusal of the petitioners the police apprehended Muhammad Aslam, petitioner, subjected him to physical torture and to avoid the consequences of its unlawful designs lodged two FIRs Bearing No. 951 and 952, dated 9.12.2007, u/S. 9-c of the Control of Narcotic Substances Act, 1997, at Police Station, Civil Lines, Rawalpindi against the petitioners Muhammad Aslam and Muhammad Imran, the allegation being that they were respectively in possession of charas weighing 1150 grams and 1111 grams.
It has been pointed out by the petitioners that when Muhammad Aslam, petitioner was produced before the learned Magistrate, Section 30, Rawalpindi, he submitted an application for medical examination whereupon he was medically examined by the
Medical Board of DHQ Hospital, Rawalpindi on 10.11.2007 and multiple injuries were found on his person. According to the petitioners, the specimen sent for chemical analysis of the charas' which was subject-matter of the said FIRs No.
951 and 952 did not bear the traces ofcharas' and the Chemical Examiner instead of giving a negative report asked for fresh samples. The petitioners have alleged that Petitioner No. 1 has been sent to judicial lock up and ever since the other petitioners are being illegally harassed and threatened not to prosecute the police personnel. The petitioners have accordingly prayed that:--
(i) the Respondent No. 1 i.e. DPO, Rawalpindi may be directed to register a case upon the complaint of the petitioner against the culprits responsible for the criminal acts which are cognizable in nature and to have the same investigated through some superior outside authority and in the interregnum the culprits be suspended; and
(ii) the aforementioned Criminal Report Nos. 951 and 952 of 2005, registered at Police Station, Civil Lines, Rawalpindi, u/S. 9-C of the CNSA, 1997 may be quashed and the respondents be directed not to harass the petitioners in any manner whatsoever.
The learned counsel for the petitioners referred to the provisions of Articles 4, 9, 10 and of 14 of the Constitution and argued that every citizen has an inalienable right to be treated in accordance with law and to enjoy the protection of law, no person shall be deprive of life and liberty save in accordance with law; safeguards are provided in the Constitution against their arrest; and detention without being informed of the grounds for such arrest not only that but every person who is arrested and detained in custody has to be produced before a Magistrate within 24 hours of such arrest and no such person can be detained in custody beyond the prescribed period without the authority of a Magistrate.
According to the learned counsel none of the petitioners is required for preventive detention, hence, the protection provided under Articles 4, 9 and 10 of the Constitution must be made available to them. With reference to Art. 14 of the Constitution the learned counsel asserted that the dignity of man and subject to law the privacy of home is inviolable and in clear term prohibit that no person shall be subjected to torture for the purpose of extracting evidence. The learned counsel, thus, concluded that these provisions which confer fundamental rights on the citizens whenever violated and a complaint is lodged before a High Court for the violation the same, Court must step in to investigation such violation under the discretionary jurisdiction conferred on it under Art. 199 and pass such orders as being found just, legal and equitable in the facts and circumstances of the case.
The petitioners' learned counsel further submitted that the Courts have to safeguard the fundamental rights of every citizen and to protect the life and liberty from illegal, unauthorized and mala fide acts of omission or commission by an authority or person. With reference to his prayer for registration of the case, the learned counsel maintained that in the cases where the liberty of a citizen was involved, the action initiated by the police when found to be mala fide, the Court should not hesitate to step in and grant relief to the citizens. At this juncture, the learned counsel once again referred to the facts of the case and relied upon the aforementioned report of the Chemical Examiner to maintain that the case lodged against the Petitioners No. 1 and 2 being deficient and devoid of substance a direction for registration of a case against the concerned police officials was inevitable. In the same context he also referred to the report of the Medical Examination of Muhammad Aslam, Petitioner wherein a number of injuries were found on his person. It was thus submitted that the allegation of physical mal treatment and torture to Muhammad Aslam, petitioner, at the hands of the police officials was established beyond any shadow of doubt.
In relation to the prayer for quashment of the FIRs it was repeated that the aforementioned facts established the falsehood of the cases against the Petitioners No. 1 and 2 and the mala fide and ulterior motive of the police was also proved. Pursuant to the observations of the Chemical Examiner the police had sent the remaining material for further Chemical examination. The learned counsel argued that the re-examination of the alleged contraband was not warranted under the law.
In support of all the aforesaid contentions, the learned counsel for the petitioners relied upon the judgments, namely, Government of Sindh through the Chief Secretary, Karachi and four others v. Raeesa Farooq and five others (1994 SCMR 1283), Maqbool Rehman v. The State (2002 SCMR 1076), The state v. Amjad Ali (PLD 2007 SC 85), Munawar Khan v. Shakil Ahmed and two others (PLD 1989 Lahore 513) and Syed Allah Dost v. Haji Muhammad Alam and 12 others (PLJ 1988 Quetta 1).
The learned AAG representing the respondents stated that the petitioner are renowned drug peddlers who are involved in a number of case and they have often been indulging in frivolous litigation against the police officials with an intent to harass them and with a mala fide purpose to somehow wriggle out of the criminal liability under those cases. According to him, they have also tried to pre-empt any apprehended valid action of the police by the litigation of which the present is one example, rather tip of an iceburg.
He further submitted that initial report of the Chemical Examiner was mala fide whereafter the police sent the whole of the seized contraband to the Chemical Examiner whereupon a positive report was received in the matter. As to the prayer of the petitioners for registration of the case he clarified that the injuries found on their person were duly explained in the FIRs. The learned AAG, thus, concluded that no case was made out for criminal liability of the police officials or for registration of case against them.
Regarding the prayer for quashment of the FIRs, the learned AAG submitted that both the FIRs involved the determination of questions of fact which could not be gone into by the High Court in the proceedings under Art.199 of the Constitution or even under Section 561-A Cr.P.C. The learned AAG relied upon the case of Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276), Allies Book corporation through L.Rs. Versus Sultan Ahmed and others (2006 SCMR 152) and Anwar Ahmed Versus Mst. Faiza Hussan and others (2006 SCMR 76).
The proposition advanced by the learned counsel for the petitioners with reference to the provisions of Art. 4, 9, 10 and 14 of the Constitution as such cannot be disputed. At the same time it can hardly be denied that the applicability or otherwise of these provisions depends upon and has to be decided with reference to the relevant facts of the case. The basic thrust of the petitioners has been on the report of the Chemical Examiner relied upon by the learned counsel for the petitioners in his arguments which was to the effect that in the initial report of the Chemical Examiner the traces of `charas' were not found and the Chemical Examiner had asked for fresh sample and; that the re-examination of the alleged contraband was not warranted under the law.
The initial report of the Chemical Examiner did not formulate the whole truth. I am conscious of the position that the question of fact is not to be dilated upon in the present proceedings but where the petitioners have asserted their claim for registration of the case specifically with reference to a question of fact based upon the report of the Chemical Examiner, the facts which are relevant to the counter situation cannot be ignored altogether. Moreover, where the facts are undisputed and are available on the record and reference thereto does not need probe or enquiry, there shall be no bar under the law to consider them for arriving at a just conclusion.
It is on record that consequent upon the request of the Chemical Examiner the police sent the whole of the quantity of the alleged contraband to the Chemical Examiner who resultantly gave a positive report. The assertion of the petitioner that the report is false or illegal involves factual enquiry which of course cannot be conducted in the present petition. This questions shall be determined by the Court where the trial is to be held in due course of time. Similarly, the facts flowing from the medical examination are to be thrashed out by the learned trial Court in contradistinction with those given in the very FIRs.
The Courts have no doubt a bounden duty to safeguard the legal and constitutional rights of the citizen but this function cannot be performed in aid of an assertion which is to be determined by means of factual enquiry during the trial of a case and the Courts may have to show restraint where the matters seem to be tainted with mala fide. Such a case may better be left to be dealt with in the factual enquiry during the trial before a proper forum. In the given situation, a direction for registration of a case as prayed for by the petitioners is not warranted under the law.
As to the quashment requested by the petitioners suffice would it be to say that this matter as agitated by them also involves factual enquiry which again is beyond the domain of these proceedings. By now it is well settled that in a case where prima facie an offence had been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to the constitutional jurisdiction of the High Court. Reference in this context may be had to Col. Sadiq Shah Vs. Muhammad Ashiq and others (2006 SCMR 276) The extraordinary jurisdiction of the High Court under Article 199 of the Constitution may be used only in extraordinary circumstances and, it may not be exercised to obviate the normal process of law. The case against the petitioners warrants factual findings as to whether the alleged contraband was recovered from them; whether this contraband is or is not the `charas'; whether the injuries sustained by the petitioner; Muhammad Aslam, were the result of the circumstances mentioned in the FIR or were caused by physical mal-treatment and torture at the hands of police, etc. In my opinion, the petitioners have not been able to make out extraordinary circumstances warranting interference in exercise of the jurisdiction under Article 199 of the Constitution by deflecting the ordinary course of trial before the Court of competent jurisdiction
In view of the above circumstances, the writ petitions fail which are accordingly dismissed in limine.
(W.I.B) Petition dismissed.
PLJ 2008 Lahore 767
[Bahawalpur Bench Bahawalpur]
Present: Muhammad Ashraf Bhatti, J.
GENERAL MANAGER, GULISTAN TEXTILE MILLS LTD.--Petitioner
versus
COMMISSIONER, WORKMEN'S COMPENSATION ACT, BAHAWALPUR and 2 others--Respondents
W.P. No. 360 of 2008, decided on 7.3.2008.
Industrial & Commercial Employment (Standing Orders) Ordinance, 1968—
----Clauses (4) & (5) of Paragraph 10-B of the Schedule--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Maintainability--Compulsory Group Insurance--Permanent employee of Textile Mills--Employee died during employment--Claim of group issuance by respondent (father of the employee)--Denial by petitioner--Employee was a child--Commissioner workmen's compensation granted claim of Rs. 2.00 lac--Challenged through writ petition--Non-interference by High Court--Petition dismissed in limine. [P. 768] A
Factories Act, 1934 (XXV of 1934)—
----Ss. 51 & 52--Labour Policy, 2002--Art. 41--International Labour Organization Convocation, 182--Prohibition of child labour below 18 years of age--Exception--On the application of child/adolescent, who has completed his fourteenth years, and wishes to work in a factory of his choice, or of the parent or guardian of such person, the certifying surgeon (appointed under Section 12 of the Act) ascertains his fitness for such work and then grants a fitness certificates effect of which is that he is thereafter deemed to be adult in terms of Section 53 of the Act--Non-compliance of procedure--Effect--The workman so employed shall be deemed to be adult for the purpose of employment in a factory and will be entitled to all benefits guaranteed under the law/Rules in force. [Pp. 770 & 771] B & C
Workmen's Compensation Act, 1923 (VIII of 1923)—
----Schedule IV--Group Insurance of Workers--Object & scope--Provisions relating to Group Insurance, like all other-provisions of Labour Laws promulgated has a rationale behind it--It is a beneficial and workmen friendly legislation enacted to safeguard and project the rights of workmen guaranteed under different statutes/rules and ensured in the Labour Policy that is why the jurisdiction and powers of various forums created there-under, including the Commissioner Workmen's Compensations, are conferred by the legislature in a manner the strengthens them to ensure payment of adequate compensation to the workmen. [Pp. 771 & 772] D & E
Estoppel--
----Group insurance claim on the death of workmen during employment--Delay by petitioner Mills & Insurance Company--Both at default-responsibility of--Held: Amount of Group Insurance has unnecessarily been withheld for quite some time that has aggravated the agony of respondent whose son died in young age and the Insurance Company too had no reason to refuse the claim, if at all it had got executed a policy of group insurance without raising any objection or requiring proof of age. [P. 772] F
Mr. Mukhtar Ahmad Malik, Advocate for Petitioner
Date of hearing: 7.3.2008.
Order
On natural death of one Muhammad Dilshad, a permanent workman of the petitioner-General Manager, Gulistan Textile Mills, vide order dated 31-12-2007 Respondent No. 1/Commissioner, Workmen's Compensation ordered payment of Rs. 2,00,000/- in lump sum i.e. amount of Group Insurance in favour of Rahim Bakhsh, Respondent No. 2, decased's father who approached him in terms of Clauses (4) & (5) of Paragraph 10-B of the schedule appended to the Industrial & Commercial Employment (standing Orders) Ordinance, 1968, which reads as under:--
"Compulsory group insurance:
(1) The employer shall have all the permanent workmen employed by him insured against (natural death and disability and) death and injury arising out of contingencies not covered by the Workmen's Compensation Act, 1923 (VIII of 1923), or the (provincial) employees' Social Ordinance, 1965 (Ordinance No. X of 1965).
(2) The employer shall in all cases be responsible for the payment of the amount of permia and for all administrative arrangements whether carried out by himself or through an insurance company.
(3) The amount for which each workman shall be insured shall not be less than the amount of compensation specified in Schedule IV to the Workmen's Compensation Act, 1923 (VIII of 1923).
(4) Where the employer fails to have a permanent workman employed by him insured in the manner laid down in Clauses (1), (2) and (3) and such workman suffer death or injury arising out of contingencies mentioned in clause (1), the employer shall pay, in the case of death, to the heirs of such workman, or in the case of injury, to the workman, such sum of money as would have been payable by the insurance company, had such workman been insured.
(5) All claims of a workman or his heirs or recovery of money under clause (4) shall be settled in the same manner as is provided for the determination and recovery of compensation under the Workman's Compensation Act, 1923 (VIII of 1923)."
Hence, this Constitutional petition to challenge vires of the said impugned order to get it set aside mainly on the grounds that it was Respondent No. 2 who fraudulently got his deceased son employed in the Gulistan Textile Mills showing him of 18 years and that despite assurance given by him he failed to provide to the petitioner Identity Card of the deceased that is why, as per Ex.R-1 (available on record), Respondent No. 3 Chief Manager, New Jubilee Life Insurance Company refused to pay the Group Insurance amount to the legal heirs of the deceased. According to the petitioner-Mills the deceased was given cover of Group Insurance and premium had also been deposited with the said Insurance Company but the Respondent No. 2 was found entitled to receive insurance claim by Respondent No. 3 which amount of compensation was later on illegally granted by the said Commissioner.
I have heard the learned counsel for the petitioner at length and perused the record.
The impugned order reveals that both the parties were heard by the Commissioner Workmen's Compensation/Respondent No. 1 after having given them opportunity to produce their respective evidence on issues specifically framed as arising out of their divergent pleas, but nothing was placed on record to persuade him that the petitioner-Mills had indeed approached Respondent No. 3 for Group insurance, a statutory prerequisite for a permanent workman. Even Ex.R-1, letter of Respondent No. 3 (Insurance Company) referred to in this regard only makes mention of an alleged Insurance Claim No. 4625 lodged on behalf of the deceased with no supporting documents to give details of policy documents executed for the purpose. The letter was addressed to H.R. Department of the petitioner as consequence of which the Manager of the Mills dispatched a letter dated 22-10-2005 to Respondent No. 2 asking him to provide a copy of Identity Card of the deceased. It is denied by Respondent No. 2 during evidence before the Commissioner Workmen's Compensation that the petitioner had demanded proof of age/Identity Card of the deceased from him giving the impression that the said letter of the Mills had not reached Respondent No. 2. It is also proves that the petitioner-Mills failed to properly pursue and get processed insurance claim of the deceased as it was the administrative concern and responsibility of the petitioner to get it finalized in terms of Clause (2) of Paragraph 10-B of the Ordinance, 1968 (ibid). Therefore, it was none of the fault of Respondent No. 2 to do all this, negating argument by the petitioner before the said Commissioner.
Besides the above failure on the part of the petitioner, even otherwise Muhammad Dilshad deceased had successfully completed his probation period and was made permanent Workman without production of Identity Card or any other proof of his majority implying that he was found fit to work, surely having not been found falling within the definition of an "adolescent" or a "child" requiring to refer him for pre-employment medical/fitness test as per provisions of Sections 51 and 52 of the Factories Act, 1934, read with Article 41 of the Labour Policy, 2002 and International Labour Organization Convocation-182, which provide prohibition of child labour below 18 years of age unless, on the application of a child/adolescent, who has completed his fourteenth years, wishes to work in a factory of his choice or of the parent or guardian of such person the Certifying Surgeon (appointed under Section 12 of the Act ibid) ascertains his fitness for such work and then grants a fitness certificates effect of which is that he is thereafter deemed to be an adult in terms of Section 53 of the said Act. And so in a case like the one in hand where neither the petitioner felt it necessary to have pre-employment fitness test nor insurance company raised any objection as to his being "underage" the workman so employed shall be deemed to be adult for the purpose of employment in a factory and entitled to all benefits guaranteed under the Law/Rules in force. In this case it is specifically mentioned in the application given before Respondent No. 1/Commissioner Workmen's Compensation that Muhammad Dilshad deceased was above 15 years. The case of the petitioner is also the same as, according to this petition read with letter of the Insurance Company (Ex.R-1), age of Muhammad Dilshad deceased was 17 years at the time of death. So, had the petitioner any doubt as to his tender age at the time of his employment it would not have firstly violated the above said provisions of law by allowing an adolescent/child to work in the Mills especially when no reference was made to the Certifying Surgeon and secondly, he would not have been made permanent workman and paid his gratuity and all other benefits giving the ample proof that the deceased worked with the petitioner like any other workman of 18 years of age. Therefore, the petitioner/Mills was bound under the law to provide cover of Group Insurance to the deceased Muhammad Dilshad for the purpose of Section 10-B of the Schedule (ibid) and was necessarily required to provide proof thereof before Respondent No. 1. The petitioner/Mills failed to do so as neither any representative of Respondent No. 3 was got examined nor got produced the necessary policy documents and payment receipts of premium, if any, relating to deceased's insurance. Therefore, the observations of the Commissioner/Respondent No. 1 made in this behalf are not open to any question including the one that the deceased had not been given cover of Group Insurance. So, in absence thereof the petitioner becomes absolutely responsible to pay the aforesaid amount of Group Insurance to the legal heirs of the deceased in terms of the findings of Commissioner Compensation which are well reasoned and passed after proper scrutiny of material placed before him leaving no room to invoking writ jurisdiction of this Court.
It may also be observed here that indeed the provision relating to Group Insurance, like all other provisions of Labour Laws promulgated, has a rationale behind it. It is a beneficial and workman friendly legislation enacted to safeguard and protect the rights of workmen guaranteed under different statutes/rules and ensured in the Labour Policy that is why the jurisdiction and powers of various forums created there-under, including the Commissioner Workmen's Compensation, are conferred by the legislature in a manner that strengthens them to ensure payment of adequate compensation to the workmen. It is, therefore, sad to observe that the amount of Group Insurance has unnecessarily been withheld for quite some time that has aggravated the agony of Respondent No. 2 whose son died in Young age and the Insurance Company/Respondent No. 3 too had no reason to refuse the claim, if at all it had got executed a policy of Group Insurance without raising any objection or requiring proof of age of the said deceased and it had itself gone ahead to provide the said cover, as alleged by the petitioner, even if it is presumed that the said deceased was not adult when he was insured. Resultantly, this Court finds no reason to interfere with the order passed by Respondent No. 1 in its constitutional jurisdiction.
Consequently, this petition, having no legal force, stands dismissed in limine.
(M.R.Q.) Petition dismissed.
PLJ 2008 Lahore 772
Present: Hafiz Tariq Nasim, J.
MUHAMMAD SALEH ASIM--Petitioner
versus
SECRETARY SCHOOLS EDUCATION--Respondent
W.P. No. 8329 of 2008, decided on 7.7.2008.
Constitution of Pakistan, 1973—
----Art. 212--Civil servant--Victim transfer of School Teacher--Jurisdiction--Remedy of civil servant--Petitioner submitted his report against civil servant who was president of Teacher Union that he was not interested in performing his duties rather habitual absentee--Situation was brought into the notice of DEO who had written a letter to EDO requesting transfer--Assailed--Remedy for aggrieved civil servants lie before Service Tribunal--Aggrieved civil servant can approach High Court--Question of--Validity--Remedy for aggrieved civil servant lie before Service Tribunal and for that aggrieved civil servants have to file departmental appeal representation within 30 days of issuance of transfer order and then they have to wait for a period of 90 days or to wait till disposal of departmental representation before invoking jurisdiction of Service Tribunal--Held: Aggrieved civil servant can knock the door of Service Tribunal only after a lapse of certain periods and fulfillment of condition of departmental appeal--Particular period the petitioner cannot be left remediless, provided the aggrieved person has a genuine claim which could be established through some documentary evidence. [P. 774] A
Constitution of Pakistan, 1973—
----Art. 199--Scope of--Civil servant--Constitutionl petition--Jurisdiction--Maintainability--Petitioner wrote a letter for transfer of civil servant (School Teacher)--Assailed--Victim of transfer--Alternate remedy--Aggrieved civil servant can approach High Court invoking the provisions of Art. 199 of Constitution and High Court can come to his rescue but to extent of directing the authorities to examine the matter in its true perspective, hear the petitioner and other aggrieved person and then decide afresh within a stipulated time and till then the aggrieved civil servant be not disturbed or against him no adverse order be passed--Petition disposed of. [Pp. 774 & 775] B
2008 SCMR 948, rel.
Malik Amjad Peraiz, Advocate for Petitioner.
Mr. Naeem Masood, Assistant Advocate General on Court's Call.
Date of hearing: 7.7.2008.
Order
The backdrop of this writ petition is that the petitioner while performing duties as Senior Headmaster Government Public High School No. 1 Gujrat in BS-19, received complaints from different quarters against Tariq Farooq EST of that School, containing severe allegations and after examining the same he submitted his report to the District Education Officer, Gujrat. The petitioner's report was based on some enquiry wherein said Tariq Farooq conceded some of the allegations and alleged against Muhammad Munir Chaghtai EST of the said School in the same manner. Munir Chughtai is President of Punjab Teachers Union District Gujrat and according to the petitioner he is not interested in performing his duties rather habitual absentee and when directed to perform his duties, he always shows resentment. This very situation was also brought into the notice of District Education Officer (SE), Gujrat by the petitioner who wrote a letter to EDO Education, Gujrat on 20.02.2008 requesting the transfer of said Munir Chughtai.
The learned counsel for the petitioner submits that the said Munir Chughtai, as a counterblast, levelled false and frivolous allegations against the petitioner, District Education Officer (SE), Gujrat appointed Principal Government College for Elementary Teacher as enquiry officer, who after thorough probe found the said allegations baseless and submitted his findings, but on political pressure of Munir Chughtai, the petitioner became a victim of transfer order from Govt. Public High School No. 1, Gujrat to Govt. High School, Shadiwal Gujrat. Further submits that the impugned transfer order, which otherwise is based on mala fide, was passed during the ban imposed by the Government of Punjab dated 10.06.2008. Adds that Respondent No. 5 who is an officer of BS-17 is posted against the petitioner's place of posting where only a BS-19 officer could be posted and Respondent No. 5 posting itself reveals the arbitrariness and mala fide of Respondent No. 1.
On the other hand, learned Assistant Advocate General submits that transfer being a mater relating to the terms and conditions of service of civil servant, cannot be agitated before this Court in view of bar of Article 212 of the Constitution of Pakistan. Further submits that if the petitioner felt aggrieved of the order of the departmental authority, he has a right to agitate before the high-ups through departmental appeal/representation which otherwise is an efficacious and alternate remedy. Adds that the allegation levelled in the writ petition could be resolved only by the department authorities and being the present case of a factual controversy, cannot be made a subject of writ petition.
Arguments heard. Record perused.
In transfer matters of course the remedy for the aggrieved civil servants lie before the Service Tribunal and for that the aggrieved civil servants have to file departmental appeal/representation within 30 days of the issuance of transfer order and then they have to wait for a period of 90 days or to wait till the disposal of departmental representation before invoking the jurisdiction of Service Tribunal, meaning thereby that the aggrieved civil servant can knock the door of Service Tribunal only after a lapse of certain periods and fulfillment of condition of departmental appeal/representation, whereas for that very particular period the petitioner cannot be left remediless, provided the aggrieved person has genuine claim which could be established through some documentary evidence like:--
(i) Transfer order passed not in the exigency of service but on directions of some MPA/MNA/Minister.
(ii) The civil servant is made a rolling stone by way of frequent transfer within days/weeks.
(iii) If the aggrieved person is going to be superannuated in a year or so but he is dislocated from his place of posting without any cogent reason like complaint etc. against him and that too without enquiring into the said allegations.
In such like situation the aggrieved civil servant can approach this Court invoking the provisions of Article 199 of the Constitution of Pakistan and this Court can come to his rescue but to the extent of directing the concerned authorities to examine the matter in its true perspective, hear the petitioner and the other aggrieved person and then decide afresh within a stipulated time and till then the aggrieved civil servant be not disturbed or against him no adverse order be passed.
In arriving at this conclusion, reliance can safely be placed on a recent judgment reported as Secretary Revenue Division vs. Muhammad Saleem (2008 SCMR 948), wherein the Hon'ble Supreme Court of Pakistan categorically held,--
"Jurisdictions vested with apex and superior Courts are general, wider in scope and extent, while constraints/prohibitions are narrower in their applications and dimensions---Jurisdiction of superior Courts is to be stretched to take into its folds all disputes to be resolved while limitation of jurisdictions and powers are to be squeezed and kept to minimum extent and length---Such is the rule of interpretation of jurisdiction, scope and limitations of superior Courts in Pakistan."
On the strength of law laid down supra and keeping in view the provisions of Article 199 of the Constitution of Pakistan, I direct Secretary, Schools Education, Government of Punjab, Lahore to go through the contents of the writ petition along with its annexures, hear the petitioner as well as Respondent No. 5 and then decide the impugned matter afresh strictly in accordance with law within one month positively. Till the disposal of the instant case by the Secretary Schools Educations, Government of the Punjab, the impugned order dated 23.06.2008 shall remain suspended.
The learned Assistant Advocate General who is present in Court shall ensure compliance of this order and submit a report to the Deputy Registrar (Judicial) of this Court.
The writ petition is disposed of in the above terms.
(R.A.) Petition disposed of.
PLJ 2008 Lahore 775 (DB)
Present: Syed Hamid Ali Shah and Zafar Iqbal Chaudhry, JJ.
M/s. PACIFIC LEASING CO. LTD. through its Executive Vice-President--Appellant
versus
M/s. BRITISH BISCUITS, CO. (PVT.) LTD. through its Chief Executive and 2 others--Respondents
R.F.A. No. 168 of 2002, decided on 19.5.2008.
Civil Procedure Code, 1908 (V of 1908)—
----S. 11, O. XVII, R. 3 & O. XXI R. 2--Res judicata--Bar of--Withdrawal of earlier suit without permission to file fresh suit--Earlier suit filed by the appellant was based on equipment lease agreement, which was arrived at between the appellant and former management of respondent--At the time of withdrawal of the execution proceedings, fresh equipment lease agreement was signed and executed by the appellant wherein parties to contract were new management of respondent--New management had entered into compromise, took once possession of the project and signed fresh set of loan documents--Held: Lease equipment agreement was result of undue influence and was executed by the new management through mistake of law--The instant suit was not based on the agreements which was subject matter of the earlier suit and default was committed under lease equipment agreement--Suit was not hit by the principle of res judicata and there is no bar of the provisions of Order XXI Rule 2 of CPC. [P. 778] A
Principle of Law--
----Disposal of suit without disposing of pending application is violative of law. [P. 778] B
2002 CLD 875, 2004 CLD 1645.
Mr. Ashar Elahi, Advocate for Appellant.
Mr. Jawahar A. Naqvi, Advocate for Respondents.
Date of hearing: 21.4.2008.
Judgment
Syed Hamid Ali Shah, J.--Financial assistance in respect of four lease finance facilities, were availed by Respondent No. 1 through it's former management. The appellant instituted Suit No. 24 of 1997, on 15.1.1997, in the Banking Court No. 2 Lahore, which was decreed vide judgment and decree dated 11.11.1997. Two fold relief was granted to the appellant, i.e. recovery of Rs. 15,933,496/- and re-possession of leased equipment. The parties, in the course of execution of decree, settled the matter amicably. The execution proceedings were resultantly withdrawn, consequently, Respondents No. 2 & 3 took over management of the company and they acknowledged the outstanding liability and agreed to a new repayment schedule, whereby a sum of Rs. 41,789,474/- was undertaken to be paid in 48 installments. The parties in view of the settlement agreement dated 2.8.1999 executed various documents on the same day including Equipment Lease Agreement, D.P. Note amounting to Rs. 41,789,474/-, revival letter and personal guarantee etc. respondents having three installments, committed default in the payment of outstanding rentals, which led to filing fresh suit against the respondents. Learned Banking Court, vide judgment and decree dated 19.1.2002, observed that decree-holder was duty bound to certify the payments received out of the Court under Order XXI Rule 2(1) CPC. The decree passed against the defendants has not been, disowned by the respondents, therefore, earlier decree in favour of the appellant, operates against the appellant, as res judicata and bars the institution of fresh suit. Learned Court rejected the plaint under Order VII Rule 11 CPC and directed the execution of the decree dated 11.11.1997, hence this appeal.
It is contended by learned counsel for the appellant that during the course of execution fresh agreement was executed and the execution application was dismissed as withdrawn, vide order dated 17.1.2000. Fresh "Equipment Lease Agreement" was signed and executed by the new management, on behalf of the respondent company. Learned counsel has emphasized that provisions of Order XXI Rule 2 CPC are attracted only when the matter is, before the Executing Court. In the case in hand, fresh suit has been filed on an independent agreement and also on a fresh cause. It was submitted that the decree merged into an agreement dated 2.8.1999 and fresh suit was filed on the basis of a new agreement. Thus application of provisions of Rule 2 ibid and principle of res judicata, have no application. Learned counsel has referred to para-6 of the application for leave to defend the suit, where the respondents have admitted that new management, after entering into agreement, obtained possession, re-commenced the business and injected capital. Learned counsel has added that signing of an agreement, delivery of possession of the premises, in pursuance of the agreement on behalf of new management, are admitted fact, thus the Court had wrongly applied, Rule 2 of Order XXI CPC and principle of res judicata, to the suit of the appellant/plaintiff. Learned counsel has further submitted that default in payment of the rentals is non-fulfillment of the obligation, which gave cause to the appellant u/S. 9(1) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, for fresh suit.
Learned counsel for the respondents, on the other hand, stood behind the impugned judgment and decree. He has submitted that provisions of Civil Procedure Code, are applicable to the suits filed under the provisions of Ordinance, 2001, as envisaged in Section 7(6) of the Ordinance. He added that provisions of Section 11 as well as Order XXIII Rules 1, 2 & 3 CPC can be applied to the instant controversy. Learned counsel went on to argue that the appellant at the time of withdrawal of the suit, had not sought permission for fling of the fresh suit in case of default, therefore, the petitioner is stopped to file the instant suit. While referring to the provisions of Order XXIII Rules 1, 2 & 3 CPC, learned counsel has submitted that settlement agreement was not filed in the course of execution of decree nor the execution proceedings were withdrawn as per conditions laid down in the settlement agreement. The appellant is precluded from instituting the fresh suit. Learned counsel summed up his arguments with the contention that the suit of the plaintiff/appellant is barred by the principal of estoppal within the contemplation of Article 114 of the Qanoon-e-Shahdat Order, 1984.
Heard learned counsel for the parties and perused the record.
The earlier suit filed by the appellant was based on Equipment Lease Agreement, which was arrived at between the appellant and former management of Respondent No. 1. At the time of withdrawal of the execution proceedings, fresh Equipment Lease Agreement, was signed and executed by the appellant wherein the parties to contract are new management of Respondent No. 1 viz. Respondents No. 2 & 3. New management had entered into compromise, took over the possession of the project and signed fresh set of loan documents. The execution whereof is not denied, although it is asserted in the leave application that lease equipment agreement is result of under influence and was executed by the new management through mistake of law. The promise to pay the decretal amount, in 48 rentals, is a valid consideration within the contemplation of Section 25 of the Contract Act, 1872. Instant suit is not bases, on the agreements, which was subject-matter of the earlier suit and default was committed under Lease Equipment Agreement dated 2.8.1999. Learned Banking Court has erroneously held that the suit is hit by the principle of res judicata and there is bar of provisions of Order XXI Rule 2 CPC. The impugned judgment even otherwise is not sustainable in the eye of law as the Court has proceeded to decide the main suit without deciding pending applications. Disposal of the suit without disposing of pending application is violative of law. In this connection, reference can be made to the cases of "United Bank Limited through Attorneys Vs. Messrs Home Aids Corporation and 6 others through Managing Director" (2002 CLD 875) and "Sh. Muhammad Kashif Vs. Askari Leasing Limited through Manager/Chief Executive of Branch/Recovery Officer" (2004 CLD 1645).
For the foregoing, this appeal is allowed and the impugned judgment and decree is set aside, with the result that the suit of the appellant is deemed to be pending, before learned Banking Court. Learned Court will decide the application for leave to defend the suit and also the suit of the plaintiff, on it's own merit, within the parameters of law.
(M.R.Q.) Appeal allowed.
PLJ 2008 Lahore 779
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD BASHARAT--Appellant
versus
Mrs. UZMA BHATTI--Respondent
F.A.O. No. 170 of 2007, heard on 19.5.2008.
Cantonment Rent Restriction Act, 1963 (XI of 1963)—
----S. 17 (4)(b)(iii)--Proviso--Bona fide requirement for personal use--Applicability--Ejectment petition cannot proceed in absence of notice--Objection that appellant was running a book store and was involved in printing and selling of books of education & cultural value hence the ejectment petition was hit by the proviso--Held: Proviso would apply only if a building has been let out expressly for such purpose with the consent in writing of landlord--Rent agreement did not at all disclose that the building was let out expressly for purpose of selling or printing of books--There was no evidence that the business was started with prior consent in writing of predecessor landlady or the present landlady--Objection repelled. [P. 782] B
Premature Ejectment Petition--
----Landlady let out the building to appellant for a period of three years--Such period expired--Period had expired during the pendency of the ejectment petition and as such the objection had lost its efficacy.
[P. 781] A
Kh. Khalid Butt, Advocate for Appellant.
Mr. Waqar Arif Khan, Advocate for Respondent.
Date of hearing: 19.5.2008.
Judgment
On 24.7.2004 the respondent filed an application for ejectment of the appellant from a non-residential building located in Walton Cantonment. The ejectment was sought on the ground of bona fide requirement for personal use. The appellant in his written reply objected that he is running a Book Shop in the said building and he is also involved in printing and selling of books of education and cultural value and as such the ejectment petition cannot proceed in the absence of a notice as envisaged by 3rd proviso to Section 17(4)(b)(iii) of the Cantonment Rent Restriction Act, 1963. Further objection was that the application is pre-mature having been filed before the expiry of the term of the agreement between the respondent and the predecessor of the land-lady. On merits, it was stated that the application is not bona fide and that the respondent lady is running a Beauty Parlor in the basement floor whereas the first and second floors are also in her possession and she owns a building opposite the suit property, which she has rented out after filing the ejectment petition. Following issues were framed by the learned Rent Controller:--
Whether the respondent is a defaulter in the payment of rent? OPA.
Whether the petitioner required the disputed property bonafide personal need? OPA
Whether the petitioner had no cause of action on the day she filed the ejectment petition? OPR
Whether the ejectment petition is not maintainable due to violation of Section 17(4)(b)(ii) 1st Proviso of Cantonment Rent Restriction Act, 1963? OPR
Whether the ejectment petition is not maintainable being premature for non-compliance of the provision Section 17(4)(b)(iii) 3rd proviso of Cantonment Rent Restriction Act, 1963? OPR.
Whether the ejectment petition is not maintainable in the present form? OPR
Relief.
Evidence of the parties was recorded. Issue No. 1 was found to be redundant as not arising out of the pleadings. Remaining issues were answered in favour of the respondent and ejectment order was passed on 15.5.2007.
Learned counsel for the appellant contends that since in the notice addressed to the appellant by the respondent, after purchasing the property, she had mentioned that he is running a Book Store, the afore-noted provision of law relied upon by the appellant shall come into play and the application would not be competent. He has also reiterated his objection that the application has been filed before the expiry of the time fixed in the agreement. He has taken me through the evidence on the record to urge that even on merits a case of bona fide personal requirement is not made out. Learned counsel for the respondent, on the other hand, contends that the said 3rd proviso upon its term is not at all applicable as there is no evidence on record that the building was let out to the appellant for the said purpose expressly or that at any time thereafter he had obtained the consent of the landlady (both present or erstwhile) to use the building for the said purpose. He has also referred to the relevant pieces of evidence to urge that the bona fide need stands established in the manner prescribed by law. According to him, the cause of action matures during the pendency of the ejectment petition.
I have gone through the records of the learned Rent Controller, with the assistance of the learned counsel for the parties. So far as the objection as to the application being premature is concerned, none of the parties had made any effort to produce or to formally prove the lease agreement. However, photostat copies appear to have been produced by both the parties. The appellant while in the witness box was confronted with the same and he admitted that it is a correct copy and that this is the lease agreement. Now according to the said copy, Mrs. Tazeem Kausar, the former landlady, let out the building to the appellant for a period of three years w.e.f. 22.2.2002. This period expires on 21.2.2005 whereas the application was filed on 24.7.2004. However, the said period had expired during the pendency of this ejectment petition, which was decided on 15.5.2007 and as such the objection has lost its efficacy.
Coming to the said main plea of the appellant, the reliance is on the 3rd proviso to Section 17(4)(b)(iii) of the Cantonments Rent Restriction Act, 1663. I deem it appropriate to reproduce here the said proviso:--
"Provided also that this sub-section shall not apply to serias, hotels, dak bungalows, lodging-houses, cafes, refreshment rooms and places of public recreation or resort or premises dealing in sales or production of materials of books of educational and cultural value except where landlord requires any such building to carry on any such business of his own, in which case he may make an application under this sub-section after having served two `year' notice on tenant; but no building which is not, on the commencement of this Act, being used residential clubes, restaurants, eating houses, cafes for any of the aforesaid purposes, or has not after such commencement been let out expressly for any such purpose shall be converted to any such purpose except with the consent in writing of the landlord."
It will be seen that the said proviso would apply only if a building has been let out expressly for such a purpose or which has been converted for such purpose with the consent in writing of the landlord. The said admitted copy of the agreement between the appellant and the said Mrs. Tazeem Kausar does not at all disclose that the building was let out expressly for purposes of selling or printing of books. I do not find any plea or evidence that the said business was started with the prior consent in writing either of the said Mrs. Tazeem Kausar or of the present landlady. Nothing, therefore, turns on the said objection of the learned counsel.
Coming to the merits of the case, the respondent-lady, entered the witness box as PW-1. Her examination-in-chief is in the form of an affidavit tendered as Ex. P.1. She was subjected to cross-examination. Regarding the basement, she stated that she did start a Beauty Parlor for the ladies there but because of the said location involving going down through the stair and coming up again the ladies stopped coming and ultimately her husband started a Parlor for male there and she had to close down the said business. Similar problem was stated in the matter of the 1st and the second floors. The building opposite was stated to be smaller in size and not suitable for the said business.
The appellant entered the witness box as RW-1. His examination-in-chief is Ex.R.1/1. In his cross-examination, he was confronted and he did not deny rather expressed ignorance that the Parlor set up in the basement for ladies could not be continued because of the said location. He however, admitted that formerly it was a lady Parlor and now it is a male Parlor. He also did not deny rather expressed ignorance that the ground floor of the building is most suitable for the requirement of the respondent lady. Similar was his response to the building opposite the building across the street. His witnesses RW-2 and RW-3 also responded in the same manner to the relevant questions. Having, thus, examined the records, I do find that the respondent lady has established her bona fide personal requirement. The allegation of mala fide with reference to desire enhancement of rent is not proved. The FAO accordingly is dismissed. However, the appellant is directed to hand over vacant possession of the building in question to the respondent lady on or before 21.7.2008. In case he fails to do so, the respondent lady shall be entitled to execute the ejectment order in accordance with law. No orders as to costs.
The records of the learned Rent Controller be remitted back immediately.
(M.R.Q.) FAO dismissed.
PLJ 2008 Lahore 783
Present: Ali Akbar Qureshi, J.
Raja ASGHAR ALI, EX-SENIOR ACCOUNTS OFFICER, IMPROVEMENT TRUST, SARGODHA--Petitioner
versus
SARGODHA IMPROVEMENT TRUST through its Chairman and 2 others--Respondents
W.P. No. 11371 of 2007, decided on 19.3.2008.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Dismissal from service and then reinstatement in service--Withdrawal of the order--Validity--Petitioner was reinstated in service through an elaborate order and after a couple of days, the order was withdrawn by the same authority without providing any opportunity of hearing--Inspite of serious allegations of corruption and misappropriation, no show-cause notice was issued nor any inquiry was conducted--Held: Order was violative of the principle of natural justice and was set aside--Petition allowed. [Pp. 786 & 787] A & C
Principle of Natural Justice--
----Hearing of party--Legal requirement--None should be condemned unheard and specially the cases involving controversies and disputed question of facts can only be resolved by adducing evidence before arriving at a just and fair conclusion. [P. 786] B
Constitution of Pakistan, 1973—
----Arts. 13(1) & 199--Reinstatement in service--Withdrawal of order--Validity--Constitutional petition--Order being coram non-judice declared illegal--Malicious and vexations--Charges against petitioner were thoroughly thrashed and extensively dealt with more than twice by various agencies including NAB, and Anti Corruption Establishment and the department itself, and ultimately remained unproved--Petitioner was being victimized and proceeded in a malicious and vexations manner without lawful authority and jurisdiction--Petition was allowed. [P. 787] D
2007 SCMR 1451; 2007 PLC (CS) 334; 1994 SCMR 2232; 2004 PLC (CS) 802 & PLD 1970 SC 1, ref.
Mr. Mehmood Ahmed Qazi, Advocate for Petitioner.
Sh. Hamid Danish, Advocate for Respondents.
Date of hearing: 19.3.2008.
Order
This order shall dispose of Writ Petition 11371 filed by petitioner Raja Asghar Ali to assail the validity of order dated 15.11.2007 purported to have passed by Respondent No. 1 withdrawing the order dated 10.10.2007.
On 18th of June 1973 petitioner is stated to have joined Sargodha Improvement Trust and eventually promoted as Senior Accounts Officer and continued to discharge his duties from 1995 to 23.6.2000 until the said post was abolished. Being aggrieved, petitioner invoked the Constitutional Jurisdiction of this Court through WP No. 18081 of 2000, but withdrew the same on account of the assurance emanating from letter dated 12.9.2000 to the effect that his case for release of salary in BPS-19 was being referred to Divisional Director Local Fund Audit. It is alleged that notwithstanding unequivocal undertaking before this Court, petitioner's grievance was not redressed which constrained the petitioner to file another writ petition Bearing No. 2476 of 2003, and eventually, petitioner was ordered to be placed at the disposal of DG/RDA with direction to adjust the petitioner against the vacant post of Senior Accounts officer vide order dated 27.5.2004 purported to have been issued by the Secretary Housing Urban Development & Public Health Engineering Department, but on account of non-issuance of NOC, petitioner could not report to join RDA Rawalpindi. Contemporaneously, petitioner also moved the departmental authorities in this regard and ultimately succeeded in getting the post of Senior Accounts Officer BPS-19 restored with all benefits vide order dated 10.10.2007 of the Chairman Sargodha Improvement Trust Sargodha, and placed at the disposal of Respondent No. 1. It is alleged that said order was endorsed to the Additional Registrar of this Court affirming the redressal of petitioner's grievance. On the following day viz 11.10.2007 said petition was fixed & heard by this Court and representative of the respondents submitted copy of order dated 10.10.2007 and thus, the same was disposed of in the terms incorporated therein. Consequently, on 11.10.2007 petitioner resumed his duty and his joining report was forwarded for release of his salary vide letter dated 5.11.2007.
It is alleged that petitioner was called by Respondent No. 2 in office and asked to submit relevant bills with regard to period from year 2000 to 2007 and directed the Head Clerk and Accountant to calculate outstanding amount in favor of the petitioner. Subsequently, Respondent No. 2 directed the petitioner to surrender his outstanding amount to him approximately Rs.17 lacs by signing blank cheque in favor of Respondent No. 2. And on the refusal of the petitioner to do so, he was threatened with dire consequences culminating in impugned order dated 15.11.2007.
It is the case of the petitioner that order dated 10.10.2007 was implemented in letter and spirit and the petitioner discharged his duties for more than a month without any complaint or grievance. Adds that before passing the order impugned dated 15.11.2007, neither any charge sheet was served nor any inquiry conducted condemning the petitioner unheard in utter defiance and deviation of the settled principles of audi alter am partem and locus poenitentiae. On the strength of 1990 SCMR 1414, learned counsel canvasses that order impugned is liable to be set aside on the sole ground that the authority who passed the order dated 10.10.2007 was functus officio to review its own order. Adds that petitioner suffered a lot through the investigations by NAB, Anti Corruption Establishment and the department itself right from year 2000 to 2007. In nutshell, learned counsel says that order impugned is not only vexatious but predominantly contemptuous which speaks volume of ulterior motives being in direct conflict with the law laid down in the case reported as 2002 SCMR 1124.
With reference to WP 2476/2003, learned counsel reiterates on the contents of the legal opinion dated 19.6.2003 to the effect that on the basis of departmental record, the post of Senior Accounts Officer was abolished without any show-cause notice, and that petitioner had withdrawn earlier WP 18081/2000 on the assurance of the Chairman Sargodha Improvement Trust and that even the Divisional Director Local Fund Audit approved petitioner's case, hence, decision to abolish the post of Senior Accounts Officer was invalid and inoperative qua the rights of the petitioner.
At one point of time, legality of questioned FIR No. 530 dated 19.7.1997 registered with Police Station City Sargodha for offences under Sections 409/420/468/471 PPC against the petitioner and other co-accused namely Zafar Hussain Bajwa was challenged before this Court in WP No. 27308 of 2007 which was disposed of on 18.1.2000 due to droppage of inquiries against the petitioner, as the charges did not prove against them in the said criminal case.
Furthermore, by passing the impugned order, Respondent No. 2 pre-empted and transgressed the domain of the departmental inquiry committee constituted through Resolution No. 11 dated 14.2.2002 to deal with the issues with regard to demotion and re-instatement of the employees of Respondent No. 1. With regard to the observations as contained in the order impugned with reference to letter dated 8.11.2003, it is submitted that detailed inquiry was conducted by Regional Director Anti Corruption Sargodha and ultimately dropped by the competent authority vide order dated 30.5.2005. In addition thereto, learned counsel also referred to decision made in favor of the petitioner by the Chairman Reinstatement Demotion and Departmental Committee Sargodha improvement Trust vide order dated 24.8.2004 qua the said accusations.
I have heard the arguments raised by learned counsel for the parties and gone through the chequred history and the facts prevalent emerging from the record of the case.
The main thrust of the arguments of the learned counsel representing the petitioner was that the order dated 10.10.2007 whereby the petitioner was reinstated in service with all back benefits was wrongly and illegally withdrawn by means of order impugned dated 15.11.2007 in flagrant violation of the principles of natural justice without issuance of any notice, holding of inquiry or providing any type of opportunity of hearing and thus the same is not sustainable in law and liable to be set aside on this score alone. To substantiate his assertions, learned counsel relies on (1997 SCMR 1552) The Secretary to the Govt. of the Punjab through Secretary Health Department Lahore and others Vs Riaz ul Haq, (2007 SCMR 1451) Asim Khan and others Vs Zahir Shah and others (2007 PLC (CS) 334 Pakistan International Airlines Corporation through MD Karachi Vs Nadeem Murtaza Khan, (1994 SCMR 2232) Mrs. Anisa Rehman Vs PIAC and another and 2004 PLC (CS) 802 Arshad Jamal Vs NWFP Forest Development Corporation and others.
Conversely learned counsel for the respondents vehemently argued that reinstatement of the petitioner has been withdrawn in consequence of the serious nature of charges of corruption and misappropriation categorically finds mention in the order impugned itself. Adds that since factual inquiry is involved in the facts and circumstances of the case, hence, writ petition was not maintainable.
Considering the case from every angle, an admitted fact remains on record that petitioner was reinstated in service by the competent authority on 10.10.2007 through an elaborate order and after a couple of days said order was withdrawn by the same authority, of course, without providing any opportunity of hearing and to rebut the charges by the petitioner. Strangely enough, on the one hand serious allegations of corruption and misappropriation are being leveled against the petitioner, but quite interestingly neither any show-cause notice, nor any inquiry was conducted, hence, the order impugned is in contravention of the principle of natural justice. It is a settled principle of law that none should be condemned unheard and specially those cases involving controversial and disputed questions of facts, could only be resolved by adducing evidence before arriving at a just and fair conclusion.
When questioned as to whether Respondent No. 2 was vested with any power to review his own order and penalize the petitioner on the basis of charges which were inquired into more than twice and ultimately dropped, learned counsel could not furnish any satisfactory explanation and could not provide any statutory provision in this regard. In fact, Respondent No. 2 by means of impugned order sought to review his own earlier order dated 10.10.2007 without any express provision of law to review his order. In this regard, this Court is enlightened and fortified by the law laid down by the Apex Court in the case reported as PLD 1970 SC 1 (Hussain Bakhsh Vs Settlement Commissioner Rawalpindi and others) and applying the same on the facts and circumstances emerging from the lis at hand, it becomes clear as crystal that after passing order dated 10.10.2007 Respondent No. 2 had become functus officio to proceed in the matter subsequently, and thus the impugned order being coram non judice is declared to have been passed without any lawful authority and jurisdiction. In addition thereto, this Court is also fully cognizant of the fact that repeatedly unequivocal undertakings were made before this Court in the earlier round of litigation, but the course of action suggested never adhered to in letter and spirit by the functionaries concerned. In addition thereto, charges being reiterated and forming part of the impugned order against the petitioner, were thoroughly thrashed & extensively dealt with more than twice by various agencies including the NAB and the Anti Corruption Establishment and the department itself, and ultimately the inquiry proceedings were dropped by the competent authority as the charges remained unproved. Hence, the one and the only conclusion that can be drawn is that petitioner was being victimized and proceeded in a malicious and vexations manner by Respondent No. 2, with no lawful authority and jurisdiction.
For the foregoing facts and reasons, this Court is fully convinced that petitioner is being vexed twice and his recurring victimization should now cease to exist, hence, to ensure safe dispensation of justice, it is a fit case for interference and invalidation of the impugned order with the consequence that by accepting this petition, I set aside the order impugned dated 15.11.2007, declaring it to have been passed in a mala fide manner, without lawful authority, jurisdiction and consequently of any legal effect.
"Petition allowed in the terms indicated ibid"
(J.R.) Petition allowed.
PLJ 2008 Lahore 788
Present: Muhammad Muzammal Khan, J.
NOOR AVENUE COOPERATIVE HOUSING SOCIETY HANJARWAL, LAHORE (REGISTERED), through its President--Petitioner
versus
L.D.A. through its DIRECTOR GENERAL, LAHORE and 3 others--Respondents
W.P. No. 146 of 1993, heard on 28.9.2007.
Civil Procedure Code, 1908 (V of 1908)—
----O.IX, Rr. 8 & 9--Constitution of Pakistan, 1973, Art. 199--Dismissal of suit for non prosecution under O. IX, R. 8, C.P.C. and according to Rule 9 fresh suit/writ petition on the same cause of action was barred--Petition dismissed. [P. 791] A
Constitution of Pakistan, 1973—
----Art. 199--Punjab Acquisition of Land (Housing) Act, 1973, S. 4(i)--Punjab Acquisition Rules, 1983, R. 7--Notification--Ultra vires of Constitution--Suit for declaration--Acquisition matter--Alternate remedy--Constitutional petition--Maintainability--Held: Petitioner had availed the alternate remedy of filing suits against the complained action of respondents regarding acquisition of their property where the matter stood concluded--Petition could not be filed to pre-empt the jurisdiction of a competent forum or to sit in appeal against the decision rendered by Civil Court in collateral proceedings--Petition was not competent. [P. 791] B & C
Civil Procedure Code, 1908 (V of 1908)—
----S. 11 & O. IX, R. 9--Dismissal of suit in presence of respondents/ defendants--Principle of resjudicata--Constitutional petition--Maintainability--Held: Suit was dismissed for non prosecution in presence of respondents/defendants--Second suit/or writ petition on the same subject matter would be barred--Petition was dismissed.
[P. 792] D
Land Acquisition Act, 1894 (I of 1894)—
----Preamble--Punjab Acquisition of Land Housing Act, 1973, Preamble--Scheme of acquisition law--Held: Scheme of acquisition laws, provided in the statutes is complete and exhaustive--Apart from mode of acquisition the statutes have provided a systematic scheme containing machinery for taking measurement of the property, assessment of its value and payment of compensation to the interested persons, besides remedy for adjudication of rights of aggrieved persons in accordance with the norms of administration of justice. [P. 792] E
1986 CLC 1193; PLD 2000 Lah. 244 & 2000 SCMR 238, ref.
Malik Amjad Pervaiz, Advocate for Petitioner.
Mian Muzaffar Hussain, Advocate for LDA.
Mr. Riaz Hussain, Advocate for Respondents.
Date of hearing: 28.9.2007.
Judgment
This judgment proposes to decide three constitutional petitions (W.P. 8931 of 1992), W.P. 146 of 1993 and W.P. 20727 of 1997), as all these raise similar questions of law/facts; require alike determination and are between the same parties. Writ Petition No. 8931 of 1992 assailed the notification under Section 4 of the Punjab Acquisition of Land (Housing) Act, 1973 (Notification No. LAC. 1492 dated 6.11.1980) published in the official gazette on 10.11.1980 and prayed that acquisition proceedings may be declared to be ultra vires of the constitution and thus void. Writ Petition No. 146 of 1993 also challenged the above referred notification dated 10.11.1980 but it was filed on behalf of Noor Avenue Cooperative Housing Society whereas the earlier petition was filed on behalf of Dr. Iqbal Ahmad Chaudhary etc. who had allegedly constructed their houses prior to initiation of the acquisition proceedings by the respondents. The third Writ Petition No. 20727 of 1997 was also filed on behalf of Noor Avenue Cooperative Housing Society, attacking corrigendum notification dated 23.1.1982 (notification No. LAC. 102) acquiring rest of the land of the petitioner-society.
Succinctly, relevant facts are that land in the vicinity of Mauza Niaz Baig along with some other villages of Lahore was acquired for laying a housing scheme known as "Maulana Muhammad Ali Johar Town" Lahore under Section 4(1) of the Punjab Acquisition of Land (Housing) Act, 1973 vide gazette Notification No. LAC/1492 dated 6.11.1980, published in the Punjab Gazette on 10.11.1980 by the then Deputy Commissioner/Collector/Respondent No. 2. The land so proposed to be acquired "inter-alia" included the land of the petitioners bearing Khasra No. 13039/1, 13039/2, 13053, 13055, 13058, 13370, 13324, 13362 and 13041 of Mauza Niaz Baig, Lahore. Land Acquisition Collector announced his award on 22.12.1983 regarding Khasra No. 13039, 13041 and 13045 of Mauza. Niaz Baig in the names of M/s Noor Jahan, Noor Muhammad, Muhammad Tufail etc. whereas Award of Khasra No. 13324 of the same Mauza was announced on 9.10.1982 in the names of M/s Mst. Parvaiz Ishrat etc and Award of a small part of the land of the petitioners was not announced due to dispute under Consolidation of Holding Ordinance, 1960 in the revenue hierarchy. The Land Acquisition Collector took over physical possession of land of the petitioners between the 20th to 25th of June, 1981 whereas symbolic possession of petitioner's land was resumed on 17.8.1981.
Petitioner-society was registered under the Cooperative Societies Act 1925 with the object to provide developed residential plots to its members. The initial land of the petitioner society was spread over an area measuring 20 kanals 15 marlas with khasra numbers above noted. Petitioners in WP. 8931/1992 claimed that Pacca Constructions had been raised earlier to the acquisition proceedings wherein different utility connections were also obtained by the members of the society but these facts were denied by the respondents whose stance was that the petitioners raised illegal constructions after the issuance of notification under Section 4 of the Punjab Acquisition of Land (Housing) Act, 1973. In view of factual controversy between the parties, petitioners filed a suit for declaration against the respondents on 26.4.1984, challenging the acquisition notification, as well as, proceedings there under. Petitioners also moved an application under Order XXXIX, Rules 1 and 2 CPC praying ad-interim injunction restraining the respondents to interfere in their claimed possession.
Respondents being defendants in the suit filed by the petitioner-society, contested the same and opposed the issuance of temporary injunction by filing their written statement/written reply. The learned Civil Judge seized of this suit, initially issued a temporary injunction but subsequently on 15.12.1987 the interim injunction was vacated. Petitioner-society filed an appeal before the learned Additional District Judge but the same was dismissed on 13.10.1988. Suit for declaration filed by the petitioner-society was ultimately dismissed on 23.2.1992 on account of its non-prosecution. Petitioner-society filed an application for restoration of the suit but the same was declined and against this order, appeal was taken to the Court of the learned Additional District Judge Kasur. Pending this appeal, petitioner-society filed Writ Petition No. 146 of 1993 with the relief noted above, besides Writ Petition No. 8931 of 1992 which had been filed by Dr. Iqbal Ahmad Chaudhary etc. challenging the acquisition notification dated 10.11.1980. Dr. Iqbal Ahmad Chaudhary etc. petitioners of Writ Petition No. 8931 of 1992 had earlier filed a suit for permanent injunction against the respondents to permanently refrain them from demolishing their three houses constructed on an area of 24 Kanals 7 marlas. This suit was decreed by the trial Court on 14.10.1985 and appeal filed by Respondent No. 1 was dismissed on 20.2.1988. Dr. Iqbal Ahmad Chaudhry etc. instead of challenging notification under Section 4(1) of the Punjab Acquisition of Land (Housing) Act 1973 issued on 10.11.1980, in their suit for permanent injunction already pending at that time, opted to file Writ Petition No. 8931 of 1992. These constitutional petitions were admitted to regular hearing on 16.1.1993 and after completion of record, have now been placed for final determination. Respondents in response to notice by this Court have appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, land of the petitioners was acquired under the Punjab Acquisition of Land (Housing) Act, 1973 which was repealed in 1985 and after this repeal, acquisition proceedings were completed under the Land Acquisition Act, 1894. The main stress of the petitioners was that respondents were bound by Rule 7 of the Punjab Acquisition Rules, 1983 to complete the acquisition proceedings within one year from the date of Repealing Act No. XII of 1985 but all these petitions were filed with inordinate/unexplained laches, running into decades. Their first petition was filed on 17.9.1992; second petition was filed on 4.1.1993 and the third petition was filed on 15.9.1997. Besides the factual controversy regarding acquisition of petitioner's land being constructed site and as to when possession of the land under the Award given by L.A.C. was taken over by the respondents, stood concluded by dismissal of their suit on 23.2.1992 and they after deserting those proceedings, could not invoke constitutional jurisdiction of this Court. Suit of the petitioners was dismissed under Order IX Rule 8 CPC and its Rule 9 bars fresh suit/writ on the same cause of action.
No doubt, these petitions cannot be thrown out on the sole ground of being bad on account of laches but the petitioners had availed the alternative remedies of filing suits against the complained action of the respondents regarding acquisition of their property where the matter stood concluded. Respondents had taken specific stance in their report/ parawise comments and while arguing the case that they took over the possession of land subject of Award, free from all encumbrances and the petitioners are left with the only option of claiming compensation under the Award. Under law, the petitioners, if not satisfied with the compensation awarded by the Land Acquisition Collector, can file reference under Section 18 of the Land Acquisition Act, 1894 but at such a belated stage, they cannot attack the acquisition proceedings after loosing their cases before the Civil Court. Corrigendum notification is in continuation of the original and cannot be challenged separately, having been issued regarding left out small part of land which earlier could not be included in the aforementioned notification. Law regarding competence of a Constitutional petition, pending civil suit is firmly settled by this time to the effect that it will not be maintainable to pre-empt the jurisdiction of a competent forum or to sit in appeal against the decision rendered by the Civil Court, in collateral proceedings, like the one in hand. Reference in this behalf can be made to the judgments in the cases of Haji Dosa Limited and others Versus The Federal Government of Pakistan through the Secretary to the Government of Pakistan, Ministry of Food and (Agrarian Management), Islamabad and another (1986 CLC 1193), Brig. Sahibdad Khan Versus Secretary, Colonies, Board of Revenue, Government of the Punjab, Lahore and 5 others (PLD 2000 Lahore 244), Haji Muhammad Ashraf Versus The District Magistrate, Quetta and 3 others (2000 SCMR 238).
Since suit by the petitioner-society was dismissed in presence of the respondents/defendants, second suit or writ petition shall be barred under Order IX, Rule 9 of CPC which envisages that where a suit is wholly or partly dismissed, the plaintiff shall be precluded from bringing a fresh suit in respect of same cause of action. This Rule provides that plaintiff can have the order of dismissal set aside after satisfying the Court about sufficient cause for his non-appearance. Honourable Supreme Court in the case of Haji Muhammad Ashraf (Supra) held that writ petitioner, pending his suit cannot file Constitutional petition in the High Court to contend that suit was not adequate remedy and he cannot be permitted to shift forum at his choice/convenience. Restoration of suit, prayed by the petitioner-society was refused by the trial Court, which order was maintained in appeal. In this manner, as well, titled petitions cannot proceed.
Scheme of acquisition law prepounded by Punjab Acquisition of Land Housing Act, 1973 and the Land Acquisition Act, 1894 is complete and exhaustive. Apart from mode of acquisition, above referred Act provided a systematic scheme containing machinery for taking measurements of the property; assessment of its value and payment of compensation to the persons interested besides remedy for adjudication of rights of aggrieved persons in accordance with well known norms of administration of justice. In the cases involving any dispute of measurement of property; its value of apportionment etc. Act provided a remedy through a reference by the collector to the Civil Court for settlement of these disputes where parties can lead evidence in support of their stance. Disputed factually questions regarding non-fulfillment of conditions precedent for issuance of notification under the Act (Ibid) can only be put to naught by the Civil Courts. Similarly question as to whether acquisition is for public purpose or not, can be determined by the Civil Court. In the instance case, prima facie laying of Housing scheme for the utility/use of public-at-large, as compared to some individuals, is a public purpose with the meaning of Section 4 of the said Act which was published in official gazette and copies thereof were affixed at conspicuous places at the land under acquisition, thus the requirements of law were sufficiently met. The Land Acquisition Collector having already announced the award and took over the possession of the land, which absolutely vests in Respondent No. 1, leaving no room for interference in Constitutional jurisdiction of this Court. Scan of record revealed that no case for interference in Constitutional jurisdiction of this Court was made out.
For the reasons noted above, all the three writ petitions being devoid of any merit, are dismissed with no order as to costs.
(J.R.) Petitions dismissed.
PLJ 2008 Lahore 793 (DB)
[Rawalpindi Bench Rawalpindi]
Present: Syed Shabbara Raza Rizvi and Fazal-e-Miran Chauhan, JJ.
MUHAMMAD ASHRAF KHAN, ASC--Petitioner
versus
SECRETARY LAW, PARLIAMENTARY AFFAIRS AND HUMAN RIGHTS, GOVT. OF THE PUNJAB,LAHORE and 19 others--Respondents
W.P. No. 8932 of 2007, heard on 3.4.2008.
Constitution of Pakistan, 1973—
----Arts. 140 & 105--Punjab Law Department Manual, 1938--Advocate General--Establishment of office--Held: Office of Advocate General was established in the United Punjab Province under Paragraph 1.5 of Punjab Law Department Manual 1938--Governor of the Province was empowered to appoint Advocate General in its discretion but after independence the appointment was to be made by the Governor on the advice of Chief Minister. [P. 797] A
Constitution of Pakistan, 1973—
----Art. 140 r/w Notification No. 8-19/93/3363 dated 19.10.1993--Punjab Law Department Manual, 1938, Para, 1-18 r.w. 1-15--Appointment of Advocate General, Additional Advocates General and Assistant Advocates General--Word "determine"--Import of--Prior consultation of Chief Justice of High Court--Held: Spirit of Art. 140 requires that Chief Justice of High Court be consulted prior to making an appointment of the Advocate General--Likewise the provisions of notification are in line with Art. 140, hence should be followed while making appointments of Addl. A.G. & Assist. A.G.--High Court issued necessary directions to the Punjab Govt. to determine the number and qualifications of such law officers with prior consultation with the Chief Justice of High Court, before their appointments.
[Pp. 799 & 800] B, C & D
1998 SCMR 425 & PLD 1996 SC 324, ref.
Petitioner in Person.
Mr. Aftab Iqbal Chaudhry, A.G. Punjab for Respondents.
Dates of hearing: 31.3.2008 and 3.4.2008.
Judgment
We hand down this detailed judgment and reasons in pursuance of our short order dated 31.3.2008.
The petitioner, in person, filed this writ petition whereby he has called in question the appointments of the respondents as Addl. Advocates General, Punjab and Assistant Advocates-General, Punjab. According to him, the impugned appointments were made in derogation of the rules on the subject. In this regard the petitioner referred to a Notification No. 8-19/93 dated 19th October, 1993 to be read with Articles 139 and 140 of the Constitution of Islamic Republic of Pakistan. According to him, the expression ": determine" is significant and it must be construed objectively taking into account purpose of establishment of Constitutional Office of the Advocate General, Punjab. According to petitioner, the Constitution and Rules require prior consultation with the High Court for appointment of Advocate General, Addl. Advocates-General and Assistant Advocates-General. According to him, appointment must be made in public interest, indeed.
The learned Advocate General, Punjab on question of `consultation' has no serious disagreement with the petitioner. As a matter of fact, he submitted, that in many cases, appointments were made with prior consultation with the Hon'ble Chief Justice of the Lahore High Court. The learned Advocate General also expressed his views on "determination" of posts of Addl. Advocates-General and Assistant Advocates-General.
We have heard the petitioner in person and the learned Advocate-General, Punjab at length. We have also deliberated upon their respective contentions with due care.
The office of the Advocate General/Attorney General exists almost in all countries and Constitutions of the World irrespective of Presidential System or Parliamentary System of the Government. In England, office of the Attorney General is provided, whereas in Scotland, office of the Advocate General is provided. In England, the Attorney General is always a member of the Cabinet appointed from the Members of the Parliament. The office of the Attorney General in England is a political office, he is appointed like any other Member of the Cabinet. However this practice was not followed in India when the office of Advocate General was introduced in India. Before the independence of the sub-continent, the office of the Advocate General was established under the Government of India Act, 1811 and the Government of India Act, 1858. The same office was provided under Section 114 of the Government of India Act, 1915 and under Section 16 of the Government of India Act, 1935. The office of the Advocate General was created for the whole United India as well as for the provinces separately. After partition, the Advocate General for the Federation, both in Pakistan and in India became Attorney General, whereas for the Provinces this office continued to be referred to as the Advocate General.
The purpose of creating this office is stated by BASU in his book which he referred to from the report of Joint Parliamentary Committee, on the Government of India Act, 1935, which reads as under:--
"It is not part of our intention to suggest that the office of the Advocate General should, like that of the law officers here, have a political side to it. Indeed, our main object is to secure for the Provincial Governments legal advice from an officer, not merely well qualified to tender such advice, but entirely free from trammels of political or party associations, whose salary would not be votable and who would retain his appointment for a recognized period of years, irrespective of the political fortunes of the government or governments with which may be associated during his tenure of office." (Constitution of India by Basu Vol-F, Page 5).
The above reference clearly manifests that the intention and the purpose of establishment of the office of Advocate General was to secure legal advice for the Provincial Government and it also shows that non votable salary and a recognized period of years of service was also guaranteed by the legislatures/jurists at the time of establishment/ introduction of the office of Advocate General. The above intention stands reiterated in Article 140 of the present Constitution. Clause 2, reads as under:--
"It shall be duty of the Advocate General to give advice to the Provincial Government."
According to Mr. Justice (R) Fazal Karim, "he is a First Law Officer and his principal function is to provide independent legal advice to the Government and to represent the Government in Courts."(Access to Justice in Pakistan, page-14). Another Constitutional requirement to create the office of the Advocate General is to provide advice to the Provincial Assembly. Article 111 of the Constitution of Pakistan gives right to the Advocate General to speak and otherwise take part in the proceedings of the Provincial Assembly or any Committee thereof which he may be named as a Member. The famous Indian Jurist Basu observed the above role in the following words:--
"but even though the makers of Constitution of India Act, 1935 departed from the English Model in divorcing the office of Advocate General from the Government of the day and the legislature, the need for the presence of the Advocate General in the legislature was, nevertheless, felt from the earliest times." (Constitution of India by BASU Vol-F)
"(i) The Advocate General tenders his advice on issues and matters which are referred to him by the Provincial Government or different departments of the Provincial Government;
(ii) The Advocate General represents a Provincial Government in cases wherein Provincial Government is party, in the Superior Courts of the country, including the Supreme Court of Pakistan;
(iii) The Advocate General assists the Superior Courts as a Law Officer in all cases of public importance, particularly, where, interpretation of Constitutional points is involved;
(iv) The Advocate General also prosecutes contemnors in cases of contempt of Courts;
(v) The Advocate General protects public rights in cases of public nuisance and also protects public charities; and
(vi) The Advocate General also represents Provincial Government under Article 111 in the Provincial Assembly. As mentioned above, he has right to sit in the Provincial Assembly to participate in the proceedings of the Provincial Assembly and to address the Provincial Assembly to explain a Constitutional and legal point, he can also be appointed a member to any Committee of the Provincial Assembly. In fact, he has all the rights which an elected member may have except a right to vote.
Another very vital unwritten function of the Advocate General is to work as a bridge between the Provincial Government and the High Court. The Chief Justice of High Court has to perform several administrative functions besides his judicial functions. In this regard, a regular communication is required to deal with several matters.
The office of the Advocate General was established in the united Punjab Province, under paragraph 1.5 of the Punjab Law Department Manual, 1938. Under Act of 1935, the Governor of the Province was empowered to appoint the Advocate General in its discretion, however, alter the independence, the situation became different. Under Article 140 of the present Constitution and earlier Constitutions, the Advocate General is appointed by the Governor on the advice of the Chief Minister as contemplated under Article 105 of the Constitution.
Under paragraph 1.18 of the Punjab Law Department Manual, appointment of Assistant to the Advocate General was provided. However, the nomenclature was changed and Assistant to the Advocate General was substituted with Assistant Advocate General. In addition to the above, vacancy for Additional Advocate General was also created. Both are required to perform their functions under the control of the Advocate General. The Punjab Government Service (Conduct) Rules, 1966 were also made applicable to them.
Notification dated 19th October, 1993 provided that the Government may in consultation with Lahore High Court, Lahore appoint an Additional Advocate General or an Assistant Advocate General. The said Notification also provided that a person shall not be appointed as an Additional Advocate General unless he is the citizen of Pakistan, and is not less than 40 years of age or he is enrolled as an Advocate of Supreme Court of Pakistan, and has for a period not less than 10 years be an Advocate of the High Court and Supreme Court. The above Notification further provided that a person shall not be appointed as an Assistant Advocate General unless he is a citizen of Pakistan, and has not less than 35 years of age and for a period not less than 7 years be an Advocate of the High Court. In the subsequent Notifications to the above, the above conditions were never expressly amended.
According to the Hon'ble Supreme Court of Pakistan, office of the Assistant Advocate General is an office of profit and is included in the expression of Service of Pakistan. According to the Hon'ble Supreme Court, office of the Advocate General is different in the eyes of the law than the office of the Assistant Advocate General. The appointment of the Advocate General is a Constitutional appointment, whereas, the appointment of an Assistant Advocate General is made under the statute/rules. In our view, the same applies to the office of the Additional Advocate General. Both are appointed under paragraph 1.18 of the Punjab Law Department Manual, 1938. According to the above mentioned judgment of the Supreme Court:--
"Thus, pivotal question requiring consideration would be, whether or not the petitioner during his appointment as Assistant Advocate General was holding office of profit connecting with the affairs of State. Undisputedly, petitioner throughout his tenure of office had received salary and other benefits and attached to the post of Assistant Advocate General, Peshawar. Learned counsel attempted to argue that payment of salary, etc. was comparable to retainership from performing professional obligation, therefore, would not debar petitioner from contesting election. We do not find any force in this contention. Appointment of petitioner was against existing vacancy, of a permanent post having monitory benefits in the shape of salary and privileges of BPS-20. This is clearly an office of profit connected with the affairs of Province. The post of Assistant Advocate General cannot be equated with Advocate General which is a Constitutional appointment under Article 140 of the Constitution. Besides, Article 260 of the Constitution specifically grants protection by excluding said office from Service of Pakistan." (Muhammad Khurshid Khan V. Returning Officer, 1998 SCMR 425).
The above judgment of the Hon'ble Supreme Court of Pakistan clearly held that Additional Advocate General and Assistant Advocate General hold public offices and are paid from the public exchequer. Most of their functions are similar to the Advocate General under whose command and leadership they work. One of their major functions is to represent the Provincial Government in the Courts as well as to assist the Courts including the Supreme Court and the High Court. Thus, the Government, Courts and the people expect certain degree of competence and integrity from them. The offices of the Advocate General and the Assistant Advocate General are extension of the Advocate General Office as it is evident from the reading of Paragraphs 1.5 and 1.18 of the Punjab Law Department Manual, 1938. We have already quoted Basu. According to him, the object of the Joint Parliamentary Committee deliberating on the Government of India Act, 1935 was to secure for the provincial Government legal advice from an officer not merely well qualified to tender such advice but entirely free from the trammels of the political or party associations. For the above reasons, the Committee had also ensured a handsome non votable salary and a tenure of recognized period of years irrespective of the political fortunes of the Government or Governments. Though the circumstances have changed and in the changed circumstances, the Advocate General is not retained for a specified period. Normally, when a Government changes, an Advocate General is also changed. In several cases, the Advocate General is changed even during the tenure of the same Government. However, in India, we find examples where Advocate General retain his office during many Governments. For example, famous Jurist late, Seervi, remained Advocate General for the Province of Maharashtar (Bombay) continuously for 17 years. Mr. Moti Lal C. Setalvad served as Attorney General of India continuously for 11 years. Since we have the similar Constitutional provisions relating to the office of the Advocate-General and also follow the Parliamentary System in both countries, a cue may be taken from the above two examples of tenure of Law Officers from the Indian jurisdiction.
According to Article 140 of the Constitution, the Governor of each province shall appoint a person, being a person qualified to be appointed a Judge of the High Court, to be the Advocate General for the province. Thus, it is a Constitutional requirement that only such a person should be appointed as an Advocate General who is qualified to be appointed a Judge of the High Court. According to the Hon'ble Supreme Court of Pakistan, the Chief Justice of Pakistan and the Chief Justice of the concerned High Court are the best persons to Judge whether a particular person is qualified to be appointed a judge of the High Court or not. (Al-Jehad Trust V. Federation of Pakistan, PLD 1996 SC 324). The expression "consultation" was considered by the Hon'ble Supreme Court in Al-Jehad Trust case in appointment of judges of High Court. Therefore, if seen in the above backdrop, the spirit of Article 140 of the Constitution requires that Chief Justice of High Court be consulted prior to making an appointment of the Advocate General. Likewise, it may be observed that provisions of Notification No. 8-19/93/3363, dated 19.10.1993 are in line with Article 140 of the Constitution and hence should be followed while making appointments of Additional Advocate General and Assistant Advocate General. All three offices are paid from the public exchequer and they are assigned very professional and sensitive assignments/functions (list of which is already enumerated above), which have implications/repercussions on the functioning of Courts, Government, as well as public at large.
According to the Hon'ble Supreme Court, as noted above, Assistant Advocate General, etc. hold office of profit having monitory benefits from the public exchequer. According to Basu, the office of the Advocate General is meant for providing sound professional advice to the Provincial Government. All these considerations and reasons lead us to the conclusion that appointment of the Advocate General, Additional Advocate General and Assistant Advocate General must be made in all seriousness and in public interest disregarding personal and political considerations. However, it may be added that requirement of the consultation under Article 140 of the Constitution and Paragraphs-1.5 & 1.18 of Punjab Law Department Manual, 1938 cannot be construed in the same manner as it is required in terms of Article 193 of the Constitution. Likewise, Article 140 shall be read and construed in conjunction with Article 105 of the Constitution.
Clause-3 of Article 140 of the Constitution provides that the Advocate General shall hold office during the pleasure of the Governor. In our view, the pleasure of the Governor shall be construed under the present circumstances as pleasure of the Chief Minister. The language of clause-3 is the same which was employed in the Government of India Act, 1935 which in the instant case needs to be interpreted under the present political circumstances and Constitutional scheme, particularly Article 105 of the Constitution. Similarly, we also hold that we have discussed in this case considerations for appointment only and not for the removal which can be considered on different premise.
In view of the above detailed discussion and consideration on different aspects of the subject in issue, we allow this writ petition with the following directions:--
(i) The Government of Punjab/Secretary Law, Parliamentary Affairs and Human Rights, will determine, in consultation with the Hon'ble Chief Justice/High Court, the posts of Addl. Advocates-General and Assistant Advocates-General in the office of Advocate General, Punjab taking into account the number of Judges of the Hon'ble Supreme Court, the number of Judges of the Lahore High Court; and other Courts, Tribunal etc. The fact that the prosecution department has already been separately established shall also be considered while determining the required number of Law Officers in the Advocate General Office. It is further directed that once the number of required posts is fixed, it shall not be changed save following the same procedure.
(ii) In future the Governor of Punjab shall appoint a person, being a person qualified to be appointed a Judge of the High Court, to be the Advocate General, for the province with prior `consultation' with the Chief Justice/High Court. Likewise, Addl. Advocates-General and Assistant Advocates-General shall also be appointed with prior consultation with the Chief Justice/High Court in addition to other qualifications/requirements provided in the Law Department Manual (1938). Reported cases, conducted by the aspirants of the above officers shall be an important requirement.
(iii) No adverse order is being passed against the respondents; however, the appointments of the respondents, for validity of their appointments shall be examined in the light of above findings enshrined in sub-para (i) and (ii), within 40 days from to-date.
(J.R.) Petition allowed.
PLJ 2008 Lahore 801
Present: Zafar Iqbal Chaudhry, J.
KHURSHID AHMAD--Petitioner
versus
MEMBER (JUDICIAL-IV), BOARD OF REVENUE, LAHORE and others--Respondents
W.P. No. 4006 of 2008, decided on 21.4.2008.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Ejected Tenants Scheme, 1952--Claim of proprietary rights--Alternate land--Refusal by revenue authorities--Validity--Held: Petitioner had not been able to produce the original order of allotment in favour of his predecessor in interest under the Ejected Tenants Scheme 1952, nor he could produce any documentary evidence that he was ever allotted land under any scheme--As such the grant of proprietary rights or alternate land does not arise--No illegality or jurisdiction defect was pointed out in the impugned orders--Petition dismissed in limine.
[Pp. 804 & 805] A, B & D
West Pakistan Board of Revenue Act, 1957 (IX of 1957)—
----S. 8--Power of review--Held: Review application was only competent if any new and important matter or the evidence was brought on record, which despite the exercise of due diligence was earlier not within the knowledge of the party at the time of passing of order or in case of any error or mistake apparent on the face of record.
[Pp. 804 & 805] C
Ch. Nazar Hussain, Advocate for Petitioner.
Date of hearing: 21.4.2008.
Order
Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Khurshid Ahmed petitioner has challenged the orders dated 8.12.2004 and 17.12.2007, passed by Member (Judicial-IV), Board of Revenue Punjab, Lahore.
The brief facts of the case are that Muhammad Bakhsh s/o Jhanda (father of Khurshid Ahmad petitioner) submitted an application to the Assistant Commissioner/Collector, Toba Tek Singh that the State land comprising Killa Nos. 5 to 7, 8 min, 13 min, 14 to 16 measuring 61-Kanals 6-Marlas situated in Chak No. 308/GB was under his cultivating possession and that he may be allowed to acquire the proprietary rights of the said land. The Assistant Commissioner/Collector/S.D.O. Toba Tek Singh vide order dated 28.12.1965 rejected the said application on the ground that the disputed land was never allotted to father of the petitioner (Muhammad Bakhsh) under the Ejected Tenants Scheme and the land was resumed in favour of State. The said land was allotted to Muhammad Tufail Lumberdar under the Pedigree Livestock Scheme. The appeal and revision petition filed by the petitioner ware also rejected by the Additional Commissioner, Sargodha Division and by the Member Board of Revenue, Punjab, vide orders dated 7.8.1967 and 20.10.1967, respectively. Thereafter, the petitioner preferred an application to the AC/Collector, T.T. Singh for restoration of land but it was filed vide order dated 29.9.1980. Another application for restoration of land met the same fate on 31.10.1981. Feeling aggrieved, the present petitioner filed an appeal in the Court of Addl. Commissioner, Sargodha, which was accepted on 6.3.1982 and the case was remanded to the then Deputy Commissioner, T.T. Singh. The District Collector rejected application for restoration of land vide order dated 4.2.1985 and directed the petitioner to apply for alternate land. Later on, the application for allotment of alternate land was accepted by the then Deputy Commissioner, Toba Tek Singh vide order dated 25.4.1988 and land measuring 61-K, 6-M situated in Chak No. 754/GB, Tehsil Kamalia was allotted to them. As the said land was already leased out to one Abdul Majid under Temporary Cultivation Lease Scheme, therefore, possession could not be delivered. However, the D.C. vide his order dated 21.6.1992 declared the order of his predecessor dated 25.4.1988 as illegal and review was sought which was granted by the Commissioner. Consequently, the order dated 25.4.1988 regarding allotment of alternate land was set aside vide order dated 22.9.1988. Later on, an appeal filed before the then Commissioner, Faisalabad Division was dismissed vide order dated 10.4.2001. Being aggrieved by the said order the petitioner filed revision petition which was dismissed on 8.12.2004 by the Member (Judicial-IV), Board of Revenue, Punjab, Lahore and the Review Petition filed against the said order was also dismissed on 17.12.2007 by the Member (Judicial-IV), Board of Revenue, Punjab, Lahore. Hence, this petition.
The learned counsel for the petitioner contends that the Courts below have not considered the entitlement of the petitioner in accordance with the Ejected Tenant Scheme and the land measuring 61-kanals situated in Chak No. 308/GB, District T.T.Singh was allotted by the S.D.O/Collector, T.T.Singh to the predecessor in interest under the Guzara Scheme which later on was merged into the Ejected Tenant Scheme. An application for grant of proprietary rights to them was rejected on 20.1.1965 and the land was allotted to one Muhammad Tufail, Lambardar on 9.2.1967. He further contends that the disputed land was not reserved for Lambardari grant. Moreover, the disputed land measured 61-kanals whereas land allotted under Lambardari Scheme should be 100-kanals. So, the Lambardar may be allotted some other land and the disputed land be restored in favour of the petitioner. It is also contended that case of the petitioner fell under the Ejected Tenants Scheme and the Government had already granted proprietary rights to the allottees under this scheme in the year, 1960 while the Ejected Tenants Scheme was enforced in the year, 1948. It is next contended that the petitioner was fully entitled for the grant of allotment and keeping in view the entitlement the petitioner was allotted alternate land in Chak No. 753/GB but its possession was not delivered to the petitioner in spite of repeated appeals and revisions and claim of the petitioner had been ignored on technical grounds. Lastly, it is contended that the impugned orders dated 8.12.2004 and 17.12.2007 passed by the learned Member (Judicial-IV), Board of Revenue Punjab, Lahore may be set aside and either the allotment made to the petitioner in Chak No. 308/GB may be restored or some other available land in the Chak may kindly be ordered to be allotted to the petitioner.
I have heard the learned counsel for the petitioner and also gone through the impugned orders and the report submitted by the District Officer (Revenue), Toba Tek Singh, which shows that the predecessor in interest of the petitioner was allotted land in the year, 1948-49 but it did not fall under the Ejected Tenants Scheme which was promulgated in the year, 1952 and the land resumed from the petitioner had already been allotted to Respondent No. 3. The contention raised by the petitioner to the effect that the land in question was allotted to his father namely, Muhammad Bakhsh under the "Guzara Scheme" by the S.D.O/Collector, Toba Tek Singh on 17.5.1949, which was later on merged with "Ejected Tenants Scheme" is not substantiated in the light of the report submitted by the District Officer (Revenue), Toba Tek Singh wherein it has specifically been stated that the land in question was allotted to the predecessor of the petitioner in the year, 1948-49 under the scheme of temporary cultivation which has not been merged in the Scheme of Ejected Tenants which was promulgated in the year, 1952 and subsequent Ejected Tenants Scheme issued by the Board of Revenue, Punjab from time to time. The Ejected Tenants Scheme was promulgated in the Punjab through Government Memorandum No. 650-TH, dated 17.7.1952. According to this scheme, the following classes of refugees and non-refugees who but for the allotments, would have had no mean of subsistence were to be accommodated :--
(i) The tenants who had lost their tenancies as a result of agrarian legislation, permitting reservation of areas for "Khud Kasht" by land owners;
(ii) landless refugee tenants holding temporary allotment of evacuee land, who in respect of the excess areas became tenants of other allottees under the Rehabilitation Settlement Scheme; and
(iii) pre-partition tenants of evacuee lands whose holdings were reduced to 8 acres irrigated or 12« acres unirrigated land.
It appears that the allotment order dated 17.5.1949 on which the petitioner relied upon pertains to the allotment of land in question of lease under the Temporary Cultivation Scheme, therefore, the contention raised by the petitioner to the effect that their claim comes within the purview of Ejected Tenants Scheme is not fortified from the above said allotment order, it is clear that the petitioner had not been able to produce the original orders of allotment in favour of his predecessor-in-interest under the Ejected Tenant Scheme. However, there is a copy of Square No. 24 Chak No. 302/GB, Tehsil & District Toba Tek Singh in which the predecessor Jalal Din has been entered as self-cultivating of Killa Nos. 21 to 25 from Kharif 1952 to 1957. He has been dispossessed and not in possession of land since 1967. Moreover, the petitioner had not been able to produce documentary evidence that he was ever allotted land under any scheme. As such the grant of proprietary rights or alternate allotment does not arise. The Revenue Courts have clearly thrashed out the issues of their stand and came to the conclusion that even the Deputy Commissioner's order dated 25.4.1988 on which the petitioner relied upon had been specifically ordered to be reviewed vide order dated 21.8.1982 passed by the then District Collector which was reviewed and set aside vide order dated 22.9.1998 passed by the Deputy Commissioner/Collector and yet again the petitioner was refused proprietary rights vide order dated 8.8.2000 passed by the Deputy Commissioner. The appeal before the Commissioner, Faisalabad Division vide order dated 10.4.2001, was also dismissed.
(J.R.) Petition dismissed.
PLJ 2008 Lahore 805
Present: Ali Akbar Qureshi, J.
WAQAR MUSTAFA and 2 others--Petitioners
versus
CH. MUHAMMAD ASHRAF MAHMOOD and 2 others--Respondents
W.P. No. 6162 of 2006, decided on 18.3.2008.
Civil Procedure Code, 1908 (V of 1908)—
----S. 148--Specific Relief Act, (I of 1877), S. 12--Constitution of Pakistan 1973, Art. 199--Decree for specific performance of agreement to sell--Non-payment of the remaining sale price within stipulated time--Extension of time--Respondents filed an application for correction of the property number, wrongly mentioned in the judgment and for the extension of time to deposit sale price just before second last day of the target date--No description of property was given in the decree, which was to be executed--They could get the judgment corrected even after depositing of sale price--Conduct of respondents was not bonafide--Petitioners had occurred valuable rights in the property due to inaction of respondents within time--Petition accepted.
[Pp. 807 & 808] A & B
1995 SCMR 105; 2003 YLR 55; 2003 CLC 1705 & PLD 2006 SC 140, ref.
Mr. Muhammad Iqbal Ghaznvi & Malik Amjad Pervaiz, Advocates for Petitioners.
Mian Muhammad Yasin, Advocate for Respondents.
Date of hearing: 18.3.2008.
Order
The petitioners assail legality of order dated 24.5.2006, whereby, learned Additional District Judged, Lahore, by accepting the revision petition of the respondents, set aside order dated 10.6.2005, passed by the learned trial Court declining further time to deposit the balance amount with reference to the correction of the judgment and decree of the said Court.
Precise facts of the case are that on 24.4.1996, respondent plaintiff filed a suit against the petitioners for specific performance of contract with regard to Plot No. 87, Block G-II (now Block G-III) measuring 422 Sq. Mts. situated in Muhammad Ali Johar Town, Lahore, which was decreed by the trial Court on 21.1.2003 with direction to the plaintiff to deposit the balance amount of Rs. 6,25,000/- within one month. It was the case of the plaintiff/respondent that on obtaining certified copy of judgment and decree, it transpired that suit property was wrongly enumerated in the judgment, as Plot No. 81 instead of Plot No. 87. Additionally, the decree sheet did not find mention as to the description of the suit property.
In these circumstances, plaintiff/respondent approached the trial Court seeking rectification of two fold material errors. Eventually, correction qua description of the suit property was allowed in the judgment, but not in the decree sheet, while plaintiff's request for extension in time for deposit of balance amount was declined. Thus, plaintiff/respondent invoked the revisional of jurisdiction of the learned District Judge and the learned Judge of the revisional Court by accepting the same granted ten days time to the plaintiff/respondent for deposit of the balance amount. Hence, this petition.
Learned counsel for the petitioner has contended that sufficient time was granted to Respondent No. 1 to deposit the remaining sale price by the learned trial Court while decreeing the suit, but Respondent No. 1 instead of depositing the remaining amount within one month i.e. till 21.2.2003, filed an application on 19.2.2003 just on the second last day before the termination of period for depositing the balance amount on the grounds that the description of the plot has wrongly been mentioned in the judgment so the time be extended to deposit the balance amount. It is further contended, that Respondent No. 1, who was required to deposit the balance amount within one month, did not deposit the same at the time of filing of application for extension of time to show his bona fide and in fact Respondent No. 1 had no money to perform his part of the contract and the learned trial Court has rightly refused to extend the time by dismissing the application, whereas the learned revisional Court wrongly extended the time ignoring the conduct of Respondent No. 1.
Malik Amjad Pervaiz, one of the learned counsel for the petitioners, also argued that only the decree is to be executed and not the judgment, so no description of property is given in the decree sheet and further, the Respondent No. 1 has not showed his bona fide by depositing the balance amount within the stipulated period. It was also contended by the learned counsel that correction, if required and necessary, could have been sought even after depositing the balance amount and mala fide of Respondent No. 1 is also on the record that the application for extension in time drafted on 15.2.2003 but was submitted on 19.2.2003, so Respondent No. 1 is not entitled for any discriminatory relief. The learned counsel has placed reliance on the cases reported as Muhammad Nawaz and others Vs. Muhammad Sadiq and another (1995 SCMR 105), Bashir Ahmad and another Vs. Hussain Industries (Pvt.) (2003 YLR 55), Mst. Sultana Begum Vs. Mst. Sadiqa Begum (2003 CLC 1705), Haji Abdul Latif Vs Ateeq Ahmad [YLR (Lah) 985(c)] and Shujat Ali Vs. Muhammad Riasat and others (PLD 2006 Supreme Court 140).
Arguments heard. Record perused.
It is admitted on record that at the time of decreeing the suit on 21.1.2003, in favour of Respondent No. 1, the learned trial Court granted one month's time which was to be expired on 21.2.2003 but Respondent No. 1 instead of complying with the order and perform his part of the agreement, filed an application on 19.2.2003 on the ground that the suit property has wrongly been mentioned as Plot No. 81 in place of Plot No. 87, Block-G-II, M.A. Johar Town, Lahore, and the time be extended to deposit the remaining amount. Respondent No. 1 filed the said application just before the second last day before the termination of the period for depositing the balance amount but without depositing the remaining amount as ordered by the learned trial Court, which is sufficient to observe that Respondent No. 1 filed the said application with mala fide simply to prolong the matter without any reason. Respondent No. 1 could have sought correction of the description of the property in the judgment even after depositing the remaining price just to show his bona fide and also that Respondent No. 1 had a sufficient amount to purchased the said property. Whereas, the conduct of Respondent No. 1 is totally otherwise. It is also admitted proposition of law, that only the decree is to be executed and not the judgment, whereas in this case no description of property is given in the decree so the filing of the application for correction of the description of the property and also extension in time for depositing the amount is based on mala fide and Respondent No. 1 had no money to purchase the suit property. By not depositing the remaining amount, as ordered by the learned trial Court obviously the petitioner had occurred valuable right in the property in question so the learned revisional Court wrongly exercised the jurisdiction by extending the time to deposit the remaining amount. In the matter of specific performance of the contracts/agreements, only the intention of the parties is to be seen whereas in this case, Respondent No. 1 has proved himself otherwise and not in accordance with requirements of law so I am not inclined to exercise the Constitutional jurisdiction, therefore, the order dated 24.5.2006, passed by the learned Additional District Judge, while accepting the revision petition of Respondent No. 1 is set aside and the order dated 10.6.2005, passed by the learned trial Court is restored.
With these observations, this Constitutional petition is allowed with no order as to costs.
(J.R.) Petition accepted.
PLJ 2008 Lahore 808
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
M/s. AHMAD TRADERS through its Sole Proprietor--Petitioner
versus
FRONTIER WORKS ORGANIZATION (FWO), HEADQUARTERS, RAWALPINDI through its D.G. and another--Respondents
W.P. No. 73 of 2007, heard on 17.4.2008.
Constitution of Pakistan, 1973—
----Arts. 18 & 199--Constitutional petition--Freedom of trade and business--Black-listing of petitioner--Challenged through Constitutional petition--Petitioner/firm contracted with respondents for sale and purchase of goods--Petitioner made breach of the contract--Respondents initiated process for recovery of damages--Conversely petitioner pleaded that delay of supply was occasioned for sufficient reasons--Such matter was ultimately to be decided by competent Civil Court--Art. 18 of Constitution the right of trade and business could not be taken away by black-listing the petitioner, otherwise than in accordance with law--Order had been passed without show-cause notice and without any fair opportunity of hearing--Petition accepted. [P. 809] A, B & C
Mr. Khalid Saif Ullah Khan, Advocate for Petitioner.
Mr. Hafiz-ur-Rehman, Advocate for Respondents No. 1.
Date of hearing: 17.4.2008.
Judgment
According to the contents of this writ petition, several purchase orders (Annex-A) were placed upon the petitioner by the Respondent No. 1. He commenced and made some supply. However, could not complete the same within the stipulated time because of illness and other reasons as well which were intimated to the respondents. However, it was decided to cancel the said purchase orders and to make purchases at the risk and cost of the petitioner. The petitioner protested and ultimately received a letter on 21.6.2008 (Annex-I) whereby the petitioner was black-listed. This document was circulated in all the relevant formations.
Learned counsel for the petitioner contends that the Respondent No. 1 was not at all competent to black-list the petitioner-firm and that too in a manner that he cannot do business with any concerned department. According to the learned counsel, the order has been passed without any show-cause notice or opportunity of hearing. He also pressed for the payment of the price of the supplied goods and to release the forfeited securities and advances. Learned counsel for the Respondent No. 1, on the other hand, argues that since the petitioner failed to perform his part of the contract and the purchase orders were cancelled, the respondent was within its right to black-list the petitioner.
I have considered the said submissions and gone through the several documents appended with this file. The parties entered into a contract for sale and purchase of goods. The respondents have accused the petitioner for breach of contract and has initiated the process for recovering the alleged damages. The petitioner, on the other hand, pleads that he has not committed any breach of contract and that the supplies were delayed for sufficient reasons. Be that as it may, this matter is ultimately to be decided by a competent Court of law in a suit to be filed by either of the parties.
A
(J.R.) Petition allowed.
PLJ 2008 Lahore 810
Present: Syed Hamid Ali Shah, J.
MUHAMMAD ASLAM LONE--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, GUJRANWALA and 10 others--Respondents
W.P. No. 21251 of 2001, decided on 6.5.2008.
Civil Procedure Code, 1908 (V of 1908)—
----Ss. 12(2), 152 & O.XX, R. 3--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Validity of sale--Land was saled twice--Agreement to sell through registered sale-deed--Any other land of vendor was included in transaction of sale to vendee--Second vendee was assailed through suit for declaration which was decreed by trial Court--Revision against concurrent findings was dismissed--Respondents filed an application u/S. 152, CPC seeking amendment in decree sheet by addition of land which was allowed--Assailed order of trial Court u/S. 12(2) of CPC--Revision was accepted--Challenged through Constitutional petition--Validity--Principle of finality is attached to a judgment--Held: A judgment once pronounced, cannot be altered as envisaged in Order XX Rule 3, CPC--Court is rendered functus officio, after pronouncement of decree--There were two exceptions to it namely review or correction of arithmetical and clerical mistake in the judgment--Constitutional petition assailing order of Court passed in its revisional jurisdiction is not convincing--Petition was accepted. [P. 814] A
Civil Procedure Code, 1908 (V of 1908)—
----S. 152--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Land was saled twice--Agreement to sell through registered sale-deed--Application u/S. 152, CPC seeking amendment in decree sheet by addition of land--Application was accepted--Assailed--Question of--Maintainability--Scope of--Restricted to mistake the judgment decree and order which was accidental or omission--Validity--Non-inclusion of khasra in-question is neither arithmetical mistake nor an error arising from accidental slip or omission--Held: No hesitation to hold that questions involved are contentious it's decision depends upon arguable questions of law, construction of documents, determination of right--Provisions of S. 152, CPC are not attracted and Appellate Court has erroneously extended its jurisdiction--Revisional jurisdiction was not coninvcing--Petition was accepted. [P. 814] B
PLJ 2003 SC 697 + PLD 1992 L261 + 1993 CLC 1257 + AIR 1957 408 + 1920 Nagpur 92 + AIR 1925 Nagpur 274, ref.
Mr. Ijaz Feroz, Advocate for Petitioner.
Mr. Muhammad Shahzad Shaukat, Advocate for Respondent.
Date of hearing: 19.3.2008.
Judgment
Briefly stated the facts of the case in hand are that land in dispute is 7 Kanal 8 Marlas, forming part of Khasra Nos. 348 and 349. The piece of land was originally owned by Muhammad Amin son of Budh Singh. He was owner of land 48 kanals 8 Marlas other than the land in dispute. He sold the said land twice, firstly to Muhammad Amin son of Muhammad Din (Predecessor of Respondents No. 2 & 3) through an agreement to sell ( ) dated 9.6.1960. The same land was sold to Khaqaan Babar through registered sale-deed dated 22.6.1960. Disputed Khasra numbers and land appurtant thereto, was not included in either of the document. It was, however, incorporated in each deed that any other land of the vendor in the village, is included in the transaction of sale to the vendee. Respondents No. 2 & 3, filed suit for declaration and injunction wherein sale in favour of second vendee was assailed as ineffective in law being later in time. Learned trial Court decreed the suit vide judgment and decree dated 21.9.1985 and appeal against the decree met the fate of dismissal on 1.2.1986. The lis terminated in favour of Respondents No. 2 & 3, when revision petition against the concurrent findings was dismissed in limine on 28.4.1987, with observation that sale made in favour of Muhammad Amin, will prevail against subsequent sale in favour of Khaqaan Babar. Decree-holders (Respondents No. 2 & 3) initiated execution proceedings, which bore fruit on 5.4.1989. Questions as to the validity of sale in favour of Muhammad Amin to the extent of 48 Kanal 8 Marlas and it's possession to the first vendee stood resolved.
Respondents No. 2 & 3 subsequently filed an application under Section 152, seeking amendment in decree sheet by addition of land measuring 7 Kanals 8 Marla, forming part of Khasra Nos. 348 & 349. Learned trial Court allowed application vide order dated 26.10.1991 and permitted Respondents No. 2 & 3, to add, property in dispute, in the decree sheet. The petitioner assailed the order of the trial Court dated 20.10.1991, through an application under Section 12 (2) CPC. Respondents No. 2 & 3 contested application, filed reply, controverted therein the assertions of the application and raised various preliminary objections. Learned Court framed as many as 8 issues, recorded evidence of the parties and vide order dated 24.6.1999, accepted the application. Respondents No. 2 & 3, challenged the order in revision which was accepted vide order dated 23.7.2001 and the application of the petitioner u/S. 12(2) was dismissed, hence this Constitutional petition.
Learned counsel for the petitioner has submitted that Khasra No. 348 & 349, were never subject-matter of litigation and suit property was sold on 18.3.1965, at the time when no litigation was pending. He has submitted that the land as well as the specific khasra numbers, were not mentioned in the plaint. Predecessor-in-interest of Respondents No. 2 & 3, filed appeal before Collector on 12.11.1965 and the property in dispute was described in detail excluding these khasra numbers. Learned counsel emphasized that principle of lis pendence is not applicable in respect of property, which was not actively, or specifically in dispute in litigation. Learned counsel added that Respondents No. 2 & 3 procured through impugned order amendment in decree sheet by concealment of material facts. Ownership and possession of the petitioners was suppressed. The order was passed at the back of the petitioner, without impleading the petitioner as a party. Learned counsel referred to the case of "Baqar Vs. Muhammad Rafique and others" (PLJ 2003 S.C. 697) and contended that power of Court to amend a judgment under Section 152, is restricted to arithmetical, clerical error or accidental slips or omission. He has relied upon "Muslim Commercial Bank Ltd. Vs. Continental Engineers Ltd. and others" (PLD 1992 Lahore 261) and submitted that a question which has not been raised in the pleadings or in main suit, cannot be incorporated in the decree through seeking amendment. Learned counsel supported his other contentions by referring to the cases of "Banque Indo-Suez Vs. Rehmani Brothers" (1993 CLC 1257), "Kedarnath Lal and another Vs. Sheonarain Ram and others" (AIR 1957 Patna. 408), "Ganpat Vs. Dada and others" (AIR 1920 Nagpur 92) and Vs. Farid Saheb" (AIR 1925 Nagpur 274).
Learned counsel for Respondents No. 2 & 3 supported the impugned judgment and submitted that in the earlier round of litigation, the sale in favour of Muhammad Amin, matured into decree and as a result thereof a sale-deed was registered in favour of the vendee by the Registrar. The petitioners derive title from Khaqaan Babar but disputed khasra numbers are not included in the sale transaction. Learned counsel has referred to Mutation No. 6, wherein it has been mentioned that specific khasras are being sold and any other land if found in the name of vendor, shall be deemed to be subject-matter of sale. Learned counsel has submitted that land in dispute was transferred to Mst. Khadija Bibi on 31.1.1982, when the suit was pending. The sale in favour of the petitioner was made on 16.10.1985, when the suit had already been decreed in favour of the respondents. The legal heirs of original vendor (Muzaffar Hussain) were declared not entitled to the property in view of right of respondent in the property. Learned counsel referred to the findings of trial Court on Issue No. 5 and submitted that whole of the property was sold, including disputed khasra numbers. Learned counsel has submitted that transferee pendente lite, cannot maintain application u/S. 12(2) CPC and such transferee is neither necessary nor proper party. Learned counsel supported this contention by placing reliance on the cases of "Haider Ali and another Vs. Akbar Ali and another" (PLD 1973 Lahore 546), "Mian Tahir Shah and another Vs. Additional District Judge, Swabi and others" (1998 SCMR 858), "Industrial Development Bank of Pakistan through Deputy Chief Manager Vs. Saadi Asmatullah and others" (1999 SCMR 2874), "Muhammad Khan and another Vs. Muhammad Nawaz through legal heirs" (2001 MLD 844), and "Muhammad Imtiaz Vs. Nasir Ali and others" (2004 YLR 487). Learned counsel has submitted that writ for illegal benefits cannot be issued and found support of this contention from "Nawab Syed Raunaq Ali etc. Vs. Chief Settlement Commissioner and others" (PLD 1973 S.C. 236). Learned counsel summed up his submissions with contention that writ against the judgment passed in revision, is not competent and referred to the cases of "Qamar-ud-Din Vs. Muhammad Din and others" (PLD 2001 S.C. 518) and "Noor Muhammad Vs. Sarwar Khan and others" (PLD 1985 S.C. 131).
Heard learned counsel for the parties and record perused.
It is reflected from the plaint that Respondents No. 2 & 3, have purchased property through an agreement to sell, measuring 48 kanals 8 marlas. The agreement contains the detail of specific khasra numbers. Disputed Khasra Numbers 348 and 349 are not mentioned in agreement to sell. It is evident from the assertions made in the plaint that Respondents No. 2 & 3, have instituted the suit with regard to the land measuring 48 kanals 8 marlas comprising of Khasra Nos. 350(6K), 351(6K-4M), 352(7K-2M), 353(10K), 364(8K), 365(8K) and 366(3K-2M in village chand. This land has been described in Para No. 1 of the plaint. There is no mention of Khasra Nos. 348 and 349 in this para. Respondents No. 2 & 3 after having given the detail and description of the property made following prayer in the suit:--
Land in dispute was sold to Khaqaan Babar, who then sold the same to Muzaraffar Hussain. The petitioner being subsequent vendee was not impleaded as defendant. No doubt that sale agreement in favour of Respondents No. 2 & 3, contains the following condition:--
Respondents No. 2 & 3, have omitted to claim additional land (disputed land) on the basis of above condition. The omission is apparent in prayer clause, in the identical manner. Land in dispute has not been mentioned, in the description of suit property (Para No. 1 of the plaint), secondly plaintiffs have not prayed for any declaration in the prayer clause, thirdly, despite impleadment of subsequent vendee, the petitioner was not impleaded as a party. These omissions may be intentional relinquishment or accidental slip, but in either case the plaintiffs/Respondents No. 2 & 3 cannot sue in respect of the claim so omitted, due to bar contained in Order II, Rule 2(2) CPC.
Respondents No. 2 & 3, have invoked provisions of Section 152 CPC, to bring the disputed claim, within the ambit of suit and the decree. Provisions of Section 152 are attracted when there is accidental slip, arithmetical or clerical mistake in judgment and decree. Principle of finality is attached to a judgment. A judgment once pronounced, cannot be altered, as envisaged in Order XX Rule 3 CPC. The Court is rendered functus officio, after pronouncement of the decree. There are two exceptions to it namely review or correction of arithmetical and clerical mistake in the judgment. Learned trial Court has passed judgment and decree dated 21.9.1985, according to the prayer made in the plaint and pertaining to property subject-matter of suit, according to it's description as given by the plaintiffs in Para No. 1 of the plaint. Scope of Section 152 is restricted to mistake in the judgment, decree and order, which is accidental or omission. Omission or mistake in the instant case, is in the suit of the plaintiff, which cannot be corrected by invoking provisions of Section 152 ibid. It has been held by the Apex Court in the case of Muhammad Rafique (supra) that Court cannot rectify decree, because it was wrong or unfair or the parties did not realize their rights. The Apex Court observed that non-inclusion of khasra in question is neither arithmetical mistake nor an error arising from accidental slip or omission. Case of the petitioner (case in hand) is identical and I have, therefore, no hesitation to hold that questions involved are contentious, it's decision depends upon arguable questions of law; construction of documents, determination of right, therefore, provisions of Section 152 are not attracted and learned appellate Court has erroneously extended it's jurisdiction.
Adverting to maintainability of this petition, the respondents' contention that Constitutional petition assailing the order of Court passed in it's revisional jurisdiction, is not convincing. The case referred by the learned counsel for the respondents Qamar-ud-din (supra) requires mention where the Hon'ble Supreme Court of Pakistan has held as under:--
"........Revisional Court by setting aside the order of trial Court had committed serious illegality of the nature, which could have the effect of depriving the legitimate right of a party. Merely because revision was decided, it would not by itself be a bar for an aggrieved party to file writ for seeking complete justice in appropriate cases......"
(R.A.) Petition accepted.
PLJ 2008 Lahore 815
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD YAQOOB etc.--Applicants
versus
M/s. UNITED BANK LTD. etc.--Respondents
C.M. No. 47-B of 1999 in Co's No. 2 of 1998, decided on 29.1.2008.
Banking Tribunal Ordinance, 1984 (LVIII of 1984)—
----S. 2(c)--Customer--Liability of--Security documents were furnished--Personal guarantee having been executed by applicants--Applicability of law--"Customer" to mean a person who has obtained finance from a banking company is the real beneficiary of such finance and includes a surety and indemnifier--Applicants cannot be termed as customers within meaning of the law--Impugned judgment was wholly without jurisdiction--C.M. was allowed. [P. 816] A
Mian Nusrat Ullah, Advocate for Applicants.
Mr. Tariq Saleem Sheikh, Advocate for decree holder/ Respondent-Bank.
Date of hearing: 29.1.2008.
Order
Through this C.M. a prayer has been made by the applicants for setting aside of the judgment and decree dated 31.1.2006 passed by Banking Tribunal-III in a suit filed by the respondent-Bank, inter alia, against the applicants.
Before proceeding further, I may note here that the application was dismissed by this Court on 6.4.2002 being not competent C.A.No. 592/03 filed by the applicants has been allowed by the Hon'ble Supreme Court of Pakistan vide judgment dated 19.9.2006 and the matter has been sent back for decision on merits.
Learned counsel for the applicants contends that the applicants were the employee-Directors of M/S Shah Din Limited and they had not furnished any guarantee or otherwise undertaken to secure the re-payment of the loan taken by the said Company. The precise plea is that the Tribunal had no jurisdiction to pass a decree against the applicants as there was no privity as such between them and the respondent-Banks vis-a-vis the finance/loan in question. Learned counsel for the decree-holder/respondent-Bank does not controvert the fact that the applicants were the employee Directors but he insists that they had furnished personal guarantees.
I have examined the records of the Banking Tribunal. The applicants, namely, Muhammad Yaqoob and Sohail Ashraf were Defendants No. 6 and 7 in the plaint filed by the respondent-Bank. In para-3 it was stated that the Defendants No. 2 to 8 are the Directors of Defendant No. 1 (the said Company) having signed and executed various securities and other documents which envisaged the liability of the defendants towards the said plaintiff. In para-6 the details of the security documents has been stated and it is mentioned that these were furnished by Defendants No. 2 to 5. In Para-7 the details of mortgages have been given and it is stated that these were created by Defendants No. 2, 3 and 8.
In the entire plaint, there is no reference to any document of any sort, of course, including a personal guarantee having been executed by the applicants. We have also checked up the entire file of the said suit, with the assistance of the learned counsel for the parties and we do not find any document including a guarantee executed by the applicants. The only letter of guarantee is available at pages 253 to 259 and this has been executed by the Chief Executive Salah-ud-Din Sahaf and Defendants No. 3 to 5 in the suit. We further find that in the reply filed by the applicants to the notice issued by the said Tribunal, it was specifically stated that they ceased to be Directors w.e.f. 30.12.1992 while the suit was instituted in the year 1995 and further they had not signed any personal guarantee and they particularly referred to the relevant paras of the plaint for this purpose. We also find that in the impugned judgment (Para-4) the Tribunal itself referred to the security documents mentioned in Para-6 of the plaint with reference to the relevant executants. However, it is apparent that the learned Tribunal failed to read the reply and, of course, the plaint itself while proceeding to decree the suit against the applicants as well.
Section 2(c) of the Banking Tribunals Ordinance, 1984 (which was the applicable law at the relevant time) defines a "customer" to mean a person who has obtained finance from a banking company is the real beneficiary of such finance, and includes a surety and an indemnifier. Even going by the plaint, the applicants cannot at all be termed as customers within the meaning of the said law. I, therefore, do find that the judgment and decree dated 31.1.1996 to the extent of the applicants is wholly without jurisdiction. The C.M. accordingly is allowed and the judgment and decree dated 31.1.1996 to the extent of the applicants is set aside. No orders as to costs.
(W.I.B) C.M. allowed.
PLJ 2008 Lahore 817
Present: Khurshid Anwar Bhinder, J.
AHMAD ALI GORAYA--Petitioner
versus
AZHAR ALI BHATTI and 2 others--Respondents
W.P No. 3832 of 2008, decided on 18.6.2008.
Punjab Anti-Corruption Establishment Rules, 1985—
----Rr. 5 & 6--Prevention of Corruption Act, (II of 1947), S. 5(d)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Illegality--Summoning of public servant to face enquiry proceedings--Transaction in personal capacity--Allegation of misappropriation--Held: There is no illegality in the summoning order issued by the Anti Corruption Establishment to the petitioner to face the enquiry proceedings. [P. 820] C
Punjab Anti-Corruption Establishment Rules, 1985—
----R. 6--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Public servant misappropriated--Private capacity--Summoning/notice was challenge--Complainant had issued summoning notice to petitioner to face enquiry proceedings to genuineness of complaint against him--Private transaction was effected between the petitioner and complainant--Validity--Anti-Corruption Establishment could not have issued him summoning notice and such action was not warranted by law--If a public servant commits any crime in his official capacity only then he is to be summoned for preliminary enquiry--Held: When a complaint is lodged against public servant by private person means that the crime is committed by public servant is his private capacity--Petition dismissed. [Pp. 818 & 819] A & B
Mr. Imtiaz Ahmad Kaifi, Advocate for Petitioner.
Mr. Mamoon Rashid Pirzada, Advocate for Respondent No. 1.
Date of hearing: 11.6.2008.
Order
Through the present constitutional petition, Ahmad Ali Goraya, petitioner has challenged the summoning notice dated 18.3.2008 issued by Respondent No. 3.
Briefly the facts leading to the filing of this constitutional petition are that Respondent No. 1 submitted an application to Respondent No. 2 alleging therein that he had paid Rs. 16,00,000/- to the petitioner for the purchase of land in January, 2005 when he was posted as S.H.O. Police Station Saddar Muridke but he neither returned the aforesaid amount nor purchased land for Respondent No. 1. On receipt of the aforesaid application the Anti Corruption authorities issued summoning notice to the petitioner to face the enquiry which the petitioner has challenged through this constitutional petition.
Learned counsel for the petitioner submits that the Anti Corruption Established has erred in summoning the petitioner to face the enquiry proceedings whereas petitioner has not committed any offence about which the enquiry could be initiated by Respondent No. 2. According to the learned counsel for the petitioner it is a clear violation of Rule 5 of the Anti Corruption Establishment Rules, 1985 which provides the conditions under which a public servant can be called for enquiry proceedings, therefore, the entire exercise undertaken by Respondent No. 2 in this context is against Rule 5 of the Anti Corruption Establishment Rules, 1985.
On the contrary, learned counsel for Respondent No. 1 submits that the petitioner being a public servant can be summoned for joining enquiry proceedings if he has committed an offence which is covered within the ambit of Section 7 of the Anti Corruption Establishment Rules, 1985 according to which a public servant can be summoned to face the enquiry to ascertain the nature of offence and the liability of the accused person regarding the commission of the offence.
I have heard the learned counsel for the petitioner as well as learned counsel for Respondent No. 1 and have also perused the available record. Precise allegation of the petitioner is that petitioner being a public servant has misappropriated an amount of Rs. 16,00,000/- under the transaction taken place between the petitioner and the complainant. Thereafter on the application of complainant Anti Corruption Establishment had issued summoning notice to the petitioner to face enquiry proceedings to the genuineness of the complaint against him. Grievance of the petitioner is that since private transaction was effected between the petitioner and the complainant, therefore, Anti Corruption Establishment could not have issued him summoning notice and such an action is not warranted by law because if a public servant commits any crime in his official capacity only then he is to be summoned for preliminary enquiry. I am enlightened by Rule 6 of the Punjab Anti Corruption Establishment Rules, 1985 which is reproduced below:--
"Preliminary enquiries and investigation against public servants. Preliminary enquiries and investigations shall be initiated by the Establishment against public servants on complaints received from the Government, Heads of Departments or other reliable sources."
There is no denying the fact that offence committed by the public servant in his official capacity is reported to the Anti Corruption Establishment by the Head of the Department of that particular department where public servant commits an offence but at the same time the said rule also enumerates that if a complaint is received through other reliable source other than the Head of the Department is to be considered as a complaint by a private person, then, obviously when a complaint is lodged against a public servant by a private person means that the crime is committed by a public servant in his private capacity, therefore, argument of the learned counsel for the petitioner is not persuasive as Rule 6 of the Punjab Anti Corruption Establishment Rules, 1985 is very clear to hold enquiries of a public servant who commits an offence in his private capacity. Interpretation drawn on "or other reliable sources" means the complaint received by the Anti Corruption Establishment other than the Head of the Department meaning thereby that private person can also file a complaint against the public servant for the commission of offence in his private capacity.
"5. Criminal misconduct.--(1) A public servant is said to commit the offence of criminal misconduct.
(a) ....................................................
(b) ....................................................
(c) ....................................................
(d) if he, by corrupt or illegal means, or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage."
In the instant case petitioner had misused and abused his position as a public servant and had obtained pecuniary advantage by misappropriating Rs. 16,00,000/- from the complainant, as such, his case is covered under the afore-quoted section. Under the circumstances I am fully convinced that the petitioner is liable to face enquiry proceedings as enunciated in Rule 6 of the Punjab Anti Corruption Establishment Rules, 1985 and there is no illegality in the summoning order issued by the Anti Corruption Establishment to the petitioner to face the enquiry proceedings. Even otherwise, there is no illegality or foul play on the part of the Anti Corruption Authorities in summoning the petitioner to join enquiry proceedings and if at all the petitioner is declared innocent in the enquiry proceedings he shall be relieved of his liability.
(W.I.B.) Petition dismissed in limine.
PLJ 2008 Lahore 820 (FB)
Present: Abdul Shakoor Paracha, M. Bilal Khan & Syed Shabbar Raza Rizvi, JJ.
Syed KHURRAM SHAH--Petitioner
versus
Mian MUHAMMAD SHAHBAZ SHARIF and 4 others--Respondents
W.P. No. 6470 of 2008, decided on 23.6.2008.
Representation of the People Act, 1976 (LXXXV of 1976)—
----S. 14(5)(A)--Constitution of Pakistan, 1973, Art. 199--Sworn a false declaration--Differentiation--Appeal may be preferred by a candidate whereas, sub-section (5A) deals with any information or material brought to the knowledge of tribunal by any source--It may be from a candidate or an elector/citizen. [P. 823] A
Representation of the People Act, 1976 (LXXXV of 1976)—
----S. 14(5)--Constitution of Pakistan, 1973, Arts. 199, 62 & 63--Disqualification--Candidate may prefer an appeal against decision of Returning Officer--Petitioner (not a candidate) filed an application before Tribunal order of Returning Officer was set aside, whereas the other member dismissed the application--Matter was referred to election tribunal for decision--Whether the application of the petitioner may be treated as appeal under Section 14(5)--Validity--Held: Election Tribunal and Chief Election Commission had fallen in error by treating the application of the petitioner as an appeal and to tag the same with another appeal subject matter of the impugned order--Further held: Impugned order declared unlawful and without any lawful authority--Petition was allowed. [P. 823] B
Mr. Raza Kazim, Advocate alongwith Dr. M Mohy-ud-Din Qazi, Advocate for Petitioner.
Raja Abdul Rehman, DAG for Respondents.
Date of hearing: 23.6.2008.
Order
Abdul Shakoor Paracha, J.--According to the learned counsel for the petitioner, Respondent No. 1 submitted his nomination papers to PP48 Bhakkar-II, wherein he had sworn a false declaration that he was qualified in terms of Article 62 of the Constitution and suffered no disqualification in terms of Article 63 of the Constitution. An objection was raised by one Malik Nazar Abbas to the nomination papers which was rejected. Resultantly nomination papers of Respondent No. 1 were accepted on 16.5.2008. In the above background, the petitioner (not a candidate) filed an application under Section 14(5A) of the Representation of People Act, 1976 (hereinafter to be called the Act) to prove that Respondent No. 1 was disqualified from being elected as a Member of the Provincial Assembly Punjab before the Tribunal consisting of two learned Judges of this Court. The application of the petitioner was decided alongwith Appeal No. 26-A of 2008 by a single order. According to the learned counsel, one learned Member allowed the application of the petitioner and set aside the order of the learned Returning Officer, whereas the other learned Member dismissed the application of the petitioner. The matter was referred to the learned Chief Election Commissioner/Election Commission of Pakistan who observed (as enshrined in order signed by Secretary of the Election Commission, dated 1.6.2008) as under:--
"The proposal highlighted in Para-18/ante is approved as it is squarely in line with the mandatory provision of Section 14(6) of the Representation of People Act, 1976 that an appeal not disposed of within the period specified in Election Schedule shall be deemed to have been rejected. It is scarcely necessary to mention that according to Ejection Schedule notified on 7th May, 2008 the last date for deciding appeals against the acceptance or rejection of Nomination Papers by the Appellate Tribunals was 31st May, 2008."
The learned counsel for the petitioner has challenged the above mentioned three orders, particularly, order of the learned Chief Election Commissioner/Election Commission of Pakistan dated 1.6.2008 and order of the learned Election Tribunal dated 31.5.2008.
We have heard the learned counsel for the petitioner and Raja Abdul Rehman, the learned Deputy Attorney-General.
Both the impugned orders i.e. of the learned Election Tribunal as well as the learned Chief Election Commissioner/ Election Commission of Pakistan treated the application of the petitioner as an appeal under Section 14(5) of the Act. The title of the application, copy of which is available on Page 26 of the file of this writ petition clearly mentions application under Section 14(5) of the Act. The prayer also reads as under:--
"In view of the submissions made above it is respectfully prayed that in exercise of powers conferred upon this Hon'ble Tribunal, under Section 14(5A) of the Representation of People Act, 1976, on the basis of the information/material, brought to the knowledge of this Hon'ble Tribunal, through this application, regarding disqualification of Respondent No. 1 from being elected as a member of Provincial Assembly, Punjab from PP-48 Bhakkar-II, the Respondent No. 1 may graciously be called upon to show-cause why his nomination papers may not be rejected, and thereafter reject his nomination papers."
In the presence of the above material, it is strange how the learned Tribunal treated the application of the petitioner as an appeal and decided the same alongwith an appeal filed by one Noor Elahi through single order dated 31.5.2008. Likewise, the Chief Election Commissioner/Election Commission of Pakistan also treated the application of the petitioner as an appeal which is reflected in the order dated 1.6.2008. Under Section 14(5) of the Act, a candidate may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be, accepting the nomination papers of the candidate to the Tribunal constituted for the constituency to which the nomination papers relates and consisting of not less than two nor more than three Judges of the High Court nominated by the Commissioner with the approval of the President.
On the other hand, sub-section (5A) of Section 14 of the Act reads as under:--
"If, on the basis of any information or material brought to its knowledge by any source, a Tribunal constituted under sub-section (5) is of the opinion that a candidate whose nomination papers have been accepted is a defaulter of loan, taxes Government dues or utility charges or has had any loan written off or suffers from any other disqualification from being elected as a member of an Assembly, it may, on its own motion, call upon such candidate to show-cause why his nomination papers may not be rejected, and if the Tribunal is satisfied that the candidate is actually a defaulter as aforesaid or has had a loan written off or suffers from any disqualification, it may reject the nomination papers."
The difference between sub-sections (5) and (5A) is evident. Under sub-section (5) an appeal may be preferred by a candidate, whereas, sub-section (5A) deals with any information or material brought to the knowledge of Tribunal by any source, it may be from a candidate or an elector/citizen.
An appeal not disposed of within the period specified in sub-section (5) shall be deemed to have been rejected.
The reading of sub-section (6) manifestly shows that it relates to sub-section (1) or an appeal filed by a candidate. It has no nexus with sub-section (5A) of Section 14 of the Act. Thus, it is noted with concern as to how could the learned Tribunal and the learned Chief Election Commissioner/Election Commission of Pakistan decide the application of the petitioner alongwith an appeal filed by one Noor Elahi? Likewise, how could the learned Chief Election Commissioner/Election Commission of Pakistan reject application of the petitioner on the basis of mandatory provision of Section 14(6) of the Act?
"Notwithstanding anything contained in Section 11, the Commission may at any time after the issue of a notification under sub-section (1) of that section, make such alterations in the programme announced in that notification for the different stages of the election as may, in its opinion, be necessary."
Section 11-A was not originally part of the Act of 1976, it was later made part of the Act i.e. inserted vide Ordinance No. LIV of 1979, with effect from 7.10.1979. It appears that Section 11A was inserted in the Act to meet situations like the one as obtained in the facts and circumstances of the instant case. The Election Commission could have taken advantage of provisions of Section 11A of the Act in the interest of justice and fair play. At this stage, it may also be pointed out that the present petitioner cannot file an election petition after the election, not being a candidate hence he will have no remedy before an Election Tribunal.
(W.I.B.) Petition allowed.
PLJ 2008 Lahore 824
Present: Sardar Muhammad Aslam, J.
CITY EDUCATION BOARD (REGISTERED), SIALKOT through its Director--Appellant
versus
Mst. MAQBOOL NASREEN--Respondent
R.S.A. No. 36 of 2006, decided on 26.10.2007.
Civil Procedure Code, 1908 (V of 1908)—
----S. 100--Regular Second Appeal--Suit for specific performance of contract--Marginal witness--Agreement executed through Chairman of the plaintiff--Collusive suit in order to deprive her from valuable property--Defendant was illiterate--Signature were detained by respondent husband on blank paper for the use in civil suit--Only one marginal witness appeared in court--Held: Plaintiff failed to discharge his burden of prove--Appeal was dismissed.
[Pp. 826 & 827] A, B & C
Qanun-e-Shahadat Order, 1984 (10 of 1984)—
----Art. 17--Agreements to sell were not proved in term of Art. 17 of Qanun-e-Shahadat--Specific performance of such agreements is not enforceable. [P. 828] D
(PLD 2005 Lah. 654; 2006 MLD 823; 2006 CLC 571 &
PLD 2007 Lah. 254, rel.)
Specific Relief Act, 1877 (I of 1877)—
----S. 12--Agreement to sell--Grant of decree for specific performance of contract is discretionary in nature and court is not legally bound, to grant such a relief even if it is lawful. [P. 828] E
(PLD 1991 SC 905 + 2007 MLD 264, rel. )
Mr. Uzair Karamat Bhandari, Advocate for Appellant.
Mr. Mahmood Ahmad Bhatti, Advocate for Respondent.
Date of hearing: 9.10.2007.
Judgment
Through this appeal, the appellant calls in question the concurrent judgments and decrees passed by the learned Courts below whereby suit filed by the appellant was dismissed.
Briefly the facts of the case are that the appellant filed a suit for possession through specific performance of contract/agreement executed through its chairman, Mian Muhammad Rafi-ud-Din, Advocate, on the grounds that suit property is owned by the defendant and vide an agreement dated 20.3.1986 she agreed to sell the same in favour of the plaintiff-appellant against consideration of Rs. 1400,000/-, out of which Rs. 200,000/- was paid as earnest money through cheque. Suit was contested. Controversy gave rise to framing of issues. Both the parties produced their respective evidence. In the first round of litigation suit was dismissed. Appeal preferred was also dismissed. Second appeal before this Court was allowed and case was remanded to the learned appellate Court for decision afresh. The learned appellate Court again dismissed the appeal vide its judgment dated 16.01.2006. This second appeal assails the judgment and decree passed by the learned Courts below.
I have heard the learned counsel for the parties and perused the record.
The appellant-plaintiff produced Mian Abdul Hayee, Advocate as PW-2. He has authored the agreement on 20.03.1989. He claims to have authored this document in the drawing room of respondent's husband. It was written at the instance of Mian Rafi-ud-Din, the Chairman of the plaintiff and Suleman Khan Tareen, husband of the plaintiff. Respondent had signed Exh.P.1 in room of her house in his presence. However, it was not read over to her. Other witnesses also signed in his presence. PW-3 Nausher Mohsan stated that a sum of
Rs. 2,00,000/- was transferred in the Account No. 3823 maintained by the defendant. Malik Manzoor Ahmad appeared as PW-4. He stated that respondent's husband Suleman Khan Tareen was known to him. Plaintiff and respondent with her husband, have entered into transaction of sale of Khotee. Agreement dated 20.3.1986 was authored by him. It was signed by Muhammad Iqbal Khokhar, Khawaja Muhammad Riaz and Suleman Khan Tareen and respondent-defendant. Exh.P.3, agreement dated 19.07.1984 was also authored by him which, too, was signed by Suleman Khan Tareen and Malik Muhammad Iqbal as marginal witnesses. Respondent has signed the same after reading its contents. Khawaja Muhammad Riaz appeared as PW-5. He is marginal witness of Exh.P.2. In cross-examination he deposed that stamp paper Exh.P.2 was purchased by Suleman Khan Tareen. Exh.P.2 was authored with the consent of the parties. Mian Rafi-ud-Din, Advocate, Chairman of the plaintiff's board appeared as PW-6. He is witness of Exh.P.2. Delay in execution of sale deed, within the specified time, requiring extension was made through Exh.P.1 and Exh.P.3. Both Exh.P.1 and Exh.P.3 were signed by respondent in his presence. He admitted that Younis Baig, his clerk, had purchased stamp papers Exh.P.1 and Exh.P.3. Muhammad Khan Chauhan appeared as PW-7. He is office Secretary of the Board. According to him matter regarding purchase of the property in dispute was placed before Governing Body and after its approval resolution was passed for its purchase. Copy of registration of School was produced as Exh.P.4; copy of judgment and decree in a suit titled Saeeda Begum v. Suleman Khan Tareen was produced as Exh.P-5 and Exh.P.6. Muhammad Yasin Khan Tareen appeared as DW.1. He is real brother of respondent's husband. He stated that respondent-defendant is illiterate parda observing woman. She does not appear in public. His brother has married a 2nd wife, class-fellow/ age fellow of his daughter. Respondent-defendant has not sold her house as claimed by the plaintiff. Maqbool Nasreen, respondent herself appeared as DW-2. She deposed that stamp paper Exh.P.1, Exh.P-2 and Exh.P.3 were not purchased by her. She has not directed any one to reduce an agreement into writing on the aforementioned stamp papers. The contents of agreements were not read over to her. Her husband used to obtain her signatures on plain papers for filing reply and affidavit in a suit filed by Mst. Saeeda Begum. Portion of the disputed property was leased out to the School at a rent of Rs. 8500/- per month. On account of non-payment of rent, premises were got vacated. Marginal witnesses of Exh.P.1 and Exh.P.3 had not signed in her presence. No person of her confidence such as son, daughter, or son-in-law was present. The plaintiff Board, in connivance with her husband, filed this suit in order to deprive her from valuable property. She also stated that on no occasion, she appeared before Mian Saeed Magistrate. Documents Exh.D1 to Exh.D.6 were produced.
Exh.P.2 was reduced into writing on 20.3.1986. Respondent-defendant was identified by Muhammad Suleman Khan Tareen. Marginal witnesses were Muhammad Iqbal Khokhar and Khawaja Muhammad Riaz. In terms of agreement, respondent-defendant-has sold out the suit property against a consideration of Rs. 14,00,000/- to the plaintiff. A sum of Rs. 2,00,000/- was obtained by her through cross cheque dated 20.3.1986 and sale-deed was to be executed within a period of four months. Khawaja Muhammad Riaz alone appeared as PW-5 to prove the agreement.
Agreement Exh.P.3 was reduced into writing on 19.7.1986. It was novation of Exh.P2 extending the time for execution of sale-deed, until a decision is rendered in the suit titled Saeeda Begum v. Muhammad Suleman Khan Tareen. It contained signature of Maqbool Nasreen plaintiff on two places one as executant and other as witness. Muhammad Suleman Khan Tareen, husband of the plaintiff also signed the document. No marginal witness appeared to prove Exh. P3. Exh.P.1 was the last agreement, specific performance of which has been sought. It was marginally witnessed by Mian Abdul Hayee, Advocate, Muhammad Suleman Khan Tareen, Haji Malik Manzoor and Mian Saeed Magistrate, Sialkot but only Mian Abdul Hayee, Advocate has appeared in Court.
The first question raised as to whether the appellant has proved the execution of agreement by the defendant. Defendant admitted her signatures on Exh.P.1, Exh.P.2 and Exh.P.3. According to her signatures were obtained on blank papers by her husband for the use in civil suit filed by Saeeda Begum against the defendant and her husband. She claims that neither the documents were read over nor any independent advice of person of her confidence was available to her. Her husband has taken a 2nd wife class fellow/age fellow of his own daughter. He was under the influence of her 2nd wife. She was quite young and literate one. Defendant was illiterate and could only affix her signature. Her signatures on Exh.P.1, Exh.P.2 and Exh.P.3 are at variance to each other, bearing her testimony.
Only one marginal witness of Exh.P.2 appeared in Court. Same is the position of Exh.P.1. Except scribe none appeared to prove Exh. P3. Articles 17 of Qanoon-e-Shahadat Order, 1984 requires proof of document by at least two attesting witnesses. Non-production of another marginal witness even on account of death is fatal to the plaintiff. A person conversant with signatures of the marginal witness could have been produced to prove the signatures of deceased marginal witness. Heavy onus lay on the plaintiff Board to prove the agreement entered with female, not possessed with independent advice of a person of her confidence. Plaintiff has failed to discharge this burden. Scribe of Exh.P.1 could not be substituted for the marginal witness. It is conceded by the plaintiff that stamp papers were purchased by his clerk and Mian Saeed, Magistrate used to visit his chamber, but, he did not enter the witness box to prove his signature. Requirement of production of two attesting witnesses is sine-qua-non to prove the document. Reference can be had to Qasim Ali v. Khadim Hussain through legal representatives and others (PLD 2005 Lahore 654) Shah Muhammad through L.Rs and 4 others v. Nawab Din (MLD 2006 Lahore 823); Shamas-ud-Din through L.Rs v. Abid Hussain through L.Rs. (CLC 2006 Lahore 571); and Mst. Sakina Bibi and another v. Muhammad Anwar alias Mujahid and others (PLD 2007 Lahore 254). The agreements Exh.P.1, Exh. P.2 and P.3 were not proved in terms of Article 17 of Qanoon-e-Shahadat Order. Specific performance of such agreements is not enforceable.
Grant of decree for specific performance of contract is discretionary in nature and Court is not legally bound to grant such a relief even if it is lawful. Whether plaintiff has unfair advantage over the defendant even in absence of fraud or misrepresentation; and performance of contract would cause hardship to the defendant, not examined, assessed or fore-seen at the time of execution. Whether plaintiff has taken some legal steps for the performance of contract or suffered any loss, has to be examined. Even if the agreements are proved a decree can be refused on equitable ground. The transaction in dispute allegedly took place firstly in the year 1986 against the alleged consideration of Rs. 14,00,000/-. On payment of Rs. 2,00,000/- as earnest amount allegedly, balance to be paid was a sum of Rs. 12,00,000/- Value of the property has increased manifold whereas value of rupee has been devalued to large extent. In case consideration amount, have been invested in profit earning scheme, such as Defence Saving Certificates, in 21 years it should have been more than Rs. 1,50,00,000/-. The plaintiff is not in favour of enhancement in price. Plaintiff failed to deposit balance amount in Court of his own. He may had some edge on deposit of balance consideration. He had utilized the money with him-- and in case of decree secure the property worth Rs. 1,50,00,000/- without any investment. In such a situation, plaintiff will have unfair advantage over the defendant, which is not approved in law. For the above view support is sought from Syed Arif Shah v. Abdul Hakeem Qureshi (PLD 1991 SC 905) and Muhammad Ghafoor v. Mst. Munawar Shahzadi and another (2007 MLD 264).
For what has been discussed above, this appeal fails and is hereby dismissed.
(W.I.B.) Appeal dismissed.
PLJ 2008 Lahore 829
Present: Abdul Shakoor Paracha & Hafiz Tariq Naseem, JJ.
CH. NAZIR AHMAD--Appellant
versus
Moulvi MASOOD-UR-REHMAN KHAN & 6 others--Respondents
I.C.A. No. 133 of 2008 in W.P. No. 2514 of 2008, decided on 15.5.2008.
Law Reforms Ordinance, 1972 (XII of 1972)—
----S. 3--Constitution of Pakistan, 1973, Art. 199--Society Registration Act, 1860, S. 16-A--Intra Court Appeal--Maintainability--Availability of alternative remedy--Where the law applicable to the proceedings, subject matter of the petition under Art. 199 of Constitution, provided for at least one appeal, or one revision, or one review to any Court, Tribunal or authority, there would be no appeal to Bench of two or more judges of the High Court from the order made by a single judge of the same High Court under Art. 199 of the Constitution of Pakistan. [P. 831] A
1999 PLC 128; 1999 SCMR 1357 and PLD 2001 SC 182 rel.
Societies Registration Act, 1860—
----S. 16-A--Law Reforms Ordinance, (XII of 1972), S. 3--Remedy under S. 16A is undisputed available to the aggrieved persons, hence the Intra Court Appeal against the order of Single Judge in chamber is not competent which is accordingly dismissed. [Pp. 831 & 832] B
Mr. M. Aziz Qureshi, Advocate for Appellant.
Date of hearing: 15.5.2008.
Order
Abdul Shakoor Paracha, J.--The backdrop of this Intra Court Appeal is that Respondents No. 1 to 6 filed a W.P. No. 2514/2008 contending that Akhbar Farosh Union is a registered body under Societies Registration Act, 1860 and is under a lawful obligation to file annual a return before the Registrar Joint Stock Companies with regard to particulars of persons in the Managing/Governing Body but the said society had not filed return from 1979 to 1991, as is evident from notice issued by the Registrar on 7.8.1991, society has not held elections and members are denied access to the accounts, the assets and funds of the society are mis-utilized and misapplied by management and as such seeking a direction from the High Court through the writ petition to Respondent No. 4 for initiation of action against the delinquent management. However, the writ petition was disposed of through order dated 19.3.2008 particularly on the ground that the petitioners should have availed the remedy available to them under Section 16-A of the Societies Registration Act, 1860 at the first instance and as the petitioners in the writ petition did not avail the said remedy hence their writ petition cannot proceed being incompetent due to availability of an alternative remedy. However, while disposing of the writ petition, the learned Single Judge in Chamber directed the petitioners to approach the relevant forum for the redressal of their grievances.
Aggrieved by the order dated 19.3.2008 the appellant filed this ICA for setting aside the order impugned.
Arguments heard; available record perused.
First of all we have to decide that whether the ICA is competent or not and for that we have to advert to Section 3 of the Law Reforms Ordinance No. XII of 1972 which reads as under:--
"1. An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.
Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Aritcle 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order.
No appeal shall lie under sub-section (i) or sub-section (2) from an interlocutory order or an order which does not dispose of the entire case before the Court.
Nothing contained in this Ordinance, shall be construed as affecting--
(a) any appeal under the provisions of the Letters Patent applicable to a High Court or under Section 102 of the Code of Civil Procedure, 1908 (V of 1908) which was pending immediately before the commencement of this Ordinance; or
(b) any appeal or petition for leave to appeal from a decree, judgment or order of a single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972."
"Notwithstanding anything contained in the memorandum of association, rules or regulations of a society registered under this Act, Government of the Province of registration may dissolve the governing body of such society and reconstitute or reorganize the governing body and entrust thereto the management of the affairs of the society subject to such conditions as it may deemed fit to impose."
It is also undisputed that prior to invoking the jurisdiction of the High Court, no one has approached the relevant authorities under Section 16-A of the Societies Registration Act, 1860 but have directly filed the writ petition.
We have dilated upon the main issue regarding the maintainability of the ICA in view of the provisions in Section 3 of the Law Reforms Ordinance, 1972 and have gone through a series of judgments wherein it is held, that "where the law applicable to the proceedings, subject matter of the petition under Article 199 of the Constitution, provided for at least one appeal, or one revision or one review to any Court, Tribunal or authority, there would be no appeal to a Bench of two or more Judges of the High Court from the order made by a Single Judge of the same High Court under Article 199 of the Constitution of Pakistan." Reliance in this respect can be made to Allah Rakha Choudhary v. Presiding Officer, Vth Sindh Labour Court, Karachi and 2 others (1999 PLC 128), Deputy Commissioner/ Administrator, District Council, Attock and another v. Lawrencepur Woolen Textile Mills Ltd. (1999 SCMR 1357) and Syed Arif Raza Rizvi v Messrs Pakistan International Airlines through Chairman/M.D. (PLD 2001 SC 182).
In the light of he above referred judgments and the provisions of Section 3 of the Law Reforms Ordinance, 1972 we hold that if a remedy in the form of an appeal, review or revision is available under the law and despite the fact whether the remedy has or has not been availed before filing of a writ petition then ICA shall not be competent/maintainable against an order of a Single Judge of the High Court.
In the present controversy, remedy under Section 16-A of the Societies Act, 1860 is undisputedly available to the aggrieved persons hence the Intra Court Appeal against the order of the learned Single Judge in chamber is not competent which is accordingly dismissed.
(M.R.Q.) I.C.A. dismissed.
PLJ 2008 Lahore 832
Present: Hafiz Tariq Nasim, J.
SADAQAT ALI, STAFF OFFICER, OFFICE OF THE ADVOCATE-GENERAL, PUNJAB, LAHORE--Petitioner
versus
GOVT. OF PUNJAB through Chief Secretary, Civil Secretariat, Lahore and 3 others--Respondents
W.P. No. 2237 of 2008, decided on 10.6.2008.
Constitution of Pakistan, 1973—
----Arts. 25, 27, 4 & 199--Equal protection and equality before law--Concept of equal protection and equality before law is hallmark of the Constitutional scheme recognized by not only the preamble, objective resolution, Arts. 4, 25, 27 of the Constitution but also by the principles of policy contained in Art. 37 of the Constitution--Equal protection and equal treatment of citizens similarly placed is universally accepted and recognized principle, which has been explained by many authors in textbooks and judges in precedents--Statutory functionaries in a democratic set up cannot make any individual distinction for any extraneous reasons and exercise of discretion must be free of arbitrariness and caprice--Petition was allowed. [P. 837] A
Ch. Imran Raza Chadhar, Advocate for Petitioner.
Mr. Naeem Masood, Assistant Advocate General Punjab with Ms. Rukhsana Nadeem Bhatti, Deputy Secretary, Finance Department, Government of the Punjab, Lahore.
Date of hearing: 10.6.2008.
Order
This writ petition is filed with the following prayers :--
"It is therefore, most respectfully prayed that by allowing the instant writ petition Respondents Nos. 1 and 2 may kindly be directed to allow/sanction the judicial allowance being admissible equal to the members of the staff of the Honourable Lahore High Court and the Punjab Bar Council under various Notifications issued from time to time at the rate of 10% w.e.f 12.09.2002 and 20% w.e.f. 01.7.2003 and 30% of the running basic pay w.e.f. 22.01.2008 as allowed vide Notification No. FD. SR.1/91-1/2002 to all the staff members of the Office of the Advocate-General, Punjab.
Any other relief which this Honourable Court may deem fit and proper may also be awarded. "
The learned counsel for the petitioner submits that the petitioner and his similarly placed colleagues are being discriminated without any cogent reason particularly keeping aside the strong recommendations of the administrative department, extending the same benefit in the office of Attorney General for Pakistan, High Courts Lahore, Sindh, Quetta and Peshawar and this very action of the respondents virtually offends the specific provisions of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 which calls for interference of this Court.
The learned Assistant Advocate General Punjab Lahore assisted by the Deputy Secretary, Finance Department; Government of the Punjab strongly opposed the contentions raised by the learned counsel for the petitioner and submits that the matter relating to the terms and conditions of civil servants cannot be amenable to the writ jurisdiction. Further submits that the recommendations made by the departmental Head are not binding on the Government and only on this ground that some recommendations were made by the departmental Head, the petitioner and his colleagues cannot be held entitled for the relief claimed for.
Arguments heard; record perused.
First of all I will advert to the point of jurisdiction.
The prayer of the petitioner clearly reveals that neither any final nor appellate order of the departmental authorities is under challenge before this Court rather a direction is sought which can be issued in exercise of powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 particularly on the strength of law laid down in a recent case reported as Secretary Revenue v. Muhammad Saleem (2008 SCMR 948).
It is further observed that principle object behind all legal formalities is to safeguard the paramount interest of justice--legal precepts were devised in order to view to impart certainty, consistency and uniformity, administration of justice--to secure same against arbitrariness, errors of individual judgments and malafides. In support of this observation, I can rely on a judgment reported as Mrs. Munawar Sanni v. Director Army Education (1991 SCMR 135), Administrator District Council Larkana and others v. Gulab Khan and 5 others (2001 SCMR 1320). In the case of Mrs. Munawar Sanni (supra) despite her status of civil servant she approached the High Court for the redressal of grievance and the point of jurisdiction was raised even up to the level of Hon'ble Supreme Court of Pakistan and the same was resolved in the following terms:--
"Question whether she should approach the Civil Court or the Service Tribunal for this purpose was not very pertinent in the face of bound down obligation of the authorities to satisfy her claim themselves without the necessity of driving needy litigants a pillar to post."
In the light of judgments of the Hon'ble Supreme Court of Pakistan referred above, the objection of maintainability of the writ petition raised by the learned Assistant Advocate General Punjab Lahore is repelled.
So far the merits of the case is concerned, it is not denied by the departmental representative that in case of employees of High Court of Lahore, Sindh and Quetta they are getting the said allowances for which the petitioner is agitating however, it is contended on behalf of the respondents that they are unaware of the position in respect of the staff of Attorney General for Pakistan, however, when confronted with the summary dated 12.12.2007 submitted by the Attorney General for Pakistan the departmental representative could not advance her case further. To resolve the present controversy the said summary is reproduced as under :--
"Office of the Attorney General for Pakistan Supreme Court Building, Islamabad.
SUMMARY FOR THE PRIME MINISTER.
Subject : GRANT OF INCENTIVE ALLOWANCE AT THE RATE OF 20% OF BASIC PAY TO THE OFFICERS/STAFF OF THE OFFICE OF THE ATTORNEY GENERAL FOR PAKISTAN.
In Clause (3) of Article 100 of the Constitution of Islamic Republic of Pakistan it shall be the duty of the Attorney General to give advice to the Federal Government upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Federal Government, and the performance of his duties he shall have the right of audience in all Courts and tribunals in Pakistan.
Under the rules privileges and benefits of the Attorney General for Pakistan are equal to that of a Judge of the Supreme Court. The rules, benefits and other privileges and the staff of the Attorney General are applicable to that of the Federal Government employees. On the other hand, the nature of duties, official timing of the staff are applicable to that of the Supreme Court and High Courts, because in the morning to 1.00 p.m. the staff remains busy in Courts proceedings alongwith the Attorney General and thereafter 1.00 p.m. to late hours, prepare the cases for the next day. It is an admitted fact that the nature of duties of the staff of the Attorney General's Office is identical to that of employees of the Supreme Court of Pakistan and High Courts.
The Hon'ble Chief Justice of Pakistan has been pleased to grant 20% on their basic pay as Special Judicial Allowance to the employees of the Supreme Court of Pakistan. Copy of the notification is attached as ANNEX-`A'.
The Hon'ble Chief Justice of the High Court of Lahore, Sindh, Quetta and Peshawar have also been pleased to grant Judicial Allowance to the staff of their respective High Courts at Principal seat as well as its benches. Copy of the notification is attached as ANNEX-`B'.
It is also pertinent to mention here that the Hon'ble Prime Minister of Pakistan has also granted incentive allowance at the rate of 20% of basic pay to the employees of the Federal Tax Ombudsman and Wafaqi Mohtasib. Copy of the notification is attached as ANNEX-`C'.
It is submitted that an amount of Rs.47,986/- per month is involved for the grant of 20% Special Incentive Allowance to the employees of the Office of the Attorney General for Pakistan. The amount can be met within the allocated budget and therefore, no budgetary implication is involved in grant of 20% incentive allowance.
The approval of the Hon'ble Prime Minister of the Islamic Republic of Pakistan is solicited.
MALIK MUHAMMAD QAYYUM
Attorney General for Pakistan
Dated: 12.12.2007.
Mr. Khalid Saeed, Principal Secretary to the
Prime Minister of Pakistan, Prime Minister Secretariat, Islamabad. "
"Government of Pakistan
Finance Division
(Regulations Wing).
\ \ \ \ \
Subject : GRANT OF INCENTIVE ALLOWANCE (a) 20% OF THE BASIC PAY TO THE OFFICERS/STAFF OF THE OFFICE OF ATTORNEY GENERAL FOR PAKISTAN, ISLAMABAD.
Reference Office of the Attorney General for Pakistan, Islamabad's letter No. 1(1) 2007/AGP, dated 28.1.2008 on the subject noted above.
In pursuance of a decision of the Prime Minister received vide Prime Minister's Secretariat U.O. No. 4465/PSPM/2007, dated 16th January, 2008, it has been decided to grant Special Incentive Allowance @ 20% of basic pay to the employees of the Office of the Attorney General for Pakistan with immediate effect to be regulated as under:--
It will be admissible during leave as well as preparatory to retirement.
It will not be admissible during extra-ordinary leave.
It will not be treated as part of pension.
It will cease to be admissible on transfer, posting and deputation outside the Office of the Attorney General for Pakistan, Islamabad.
It will not be admissible during the period of suspension.
(Muhammad Shafi Awan)
Section Officer (R-III)
Tele: 9262718.
Secretary/Controlling Officer, Office of the Attorney General for Pakistan, Islamabad.
Fin.Div. U.O. No. F.14 (5) R.3/2007-060/2008, dated 29th January, 2008."
After hearing the learned counsel for the parties as well as the perusal of the record it is held that the petitioner and his colleagues are being made the subject of discrimination because the similarly placed employees are enjoying the said benefit which the petitioner and his colleagues are claiming but they are being deprived without any cogent reasons and justification. In such like situation the Hon'ble Supreme Court of Pakistan always came for the rescue of aggrieved persons and in that respect the reliance can be placed on a judgment reported as Hussain Badshah and another v. Akhtar Zaman and others (2007 PLC (C.S) 157) wherein the Hon'ble Supreme Court of Pakistan held that "Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 guarantees equal treatment before law and equal protection of law to all citizens similarly placed."
In a reported case titled Dr. Munir Ahmad and 37 others v. Government of Pakistan, Finance Division, Islamabad and 4 others (2007 PLC (C.S.) 285), the present Hon'ble Chief Justice held that "concept of equal protection and equality before law is hallmark of the Constitutional scheme recognized by not only the Preamble, Objectives Resolution, Articles 4, 25 & 27 of the Constitution but also by the Principles of Policy contained in Article 37 of the Constitution--Equal protection and equal treatment of citizens similarly placed is universally accepted and recognized principle, which has been explained by many authors in textbooks and Judges in precedents--Statutory functionaries in a democratic set up cannot make any individual distinction for any extraneous reasons and exercise of discretion must be free of arbitrariness and caprice."
In a recent reported case titled Ibrahim Flour and General Mills, District Sheikhupura through Chief Executive v. Government of Punjab through Secretary to the Government of the Punjab, Food Department, Lahore and another (PLD 2008 Lahore 184), the point of discrimination was thoroughly examined, dilated upon and held "the point of discrimination calls for interference and exercise of powers of judicial review."
When it is admitted on record that the similarly placed employees of High Courts, Office of the Punjab Bar Councils, Office of Attorney General for Pakistan, Federal Tax Ombudsman, and Wafaqi Mohtasib are getting the benefits but the petitioner and his colleagues are being deprived of the same, the Respondents' action being a violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 cannot remain in field.
The Deputy Secretary, Finance Department, Government of the Punjab (departmental representative) candidly submits that the precedents of employees of Office of Attorney General for Pakistan etc. cannot be made the basis of petitioner's claim because the Office of Attorney General for Pakistan belongs to Federal Government and the petitioner and his colleagues are employees of Provincial Government's attached department.
Suffice it to refer a judgment reported as Dr. Naveeda Tufail and 72 others v. Government of Punjab and others (2003 SCMR 291) which is a sufficient answer to the department's contentions.
Viewing from all angles it is held that the petitioner and his colleagues working in the Office of Advocate General Punjab are entitled for the relief claimed in the prayer clause of the writ petition.
The writ petition is allowed. The respondents are directed to extend the said benefit to the petitioner and his colleagues within a period of two months positively from the date when the employees of office of Attorney General for Pakistan were granted the said benefit i.e. w.e.f. 29.1.2008.
(M.A.K.Z.) Petition allowed.
PLJ 2008 Lahore 838
Present: Syed Hamid Ali Shah, J.
SHAH NAWAZ BHATTI and another--Petitioners
versus
PROVINCE OF PUNJAB through Secretary Health/Chairman Provincial Quality Control Board, Govt. of Punjab, Civil Secretariat, Lahore and 4 others--Respondents
W.P. No. 6335 of 2008, decided on 9.6.2008.
Drugs Act, 1976 (XXXI of 1976)—
----Ss. 11(5)(b), 11(5)(c) & 31(6)(4)--Constitution of Pakistan, 1973, Art. 199--Provincial Quality Control Board--Jurisdiction--Vested with power--Prima facie responsible for commission of on offence--After issuance of show-cause notice to petitioners and decided to institute prosecution--Validity--Jurisdiction of--Drug Court has powers of the Court of Sessions and as such after having received challan and becoming seized of the case and seisin extends not only to the accused person against whom challan is submitted, but to other persons who might be implicated therein--Held: Drug Court is competent to pass an order requiring the petitioners, who have prima facie been found by the Court--Petition was dismissed. [Pp. 841 & 842] A & B
Hafiz Muhammad Saeed, Advocate for Petitioners.
Mr. Najeeb Faisal Chaudhry, Additional Advocate General (on Court's call).
Date of hearing: 3.6.2008.
Order
Petitioners, through filing instant petition, have called in question the order dated 22.1.2008, on the ground that the Drugs Act, 1976, being a special law, has to be applied strictly. Learned counsel added that by virtue of Section 11 (5) (b) and 11 (5) (e) of the Drugs Act, 1976, the Provincial Quality Control Board is vested with power to ascertain names of the persons, who are prima-facie responsible for the commission of an offence under the Act and an Inspector can institute prosecution, against such persons only. Learned counsel went on to argue that Provincial Quality Control Board, after issuance of the Show Cause Notices to the petitioners and two others and after hearing, decided to institute prosecution against Maqbool Ahmad and Rustam Ali only. A prosecution by Drugs Inspector is competently instituted, only when the Board has ascertained and allowed the prosecution. Learned counsel, in support of his contentions, has relied upon the cases of "Messrs Salimco Laboratories and others vs. The Drug Inspector, Lahore Division (Industries), Director of Heath, Lahore and others" (1989 P.Crl. L.J 566) and "Agha Nadim vs. S.H.O. etc" (NLR 1998 Criminal 202).
Mr. Najeeb Faisal Chaudhry, Additional Advocate General (on Court's call) has entered appearance at this limine stage and has submitted that a Drug Court, established under Section 31 of the Drugs Act, 1974, has all the powers conferred by the Code of Criminal Procedure, 1898, on a Court of Sessions, exercising original jurisdiction, as envisaged in sub-section (4) of Section 31 (ibid). He has further referred to sub-section (6) of aforementioned Section and contended that wherever a procedure, which the Act (Drugs Act, 1976) has not provided, the Court is to follow the Code of Criminal Procedure, for the trial of summons cases as by Magistrate. Having referred to Section 31, learned Law Officer has submitted that Section 204 of Criminal Procedure Code empowers the Court to take cognizance of an offence, when the Court is of the opinion that there are sufficient grounds for proceeding. The Court, through impugned order, has mentioned the reasons for proceeding against the petitioners. Learned Law Officer, in support of his contention, has referred to the cases of "Muhammad Yaqoob Vs. The State" (PLD 1998 Lahore 523), "Waqarul Haq and another vs. The State" (1988 SCMR 1428), "Waqarul Haq alias Mithoo and another Vs. The State" (PLD 1988 Lahore 336), "Nazir and two others Vs. The State and another" (NLR 1990 Criminal 495), "Sohno Vs. The State and another" (1990 P.Cr.L.J 1190) and "Sardar Ali and others Vs. The State" [PLD 1966 (W.P) Lahore 790].
Heard learned counsel for the parties and record perused.
Three injections were found spurious by one Dr. Basharat Ali and were seized on Form No. 4 on 4.12.2000 by the Drug Inspector. The matter was referred to Provincial Quality Control Board (PQCB) and show cause notices dated 23.5.2001, were issued to the petitioners, besides Maqbool Ahmad and Rustam Ali. The Board, after providing an opportunity of being heard, sanctioned for prosecution against Maqbool Ahmad and Rustam Ali only, vide sanction order dated 18.6.2001. Drug Inspector thereafter, filed a complaint, which is now pending before Chairman, Drug Court, Gujranwala Division at Lahore (Respondent No. 5).
Learned Court, in the course of proceedings, found that as per the statement of PW-1, the injunctions were sold by Bhatti Medical Store, which were found without batch number and the drugs taken into possession, were without warranty and without drug sale license upon Form No. 11. Learned Court (Respondent No. 5) found that Shah Nawaz (Petitioner No. 1), while appearing as PW-4, has admitted sale of Clafron injunctions and issuance of cash memo (Ex.P.Z) signed by his brother Muhammad Afzal (Petitioner No. 2). Learned Court observed that sufficient oral and documentary material in the shape of evidence, is available on record, which incriminates Shah Nawaz and Muhammad Afzal for their involvement in the sale of injunctions, which were ultimately declared as spurious. Learned Court held that petitioners are to be charged for commission of offence as nothing plausible is available in their favour for exonerating them. The Court further held that petitioners have to face trial and be arrayed as accused persons in the complaint, vide order dated 22.1.2008.
The parties are not at variance with regard to the filing of complaint by Dr. Basharat Ali (Ex.PB), possession of sample on Form No. 4 (Ex.P.F-1), statement of Muhammad Afzal and Shah Nawaz, receipt of Bhatti Medical Store, qua sale of injunctions in question (Ex.P.C.), certificate of analyst on Form-C, show cause notice to the petitioners and two others, by Provincial Quality Control Board, Government of the Punjab, Lahore and lastly the permission dated 18.6.2001 for prosecution against Rustam Ali and Maqbool Ahmad only. There was no recommendation or permission for prosecution against the petitioners by the Board. It was during the pendency of proceedings, when Court found on the sufficient evidence, the involvement of the petitioners in the offence. The petitioners were thus ordered to be arrayed as accused persons. The Drug Court is a Court of Sessions, for the purposes of powers conferred while exercising original jurisdiction and for the purposes of procedure by the Code of Criminal Procedure, 1898, for trial of summons as a Court of Magistrate, as envisaged by sub-sections (4) and (6) of Section 31 of the Drugs Act, 1976. Section 204 of the Criminal Procedure Code, empowers the Court to take cognizance of an offence, if the Court is of the opinion that there are sufficient grounds for proceeding. The powers of the Court, conferred under Section 204 Cr.P.C., are unrestricted and wide. Reference to the case of Muhammad Yaqoob (supra) is pertinent at this stage, wherein it has been held by this Court as under:
".......If a case is sent up for trial to the Sessions Court with brief facts of the case stated under Column No. 7 of the challan, the Court is at liberty to summon any person appearing to be involved in commission of an offence irrespective of the fact whether his name finds mention in Column Nos. 2 or 3 of the challan or not."
The apex Court in the case of "Waqarul Haq alias Mithoo and another" (supra), has observed that placing accused in-column No. 2 means that according to Police investigation, such accused persons were found innocent and were, therefore, discharged under Section 63 of the Criminal Procedure Code. The Hon'ble Court has held that it does not mean that such accused person cannot be summoned to stand trial by the Sessions Court. A similar view was taken by this Court in the case of Sardar Ali (supra), wherein it was also observed that a Magistrate, taking cognizance of an offence, becomes seized of the entire case and seisin extends not only to the accused persons against whom challan submitted, but to other persons, who might be implicated therein. High Court of Sindh, in the case Sohno (supra) has held that Sessions Court, after having received challan and having become seized of the case, can pass an order, requiring any persons connected with the case to be joined as accused and can issue process against them.
The above resume of case law brings me to conclude that the Drug Court has powers of the Court of Sessions and as such, after having received challan and becoming seized of the case and seisin extends not only to the accused persons against whom challan is submitted, but to other persons who might be implicated therein.
The cases referred by learned counsel for the petitioners, in support of his contentions, are on different facts and circumstances. The case of Messrs Salimco Laboratories and others (supra) pertains to a matter, where Provincial Quality Control Board has not accorded permission for prosecution. The question involved in this petition, is not for permission of prosecution, but of the persons involved and connected with the matter, which is pending before the Court, on the basis of permission by the Board. Similarly, the other case of Agha Nadim (supra) referred by the petitioners, pertains to the registration of a case, without permission of Quality Control Board. The case was not referred to the Drug Court, but an FIR was lodged straightaway, which was quashed by learned Court. Drug Court is competent to pass an order requiring the petitioners, who have prima-facie been found by the Court, connected with the case to be joined as accused and there is no restraint on such powers of the Court.
For the foregoing, this petition has no force and is accordingly dismissed.
(M.A.K.Z.) Petition dismissed.
PLJ 2008 Lahore 842
Present: Sayed Zahid Hussain, C.J.
MUHAMMAD IBRAHIM MUGHAL--Petitioner
versus
GOVT. OF THE PUNJAB through Secretary Local Govt. Punjab, Lahore and 18 others --Respondents
W.P. No. 1587 of 2008, decided on 9.6.2008.
Constitution of Pakistan, 1973—
----Art. 199--Housing Scheme--Non-reservation of plot for construction of mosque--Request for issuing direction to Horticulture Authority--Authority had realized the importance and necessity of mosque and come out with the plan for making suitable arrangement for offering prayer by the people of the locality by reserving the site within the park area with the necessary facilities--Necessity erections/structure will be raised within month--It is expected that the authority will honour its commitment and take immediate steps for such purpose--Petition disposed. [P. 845] A & B
Rana Habib-ur-Rehman Khan, Advocate for Petitioner.
Mr. Aamir Rehman, Additional Advocate General, Punjab.
Mian Muhammad Qamar-uz-Zaman, Advocate.
Syed Mumtaz Hussain Bukhari, Advocate.
Ms. Alia Neelum, Advocate.
Irfan Ali, Director General Lahore Development Authority and Irfan Elahi, Director General Parks and Horticulture Authority.
Date of hearing: 9.6.2008.
Order
The petitioner who is a resident of G-I Block, Muhammad Ali Johar Town, Lahore has approached this Court with the grievance that there is no plot for mosque in Block G-I although thousands of Muslims reside in the said locality and since there was no site earmarked/allocated for mosque, the people were offering prayers in a park within G-I Block without any regular and permanent arrangement. Respondents No. 4 to 19 and applicant in C.M. No. 758/08 have also similar grievances who support the petitioner. A direction is, thus, sought that "the respondents may very kindly be directed to provide a one Kanal Plot for mosque in G-I Block or allocated one Kanal in corner of the Park behind G-I Market." The respondents cited in the petition are the Government of the Punjab alongwith Director General, Parks and Horticulture Authority, Lahore and Director General, Lahore Development Authority.
"The Legal Advisor for Lahore Development Authority has produced the plan of G-I Block, M.A. Johar Town, Lahore, the perusal whereof shows that no site for any mosque was reserved/earmarked in that locality. That is how the petitioner's contention that the people of the locality are offering their prayers in a park by making a temporary arrangement find support. It is stated by the Town Planner, Lahore Development Authority that in all schemes/colonies for each block site for mosque is reserved but has not been done here. The availability of a mosque in an area for a Muslim community for offering prayers which is a religious duty is a necessity. The learned Legal Advisor for Parks and Horticulture Authority, who is accompanied by Azhar Ali Sulehria, Director Parks, has been directed to earmark a suitable site within the park measuring 22 kanals 2 marlas 70 feet for the construction of a mosque by the residents of the locality. The petitioner will get in touch with the learned Legal Advisor for Parks and Horticulture Authority for a coordinated effort for this purpose."
Thereafter on 29.5.2008, the following order was passed:
"It is pointed out that no substantial progress has been made pursuant to order dated 29.4.2008 in the matter. Let Respondent No. 2 as also Respondent No. 3 appear in person in Court in order to explain as to why in such a big residential scheme, no site for mosque has been reserved or allocated at any appropriate site. To come up on 04.6.2008."
However, on 04.6.2008, the Director General, Lahore Development Authority as also the Director General, Parks and Horticulture Authority assured that "some site within the park area will be reserved for offering prayer as a mosque, for which purpose, a plan prepared by them will be submitted in Court on 09.6.2008."
"After migration to Madina, the Holy Prophet Hazrat Muhammad (s.a.w.s.) got a mosque built at Quba, a place about 3 miles away from Madina. He personally took part in the construction work to demonstrate the supreme importance of the House of Allah. After staying at Quba for about a fortnight, the Holy Prophet (s.a.w.s.) reached Madina and first of all got Masjid-e-Nabvi constructed adjacent to his house. ---------- Generally all mosques, apart from being places of worship, are centers of religious teachings and learning. The elementary education of reading and reciting the Holy Qur'an is imparted invariably at every mosque ----------- Muslims treat it as an act of great virtue to construct, maintain and respect mosques." It was observed that:--
"A mosque is a vitally important religious institution of a Muslim society which is essential for practicing Islam. Any act done by any person or a State functionary which obstructs the establishment, maintenance or management of a mosque really deprives the Muslims using the said mosque practise their religion."
It is not denied that in all housing schemes prepared by the official agencies like Lahore Development Authority, sites for mosques are reserved at appropriate places. As is averred in the comments filed by the Parks and Horticulture Authority, it was indeed "the responsibility of Lahore Development Authority to provide piece of land for construction of mosque and has to be earmarked in the master plan". Be that as it may, since now both Lahore Development Authority and Parks and Horticulture Authority have realized the importance and necessity of mosque and come out with the plan for making suitable arrangements for offering prayer by the people of the locality by reserving the site within the park area with the necessary facilities, no further direction is called for. Site plan of G-I Block park at Muhammad Ali Johar Town, drawn and prepared by Parks and Horticulture Authority has been produced wherein a site for the proposed mosque with amenities having an area of 2260 Sq.ft. has been earmarked and shown with necessary measurements. It is undertaken by the Parks and Horticulture Authority that necessary erections/structure will be raised within this month. It is expected that Parks and Horticulture Authority will honor its commitment and take immediate steps required for this purpose. The site-plan so produced before the Court is taken on the file and made part of the record.
At this juncture I would like to appreciate the co-operation extended by Mr. Muhammad Hanif Khatana, the Acting Advocate General Punjab who has spent time and took pain in this matter, the learned Legal Advisors for the official agencies and their Director Generals as also the learned counsel for the petitioner who have vigorously pursued this matter for the noble and religious cause.
The petition has, thus, fructified which is disposed of accordingly.
(M.A.K.Z.) Petition disposed of.
PLJ 2008 Cr.C. (Lahore) 845
Present: Zafar Iqbal Chaudhry, J.
MUHAMMAD TARIQ--Petitioner
versus
STATE--Respondent
Crl. Misc. No. 2846-B of 2008, decided on 18.4.2008.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498 r.w. S. 497(2)--Pakistan Penal Code (XLV of 1860), Ss. 458, 308 & 392--Pre-arrest bail--Grant of--Accused was not named in FIR--Complainant and accused were residents of the same village and were known to each other for many years--There existed previous litigation between parties--Brother of accused who was arrested had subsequently been discharged, as no recovery was affected from him--Matter was of further inquiry--Bail was confirmed. [Pp. 846 & 847] A
Mian Jamil Akhtar, Advocate with Petitioner in person.
Mian Ismat Ullah, D.P.G. for State.
Complainant in person.
Date of hearing: 18.4.2008.
Order
Through this petition Muhammad Tariq petitioner has sought pre-arrest bail in case FIR No. 362 registered at Police Station Bambanwala, District Sialkot on 09.11.2007 for offences under Sections 458/380/392, PPC.
The occurrence narrated in the FIR is that Ghulam Rasool complainant was resident of mouza Othian. He was labourer by profession. He has four sons, out of whom three had settled in Kuwait for the last 8/10 years to earn their livelihood. On the night of occurrence the complainant was sleeping with his wife and daughter-in-law in his house. The door of his room was open. At about 12.00 O`clock three unknown persons came into his room after entering into the house through roof. The accused awakened him by showing fire-arms and asked whatever cash or fire-arms he kept give it to them. One of them took Rs. 4000/- out of my pocket and also took one pair of earring and one ring from my wife who was sleeping another separated room. The accused also took a mobile phone mark Samsong B-20 from my daughter-in-law who was sleeping in third room. They also took keys of safe and got Rs. 50,000/- from it. The accused confined them in a room and took away with them the other articles after making search of the house. At their hue and cry one neighbourer namely Munir came at the spot and opened the door. After assessing the articles of the house the complainant party found that the accused took away three pairs of golden tops, three lockets, two lady rings, two children lockets, one rifle Pump action, one .12 bore and one computer. Out of the accused persons one stayed outside the house.
The learned counsel for the petitioner states that the petitioner is not named in the FIR though the complainant and the petitioner are residents of the same village. He has falsely been involved in this case on account of mala fide of the complainant as well as Liaquat Ali, SI who at the relevant time was posted at Police Station Bambanwala. He in connivance with the nephew of the complainant who had already registered a case vide FIR No. 333 dated 28.08.2007 under Sections 423/382, PPC against the petitioner, his father and brother. In that case pre-arrest bail of the petitioner was confirmed. Due to failure on the part of the complainant to get him arrested in that case the second false FIR was lodged. Even in that FIR the petitioner's name was not figured. Now just to cause illegal harassment and to take revenge he is being involved in this case. He further submits that brother of the petitioner was also arrested on 22.02.2008 on the supplementary statement of the complainant in this case and remained on physical remand for fourteen days with the investigating officer but when nothing was recovered from him, he was got discharged on 09.03.2008. This fact also found corroboration from the version of the complainant and shows his mala fide.
Learned Deputy Prosecutor-General states though the petitioner is not named in the FIR but serious allegation regarding the theft has been leveled against him and stolen property is yet to be recovered from him.
After hearing the learned counsel for parties and going through the record of this case I have straightaway noticed that the petitioner is not named in the FIR. The complainant and the investigating officer have not denied the fact that the accused and the complainant are not only the residents of the same village but they were also known to each other for the last many years. The factum of arrest of the brother of the petitioner and his subsequent discharge from the Court of competent jurisdiction is also not denied by the investigating officer. Not only this the registration of FIR No. 333 dated 28.08.2008 is also admitted. Talat Siddique, ASI present in Court has admitted that the petitioner had been joining the investigation in this case. If it is not enough there exists previous litigation between the parties, the petitioner being resident of the same village was not named in the FIR, the brother of the petitioner who was arrested and thereafter got discharged from the case and no recovery was affected from him are the facts which constrained me to state that the shadow of doubts looming large in this case which of course render the case against the petitioner to be one of further inquiry into his guilt within the purview of sub-section (2) of Section 497, Cr.P.C. This petition is, therefore, accepted and the ad-interim pre-arrest bail already allowed to the petitioner is hereby confirmed subject to furnishing of a fresh bail bond in the sum of Rs. 1,00,000/- (Rupees one hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court.
(J.R.) Bail confirmed.
PLJ 2008 Lahore 857
Present: Maulvi Anwar-ul-Haq, J.
GHULAM MUSTAFA--Petitioner
versus
PUNJAB PUBLIC SERVICE COMMISSION, LAHORE through its Secretary and another--Respondents
W.P. No. 12301 of 2006, heard on 27.5.2008.
Punjab Civil Servant Recruitment (Relaxation of Upper Age Limit) Rules, 1976—
----R. 3(v)--Constitution of Pakistan, 1973--Art. 199--Relaxation of age--Contention of the petitioner that he being in service candidate was entitled to relaxation in age--Validity of--Held: Petitioner was within the permissible age limit when he applied for appointment--Petition allowed. [P. 859] A
Mr. Ghulam Mustafa, Advocate for Petitioner.
Rana Abdul Majeed, Addl. A.G. and Mian Ghulam Shabbir, Senior Law Officer for Respondents.
Date of hearing: 27.5.2008.
Judgment
The petitioner is stated to have been recruited as a Foot Constable in the Punjab Police on 4.2.1999. Presently, he is performing duties as a Wireless Operator with the Highway Patrolling Police. In response to an advertisement dated 2.1.2006 which was got published by the Respondent No. 1, he filed an application for appointment as an ASI. He also obtained the permission of the Departmental Authority for this purpose. He appeared in the examination and was declared successful. Vide letter dated 19.10.2006 the Respondent No. 1 informed him that his application has been rejected as he was over-age by one year 9 months and 23 days. An appeal filed against the said intimation was rejected on 3.11.2006.
Learned counsel for the petitioner contends with reference to the case of Muhammad Qasim and 6 others vs. Home Department; Government of the Punjab through Secretary, Civil Secretariat, Lahore and 2 others (2000 PLC (C.S.) 69) that he being in service candidate, was entitled to relaxation of age under the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976. Learned Addl. A.G. assisted by the Senior Law Officer of the Respondent No. 1 contends that the terms and conditions as notified in the advertisement were received from the Department and since the petitioner was above age limit prescribed, his application has been rightly rejected by the Respondent No. 1.
I have considered the said contentions of the learned counsel and the learned Law Officer. There is no denial that the petitioner is in service. This being so, Rule 3(v) as amended comes to his aid. The same is reproduced hereunder:--
"(v) In the case of a candidate already working as a Government Servant, the period of his continuous service as such shall for the purpose of upper age limit prescribed under any service rules of the post for which he is a candidate, be excluded from his age:
Provided the upper age limit shall not exceed 35 years for recruitment to any post to be filled in on the recommendations of the Punjab Public Service Commission on the basis of the combined competitive examination."
There is no dispute that the petitioner was within the said permissible age limit when he applied for the said appointment. The writ petition accordingly is allowed. The impugned orders dated 3.11.2006 and 19.6.2006 of the Respondent No. 1 are declared to be without lawful authority and void and are set aside. The application of the petitioner shall be processed in accordance with law. No orders as to costs.
(M.A.K.Z.) Petition allowed.
PLJ 2008 Lahore 859
Present: Kazim Ali Malik, J.
Rana INAM ULLAH KHAN--Petitioner
versus
STATION HOUSE OFFICER, P.S. MODEL TOWN LAHORE and another--Respondents
W.P. No. 5804 of 2008, decided on 28.5.2008.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 22-A & 22-B--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Ex-officio Justice of Peace--Duty of--Ex-officio Justice of Peace would have decided as to what was in accordance with law--Controversy to the judgment of respondent/SHO asking him to decide as to what was in accordance with law--Ex-officio Justice of Peace mortgaged his legal duties and functions to the SHO--Application u/Ss. 22-A & 22-B of Cr.P.C. was placed before Ex-officio Justice of Peace for registration of case with certain allegations--It was primary duty of the Ex-officio Justice of Peace to see as to whether or not any cognizable offence was made out. [P. 861] A
Mr. Kashif Munir Chaudhry, Advocate for Petitioner.
Date of hearing: 28.5.2008.
Order
Rana Inam Ullah Khan, petitioner, made an Application No. 1892 of 2007 under Section 22-A and 22-B Cr.P.C before Ex-officio Justice of Peace with a request for registration of case against Rana Muhammad Pervez, Respondent No. 2, with an allegation that during his employment with the petitioner, he mis-appropriated huge amount. That petition came up for hearing on 24.07.2007 before an Additional Sessions Judge, Lahore with the powers of Ex-officio Justice of Peace, who disposed of the matter by means of a few worded order, which reads as under:--
"The instant application has been moved by the petitioner for registration of case against Rana Muhammad Pervaiz as he committed fraud and mis-representation with the account of the petitioner.
The comments from SHO has been submitted.
Arguments heard. Record perused.
The SHO is directed to proceed according to law against Rana Muhammad Pervaiz, if cognizable offence is made out. The petition is disposed of. File be consigned to the record room after due completion."
Under the above said order no action favourable to the petitioner herein was taken. Feeling aggrieved the petitioner filed Constitutional Petition No. 9840 of 2007 before this Court for implementation of above said order of Ex-officio Justice of Peace. On 10.10.2007 the Constitutional Petition was dismissed as withdrawn. The petitioner made an application before Ex-officio Justice of Peace with a complaint that this earlier order dated 24.07.2007 had not been complied with. The second petition was sent to Capital City Police Officer, Lahore for an appropriate action against delinquent police officer under Section 155 (C) of the Police Order, 2002.
The second petition by the petitioner forwarded to the Capital City Police Officer, Lahore met with the same fate. Hence, this Constitutional Petition with the contention that the SHO Police Station, Model Town, Lahore/ Respondent No. 1 was legally bound to register a case on the complaint of the petitioner in compliance with the above said order of Ex-officio Justice of Peace.
Without adverting to the merits and demerits of the petitioner's case, which was laid twice therefore the Ex-officio Justice of Peace, I must say, at the very outset, that the Ex-officio Justice of Peace seized of the matter failed to pass an effective legal order. He disposed of the petition moved by the petitioner herein with a direction to the SHO to proceed in accordance with law in case a cognizable offence was made out against Rana Muhammad Pervez, respondent. Here I would also say that the Ex-officio Justice of Peace should have decided as to what was in accordance with law. He left the controversy to the judgment of respondent/ SHO asking him to decide as to what was in accordance with law. In this way the Ex-officio Justice of Peace mortgaged his legal duties and functions to the SHO. The application under Sections 22-A and 22-B Cr.P.C was placed before Ex-officio Justice of Peace for registration of a case with certain allegations. It was primary duty of the Ex-officio Justice of Peace to see as to whether or not any cognizable offence was made out. He delegated his authority to the SHO in slip-shod manner by means of a few worded meaning-less order.
The second petition by the petitioner before the Ex-officio Justice of Peace was forwarded to CCPO, Lahore for an appropriate action under Police Order, 2002 against the police official who failed to comply with the earlier order dated 24.07.2007, referred to above. As a matter of fact the Ex-officio Justice of Peace did not pass any effective legal order on 24.07.2007 and there was no question of its non-compliance. The Ex-officio Justice of Peace left the controversy to the judgment of SHO to decide as to what was in accordance with law. The SHO decided the controversy against the petitioner under the delegated powers. In this view of the matter there was no legal or factual justification to direct CCPO, Lahore for action against the SHO. Had the Ex-officio Justice of Peace directed and ordered the respondent/ SHO to register a case on the complaint of Rana Inam Ullah, petitioner, with an observation that prima facie a cognizable offence was made out against Rana Muhammad Pervez, the Ex-officio Justice of Peace would have been justified in directing the CCPO for action against the SHO. In fact, the Ex-officio Justice of Peace disposed of the petition made by the petitioner mechanically without resolving the point in issue.
For what has been stated above, I dispose of this petition at limine stage with an observation that Original Petition No. 1892 of 2007 moved by the petitioner for registration of a case will be deemed as pending before the Ex-officio Justice of Peace for its disposal in accordance with law.
(M.A.K.Z.) Petition disposed of.
PLJ 2008 Lahore 862
Present: Muhammad Muzammal khan, J.
Mst. NAUREEN TAHIRA and 2 others--Petitioners
versus
ADDITIONAL DISTRICT JUDGE, MANDI BAHAUDDIN and another--Respondents
W.P. No. 3412 of 2006, heard on 15.2.2007.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)—
----S. 5 (amended Ordinance LV of 2000)--Constitution of Pakistan, 1973, Art. 199--Jurisdiction--Constitutional petition--Petitioner filed two distinct suits, one for recovery of maintenance allowance for her children and recovery of dowry articles--Second suit was separately dealt--Appellate Court modified the decree--Assailed order--Voluntarily relinquishment--Marginal evidence--Question of recovery mentioned in Nikahnama could be resolved by Family Court--Validity--Suit in-question cannot be considered as part of dower amount--Nikahnama was not recoverable through Family Court established under Muslim Family Courts Act, yet such findings were given being oblivious of amendment introduced in Schedule Part-I conferring jurisdiction to Family Court for recovery of personal property and belongings of a wife--Question of recovery mentioned in Nikahnama could be resolved by Family Court--Held: Impugned appellate judgment revealed that controversy was correctly put to rest and net result drawn was not tainted with any factual illegality/error--Lawful decision within abmit of conferred jurisdiction cannot be substituted on present petition which being devoid of any merit is dismissed. [P. 864] A & B
Mr. Javed Iqbal Bhatti, Advocate for Petitioners.
Ms. Sofia Sethi, Advocate for Respondent No. 2.
Date of hearing: 15.2.2007.
Judgment
Instant Constitutional petition assailed judgment/decree dated 24.1.2006 passed by the learned Additional District Judge, Mandi Bahauddin (Respondent No. 1) to be declared illegal, void and of no legal consequence, whereby appeal filed by Respondent No. 2 was accepted and judgment/decree dated 14.11.2005 passed by the learned Judge Family Court was reversed and suit of Petitioner No. 1 for recovery of Rs. 100,000/- was dismissed.
Precisely, relevant facts are that Petitioner No. 1 was married with Respondent No. 2 on 27.6.1999, according to Muslim rites through a registered Nikahnama. This wedlock gave birth to a son and a daughter but relation between the spouses did not remain cordial and ultimately resulted in separation and then in divorce in the year 2003. Petitioner No. 1 filed two distinct suits, one for recovery of Rs. 100,000/- as mentioned in Column No. 17 of the Nikahnama dated 27.6.1999 and maintenance allowance for her two minor children (Petitioners No. 2 and 3) and the other for recovery of dowry articles or in the alternative price thereof. The second suit was separately dealt by the learned Judge Family Court and was decided through an independent judgment and shall be dealt while deciding Writ Petition No. 5071/2006. As far as earlier mentioned suit by Petitioner No. 1 for recovery of Rs. 100,000/- and maintenance allowance of the minors is concerned, it was opposed by Respondent No. 2 by filing his written statement wherein he refuting the narrations in the plaint, pleaded that Petitioner No. 1 left his house only two months earlier alongwith gold ornaments and other valuables and in this manner he denied his lability to pay the maintenance, asserting lack of monetary means. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Learned Judge Family Court after doing the needful, decreed the suit of the petitioners and awarded Petitioner No. 1 a decree for an amount of Rs. 100,000/- and maintenance allowance for the minors (Petitioners No. 2 and 3) at the rate of Rs. 800/- per months each, vide his judgment/decree dated 14.11.2005.
Being dissatisfied with the decree of the trial Court, Respondent No. 2 filed an appeal before the learned Additional District Judge, Mandi Bahauddin, where he succeeded as his appeal was partly accepted and the decree of the trial Court to the extent of recovery of Rs. 100,000/- was set aside, whereas relating to the maintenance allowance of Petitioners No. 2 and 3 was maintained on 24.1.2006. Petitioners have now filed instant Constitutional petition with the relief noted above. Respondent No. 2 in response to notice by this Court has appeared through his counsel.
I have heard the learned counsel for the parties and have examined the record. Petitioner No. 1 was deprived of her right to recover Rs. 100,000/- mainly on the document in form of affidavit (Mark-B). This document is relinquishment of right of Petitioner No. 1 to recover Rs. 100,000/- mentioned in Column No. 17 of the Nikahnama (Mark-A) which she had forgiven during the period she lived amicably with him. Petitioner No. 1 is not only an educated but was a working lady and was employed as a Lady Health Visitor since before her marriage. The Court of appeal had compared her signatures on Mark-B with her admitted signatures on the plaint and concluded that the relinquishment was done by Petitioner No. 1 voluntarily. I have also compared her signatures on Mark-B and those not only resemble to her signatures on the plaint but also tally to each other with alike flow and stroke of pen. Besides it, Respondent No. 2 had examined marginal witness of Mark-B Mazhar Hussain Shah as DW.2, who proved its due execution without any coercion/duress. Another factor which made me to contribute to the appellate view of due execution of Mark-B is that since petitioner had denied her signatures on this document, she deliberately signed her power of attorney filed in the instant petition with different signatures, ignoring that her signatures could be compared with the signatures available on the plaint.
Though learned Additional District Judge has returned findings to the effect that the suit amount cannot be considered as part of dower amount which was Rs. 500/- as per entry in Column No. 13 of the Nikahnama hence was not recoverable through the Family Court established under the Muslim Family Courts Act, 1964, yet these findings were given being oblivious of amendment introduced in the schedule Part I of the Act (ibid) conferring jurisdiction to the Family Court for recovery of personal property and belongings of a wife. This amendment was broguht about by Family Courts (Amendment) Ordinance No. LV of 2002. The question of recovery of Rs. 100,000/- mentioned in Column No. 17 of the Nikahnama could be resolved by the learned Judge Family Court, as per judgment in the case of Nasrullah vs. District Judge, Mianwali and 2 others (PLD 2004 Lahore 588) but since the Petitioner No. 1 had herself relinquished it by voluntarily executing relinquishment Mark-B, her suit to this extent was not maintainable and the net result of appellate judgment is correct. Scan of record and impugned appellate judgment revealed that controversy was correctly put to rest and net result drawn was not tainted with any factual illegality/error.
For the reasons noted above, no case for interference in Constitutional jurisdiction of this Court was made out. Even otherwise, lawful decision within the ambit of conferred jurisdiction, cannot be substituted on this petition, which being devoid of any merit, is dismissed with no order as to costs.
(R.A.) Petition dismissed.
PLJ 2008 Lahore 865
Present: Maulvi Anwar-ul-Haq, J.
MAHMOOD MASIH and 3 others--Petitioners
versus
AMANULLAH MUGHAL and 4 others--Respondents
W.P. No. 10955 of 2007, decided on 28.5.2008.
Civil Procedure Code, 1908 (V of 1908)—
----O.XLI, R. 35--Constitution of Pakistan, 1973, Art. 199--Execution of decree--Limitation for--Suit for possession was decreed--First Appeal was dismissed--Execution petition was barred by time of 5 years--Application was dismissed--Competency of execution petition--Amount was deposited beyond period of limitation would renders execution proceedings to be time barred--Appeal dismissed with the direction to decree holder for depositing of specific amount as compensation for structure--The amount was deposited beyond the period of limitation--Validity of--Additional District Judge had infact in a manner of speaking order passed a decree in favour of the petitioners/defendants and it was for them to institute proceedings for recovery of amount--Prior deposit of the amount was not a condition precedent--Deposit of the amount after the filing of execution within three years from the date of decree would have no adverse effect on the competency of the execution petition--Petition dismissed in limine. [Pp. 866 & 867] A
Ch. Farooq Mahmood Kahloon, Advocate for Petitioners.
Date of hearing: 28.5.2008.
Order
A suit filed on 23.7.2000 by Respondent No. 1 against the petitioners and Respondents No. 2 & 3 for possession of the suit property was contested and was decreed by the learned Civil Judge, Sialkot, on 20.12.2000. A first appeal filed by petitioners was heard by the learned Additional District Judge, Sialkot, who dismissed the same on 14.11.2002 but directed Respondent No. 1 to pay a sum of Rs. 25000/- to the petitioners as compensation for structures. On 10.11.2005, Respondent No. 1 filed an execution petition. It was stated that he is ready to pay the said amount of Rs. 25000/- to the judgment-debtors in installments. However, later he made a deposit of the said amount on 10.6.2006. On 7.3.2007, the petitioners filed objections, stating that the execution petition is barred by time as it has been filed after 5 years of the passing of the original decree and also because of the non-deposit of Rs. 25000/- within the period of limitation. The objections were replied. These were dismissed by the learned Executing Court on 13.6.2007. A first appeal filed by the petitioners has been dismissed by the learned Additional District Judge Sialkot on 14.11.2002.
Learned counsel for the petitioners contends that notwithstanding the fact that the first appeal was filed against the decree dated 20.12.2000 and was dismissed, the limitation of three years would start from the date of the original decree. Further contention is that the said amount having been deposited beyond the period of said limitation would render the execution proceedings to be time-barred.
I have gone through the copies of the record as noted by me above. The decree dated 20.12.2000 was appealed against, which appeal was dismissed on 14.11.2002 and the execution petition was filed on 10.11.2005. I find that there is no averment in the said objections that a stay order was not granted in the said first appeal. However, the learned counsel has contended in the revision that a stay order had not been granted. However the plea is not supported by any material. Even if it be assumed that the appellate Court had not stayed the execution, nothing turns on the same. The reason being that after the dismissal of the appeal, which infact was a modification of the trial Court decree inasmuch as a direction was issued to Respondent No. 1 to pay Rs. 25000/- to the defendants as value of the structures, the learned appellate Court drew up a decree in terms of Order 41 Rule 35 CPC. It is this decree drawn on 14.11.2002 which was to be executed. In the case of Maulvi Abdul Qayyum Vs. Syed Ali Asghar Shah and 5 others (1992 SCMR 241), the Honourable Supreme Court of Pakistan has observed as follows, at page 246 of the report:
"It appears that in holding that the period of limitation for execution of the decree commenced from the date of decision by the Appellate Court, the rule that the decree of the Court of first instance, merged into the decree of Appellate Court, which alone can be executed, was not present to the mind of the learned Judge. It is to be remembered that till such time, an appeal or revision from a decree is not filed, or such proceedings are pending but no stay order has been issued, such decree remains capable of execution but when the Court of last instance passes the decree only that decree can be executed irrespective of the fact, that the decree of the lower Court is affirmed, reversed or modified".
(M.A.K.Z.) Petition dismissed.
PLJ 2008 Lahore 867
Present: Hafiz Tariq Nasim, J.
Ms. GULSHAN TAHIRA COMPANY REGISTRATION OFFICE, SECURITIES & EXCHANGE COMMISSION OF PAKSITAN, ASSOCIATED HOUSE, LAHORE--Petitioner
versus
ADDL. REGISTRAR OF COMPANIES, COMPANY REGISTRATION OFFICE SECURITIES & EXCHANGE COMMISSION OF PAKISTAN ASSOCIATED HOUSE, LAHORE and 20 others--Respondents
W.P. No. 923 of 2008, decided on 3.6.2008.
Constitution of Pakistan, 1973—
----Art. 199--Removal From Service (Special Powers) Ordinance, (XVII of 2000), Ss. 3 & 10--Constitution of Pakistan, 1973, Art. 199--Dismissal from service--Order passed by an incompetent authority because the appointing authority of petitioner was security exchange commission and not the Chairman alone--Entitlement for relief--Held: Dismissal order would have also been passed by commission who comprise of Members in addition to the Chairman--Entire controversy revolves around malafide and discrimination and being violative of specific provisions of the Constitution of Pakistan--Petitioner was entitled for relief claimed. [P. 868] A
Removal From Service (Special Powers) Ordinance, 2000 (XVII of 2000)—
----S. 10--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Maintainability--Civil servant was dismissed from service--Order was passed by an incompetent authority--Challenge to--Remedy lie before Federal Service Tribunal--Validity--Civil servant was made subject of the provisions of Removal From Service (Special Powers) Ordinance, and even respondents submitted in so many words that petitioner's remedy lies before Federal Service Tribunal--Petition being not maintainable was accordingly dismissed. [P. 868] B
Mr. Irfan Ahmad Sheikh, Advocate for Petitioner.
Mr. Faisal Mahmood Ghani, Advocate for Respondents.
Date of hearing: 3.6.2008.
Order
The petitioner is aggrieved of the order dated 11.10.2007 passed by the Chairman Security Exchange Commission of Pakistan under Section 3 of the Removal From Service (Special Powers) Ordinance, 2000 whereby the petitioner was dismissed from service. The learned counsel for the petitioner submits that the impugned order is passed by an incompetent authority because the appointing authority of the petitioner is Security Exchange Commission of Pakistan and not the Chairman alone and it is well settled law that the dismissal order should have also been passed by the Commission who comprise of certain other Members in addition to the Chairman. Further submits that the entire controversy revolves around malafide and discrimination and being a violative of specific provisions of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner is entitled for the relief claimed for.
The learned counsel for the respondents submits that the writ petition is not competent and the petitioner is amenable to the jurisdiction of Federal Service Tribunal.
Arguments heard; record perused.
Without going into the merits and demerits of the case the point of jurisdiction is to be decided first.
In that respect Section 10 of the Removal From Service (Special Powers) Ordinance, 2000 is sufficient which is reproduced as under:--
"Appeal.--Notwithstanding anything contained in any other law for the time being in force, any person aggrieved by any final order under Section 9 may, within thirty days of the order, prefer an appeal to the Federal Service Tribunal established under the Service Tribunals Act, 1973 (LXX of 1973)."
The provisions of Removal From Service (Special Powers) Ordinance, 2000 are much clear and the record reveals that the petitioner was made a subject of the provisions of the Ordinance ibid and even the learned counsel for the respondents submits in so many words that petitioner's remedy lies before the Federal Service Tribunal; the instant writ petition being not maintainable is accordingly dismissed. However, the petitioner may approach the Service Tribunal for the redressal of her grievance if she so desires.
(M.A.K.Z.) Petition dismissed.
PLJ 2008 Lahore 869
Present: Syed Hamid Ali Shah, J.
SHAKEEL AHMAD--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, LAHORE and another--Respondents
W.P. No. 9940 of 2007, decided on 26.5.2008.
West Pakistan Family Court Act, 1964 (XXXV of 1964)—
----S. 5 & Schedule--Constitution of Pakistan, 1973, Art. 199--Jurisdiction--Right of female to bring the suit within the local limits of Family Court, where she ordinary resides--Ordinary residence cannot be determined through hard and fast rules--The intention of a wife to stay at a particular place is material and not the length of stay--Provisions of statute and rules made under are to be read in conjunction--The rule cannot be read in isolation--Reading of statute in conjunction with rules it becomes manifestly clear that neither CPC nor Qanoon's Shahadat Order, is applicable to the matters falling within the jurisdiction of Family Court only ordinary residence is the determining factor for the jurisdiction of Family Courts--Petition dismissed. [P. 872] A
Ch. Ali Muhammad, Advocate for Petitioner.
Miss Alia Neelum, Advocate for Respondent No. 2.
Date of hearing: 14.3.2008.
Order
Suit of Respondent No. 2, for the recovery of dowry articles or value thereof in the sum of Rs. 6, 99, 075/-, was instituted in the Family Court at Lahore. Learned Judge, Family Court, vide judgment and decree dated 25.11.2002, decreed the suit against the petitioner and in favour of Respondent No. 2. The appeal was accepted on 12.09.2003, whereby, learned appellate Court set aside the impugned decree and directed learned Family Court to decide the question of territorial jurisdiction as well. Learned Judge, Family Court, vide it's decision dated 10.09.2005, returned the plaint under Rule 5 of the West Pakistan Family Court Rules, 1965 and held that Family Court at Lahore has no jurisdiction to entertain the suit of the plaintiff. The appellate Court, vide impugned order dated 24.03.2007, reversed the findings of learned Family Court on the issue of jurisdiction and remanded the case to the Family Court for recording detailed findings on Issues No. 1, 3 and 4, in accordance with law. Hence this petition.
Learned counsel for the petitioner has contended that marriage was dissolved at Gojra, amicably on 14.01.2001 and eight (8) days, thereafter, the suit was filed at Lahore. It was asserted in the plaint that dowry articles were lying at the house of the petitioner. Learned counsel added that defendant/petitioner resides at Gojra, parties last resided together at Gojra and articles of dowry, as per pleadings, are statedly lying at Gojra. While referring to Rules 5 & 6 of the West Pakistan Family Court Rules, 1965, it is submitted that Family Court at Lahore has no jurisdiction to entertain and adjudicate upon the suit of the respondent. Learned counsel has submitted that the suit was remanded to the Family Court for the determination of question of jurisdiction. What requires consideration is to ascertain whether Rule 6 will apply or the schedule. Learned counsel emphasized that territorial jurisdiction is governed under Rule 6 of the West Pakistan Family Court Rules, 1965, while for pecuniary jurisdiction, the schedule to Family Courts Act, 1964 has it's applications. Learned counsel went on to argue that dowry articles are movable property and territorial jurisdiction is determined in respect thereof, where such articles are lying or removed illegally. Learned Counsel supported his contention by referring to the case of "Syed Zia Hassan Gilani Vs Mian Khadim Hussain and 7 others" (PLD 2001 Lahore 1188). Learned counsel has contended further that amendment in the Family Courts Act, 1964, was made on 01.10.2002 and the suit was filed on 26.10.2001. The suit was filed before the law (Family Courts Act) was amended. The amendment in law has no retrospective effect and does not apply to the case in hands. He added that Ordinance of 2002 has lapsed. Learned counsel has concluded that other relief can be incorporated in the suit for the dissolution of marriage. But the suit for recovery of dowry articles, filed independently, cannot attract provisions of Section 5 and schedule to Section 5 of the Family Courts Act, 1964. While referring to the case of "Muhammad Bashir and 2 other Vs Muhammad Firdos and others" (PLD 1988 SC 232), it was contended that when existing rights are effected, the amendment has no retrospective effect. The rights are required to be protected rather than extinguished, through amendment. Learned counsel has summed up his arguments with the contention that appellate order, impugned in this petition, is without reasoning and as such, is not sustainable. Learned counsel, in support of his contentions, referred to the case of "Muhammad Akram Vs Mst. Shahida Perveen and others" (PLD 2004 Lahore 249).
Learned counsel for Respondent No. 2 has submitted that respondent, under the threat of her life, had left Gojra for Lahore. She is now residing at Lahore and has competently instituted the instant suit before the Family Court at Lahore. Learned counsel stood behind the impugned judgment and supported it with full vehemence. Learned counsel has submitted that the suit for dowry articles was not mentioned in schedule to Section 5 of the West Pakistan Family Courts Act, 1964, but the omissions stood rectified through later amendment. Respondent No. 2 was residing at Lahore and her suit for recovery of dowry articles was competent at Lahore. Learned counsel has supported her contention by referring to the cases of "Nazir Ahmad Vs District Judge" (1996 MLD 2017), "Mahboob Ahmed Vs First Additional District Judge & another" (PLD 1976 Karachi 978) and "Muhammad Iqbal Vs Perveen Iqbal" (PLD 2005 SC 22).
Heard learned counsel for the parties and record perused.
Petitioner has assailed the judgment of the appellate Court, mainly on the ground that the suit was filed on 26.10.2001 and amendment brought in the Family Courts Act, 1964, was made on 01.10.2002 and as such the suit of the Plaintiff/Respondent No. 2, was not competent, being instituted prior to amendment. Lower Appellate Court, on the other hand, has observed that the omission was rectified through subsequent amendment. The observations of the Appellate Court are well founded as by virtue of Act VII of Act 1997, the schedule to Section 5 of the West Pakistan Family Courts Act, 1964 was amended and "dowry" was incorporated at instituted before the Family Court, when Entry No. 8, stood incorporated in the schedule through Family Courts (Amendment) Act, 1997 at Serial No. 8, after Entry No. 7. The suit of the plaintiff was such suit, within the contemplation of proviso to sub-section (2) of Section 7, can be instituted within the jurisdiction of Family Court, where wife resides and provisions of Rule 6, have no application While holding so, I am fortified by the law enunciated by the August Supreme Court in the case of Muhammad Iqbal (Supra), wherein it has been held as under:--
"Learned counsel for the petitioner vehemently argued that in view of Rule 6 of the Family Courts Rules, 1965 suit for dissolution of marriage or dower can only be competently filed before the family Court where wife ordinarily resides. According to him since the respondent used to reside at Chakwal, as such, Family Court, Chakwal had the jurisdiction in the matter, therefore, the impugned order is not in accordance with law and suffers from legal infirmity.
The contentions of petitioner's counsel are devoid of force mainly for the reason that an amendment has been brought in Section 7 of the Family Courts Act, 1964, whereby a proviso is added in its marriage and dower, the suit for maintenance, personal property, belongings of wife, custody of children and visitation rights of parents to meet their children can also be instituted before Family Court where wife resides. It is borne out from the record that respondent Mst. Perveen Iqbal is residing with her son at Jhang in the house of her parents, as such, Guardian Judge, Jhang has the jurisdiction to try the suit. In view of this provision of law, the above mentioned Guardian Petition has been rightly withdraw from the Court of Senior Civil Judge/Family Judge, Chakwal and transferred to the Court of Guardian Judge, Jhang. The impugned order is proper and it does not require any interference."
It is wife's right to bring the suit within the local limits of Family Court, where she ordinary resides. The ordinary residence cannot be determined through hard and fast rules. The intention of a wife to stay at a particular place is material and not the length of stay. Provisions of Statute and rules made there under are to be read in conjunction. The Rules cannot be read in isolation. Reading the Statute in conjunction with rules, it becomes manifestly clear that neither CPC nor Qanoon-e-Shahadat Order, is applicable to the matters falling within the jurisdiction of Family Court. It is the ordinary residence, which is the determining factor for the jurisdiction of the Family Court.
Respondent No. 2 has filed the suit for recovery of dowry articles as far back as in 2001 and has not as yet succeeded in decision of her case/suit on merits. The parties are fighting on technicalities for the past seven (7) years and the case is yet to be decided on merits.
For the foregoing, this petition has no merit and is accordingly dismissed with the direction to the Judge, Family Court to decide the pending suit of the plaintiff on it's own merit, as expeditiously as possible, without granting unnecessary adjournments to either party.
(M.A.K.Z.) Petition dismissed.
PLJ 2008 Lahore 872
Present: Syed Shabbar Raza Rizvi, J.
WALI MUHAMMAD--Petitioner
versus
ADDITIONAL SESSIONS JUDGE, JARANWALA DISTRICT FAISALABAD and 5 others--Respondents
W.P. No. 350 of 2008, decided on 15.5.2008.
Constitution of Pakistan, 1973—
----Art. 199--Illegal Dispossession Act, 2005--S. 3--Case of partition of property and relates to jurisdiction of a Civil Court--Pendency of dispute before the Court or revenue Court--Bars the jurisdiction--Complaint was dismissed due to pendency of civil suit--Challenge to--When the application u/S. 3 of Illegal Dispossession Act, 2005 was filed the matter of disputed property was not pending before any other forum and no distinction can be made in instant case whether the accused belongs to a group or is an individual--Held: Even if a relative takes possession of a property through illegal and unauthorized means from a lawful owner, the provisions of Illegal Dispossession Act, would be attracted--Petition was allowed.
[P. 874] B
Illegal Dispossession Act, 2005--
----Scope of--Applicability--Law is fully applicable in cases of individual who illegally takes over property of a lawful owner. [P. 874] A
PLD 2007 SC 423, rel.
Mr. Muhammad Hanif Saleemi, Advocate for Petitioner.
Ch. Abdul Rasheed, Advocate for Respondents No. 4 to 6.
Date of hearing: 15.5.2008.
Order
The learned counsel filed this writ petition to call in question order of the learned Addl. Sessions Judge, Jaranwala dated 29.05.2007.
"The parties are related to each other. A civil suit is also pending in the Civil Court. In view of the law laid down in PLD 2007 Lahore 231, the instant complaint is not maintainable and the same is accordingly dismissed. File be consigned to the record room".
According to the learned counsel for the respondents the instant case is a case of partition of property and relates to jurisdiction of Civil Court. Similarly, main reason of dismissal of the complaint given by the learned Addl. Sessions Judge was pendency of the civil suit.
According to he Full Bench Judgment of this Court reported as Zahoor Ahmed and 5 others Vs. The State and 3 others (PLD 2007 Lahore 231) referred to and relied upon by the learned Addl. Sessions Judge, pendency of dispute before the Court or Revenue Court bars the jurisdiction if the suit was pending at the time of filing the complaint under Section 3 of the Act, 2005. To illustrate and explain the above position the relevant portion of the Full Bench Judgment is reproduced as under:--
"A complaint under the Illegal Dispossession Act, 2005 cannot be entertained where the matter of possession of the relevant property is being regulated by a Civil or Revenue Court".
The record shows that when the complaint under the Act of 2005 was entertained, suit was not pending in a Civil Court etc. The complaint was filed before the learned Addl. Sessions Judge on 30.10.2006, whereas the suit was filed on 13.01.2007. Therefore, it cannot be said that the suit was pending at the time of entertainment of the complaint. Likewise, the order of the Full Bench does not exclude individuals from the jruisdiction under Section 3 of the Act of 2005. In Para 7 of the Full Bench Judgment it is clearly held that a complaint under the Illegal Dispossession Act, 2005 can be entertained by a Court of Session only if some material exists showing involvement of the persons complained against in some previous activity connected with the illegal dispossession from immovable property or a complaint demonstrates an organized or calculated effort by some persons operating individually or in groups to grab by force or deceit property to which they have no lawful, ostensible or justifiable claim. In the case of an individual it must be the manner of execution of his design which may expose him as a property grabber. This aspect of the law has been further clarified by the Honourable Supreme Court of Pakistan in Rahim Tahir Vs. Ahmed Jan and 2 others (PLD 2007 S.C 423). According to the above judgment, the law is fully applicable in cases of an individual who illegally takes over property of a lawful owner. According to the Honourable Supreme Court of Pakistan the objective of the Act, 2005 is, to protect the property of lawful owners/occupants, from illegal/unauthorized occupants across the board. The exact wording of the Honourable Supreme Court of Pakistan is as under:--
"The careful examination of the relevant provisions in the Act would reveal that all cases of illegal occupants without any distinction, would be covered by the Act, except the cases which were already pending before any other forum".
I have already discussed in the preceding paras that when the application under Section 3 of the Act, 2005 was filed the matter relating to the disputed property was not pending before any other forum and no distinction can be made in this case whether the accused/respondent belongs to a group or is an individual. Likewise, even if a relative takes possession of a property through illegal and unauthorized means from a lawful owner, the provisions of the Illegal Dispossession Act, 2005 would be attracted.
Thus in view of the above discussion, this writ petition is allowed. The impugned order dated 29.05.2007 is set aside. The complaint filed by the petitioner shall be deemed as pending before the learned Addl. Sessions Judge, Jaranwala, who will decide the same expeditiously as already sufficient time has been consumed by the pending litigation. In this regard the learned Addl. Sessions Judge is directed to seek guidance from (PLD 2007 S.C.423).
(R.A.) Petition allowed.
PLJ 2008 Lahore 875
[Bahawalpur Bench Bahawalpur]
Present: Saghir Ahmad, J.
MUHAMMAD ASLAM--Petitioner
versus
WAPDA through its Chairman WAPDA House, Lahore & 6 others--Respondents
W.P. No. 4168 of 2004/BWP, decided on 23.4.2008.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Controversy resolution--Land was leased out to petitioner/Company in open auction--Half amount of lease was deposited Chairman WAPDA cancelled lease without hearing the petitioner company--Principle of audi alteram partem disputed facts and factual controversy resolution by High Court in writ jurisdiction--Question of--Held: Report and parawise comments have been received, wherein disputed questions of facts have been agitated with regard to lease of the disputed land in favour of the petitioner/company which cannot be resolved without taking evidence--Such exercise cannot be undertaken in its Constitutional jurisdiction--Petition was dismissed and the petitioner if so advised, may avail the alternate remedies. [Pp. 876 & 877] A & B
2000 SCMR 718 and 2002 SCMR 549.
Audi Alteram Partem--
----Golden principle of natural justice--Violation of--Held: As regards the black listing of the petitioner/company, it is frankly conceded by counsel for WAPDA that before issuing such a directive no notice was issued to the petitioner--In view of the matter, WAPDA so far as it black lists the petitioner company, is violative of settled principle of natural justice. [P. 877] C
Black listing--
----Black listing of petitioner company without notice--Violation of principle of audi alteram partem--Petition allowed and the matter remanded to the concerned authority and if still it is deemed appropriate to black list the petitioner company--The authority shall issue a notice to the petitioner and only after affording him proper opportunity of hearing shall pass a fresh order. [P. 877] D
Qazi Muhammad Bilal, Advocate for Petitioner.
Hafiz Muhammad Abdul Qayum, Advocate for Respondents.
Date of hearing: 23.4.2008.
Order
The case of the petitioner Company is that pursuant to Letter No. 13876-80 dated 03.05.2002 issued by Superintending Engineer (E), MEPCO Circle, Rahim Yar Khan the acquired land was proposed to be leased out and the petitioner after fulfillment of requirements the petitioner-Company stood the successful bidder. Thereafter, the petitioner-Company was also called upon to deposit the amount of lease for half of the year, which was also done, where after, an agreement/undertaking was also reduced into writing. It is averred that petitioner spend a huge amount to make the land cultivatable. In the meanwhile, some Quality Courier Services lodged complaints and pursuant thereto the Chairman WAPDA not only black listed the petitioner-Company but also cancelled the lease of the agricultural land vide impugned Letters No. 2095/DG(S&I)/ DSHQ dated 20.11.2004 and No. 54290-91/PMC dated 2nd of December, 2004. These letters black listing the petitioner-company and cancelling lease in its favour, have been impugned through this writ petition on the ground that lease process was initiated for the benefit of MEPCO which is subsidiary company of WAPDA, therefore, Chairman WAPDA was not authorized to interfere in the matter; that even if there was some irregularity in the auction proceedings the same could be rectified through proper course to law and not by way of complaint and that as the entire process has been initiated at the back of the petitioner without even issuing any notice to explain its point of view, thus, the impugned letters are against the spirit of audi alteram partem.
"Superior Courts should not undertake to investigate disputed question of fact necessitating taking of evidence, which can more appropriately be done in a suit--Constitutional jurisdiction is intended primarily for providing an expeditious remedy, where illegality of action of executive or other authority can be established without elaborate inquiry into the complicated or disputed fact."
Therefore, so far as this writ relates to the question of cancellation of lease, the same is dismissed and the petitioner, if so advised, may avail the alternate remedies.
As regards, black listing of the petitioner Company, it is frankly conceded by learned counsel for the respondent WAPDA that before issuing such a directive, no notice was issued to the petitioner. In this view of the matter the above act of the respondent WAPDA so far as it black lists the petitioner-Company, is violative of settled principle of natural justice. In the case reported in P.L.D 1987 S.C 304, issuance of prior notice to the party against whom some adverse action is proposed to be taken, is Constitutional right such party. Further in "M/s Airport Support Services vs. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others" (1998 S.C.M.R 2268), it has been made obligatory for public functionaries to issue notice to the party before making any adverse order against him and the order should also reflect reasons for its making. In this view of the matter, this Constitutional petition to the extent of black listing the petitioner-Company, is allowed and matter is referred back to the concerned authority and if still deemed appropriate to black list the petitioner-Company the said authority shall issue a notice to the petitioner and only after affording him proper opportunity of hearing, shall pass a fresh order.
This writ petition is partly allowed and disposed of accordingly.
(M.R.Q.) Petition disposed of.
PLJ 2008 Lahore 878
[Bahawalpur Bench Bahawalpur]
Present: Saghir Ahmad, J.
FAROOQ NASIR and another--Petitioners
versus
SECRETARY TO GOVT. OF THE PUNJAB, LOCAL GOVT. & RURAL DEVELOPMENT DEPARTMENT CIVIL SECRETARIAT LAHORE and 2 others--Respondent
W.P. No. 1187 of 2005, decided on 16.4.2008.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Appointment as Octroi Moharrir with Town Committee, without advertisement--Surplus staff--Matter was referred for relaxion about appointments of employees--Punjab Local Govt. and Rural Development Department refused to regularize the services--Assailed--Appointments were made on temporary basis without proper advertisement--Validity--Neither any rejoinder has been filed to reply nor even any document has been tendered to refute the assertion of the department--There is no cavil to proposition that even Supreme Court in number of reported cases has held that any recruitment, whether ad-hoc or regular, without proper publication/advertisement, is violative of fundamental rights--Held: High Court found no illegality having been committed by department to refuse regularization of services of the petitioners being violative of fundamental rights--Petition was dismissed.
[P. 879] A & B
PLJ 2002 Lah. 1811; 1993 SCMR 1287 and 1996 SCMR 1349 rel.
Mr. Shamshair Iqbal Chughtai, Advocate for Petitioners.
Mr. Abdul Khaliq Sadozai, AAG for Respondents.
Date of hearing: 16.4.2008.
Order
The petitioners were admittedly appointed as Octroi Moharrir with Town Committee, District Rahim Yar Khan, however, through Letter No/SO-IV(LG)2-179/9 dated 02.08.1999 Zila Tax and Octori was abolished, resultantly its staff became surplus and absorbed as Secretary and Junior Clerks. At a later point of time, the Resident Assistant Director (audit), Rahim Yar Khan vide letter dated 13.4.2002 pointed out certain irregularities in their appointments therefore, the Respondent No. 3 referred the matter to the Respondent No. 1 for relaxation about the appointments of the employees of the Town Committee and now through the impugned Letter No. SO-Admin-II(LG) 9-32/2004/CM dated 21.3.2005, the Government of the Punjab, Local Government & Rural Development Department has refused to regularize the services of the petitioners.
The contention of learned counsel for the petitioners is that they were performing duties since 1988 without any adverse complaint against them; that petitioner did hold the requisite qualification and that their appointment as temporary employees was an illegality on the part of the department itself for which the petitioners could not be penalized.
Report and parawise comments have been received and are available on the file.
Arguments considered. Record perused.
As shall be seen from the contents of this petition and also argued by the learned counsel, the appointments of the petitioners were made on temporary basis. Furthermore, there is a clear stance of the respondents department that before making even temporary appointments of the petitioner the codal formalities were not observed which include proper advertisement. To rebut the above stance, neither any rejoinder has been filed to the reply nor even any document has been tendered to refute the above assertion of the respondent department. There is no cavil to the proposition that even the Hon'ble Supreme Court of Pakistan in number of reported cases has held that any recruitment, whether ad-hoc or regular, without proper publication/advertisement, is violative of fundamental rights. Reliance is placed on "Amer Mehmood versus Vice-Chancellor, University of Agriculture Faisalabad and 3 others" (PLJ 2002 Lahore 1811), "Munawar Khan versus Niaz Muhammad and 7 others" (1993 SCMR 1287) and Abdul Jabbar Mamon's case (1996 SCMR 1349). In these circumstances, I find no illegality having been committed by the respondent department to refuse regularization of services of the petitioners through the impugned notification dated 21.3.2005 being violative of fundamental rights. This petition, therefore, fails and is accordingly dismissed.
(R.A.) Petition dismissed.
PLJ 2008 Cr.C. (Lahore) 880
[Rawalpindi Bench Rawalpindi]
Present: Abdul Shakoor Paracha, J.
MUHAMMAD SHEHZAD--Petitioner
versus
STATE--Respondent
Crl. Misc. No. 652-B of 2008, heard on 10.7.2008.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860) Ss. 324, 34, 337-L (ii) & 337-F(i)--Bail, grant of--Prayer for--Non vital part of body--Held: Accused/petitioner had also fired one shot which hit the complainant on his left thigh which is a non-vital part of the body--Petitioner was behind the bars for a considerable period and was no more required for any further investigation--Bail accepted. [P. 881] A
2004 YLR 94; 2004 YLR 13 & 2004 PCr.L.J. 1862 ref.
Mrs. Sarkar Abbas, Advocate for Petitioner.
Sh. M. Munir DPG for State.
Date of hearing: 10.7.2008
Order
Petitioner Muhammad Shehzad through this petition under Section 497 Cr.P.C. seeks his post arrest bail in a case registered vide FIR No. 37/07 dated 16.1.2007 u/Ss. 324/34, 337-L (ii)/337-F(i), PPC, at Police Station Banni, Rawalpindi.
The relief of bail has been declined to the petitioner by the learned Sessions Judge, Rawalpindi vide his order dated 16.6.2008, hence this petition.
The allegation against the petitioner was that he while armed with a pistol inflicted injury on the person of the complainant which hit him on his left thigh and he fell down and in this position, his co-accused Manzoor Ahmed inflicted three blows of ice needle (Suwa) to the complainant.
The learned counsel for the petitioner contends that the seat of the injury selected by the accused/petitioner and the fact that he did not repeat the fire shot which reflects that the petitioner had no intention to kill the complainant. Further contends that co-accused of the petitioner Manzoor Ahmed has been allowed bail by this Court vide order dated 6.3.2008 passed in Crl. Misc. No. 173-B of 2008. Petitioner is behind the bars for a considerable period and is no more required for the purpose of further investigation, therefore, he is entitled to the facility of bail.
Conversely, learned Deputy Prosecutor General while appearing on behalf of the State contends that petitioner is nominated in the FIR with a specific role of causing fire-arm injury on the person of the complainant and therefore, he is not entitled to the concession of bail.
Arguments heard. Record perused.
Admittedly, the complainant had received the fire-arm injury on his left thigh. The seat of the injury selected by the accused-petitioner and the fact that he did not repeat the same reflect that he had no intention to kill the injured. In the case reported as Muhammad Afzal vs. The State (2004 YLR 94) it has been held by this Court that, "the role attributed to accused had resulted into an injury on the left leg of injured and fire shots made by the co-accused had hit on right leg of injured--Seat of injury selected by the accused had reflected that he had no intention to kill the injured, otherwise if he had intended to kill the injured he could have hit his vital parts of body."
In the case reported as Qurban Hussain vs. The State (2004 YLR 13) it has been held by this Court that, "accused had allegedly inflicted injuries on non-vital parts of body of the victim and he was not required for any further investigation by the Police. Accused was admitted to bail in circumstances." In case reported as Muhammad Yousaf alias Kalay Khan vs. The State. (2004 P.Cr.L.J. 1862) while interpreting the provisions of Section 324/34 PPC this Court observed that, "Accused had only fired one shot hitting the victim on front of his thigh and did not repeat the same. Injury suffered by the victim fell within the purview of S. 337-F(iii) PPC which was primarily punishable with "Daman" and also with imprisonment extending to three years as Ta'zir."
(A.S.) Bail allowed.
PLJ 2008 Lahore 883
[Multan Bench Multan]
Present: Hasnat Ahmed Khan, J.
TASSADAQ HUSSAIN--Petitioner
versus
DPO etc.--Respondents
W.P. No. 5705 of 2006, decided on 15.11.2006.
Constitution of Pakistan, 1973—
----Art. 199--Criminal Procedure Code, (V of 1898), S. 154--Cognizable offence--If there is an information relating to the commission of a cognizable offence, it falls under Section 154 of the Cr.P.C. and a police officer is under a statutory obligation to enter it in the prescribed register--Condition precedent is simply two fold--First it must be an information and secondly, it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events--Police officer is bound to receive a complaint when it is preferred to him or where the commission of an offence is reported to him orally, he is bound to take down the complaint--If he does not incorporate in the register a complaint so made, he fails to perform a statutory duty as a public servant and, therefore, renders himself to be dealt with by his superior officers for neglect of duty--Petition was allowed. [Pp. 885 & 886] A
PLD 1972 Lah. 493, 2001 SCMR 1556, PLD 2000 Lah. 208, PLD 2003 Lah. 228; PLD 1997 Lah. 135, ref.
Mian Muhammad Ishaq-ul-Haq, Advocate for Petitioner.
Mr. Muhammad Iftikhar-ul-Haq Khawar, Advocate for Respondents No. 3, 4 and 5.
Date of hearing: 15.11.2006.
Order
Through this writ petition the petitioner has challenged the order dated 13.10.2006 passed by Mr. Muhammad Zubair Cheema, Learned Additional Sessions Judge/Justice of Peace, Sahiwal, whereby the application filed by the petitioner under Section 22-A Cr.P.C for registration of case against Respondents No. 3 to 5 was dismissed.
The learned counsel for the petitioner has submitted that on 24.8.2006 at about 4 p.m. Tassaduq Hussain petitioner was attacked by Respondents No. 3 to 5 out of whom Respondent No. 3 fired upon him with 7MM rifle hitting his left leg. Thereafter Jehangir respondent also fired with his rifle but fortunately said fire did not hit him. He further submits that Tassaduq Hussain was medically examined at 4.30 p.m. on the same day and according to the Medico Legal Certificate attached with this petition as Annexure `A' he had received a firearm injury, on his left leg, which went through and through. An application for registration of case was submitted to Respondent No. 2 who refused to register the case in violation of Section 154 Cr.P.C. Therefore he approached Respondent No. 1 but with no success. Consequently he had no option but to file an application under Section 22-A Cr.P.C. before the learned Sessions Judge/Justice of Peace, Sahiwal which was entrusted to Mr. Muhammad Zubair Cheema, Learned Addl. Sessions Judge/Justice of Peace, Sahiwal. After the receipt of report said learned A.S.I proceeded to dismiss the said application vide impugned order dated 13.10.2006.
Learned counsel for the petitioner has submitted that under Section 154 Cr.P.C. Respondent No. 2 was legally bound to register the case as contents of the application filed by the petitioner did disclose to commission of cognizable offence but he failed to perform his duty. He has further submitted that the learned Addl. Sessions Judge had also committed an illegality while dismissing the application filed by the petitioner.
Mr. Iftikhar-ul-Haq Khawar, Advocate who has entered appearance on behalf of Respondents No. 3 to 5, who were under notice in the present petition, submitted that impugned order was quite justified and the present petition is liable to be dismissed as material facts were suppressed by the petitioner. He has further submitted that the petitioner along with others is involved in murder case which has been registered vide FIR No. 1530/2006 at the instance of Jehangir Respondent No. 4 while Muhammad Nawaz, Respondent No. 5 has been cited as a witness in said case. He has maintained that application for registration of case was totally false and frivolous and purpose of filing the same was to pressurize the private respondents to withdraw from the prosecution of above said murder case. He has further maintained that the superior Courts have ample jurisdiction to refuse a relief where granting of the same would tantamount to injustice. In this regard he has placed reliance upon P.L.D 2001 S.C 415. Apart from that he has placed reliance upon a case reported as Muhammad Ali Hussain Vs. D.P.O. etc. (P.L.D 2006 Lah 95). To further emphasize his point the learned counsel for the petitioner has referred to a Rapet No. 19 which was recorded on 24.8.2006 and Police came to the conclusion that contents of said "ruppat" were doubtful.
Exercising the right of rebuttal the learned counsel for the petitioner has contended that as far as "Rapet" No. 19 dated 24.8.2006 is concerned the petitioner was neither party to the same nor he was aware of said report and as matter of fact same had been malafidely entered by the police to demolish the case of the petitioner. He has further submitted that the police had got no jurisdiction to investigate the case without the registration of the same as that would amount to putting horse before the cart.
I have heard both the parties at length and perused the record. It has been observed that according to M.L.R. the petitioner was medically examined at 4.30 p.m. on 24.8.2006. According to the petitioner the occurrence took place at 4 p.m. on the same day and within half an hour of the occurrence he was medically examined. The Medico Legal Report further shows that the petitioner received a firearm injury, on his leg, which went through and through. There is nothing on the record to suggest that the private respondents had approached to any authority for the re-examination of Tassaduq Hussain to show that said injury was self suffered. In presence of said Medico Legal Report "Rapet" No. 19 loses much of its significance. Even otherwise the police was not competent to enter into the investigation before lodging the case. Consents of the application which was submitted by the petitioner to Respondents No. 1, 2 and 7 being supported by the Medico Legal Report did show that congizable offence had been committed. The question whether the "Rapet" No. 19 was infact lodged by any person on behalf of the petitioner without his knowledge or consent, or not also required investigation especially when it is the stand of the petitioners that same was mala fidely entered by the police to frustrate the attempt of the petitioner to register the case.
The case law cited by the learned counsel for the private respondents is not helpful to him inasmuch as the relief of registration of case, in this matter, by no stretch of imagination would tantamount to injustice rather it would be helpful to promote the justice as such the judgment of the august Supreme Court of Pakistan as cited by the learned counsel for the private respondents is not applicable to the present case. The grant of relief by way of order of registration of case would be nothing but putting legal machinery into motion. Likewise the case reported as P.L.D. 2006 Lahore 95 is distinguishable.
It is settled law that if there is an information relating to the commission of a cognizable offence it falls under Section 154 of the Cr.P.C. and a police officer is under statutory obligation to enter it in the prescribed Register. The condition precedent is simply two fold; first it must be an information and secondly, it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events. A police officer is bound to receive a complaint when it is preferred to him or where the commission of an offence is reported to him orally, he is bound to take down the complaint. If he does not incorporate in the register a complaint so made, he fails to perform a statutory duty as a public servant and, therefore, renders himself to be dealt with by his superior officers for neglect of duty. Thus it does not dependent upon the sweet will of the police officer who may or may not record it. Such observations were made in a famous case of M. Anwar Barrister at Law vs. the Station House Officer, Civil Lines Police Station Lahore and another. (PLD 1972 Lahore 493). Said view has been frequently followed by the superior Courts of the Country. If some more case law is required the same is cited as under:--
Wajid Ali Khan and others vs. Government of Sindh and others (2001 SCMR 1556).
Saeed Ahmad etc. vs. Naseer Ahmad etc. (PLD 2000 Lahore 208).
Sana Ullah vs. SHO P.S. Civil Gujrat etc. (PLD 2003 Lahore 228).
Muhammad Yousaf vs. Director General of Police (PLD 1997 Lahore 135).
As far as the contention of the learned counsel for the private respondents regarding the availability of the remedy of private complaint is concerned suffice it to say that the allegations leveled by the petitioner would be requiring thorough investigation and question of recovery of the firearm weapon allegedly used in the occurrence would also be involved. For this reason it would be more appropriate to register the case.
In view of the statutory law and the case law cited above it is held the Respondent No. 2 failed to perform his legal duty by way of not recording the FIR on the application of the petitioner. Accordingly the impugned order passed by the Respondent No. 7 is set aside and Respondent No. 2 is directed to entertain the above mentioned application of the petitioner and do the needful in accordance with law.
Before parting with this matter it is observed that as far as contents and authenticity of "Rupet" No. 19 is concerned the Investigating Officer would be at liberty to investigate the version of both the sides. Needless to add that if after investigating of the case, the version of the petitioner is found false, the I.O. would be at liberty to proceed against him under Section 182 PPC. With the above mentioned observation, this writ petition is allowed.
(M.S.A.) Petition allowed.
PLJ 2008 Lahore 887
Present: Syed Hamid Ali Shah, J.
AL-HAJ DIWAN BUKHTIAR SAID MUHAMMAD--Petitioner
versus
DIWAN MAUDOOD MASOOD--Respondent
C.R. No. 700-D of 1996 & 349 of 2004, decided on 29.10.2007.
Specific Relief Act, 1877 (I of 1877)—
----S. 42--Suit for declaration--Claim of Sajjada Nasheen of the shrine of Baba Farid Gang Shaker--Suit was decreed and declared legal successor--Appeal was accepted--Revision was also allowed by High Court--CPLA in Supreme Court--Case remanded for decision afresh--Re-appraisal of evidence--Validity--Held: Respondent was validly nominated as Sajjada Nasheen from the death by the incumbent.
[P. 898] N
Words & Phrases--
----"Soofi" trace back their origin from Ashab-e-Suffa the group of educator who devoted their lives for imparting education and relinquished themselves from wordly affairs. [P. 893] A
Words & Phrases--
----"Taasawaf" is derived from "Saffa" which means cleanliness and the dress which Soofi wears is "Sof", which is ordinary woolen ware, a dress which portrays humbleness and paaoverty Taasawaf partakes of eight characteristics namely generosity, condenscension/will, patience, guidance, poverty self negation, ordinary wearing, travel/drifting and abstention. [P. 893] B & F
Words & Phrases--
----"Saafi" & "Soofi"--A person who cleans himself in love of Allah is called "Saafi" and a person whom Allah Almighty cleans becomes "Soofi"--"Soofi" is one whose mind and steps are in unison--That is to say, his thinking his heart and the deeds are in one direction and go side by side Soofis and free from wordly desire and their spirits are far and away from human nices. [Pp. 893 & 894] C, D & E
Words & Phrases--
----"Sajjada Nasheen" & Mutwali--Difference--"Sajjada Nasheen" is head of institution, the superior of endowment and the teacher of religion doctrine--He is spiritual preceptor and curator of shrine--"Mutwali" as against "Sajjada Nasheen" is incharge of secular office of a shrine/institution--He manages the wordly affairs of institution, its properties and superintends its beneficial interests--Sajjada Nasheen has principle of imparting to his disciplines knowledge, whereas, the mutwali is incharge of the institution in temporal affairs--Term "Sajjada Nasheen" is derived from Turkish language, it comprises of two words namely "Sajjada" and Nasheen"--Sajjada means rug for prayer, or capet/rug on which a Muhammadan offers "Sajjda"--"Nasheen" means seated thereon Sajjada Nasheen--a person can be instated or nominated in a spirited office only when appointee considers him to be prious righteous and faithful--Successor is nominated when incumbent Sajjada Nasheen is on the death bed.
[Pp. 896, 897 & 898] G, H, I, J, K, L & M
M/s. Ch. Mushtaq Ahmad Khan, & Mr. Ashfaq Qayyum Cheema, Advocate for Petitioner.
Syed Iftikhar Hussain Gillani, Advocate for Respondent.
Date of hearing: 25.9.2007.
Judgment
The petitioner claims himself to be 26th holder of the office of Sajjadanashin of the shrine of Baba Farid Ganj Shakkar (R.A) and Maulana Badaruddin Ishaq (R.A). He through instituting suit, sought declaration to the effect that the petitioner (plaintiff) is legal Sajjadanashin of the shrine and he had the right to perform all the functions and ceremonies attached to it. A prayer of consequential relief of injunction was also made to the effect that the respondent be restrained from claiming himself as Sajjadanashin of the shrine, performing the duties as Sajjadanashin and interfering in the performance of the duties by the petitioner. The respondent contested the suit, filed written statement, controverted therein the assertions of the plaint and raised various preliminary objections. Learned trial Court, out of the divergent pleadings of the parties, framed 4 (four) issues and directed the parties to lead their evidence. The petitioner/plaintiff got examined 16 witnesses (PW.1 to PW.16) including his own statement as PW.1, while documentary evidence of the petitioner comprised of Exh. P.1 to Exh.P.13. The respondent (defendant) examined 21 witnesses including his own statement as DW.19. The respondent's documentary evidence consisted of Exh.DW.1 to Exh.DW.12. Learned trial Court on conclusion of the trial, decreed the suit in favour of the petitioner (plaintiff) vide judgment dated 19.7.1993. The respondent assailed the decree in appeal. Learned Appellate Court while accepting the appeal vide judgment and decree dated 08.5.1996, set aside the findings of the learned trial Court, resultantly the suit of the petitioner was dismissed. The petitioner assailed the judgment of the learned Appellate Court through the instant revision petition, which was allowed by this Court vide judgment dated 29.5.2006. The respondent assailed judgment dated 29.5.2006 through CPLA No. 687/2006. The civil petition came up hearing before the Apex Court on 15.01.2007 when the same was converted into appeal and allowed. Resultantly, the judgment dated 29.5.2006 of this Court was set aside and the case was remanded for decision afresh.
The case of the petitioner as set out in the plaint, is that the deceased Sajjadanashin (late Dewan Qutab-ud-Din) associated the petitioner in the ceremonies attached to the shrine quite often and the petitioner as such is acquainted with the affairs of the shrine as well as of the office of Sajjadanashin; that the petitioner had made numerous improvement at Darbar, rendered services for the visitors like offering feast ( ), Sehr-o-lftar during Ramzan, besides illumination ( ) at Darbar since 1974; that respondent's claim of Sajjadanashin was refuted by late Qewan through citation of public notices, in daily `Nawa-e-Waqat' and daily 'Mashriq', in their prints dated 13.9.1981; that the petitioner has performed ceremonies relating to shrine at the time when late Dewan proceeded for Hajj; that Auqaf department affirmed and allowed the petitioner to perform ceremonies in the absence of late Dewan; that the petitioner is valid successor to the office of Sajjadanashin and the respondent has no legal status to claim this office. It was also asserted that the act of the respondent in taking off the turban from the head of the late Dewan and placing it at his head to claim succession to the office of Sajjadanashin, is against the prevailing custom and also against the injunctions of Islam.
The respondent resisted the suit and defended his succession to the office of Sajjadanashin on the grounds that late Sajjadanashin had appointed him as his successor in his life time; that a public notice in this regard was published in daily
Nawa-e-Waqat' in its print dated 14.11.1980; that he was appointed as
Sajjadanashin in presence of dignitaries like Governor, Federal Minister and other officials, in a huge gathering of followers (Murids) on the occasions ofQul' ceremony of late Dewan; that the petitioner and late Dewan had strained relationship, they were locked in litigation and as such there was no occasion for appointment of the petitioner as Sajjadanashin; that the permission to perform ceremonies in 1973 on the basis of letter from Auqaf department, is result of manipulation; that the petitioner never performed ceremonies; that the petitioner had not attended funeral, Qul ceremony and Chehlum of late
Dewan; that the petitioner's presence at the time of Dastarbandi' of the respondent, works as estoppel; that the respondent's succession was given wide coverage on electronic media and was extensively published in print media as well; that the appointment of the respondent was made according to desire of late Dewan, in presence of family members and according to the customs; that brother in presence of offspring cannot be appointed as Sajjadanashin. The respondent has denied the veracity of notices published in dailiesMashriq' and `Nawa-e-Waqat' on 13.9.1981.
Learned counsel for the petitioner has contended that in the absence of Will',Khalafatnama' or `Trust Deed', the appointment of successor to the office of Sajjadanashin has to be made according to prevailing usage/customs or tradition. He has added that the principles of Muhammadan Law as to succession, principle of primogeniture or will of followers/Murids, have no application to the appointment in question. Learned counsel, in this respect, has found support from the dictum of judgment in the case of Abid Arif Nomani and others Vs.
Chief Administrator, Auqaf, Punjab and others
(2004 SCMR 1050). Learned counsel emphasized that the Sajjadanashin holding the office during the lifetime, nominates his successor, which in the instant case is petitioner, who was permitted to perform ceremonies, in the absence of his predecessor, which speaks of his nomination as successor. Letter of Auqaf department (Exh.P.1) further affirms the nomination. Learned counsel referred to improvements, which the petitioner made at Darbar, defiance of claim of the respondent by late Dewan and publishing of public notice to this effect and role of the petitioner in performing ceremonies, sufficiently prove the claim of the petitioner as to the succession. It was submitted that the respondent is incapable of performing the duties of Sajjadanashin and in this respect referred to incident of stampede during Urs, which is reflected in Mark-A.
Learned counsel has submitted that the deathbed declaration statedly made in favour of the respondent in presence of relatives, has no legal value, as the fact despite being in knowledge, was not pleaded. Learned counsel has submitted further that the witnesses, who appeared to prove it, are interested witnesses and performance of ceremonies by the respondent in presence of dignitaries does not prove the validity of his claim qua the succession. Learned counsel has submitted that Exh.D.1 to D.6 were not confronted to the petitioner, therefore, cannot be read in evidence. Learned counsel explained that Saints and Soofies do not involve their personal likes and dislikes in spiritual affairs. A Soofi can appoint a competent person as his successor, ignoring his personal dislikes or personal disputes. It was added that these people, keep each aspect of their life separate from the other. The dispute between the two during lifetime of late Dewan, has no bearing regarding appointment of the petitioner as his successor to office of Sajjadanashin. Learned counsel has submitted further that instant revision is against the judgments at variance and in such situation this Court in its revisional jurisdiction, has to examine and compare both the judgments and see reasonability therein. Cases of Mir Haji Khan and 11 others Vs. Mir Aijaz Ali and 2 others (PLD 1981 SC 302), Alloo Vs. Sher Khan and others (PLD 1985 SC 382) and Gogai and others Vs. Siraj Ahmad and others
(1991 SCMR 1152), were referred to support this contention. Learned counsel went on to argue that comparison of two judgments reflects that the judgment of the learned trial Court is well reasoned and devoid of any legal infirmity, while appellate judgment lacks the element of reasoning. It was also argued that the judgment of this Court, rendered in pre-remand proceedings, was not set aside on merits but on technical question and findings thereon carry weight. It was contended that the instant controversy does not relate to matwaliship of shrine, as the property vesting in shrine has already been taken over by the Auqaf Department. The dispute pertains to the appointment of
Sajjadanashin, which can be made either by nomination or by conduct during the lifetime of predecessor or through oral declaration. It was contended with vehemence that the evidence produced by the respondent was neither confidence inspiring nor cogent, it was shaky and inadmissible. Reference was made to the statement of Syed Shamsher Ali (DW-15), which according to learned counsel, is contradictory to the statement of respondent. It was submitted that the respondent had deposed that a written Will was executed, whereby he was nominated, but no such will was produced and this fact alone proves that the witness had deposed falsely. It was also contended that video cassette was admittedly edited and as such it cannot be considered as authentic piece of evidence. He emphasized that the respondent's inability to hold the office of Sajjadanashin could be ascertained from the fact that hundreds of persons died due to mismanagement at the time of Urs during the year 2001. While placing reliance on the case of Diwan Ghulam Rasul Vs. Ghulam Qutab-ud-Din (AIR 1942 Lah. 142), it was contended that turbanisation ( ) is not root of title but a ceremony of installation and it does not prove the title.
Mr. Iftikhar Gillani, learned counsel for the respondent, on the other hand, has submitted that Dewan Alla Jawaya died and office of Sajjadanashin was succeeded by Dewan Said Mohammad and thereafter, the late Dewan Qutab-ud-Din (father of the respondent and brother the petitioner) was installed in the office of Sajjadanashin. The appointment of Sajjadanashin, had throughout been by way of nomination. The incumbent has unrestricted powers to appoint his successor. While quoting Syed Amir Ali, it was submitted that incumbent has the privilege to appoint temporary Sajjadanashin during his lifetime, the appointment of successor on permanent basis, is made when incumbent is on deathbed. Reference to Para 205 of principles of Mohammedan Law by D.F. Mulla, was made, wherein it is expressed that Mutawali for the time being, may appoint his successor on his deathbed. He then referred to an extract from Ruddul Mukhtar to the effect that absolute appointment of successor could be made by the incumbent on his deathbed or during death illness. Learned counsel has submitted that Pir Allah Jawaya, who had no male issue, appointed his grand son (daughter's son) namely Dewan Said Mohammad Chishti as his successor. The appointment was upheld by the Privy Council. The appointment of Dewan Ghulam Qutab-ud-Din was challenged but the same was upheld. He has submitted that it is evident from these judgments that appointment of successor is made by incumbent through nomination. Learned counsel referred to the statement of Pir Ghulam Farid Qureshi (DW.20), who deposed that late Dewan appointed the respondent as his successor, in presence of his family members namely Pir Ghulam Sabir, Pir Muhammad Masood Chishti, Baddar Moeen and himself. According to learned counsel, the statement of DW.20 remained un-rebutted as the witness was not cross-examined in this regard. He has submitted that the statement of DW.20, stands corroborated by deposition of DW.19. The ceremony was recorded on videotape, which according to Article 164 of Qanun-e-Shahadat Order, 1984, is admissible in evidence, more-so when witness who recorded it deposed about its contents. Learned counsel has submitted that the petitioner's claim of Sajjadanashin is on the premises that he performed functions/ ceremonies of shrine, in the absence of late Dewan, when the latter had proceeded for Hajj' during 1973. Performance of functions or rituals at shrine cannot be the declaration of the petitioner as successor to the office of Sajjadanashin. Learned counsel explained that the performance of functions at shrine, does not give cause to the petitioner to claim succession. The respondent was accompanying his father during Hajj and in his absence if the petitioner had performed rituals, is inconsequential. Secondly, the permission (Exh.P.1) was accorded by the Auqaf department, to perform rituals and not by late Dewan. The appointment to perform rituals, was rescinded by late Dewan, in the year 1980. The petitioner in his statement as DW.1, stated that late Dewan conferred him powers to perform rituals, expressly but failed to produce any written document in this respect. Learned counsel has submitted that relations inter-se the petitioner and late Dewan were strained, which fact can be ascertained from pendency of criminal complaint filed by the petitioner against late Dewan. He submitted further that late Dewan appeared as witness in a case against the petitioner and stated that the petitioner had defamed whole family due to his shameful acts. It was contended that the petitioner remained aloof from affairs of Darbar. He has not attended funeral, Qul ceremony and Chehlum of late Dewan. Learned counsel has submitted that PW.4 (Atta Farid) has admitted that late Dewan has not appointed anyone as his successor, in his lifetime, but he showed his desire to appoint his successor amongst his sons. This admission proves the case of the respondent. Learned counsel for the respondent has summed up his arguments with the submission that learned trial Court discarded the statement of DW.20 on the ground that the statement was outside pleadings of defendant/respondent. Learned counsel referred to
Para 2( ) of the written statement and stated that deposition of DW.20 was in line with the pleadings of the respondent and the judgment of the learned trial Court is thus erroneous.
Heard learned counsel for the parties and record perused.
"Soofi" trace back their origin from Ashab-e-Suffa " " the Group of educators, who devoted their lives for imparting education and relinquished themselves from worldly affairs. The following verse of Holy Quran was revealed, in their praise:--
The word "Taasawaf" is derived from "Saffa" ( ), which means cleanliness and the dress which Soofi wears is "Sof" ( ), which is ordinary woolen ware, a dress, which portrays humbleness and poverty. The way companions of Hazarat Issa (A.S) were called "Havaari" because of the white wearing. Hazarat Ali Hajveri (Data Ganj Bakhsh R.A) in his book Kashf-ul-Maljoob has quoted a saint, who defined soofi in the following terms:--
Meaning thereby, a person who cleans himself in love of Allah is called "Saafi" ( ) and a person whom Allah Almighty cleans becomes "Soofi" ( ). According to him (Hazarat Data Ganj Bakhsh R.A), one whose inner-self is clean is called the Saint. The signs and reference of "Wali" is that he possesses cleanliness of heart. Hazarat Abu Mohammad Murtaesh, in this regard has expressed:--
It means; Soofi is one whose mind and steps are in unison. That is to say, his thinking, his heart, and the deeds are in one direction and go side by side. According to Abdul Hassan Noor:--
"Soofis are free from wordly desire and their spirits are far away from human vices. Hazarat Junaid Baghdadi, has expressed about the qualities of Soofi that:
"Tasawaf" partakes of eight (8) characteristics namely generosity, condescension/Will, patience, guidance, poverty/self-negation, ordinary wearing, travel/drifting and abstention.
Unfortunately both the parties to this petition do not qualify to the test of "Tasawaf" but they cannot be dislodged from their respective claims, in the instant proceedings (revisional jurisdiction), on the above noted parameters. I, therefore, confine myself to the questions raised and arise out of the judgment impugned, in this petition.
This shrine has the history of dispute on the appointment of successor to the office of Sajjadanashin. The 23rd holder of the office, Dewan Allah Jawaya, appointed his daughter's son Dewan Said Mohammad, as his successor, through expression made during the year 1882. The appointment was challenged and terminated in favour of the nominee through a decision of the Privy Council in the case of Sayed Muhammad Vs. Fatteh Muhammad (22 ILR 24 [Calcatta]). Dewan Said Mohammad (24th Dewan) breathed his last, on 26.12.1934 and on the strength of his nomination (father of the respondent and brother of petitioner), Dewan Qutab-ud-Din, had assumed the office of Sajjadanashin. His succession was challenged and resolved in favour of the nominee through judgment of this Court reported as AIR (29) 1942 Lah. 142. According to ratio of these judgments, incumbent of the shrine of Baba Farid Ganj-e-Shakkar (R.A) has absolute authority to appoint and nominate his successor. Besides the case of Abid Arif Nomani (Supra), needs mention, wherein the Apex Court has enunciated that customs and usages attached to shrine determine the appointment of successor, rather than law of inheritance as envisaged in the Islamic law, or principle of primogeniture. There is plethora of case law on the subject. Opinion of Muslim Jurists, on this issue is the same. Reference in this respect can further be made to the verdict in the case of Sayed Muhammad Vs. Fatteh Muhammad (22 ILR 24 [Calcatta]) relating to this shrine and the cases of Nazeer Ahmad Vs. Haji Muhammad (1987 MLD 2278), Gahne Shah Vs. Maula Shah and others (AIR 1930 Lah. 723) and Mooleka Bibi and another Vs. Syed Zynul Abedin (1904) 6 Bombay Law Reports 1050).
It is discernable from the aforesaid survey of law that the appointment of Sajjadanashin is not governed under Mohammedan law or on the principles of primogeniture. There is also no dispute that the appointment of Sajjadanashin in the case in hand, rests solely within the discretion of the incumbent Sajjadanashin. Both the petitioner and respondent claimed to have been appointed/nominated by late Dewan. Their respective competing claims, need a closer examination. The petitioner based his claim on Ex.P.1, which is a letter of Auqaf Department, permitting the petitioner to perform ceremonies at Darbar in the absence of late Dewan, who proceeded for Hajj during 1973. The petitioner cannot justifiably lay claim of his succession to the office of Sajjadanahin, on this isolated and incidental act. Firstly the Auqaf Department has no authority to appoint a Sajjadanashin. There is galaxy of rulings of Superior Courts in this respect. As authority for this preposition, cases of Mian Ahmed Ali etc. Vs. Rehabilitation Authorities etc. (PLD 1964 SC 229), Ch. Altaf Hussain Vs. Chief Settlement Commissioner etc. (PLD 1965 SC 68) and Sheikh Inayat Ullah Vs. M.A. Khan etc. (PLD 1964 SC 126) can be referred. Secondly Ex.P.1 cannot be used against the respondent, because the respondent had accompanied late Dewan during Hajj. The petitioner performed ceremonies in the absence of late Dewan and also in the absence of the respondent. Thirdly the appointment, if any, stood revoked when another person (respondent) was nominated subsequently. Fourthly the petitioner despite his claim that while proceeding for Hajj, late Dewan appointed petitioner through written instrument but the petitioner failed to produce such instrument. Lastly, mere a solitary event does not entitle the petitioner to claim succession, when his subsequent conduct contradicts' his previous act.
The petitioner has also claimed his entitlement to the office of Sajjadanashin, on the plea that he had made improvements on Darbar/shrine and has regularly been arranging meals, for the visitors of shrine. Such plea is untenable and misconceived. Such act has never been considered relevant for appointment of Sajjadanashin. Mostly the shrines are built and improvements/construction raised thereon, is through donations of followers/Murids. But they (Mureeds) have no say in the appointment of Sajjadanashin.
The petitioner's claim of succession to the office, is also based on the ground that he had throughout been performing ceremonies/rituals at Darbar with late Dewan. Cogent evidence/proof, in this respect is lacking. There is however material and credible evidence on record to show that relations between the petitioner and late Dewan were strained and both remained locked in litigation. The petitioner had filed a criminal complaint against late Dewan. The latter did not lag behind the petitioner and appeared as witness against him to allege that the petitioner had disgraced entire family due to his shameful act, Ex.D.16 is the copy of the statement of late Dewan, in which he minced no words in expressing his aversion towards the petitioner. It was for this reason that the petitioner did not attend funeral, Qul and Chehlum of late Dewan. The petitioner has himself admitted in his criminal complaint that an old enmity existed between him and late Dewan. It can reasonably be concluded that the petitioner in such strained relationships had not been allowed by late Dewan to perform ceremonies with him.
Sajjadanashin is head of institution, the superior of endowment and the teacher of religion doctrine. He is spiritual preceptor and curator of shrine. Mutawali as against Sajjadanashin is incharge of secular office of a shrine/institution. He manages the worldly affairs of institution, its' properties and superintends its beneficial interests. Learned Appellate Court has rightly observed that Sajjadanashin has privilege of imparting to his disciples knowledge, whereas the mutawali is incharge of the institution in temporal affairs. Sajjadanashin is spiritual while Mutawali is secular office. Term "Sajjadanashin" is derived from Turkish language, it comprises of two words namely "Sajjda" and "Nashin" means rug for prayer; or carpet/rug on which a Mohammaden offers "Sajda". "Nashin" means seated thereon. To succeed to a spiritual office one has to establish his fitness, at least in the eyes of incumbent.
It has to be examined whether late Dewan had considered the petitioner worthy enough to succeed him in a spiritual office or take his place on his carpet/rug. The petitioner's wife (Dur-e-Shehwar) instituted proceedings of Qazaf under Section 7 of Ordinance, VIII of 1979 against the petitioner. Late Dewan appeared as witness in these proceedings on 27.7.1984, (His statement is available on record as Exh.D.16) and deposed that:
It can be ascertained from this statement alone, that late Dewan could not, and as a matter of fact had not, considered the petitioner to succeed to a spiritual office. Additionally, the petitioner had not announced/claimed his appointment, on the occasion of Qul or Chelum, rather absented himself from these ceremonies for a simple reason that he had no valid claim to make. There is no justification that in such strained relationship, there was any chance for nomination of the petitioner as Sajjadanashin. A person can be installed on nominated in a spiritual office only when appointee considers him to be pious, righteous and faithful.
As against it, viewing the case of the respondent, Ghulam Farid Qureshi (DW-20) has categorically stated that respondent was nominated as Sajjadanashin by the late Dewan, shortly before death, DW.19 and DW.21 have materially supported him on this score. Having not been cross-examined (DW.20), the aforesaid evidence goes un-rebutted. Surprisingly, this evidence was not considered by the learned trial Court being beyond the pleadings, while doing so learned Court lost sight of paragraph 2( ) of the written statement, which makes the aforesaid stance of the respondent, within the contemplation of pleadings.
Tenor of case law and opinion of Muslims Jurists, discussed in the former part of this judgment, shows that the successor is nominated when incumbent Sajjadanashin is on the deathbed. In the case in hand, late Dewan is shown to have nominated the respondent on his deathbed. As such this nomination overrides, all previous nominations, if any. The installation of respondent to the office of Sajjadanashin and ceremony of Dastarbandi, which took place in full glare of media and in presence of family elders, noteables of the area, respectables/ Gaddinashins of others shrines and also in the presence of followers/Murids, proves that the nomination of the respondent as Sajjadanashin by late Dewan, was a known fact. Besides, the then President of Pakistan, Prime Minister and Governor of the Province attended that function. The petitioner was not heard saying on that occasion or soon thereafter that he was nominated and appointed as Sajjadanashin. Here at this point, judgment of Privy Council in the case of Piran Vs. Abdool Karim (19 Cal. 203), which has identical features, needs specific mention, where the appointment of Sajjadanashin on the basis of nomination, and appointment made in a ceremony which took place on third day of death of incumbent, attended by Murids, respectables and Gaddinashin of various shrines of the locality, was held valid and according to recognized mode.
Petitioner's contention that the respondent is disqualified for appointment as a Sajjadanashin, as during his tenure a stampede had taken place, in which many lives had been lost, has no merits, as this matter came up for consideration before this Court in its writ jurisdiction and the observation made by the Court speaks to the contrary.
The above discussion brings me to conclude, that respondent has proved his case that he was validly nominated as Sajjadanashin, from the deathbed by the incumbent. The findings of the learned appellate Court in this respect are based on correct appreciation of the evidence on record. Impugned judgment of the appellate Court, does not suffer from the defects of misreading/non-reading of evidence or from wrong assumption of law. The petitioner has failed to make out a case for interference in the revisional jurisdiction.
For the foregoing, this revision petition has no force, merits dismissal and the same is accordingly dismissed, with no orders as to costs.
(M.R.Q.) Petition dismissed.
PLJ 2008 Lahore 898 (DB)
Present: Sayed Zahid Hussain and Syed Hamid Ali Shah, JJ.
PROVINCE OF PUNJAB through Deputy Commissioner/Collector, Sialkot and another--Applicants
versus
MUHAMMAD SHAFI and others--Respondents
R.F.A. No. 40 of 2000, heard on 29.11.2007.
Land Acquisition Act, 1894 (I of 1894)—
----Ss. 4, 20(c), 22-A & 50(2)--Assessment of compensation--Corporation applied before Reference Court to be impleaded as party but request was turned down--Corporation was not necessary party--Enhancement of compensation--Validity--Corporation was entitled to be impleaded as party and heard in the matter which affected it--Since corporation was not initially served with notice was contemplated by S. 20(c) of Land Acquisition Act, and no opportunity of lodging cross-objections, as contemplated by S. 22-A and was not allowed to be impleaded appear and adduce evidence by Court, despite the provisions of S. 50(2) of Act--Judgment rendered by Reference Court is liable to be set aside. [P. 905] A
PLJ 2004 SC India 185 ref.
Mr. Rizwan Mushtaq, Assistant Advocate General Punjab, Mr. Jari Ullah Khan and Mr. M.M. Alam Chaudhry, Advocates for Applicant.
Malik Abdul Wahid, Advocate for Respondents.
Dates of hearing: 29.11.2007 and 3.12.2007.
Judgment
Sayed Zahid Hussain, J.--For the establishment of Small Industry Estate No. 3, Sialkot, Notification under S.4 of the Land Acquisition Act, 1894, dated 02.6.1990 was issued to acquire the land in dispute. Award dated 11.2.1993 was announced by the Land Acquisition Collector, who assessed the compensation of the land near to the road at Rs. 3716/- per marla and for the land away from the road at Rs. 549.48 per marla. The landowners, appellants, feeling dissatisfied with the assessment of compensation filed Reference, which was heard by the learned Senior Civil Judge, Sialkot. Before that Court the Corporation made an application for being impleaded as party, which was, however, dismissed on 13.7.1994, which order gave rise to C.R. No. 3330/1994. The revision petition was ultimately dismissed having become infructuous, as in the meantime the Reference had been decided and appeals had been filed thereagainst. This was vide order dated 29.3.2002. After trial of the Reference, the learned Senior Civil judge, Sialkot came to the conclusion that "the petitioners are entitled to receive Rs. 1500/- per marla by way of compensation of the disputed land". The Province of Punjab and the Collector, Land Acquisition has assailed the determination of compensation so made by the Court through R.F.A. No. 40/2000 whereas the landowners have also appealed against the same judgment through R.F.A. No. 126/2000. In both the appeals the Corporation has made applications for being impleaded as party. These matters are sought to be disposed of by means of this judgment.
The learned counsel for the parties have been heard and record perused.
There is a consensus that Issue No. 3 is of relevance in the matter, which reads as follows:-
"3. What was the market value of the land acquired by the respondents at the relevant time and to what account the petitioners are entitled to recover from the respondents as compensation ?OPA ".
Since the Corporation had been declined to be impleaded as party, the evidence in the matter was produced for and against the landowners and the Collector.
Section 23 of the Land Acquisition Act, 1894 in regard to the factors to be kept in view, while assessing compensation has received extensive judicial consideration from time to time. In Province of Punjab through Collector, Sheikhupura and others v. Akbar Ali and others (1990 SCMR 899), a larger Bench of the Honourable Supreme Court of Pakistan took into consideration the situation of land in close vicinity to a metalled road (Lahore-Sargodha Road) where there was a factory, a petrol pump, a grid station, a tentage factory, Dawood factory, shops and it was observed "even though it (land) may not be built upon for the time being and used for agricultural purposes, yet it is potentially a building site and the learned Judges of the High Court were perfectly right in so holding". It was further held that "the land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined, but also with referenced to the uses to which it is reasonably capable of being put in the future". In Market Committee, Kanganpur through Administrator v. Rayyat Ali and others (1991 SCMR 572), it was observed that average of sales in one year "is seldom decisive but always relevant". Factors (Plus and minus) were listed referring to a judgment of the Supreme Court of India i.e. Chimanlal Harqovinnddas v. Special Land Acquisition Officer, Poona and another (AIR 1988 S.C. 1652), such as:--
"Plus factors:
(1) Smallness of size.
(2) Proximity to a road.
(3) Frontage on a road.
(4) Nearness to developed area.
(5) Regular shape.
(6) Level vis-a-vis land under acquisition.
(7) Special value for an owner of an adjoining property to whom it may have some very special advantage.
Minus factors
(1) Largeness of area.
(2) Situation in the interior at a distance from the road.
(3) Narrow strip of land with very small frontage compared to depth.
(4) Lower level requiring the depressed portion to be filled up.
(5) Remoteness from developed locality.
(6) Some special disadvantageous factors which would deter a purchaser."
In Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others (1991 SCMR 2164), it was observed that while determining compensation future prospects of land, such as the use to which the land was capable were also relevant. In Maqbool Ahmed Fatehally and others v. The Collector, District Lasbella and others (1992 SCMR 2342), it was reiterated that only the past sales should not be taken into account but the value of the land and its overall due potentiality may also be a determining factor. In Land Acquisition Collector, Rawalpindi and others v. Dina and others (1999 SCMR 1615) it was observed that the fact that the land was situated within the limits of Rawalpindi Cantonment and was accessible to urban amenities with a potential for being used as residential purposes was to be kept in view. It was further observed that the owner who is being deprived of the land as a result of compulsory acquisition is entitled to fair compensation. In Murad Khan through his widow and 13 others v. Land Acquisition Collector and another (1999 SCMR 1647), it was observed that merely one year average price of the land is not decisive in itself for the determination of compensation but other considerations have also to be kept in view. On appreciating number of precedents, considerations relevant for determining the compensation were highlighted by their Lordships. In Collector, Land Acquisition, Mardan and others v. Nawabzada M. Ayub Khan and others (2000 SCMR 1322) it was held that potential value and future prospects of the land under acquisition in addition to one year average was to be kept in view. The Hon'ble Supreme Court has in Fazal Haq College through Vice-Chairman v. Said Rasan and others (PLD 2003 S.C. 480), reiterated that "The market value has been described as what a willing purchaser would pay to the willing seller. For assessing the market value, it is also essential to look into the location of the land in question, its potentiality and the amount of sale of similar kind of land in the vicinity at the relevant time". The trend of judicial authority indicates that considerations and factors for determining the compensation of the land vary from time to time, location to location keeping in view the use present and future, its vicinity and ambience. There cannot be any fixity of criteria. It is thus that assessment of fair compensation is to be made objectively. Needless to state that burden of proving the entitlement to higher rate of compensation is on the landowner. Reference in this context may be made to Government of Sindh and 2 others v. Muhammad Usman and 2 others (1984 CLC 3406).
The learned counsel for the parties as also for Small Industries Corporation (Applicant to be impleaded as party) have addressed arguments with reference to the claim of the Corporation to be impleaded as party and heard in the matter. The learned counsel for the applicant makes reference to S. 20(c) that the applicant was entitled to notice, which was not issued by the Court. He also makes reference to S.22A to contend that this amended provision enabled the applicant to lodge cross-objections and the Court could even reduce the amount awarded by the Collector. He also makes reference to sub-section (2) of S.50 of the Land Acquisition Act, 1894 that the law permitted the applicant to adduce evidence for the purposes of determination of the amount of compensation. All such provisions which are sought to be invoked were result of amendment through Ordinance No. XLIV of 1969.
In Pir Khan through his Legal Heirs v. Military Estate Officer, Abbottabad and others (PLD 1987 S.C. 485) an issue arose as to whether the beneficiary of the acquisition could file appeal against the judgment of the Reference Court. It was observed with reference to S. 18 and S. 50 (2) of the Land Acquisition Act, 1894 that "a local authority or a company is only conferred the right to appear in proceedings before the Collector or the Court and adduce evidence for the purpose of determining the amount of compensation but a reference under Section 18 by them is barred (vide the proviso to sub-section (2) of Section 50). It is, therefore, manifest that whatever may have been the object of the law, in view of plain language of Section 50 (2), there is no alternative but to give effect to it. Hence, so far as a local authority or a company is concerned, the award made by the Land Acquisition Collector becomes final; it has neither the right to ask for a reference under Section 18, nor on a parity of reasoning, a right to prefer an appeal against a decision made upon a reference under Section 18 of the Act by the Court." Such a view was affirmed and followed subsequently in Behram Khan and 54 others v. Military Estate Officer and 2 others (1988 SCMR 1160), Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (1991 SCMR 2193), Land Acquisition Collector, Abbottabad and others v. Muhammad Iqbal and others (1992 SCMR 1245) and Pakistan through Military Estate Officer, Kharian Cantt. and another v. Abdul Hayee Khan through Legal Heirs and 5 others (PLD 1995 S.C. 418).
It may be observed that in the instant case the applicant does not seek or ask for remedy of appeal, his emphasis is that in view of provisions of S. 20(c), S. 22A and S. 50(2), the applicant was entitled to notice (S. 20), to lodge objections (S. 22A) and to appear and adduce evidence for the purpose of determining the amount of compensation (S.50(2)). In India, incidentally the provisions of sub-section (2) of S. 50 of the Land Acquisition Act, 1894 are similarly worded and has received interpretation from time to time. In U.P. Awaz Evam Vikas Parishad v. Ghan Devi (dead) by L.Rs. and another, etc. (AIR 1995 S.C. 724) such an issue arose in somewhat similar situation and it was observed "Thus, on an interpretation of the provisions of S. 50 (2) of the L.A. Act, it must be concluded that, subject to the limitation contained in the proviso, a local authority for whom land is being acquired has a right to participate in the proceedings for acquisition before the Collector as well as the reference Court and adduce evidence for the purpose of determining the amount of compensation and the said right imposes an obligation on the Collector as well as the reference Court to give a notice to the local authority with regard to the pendency of those proceedings and the date on which the matter of determination of amount of compensation would be taken up. The recognition of this right raises the question whether the local authority, feeling aggrieved by the determination of the amount of compensation by the Collector or the reference Court, can take recourse to any legal remedy." And as per majority, the view expressed was that:--
"1. Section 50 (2) of the L.A. Act confers on a local authority for whom land is being acquired a right to appear in the acquisition proceedings before the Collector and the reference Court and adduce evidence for the purpose of determining the amount of compensation.
"The right given under sub-section (2) of Section 50 is in addition to and not in substituting of or in derogation to all the incidental, logical and consequential rights flowing from the concept of fair and just procedure consistent with the principles of natural justice. The consistent thread that runs through all the decisions of this Court starting from Himalayan Tiles case, (AIR 1980 SC 1118), is that the beneficiary, i.e., local authority or company, a co-op. society registered under the relevant State law, or statutory authority is a person interested to determine just and proper compensation for the acquired land and is an aggrieved person. It flows from it that the beneficiary has the right to be heard by the Collector or the Court. If the compensation is enhanced it is entitled to canvass its correctness by filing an appeal or defend the award of the Collector. If it is not made a party, it is entitled to seek leave of the Court and file the appeal against the enhanced award and decree of the Civil Court under Section 26 or of the judgment and decree under Section 54 or is entitled to file writ petition under Art. 226 and assail its legality or correctness. When the award made under Section 11 of the Collector is vitiated by fraud, collusion or corruption, the beneficiary is entitled to challenge it in the writ petition apart from the settled law that the conduct of the Collector or Civil Judge is amenable to disciplinary enquiry and appropriate action. These are very valuable and salutary rights. Moreover in the language of Order 1 Rule 10 CPC, in the absence, of the beneficiary who ultimately is to bear the higher compensation, no complete and effectual determination of binding just and proper compensation to the acquired land would be made. So it is concomitantly a proper party if not a necessary party to the proceedings under Order 1, Rule 10 CPC. The denial of the right to a person interested is in negation of fair and just procedure offending Art. 14 of the Constitution."
There is a later judgment of the Indian Supreme Court reported as Abdul Rasak and others v. Kerala Water Authority and others (PLJ 2004 S. C. (India) 185), wherein by following the above view it was observed that "the right conferred on the local authority under S. 50(2) of the Land Acquisition Act, in the light of the scheme of the Act, carried with it the right to be given adequate notice by the Collector as well as the reference Court before whom acquisition proceedings are pending of the date on which the matter of determination of compensation will be taken up; the local authority is a proper party in the proceedings before the reference Court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard." The judgment passed by the High Court remanding the matter to the trial Court for decision afresh was maintained. Similar view appear in Rajpipla Municipality v. Smt. Manekben and others (AIR 1981 Gujrat 210), Indian Oil Corporation Ltd., Rajkot v. Amratlal Chimanlal and etc. (AIR 1989 Gujrat 32) and Victoria Xavier and others v. The Greater Cochin Development Authority and another (AIR 1993 Kerala 95).
Though in Hassan Imdad v. Deputy Commissioner/Collector, Lasbella (PLD 1985 Quetta 1) the issue was limited to the provisions of S. 20 of the Land Acquisition Act, 1894 and not S. 22A and S. 50(2), yet the matter was remanded for decision afresh as notice had not been given to the concerned department.
In the instant case the Corporation had applied before the Reference Court to be impleaded as party but the said request was turned down by the Reference Court, on 13.7.1994, on its view that the Corporation was not a necessary party but observed that "if the corporation wants to bring material on record for the purposes of disputed value it can produce the witnesses as well as documents into the Court." The revision petition (C.R.No. 3330/94) filed against that order was dismissed as having become infructuous on 29.3.2002 with an option to agitate the matter in the present appeal, as by then the Reference had been decided and matter was pending in appeal. The judgment of the Reference Court dated 22.10.1999 is subject-matter of appeals filed by both sides i.e. the landowners considering that the compensation has been determined on lower side whereas by the Collector that the enhancement made by the Reference Court was unjustified. It goes without saying that ultimately whatever may be the adequate and reasonable compensation, the burden will be on the applicant/Corporation. We are therefore, of the view that the Corporation was entitled to be impleaded as party and heard in the matter, which affected it. Since the Corporation was not initially served with any notice as contemplated by S. 20 (c) of the Land Acquisition Act, 1894 and had no opportunity of lodging cross-objections, as contemplated by S. 22A and was not allowed to be impleaded/appear and adduce evidence by the Court, despite the provisions of S. 50(2) of the Land Acquisition Act, 1894, the judgment rendered by the Reference Court is liable to be set aside. The Reference Court will proceed to make determination of compensation on the Reference filed by the landowners by keeping in view the above referred principles and affording full opportunity to them accordingly.
Both the appeals are disposed of in the above terms, as also the applications. The parties to appear before the Reference Court on 04.01.2008. Being conscious of the long pendency of the matter, we will direct the Reference Court to conclude the matter, even if it may have to proceed on day to day basis, before 30th June, 2008. No order as to costs.
(MRQ) Appeals disposed of.
PLJ 2008 Lahore 906
Present: Kh. Farooq Saeed, J.
PAKISTAN BAIT-UL-MAL, HEAD OFFICE, ISLAMABAD through its Managing Director--Appellant
versus
UMAR MAHMOOD KASURI & another--Respondents
S.A.O. No. 76 of 2007, decided on 27.2.2008.
Interlocutory Order--
----Powers of rent controller to rectify mistake--Scope of--Inherent power--Held: Order allowing production of evidence was an interlocutory order which could be reviewed. [P. 909] A
1997 SCMR 1986.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VII of 1959)—
----Ss. 13(6) & 15--Second appeal--Ejectment petition was filed by respondent--Terms of non-providing of ammunities--Determination of rent--Amount of rent due from tenant--Power to determine enhancement in rent--Validity--Rent Controller does not have the power to determine enhancement in rent, also is fully covered in lines--Held: Rent Controller would finally determine the amount of rent and judgment referred by respondent with special reference to 2003 SCMR 1479 is direct on the issue. [P. 911] B
West Pakistan Urban Rent Restriction Ordinance, 1959 (VII of 1959)—
----S. 5-A--Automatic increase in rent--Mandatory provision--Non-residential building--Applicability--Where during the tenancy period from the date of agreement to next three years, there is no increase in rent, the addition of 25% is automatic--Section 5 of Ordinance, is applicbale of non-residential building. [P. 911] D
Interpretation of Statute--
----Power of Court--Extent--Scope of--Held: For interpretation of the statute the best method of interpretation is to remain within the language of law and not to extend the meaning by way of interpretation. [P. 911] C
1995 CLC 1933, 2002 CLC 1206, PLJ 2001 SC 209, NLR 1994 Civil Lahore 1 and 1997 SCMR 1986.
Mian Khalid Habib Elahi, Advocate for Appellant.
Mr. Shahryar Bukhari, Advocate for Respondents.
Date of hearing: 30.1.2008.
Judgment
This is second appeal by the appellant against the respondents under Section 15 of the Punjab Urban Rent Restriction Ordinance, 1959, against the judgment dated 7.4.2007 passed by learned Additional District Judge, Lahore. In the above order the judgment of the learned Rent Controller was maintained by holding that the same is as per law, rules and facts of the case.
Brief facts of the case are that the respondents filed an ejectment petition against the appellant on 20.6.2001 in the Court of Senior Civil Judge, Lahore. The respondents inter alia claimed before the said Judge that the petitioner had impaired the utility and value of their property by not properly utilizing the building and facilities as well as damaging the same by not taking good care as was required as a tenant. The petitioner contested the same mostly on the ground that the respondents had not fulfilled the conditions of the agreement. Sudden example in terms of non-providing of ammunities is like sui gas, standby generator, kitchenette and lift were mentioned. The settled rent for the building, however, was Rs. 2,25,000/- per month. On the request of the respondents, the Rent Controller directed the petitioner vide order dated 4.7.2003 to pay Rs. 9,00,000/- which he failed and as a mandatory requirement, his evidence was struck off. In the meantime, the petitioner decided to evacuate respondent's property and hand over the possession to the landlords. As a result, the petitioner claim that he has not been provided amenities as per the agreement between the two of them was not brought to discussion. After receiving the possession as per petitioner's counsel, the respondent should have considered the matter as settled but he continued pursuing the ejectment petition, though, he had already received the possession. The Rent Controller, however, allowed the application of the respondent landlord and vide judgment dated 16.10.2006 inter alia held that the appellant will have to pay rent from the month of January, 2001 to October, 2001 with increased rent @ 25 % of the previous rate. The petitioner challenged the judgment before the Additional District Judge, Lahore, who dismissed the appeal of the petitioner vide judgment dated 7.4.2007.
The petitioner now inter alia has challenged that the lower Court had drawn the conclusion without hearing the petitioner. It has been challenged that the petitioner was not given exact date for filing of the rent, hence his evidence should not have been struck off. Furthermore, that the Rent Controller does not have power to determine the amount of rent and at best what they could do after striking of the evidence is to direct for eviction.
Learned counsel for the petitioner/appellant in support of his claim argued that the Rent Controller has no jurisdiction to review his own order in the manner that firstly he asked the petitioner to produce his evidence and later he refused to entertain the same by striking it off on a request of the respondent. His action to ask the petitioner to produce the evidence and later recalling the order dated 30.4.2005 amounts to review of the order which is not within his jurisdiction. His reliance is on (P.L.D 1981 S.C. 941) (P.L.D 1973 Lahore 95), (1983 C.L.C. 2109), (NLR 1981 Civil 1131), (PLD 1966 Lahore 53) and (PLD 1972 Lahore 603). Learned counsel for the petitioner, however, did not produce the copies of the judgments. In any case the same will be taken up in the later part if required.
The other claim of the learned counsel for the petitioner is that since the Rent Controller has failed to allow the petitioner to adduce the evidence which could have changed the fate of the petition, the order should have been set aside by the learned Additional District Judge, Lahore. His emphasis remained that since it is a case of non-hearing of the petitioner, the two orders below are not lawful hence, should have been set aside.
Learned counsel for the respondent first of all challenged the very petition by saying that before this Court only the question of law arising from the order impugned can be discussed. Since no question of law formally has been proposed and the petition has discussed mostly the questions of fact, the same is liable to be dismissed in limine. In support of his claim he has referred "Haroon Akhtar and 5 others vs. Mst. Khatoon Hadi" (1981 C.L.C 1104) and "Sheikh Atta Muhammad Vs. Mian Muhammad Abdullah and 10 others" (PLD 1971 Lahore 210). In the two judgments the Hon'ble Court has held that the issue must be one which float from the surface of the order. If the question does not arise out of order impugned, it cannot be discussed or disposed of. He added that the claim that the Rent Controller has not given due consideration to the issue is a misconception. He has properly framed issues which were neither contested before the Rent Controller nor before the first appellate authority. Regarding the authority to determine the rent after eviction or the hand over of possession, he said that the new para in Section 13(6) was added in 1960 and same has been dilated in detail in the judgment of the Hon'ble Supreme Court of Pakistan reported as "Mukhtar Vs. The State and another" (2003 S.C.M.R 1479). The Hon'ble Supreme Court in similar circumstances had confirmed the striking of the defence by the Rent Controller. Referring 1974 S.C.M.R. 504 "Syed Akhlaque Hussain Vs. Habib Ismail Bajwa, Advocate" he said that where in a case the petitioner inter alia has challenged the determination of rent, the Rent Controller is bound to finally determine the same and unless the same is finally concluded the petition cannot be considered as disposed. The aforementioned judgment in his opinion is direct on the issue and has subsequently been followed in the cases reported as "Shah Muhammad and 8 others Vs. Additional District Judge I, Bahawalpur and 7 others" (PLD 1990 Lahore 64) and Ghulam Rasool Vs. Said Rasool and others" (PLD 1990 Lahore 457).
Another issue which is a part of his preliminary objection is that in second appeal question of fact cannot be raised. The petitioner had not complied with the direction of the Rent Controller which is his statement of fact is not being denied. The arguments that he was not aware of the cut of date for the payment of the amount is nothing more than a lame excuse. Not only that the law in terms of Section 13(6) is clear with respect thereto, yet the petitioner itself in implied terms have accepted the default. Since it is a statement of fact which in a manner is not being denied, there is no question of now challenging it before this Court. In support of his claim he has referred the case of "Malik Raheed-ur-Rehman Vs. Khyzar Hayat through L.Rs" (2005 C.L.C 1723).
Regarding whether it was a case of recall of the order by the Rent Controller. He produced before this Court copy of the order sheet. The facts regarding the issue are that on 26.11.2004 the Rent Controller passed an order in which the defence of the respondent was struck off. However, by a mistake on 30.4.2005 through another order after recording the petitioner landlords evidence case was fixed for recording evidence of the respondent. It was obviously a mistake as there was already an order which had struck off the evidence of the respondent tenant. This mistake could always be rectified and for carrying out a rectification recalling an order is an inherent power. Moreover, the order through which the learned Rent Controller had allowed production of the evidence was an interlocutory order which could always be reviewed as has been held in various judgments including "Haji Khudai Nazar and another Vs. Haji Abdul Bari" (1997 S.C.M.R. 1986). Further Section 5 provides for increase in fair rent after the three years of the agreement. Section 5-A was inserted by Punjab Amendment Act 3 of 1991, through which the rent of a non-residential building automatically increase by 25 % at the end of every three years.
The facts mentioned in the orders of the Rent Controller as well as learned Additional District Judge are not being disputed by any one. The issues before this Court, therefore, basically are also the same as were before the Rent Controller. The same are as follows:--
Whether the petitioner is entitled to recover the arrears of rent from the respondent from the month of January to October, 2001 at the rate of Rs. 2,81,250/- per month?
Whether the provisions of Section 5(A) of Rent Restriction Ordinance are not applicable this case?
Relief.
So far as the claim of the petitioner that he has not been given the chance to produce his evidence is concerned, it is the petitioner itself who is to be blamed for the same. The action of the Rent Controller to allow the petitioner to adduce his evidence was obviously for providing him an opportunity to support his defence. The settled facts being that during tenancy period the petitioner enjoyed the tenancy rights and used the premises and later vacated is obviously not in-dispute. The claim that the respondents have not provided with the agreed facilities should have separately been contested at earlier stage and the action to challenge the same while defending the ejectment petition as a respondent in itself weakens the claim. This, however, is not a matter under debate before this Court. The failure to deposit the rent under direction of the Rent Controller was liable to an obvious result. The instruction to strike of the defence under Section 13(6) is very clear and rather obligatory in its application. The same speaks as follows:--
"Section 13(6).--In proceedings under the section on the first date of hearing or as soon as possible after that and before issues are framed, the Controller shall direct the tenant to deposit all the rent due from him and also to deposit regularly till the final decision of the case, before the [fifteenth] day of each month, the monthly rent due from him. If there is any dispute about the amount of rent due or the rate of rent, the Collector shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent, his defence shall be struck off and the landlord put into possession of the property without taking any further proceedings in the case. The Controller shall finally determine the amount of rent due from the tenant and direct that the same be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant".
As is clear from the above language, it is not in fact a discretion of the learned Rent Controller. The law says if the tenant "makes default his defence shall be struck off and landlord put in the possession of the property without taking any further proceedings in the case". It is, therefore, not an option for the learned Rent Controller. In the presence of this language, since there was no option, the order dated 30.4.2005 even otherwise was not enforceable. This is a part of the continuation of the same proceedings. The learned Rent Controller directed for production of the evidence which was subject to payment of determined amount of rent. On non-fulfillment of the obligation in terms of default and non-payment, he was legally bound to strike off the defence and was thus obviously obliged to do what he did.
The other argument that he had no power to determine the rent also is baseless. The language of Section 13(6) above further provides that "Controller shall finally determine the amount of rent due from the tenant and direct that the same be paid to the landlord subject to adjustment of approximate amount deposited by the tenant".
Coming back to the other issue that the Rent Controller does not have the power to determine the enhancement in rent, the same also is fully covered in lines mentioned above. Section 13(6) clearly provides that the Rent Controller shall finally determine the amount of rent and the judgment referred by the respondent with special reference to 2003 S.C.M.R. 1479 is direct on the issue. The relevant para of the same is as follows:--
"The second stance of the learned counsel was that the learned Additional District Judge has finally determined the rent due against the petitioner and has almost granted a decree thereof which was without jurisdiction. A new para was inserted at the end of Section 13(6) of the Rent Restriction Ordinance by Section 5(b) of Ordinance XIII of 1960 is as follows:--
"The Controller shall finally determine the amount of rent due from the tenant and direct that the same may be paid to the landlord, subject to adjustment of the approximate amount deposited by the tenant."
This insertion authorizes the Rent Controller to finally determine the amount due from the tenant and it further authorizes him to direct that the same may be paid to the landlord. This is an order under Section 13 of the Ordinance".
However, since the language of the law is very clear and there is no doubt one may not require further references. This is obviously for the reasons that for interpretation of the statute the best method of interpretation is to remain within the language of law and not to extend the meaning by way of interpretation.
Regarding Section 5-A which deals automatic increase in rent, the provision again is mandatory. Where during the tenancy period from the date of agreement to the next three years, there is no increase in rent, the addition of 25 % is automatic. This has been so provided in the aforementioned Section 5-A of the Rent Restriction Ordinance and is applicable in respect of non-residential building. The only exception to this rule is the landlords consent. Otherwise than that this addition is automatic and without any exception. The Rent Controller, therefore, was again by law legally bound to order for the increase on the request of the landlord. In this regard the observation given by the learned Additional District Judge are relevant and direct on the issue. If for any reason one considers that the petitioner has been deprived of the right of being heard, the Rent Controller is governed by Rent Restriction Ordinance, 1959. He may follow the Code of Civil Procedure in conducting his proceedings or may remain within the Ordinance of 1959. However, he is not stopped to evolve his own procedure for disposal of the petition before him. These findings have the support of the judgments reported as "1995 CLC 1933", "2002 C.L.C 1206", "PLJ 2001 SC 209", "NLR 1994 Civil Lahore 1" and "1997 S. C.M.R 1986).
Upshot of the above discussion therefore is obvious. The petitioner was very well entitled to recover the arrears of rent at enhanced rate of Rs. 2,81,250/- per month and that provisions of Section 5(A) of Rent Restriction Ordinance are fully applicable. This appeal is considered of no merit, hence is dismissed.
(M.R.Q) Appeal dismissed.
PLJ 2008 Lahore 912
Present: Muhammad Jehangir Arshad, J.
SYED AHMED--Appellant
versus
SYED MUZAFFAR HUSSAIN (deceased) through his Legal Representatives and another--Respondents
R.S.A. No. 57 of 2002, decided on 26.10.2007.
Contract Act, 1872 (IX of 1872)—
----Ss. 2(a)(b)(c)--Specific Relief Act, (I of 1877), S. 12, Civil Procedure Code, (V of 1908)--S. 100--Valid agreement--Ingredients and requirements--Held: For the constitution of a valid agreement there must be at least two persons i.e. promisee and promisor, who agree with their free consent for a lawful object and legal consideration.
[Pp. 919 & 920] A
1990 SCMR 28, 1995 CLC 707, ref.
Words and Phrases--
----"Agreement" Agreement means offer/proposal by one person and acceptance or willingness to accept by the other and in the absence of either of two i.e. offer and acceptance the same would not ripe into agreement. [P. 920] B
Contract Act, 1872 (IX of 1872)—
----Ss. 2(a)(b)(c) Specific Relief Act, (I of 1877)--S. 12--Civil Procedure Code, (V of 1908) S. 100--Receipt of payment; can be considered as valid agreement in term of law--Held: Neither fulfills the requirement of agreement as defined in S. 2(a)(b)(c) of the Contract Act, nor stand to the test of Law--Further held: It can be construed as an undertaking which cannot be construed equivalent to a contract. [P. 920] C & D
Specific Relief Act, 1877 (I of 1877)---
----S. 12--Contract Act, (IX of 1872), S. 2--Suit for specific performance was dismissed by Courts below--Assailed--No formal document in the form of an agreement to sell was executed and was only receipt as advance--Maintainability--Receipt is being executed in favour of appellant or on receipt of the amount--Held: It cannot be held that receipt is an agreement with contemplation of S. 2 of Contract Act, thus no suit for specific performance could either be filed by appellant nor same was maintainable. [P. 921] E
Contract Act, 1872 (IX of 1872)--
----S. 2(d)--Suit for specific performance was dismissed by trial Court--No formally executed agreement in writing came into existence between the parties, yet the act and conduct of respondents, especially with reference to execution of receipt of cheque and handing over the original sale-deed to appellant issued in favour of respondents though not exhibited can constitute an act on the part of respondents to signify their willingness for entering into valid contract in terms of S. 2(d) of Contract Act--Suit was rightly filed on basis of receipt and the same was maintainable. [P. 921] F
Rana Muhammad Sarwar, Advocate for Appellant.
M/s. Ch. Javed Rasool and Mian Muhammad Athar, Advocates for Respondents.
Dates of hearing: 19.9.2007, 24.9.2007, 1.10.2007 & 2.10.2007.
Judgment
This R.S.A. is directed against the judgment dated 27.6.2002 passed by learned Additional District Judge, Lahore whereby the appeal filed by the appellant against the judgment and decree of the learned trial Court dated 1.10.2001 dismissing his suit for specific performance, was also dismissed.
The facts in brief are that Syed Muzafar Hussain (deceased Respondent No. 1) and his wife Mst. Rati Muzafar are the owners of property Bearing No. 37-E/I measuring 9-kanal 16-marla and 186 sq-feet situated in Gulberg-III, Lahore. The appellant namely Syed Ahmad on the basis of agreement to sell dated 28.10.1974 (Ex.P-1) regarding portion of the said property comprising of plot measuring 1-kanal 5-marla at the rate of Rs. 48,000/- per kanal (fully described in Para-2 of the plaint) filed a suit through plaint dated 5.2.1975 alleging therein that Muzafar Hussain and his wife Rati Muzafar through the said agreement agreed to sell the portion of the above mentioned property measuring 1-kanal 5-marla for a consideration of Rs. 60,000/-. The suit was contested by Muzafar Hussain and his wife, who through their joint written statement denied the agreement and also raised several preliminary objections. Originally, one Azhar Ali son of Ghulam Mohy-ud-din and his daughter Shehla Mohy-ud-din were also impleaded in the suit as Defendants No. 3 and 4 as out of total area of the property, 1-kanal 19-marla and 38-sq.feet areas was admittedly sold to them by Muzafar Hussain and his wife through registered sale deed dated 26.3.1977 registered on 4.4.1977, but subsequently vide order dated 25.12.2001 they were deleted by the learned trial Court from the array of defendants, in view of the findings of this Court dated 13.11.2000 in RSA.No. 97/1998 holding that transaction in favour of Defendants No. 3 and 4 would remain intact and in case the suit of the appellant was ultimately decreed then contract would be enforced against the Property No. 37-E/I Gulberg-III, Lahore excluding the plot sold to Defendants No. 3 and 4.
In view of divergent pleadings of the parties, the learned trial Court framed the following issues:--
ISSUES:
Whether the suit is not maintainable? OPD.
Whether the suit is time barred? OPD.
Whether the suit is barred under Order 2 Rule 2 CPC? OPD.
Whether the plaintiff has got no cause of action as alleged in preliminary Objection No. 5 of the written statement? OPD.
Whether the agreement of sale in respect of the disputed property was entered on 28.6.74 between the plaintiff and Defendants Nos. 1 and 2? OPP.
If Issue No. 5 is proved in affirmative then the plaintiff is entitled to a decree for specific performance? If so what terms and conditions? OPP.
Relief.
After recording oral as well as documentary evidence of the parties, the learned trial Court though found Issue No. 5 in favour of the plaintiff/appellant yet came to the conclusion that he was not entitled to the decree for specific performance and consequently dismissed the suit vide judgment dated 7.3.1988. The appellant filed appeal against the above judgment of the learned trial Court, whereas, respondents/ defendants filed cross objections against the findings of the learned trial Court on certain issues decided against them. However, the learned Additional District Judge vide judgment dated 14.5.1990 allowed the appeal of the appellant and proceeded to decree the suit observing that contract would be enforced against remaining plot excluding the plot sold to Defendants No. 3 and 4. The cross objections filed by the respondents were turned down through the judgment dated 14.5.1990. Against the above mentioned judgment and decree of the learned Additional District Judge, two R.S.As i.e. 97 and 98 of 1990 were filed which were decided by my learned brother Moulvi Anwar ul Haq, J. on 13.11.2002 in the following terms:--
"As a result of above discussion, these RSAs are allowed. The judgments and decrees passed by learned Courts below are set aside. The matter is remanded to the learned trial Court. The parties shall appear before learned Senior Civil Judge, Lahore on 20.12.2000. Learned Senior Civil Judge shall either himself proceed with the suit or entrust it to another competent Civil Judge, who shall in the first instance procure the attendance of the witnesses with requisite record mentioned at Serial No. 1 of the list of witnesses filed by Respondent No. 1 and record their statements. The appellants then shall be given a chance to rebut the said evidence sand thereafter to record findings on Issue No. 5 and 6 and consequently to decide the suit in accordance with law. Before I part with this judgment, I may state here that Mian Nisar as also Rana Sarwar learned counsel for the appellants and Respondent No. 1 did not question the findings of the learned Additional District Judge that the sale made in favour of Respondents No. 2 and 3 appellants shall remain intact and in case the suit of Respondent No. 1 is ultimately decreed then the contract will be enforced against Property No. 37-E/I, Gulberg-III, Lahore excluding the plot sold to Respondents No. 3 and 4. The parties are left to bear their own costs."
After remand by this Court as mentioned above, the learned trial Court recorded additional evidence, which the parties wanted to lead, and ultimately after deciding all the issues against the appellant proceeded to dismiss the suit vide judgment and decree dated 1.10.2001. Appeal filed by the appellant against the above dismissal of his suit, was also dismissed by learned Additional District Judge, Lahore on 27.6.2002. Both the above judgments and decrees of two Courts below are being assailed through the instant R.S.A.
Although in the plaint the appellants/plaintiffs have repeatedly referred the agreement to sell dated 28.10.1974 allegedly executed by Syed Muzafar Hussain deceased Defendant/Respondent No. 1 and his widow Rati Muzafar Hussain Defendant/Respondent No. 2 yet during arguments it transpired that no formal document in the form of an agreement to sell dated 28.10.1974 was in fact executed and it was only a receipt dated 28.6.1974 (Ex.P-1) whereby Muzafar Hussain deceased respondent admitted to have received Rs. 20,000/- as advance for a portion of Plot No. 37-E/I, Gulberg, Lahore. Out of the said amount, ten thousand rupees were stated to have been received through Cheque No. 238445 dated 28.6.1974 and the balance of Rs. 10,000/- in cash, whereas, balance of Rs. 40,000/- was stated to be due on registration. The Cheque mentioned above was later on admitted in evidence as Ex.PW-7/1 through the statement of Munawar Ahmad PW-7 after remand. According to learned counsel for the appellants this cheque was issued in the name of Rati Muzaffar Hussain which was payable through payee's account only and was got encashed through Habib Bank Limited, Gulberg Lahore in the account of Rati Muzafar Hussain.
Learned counsel for the appellants submitted that as Rati Muzafar Hussain in her statement as DW-4 got recorded on 29.5.2000 after remand by this Court, denied the receipt of said Cheque as well as non presence of her account in Habib Bank Limited, Gulberg Lahore, therefore, the appellant made an application before the learned trial Court on 16.3.2001 for summoning the record of Habib Bank Limited through some authorized officer to prove the fact that Rati Muzafar Hussain was in fact holding an account in the said branch and the said cheque was encashed in her favour through her said account but the learned trial Court vide order dated 17.4.2001 illegally dismissed the said application and that the appellant did challenge the said order in ground (f) of memo of appeal before the learned First Appellate Court and the matter was also argued but the learned First Appellate Court recorded no findings on the said point in the impugned judgment, resulting in miscarriage of justice. Learned counsel for the appellants, therefore, submitted that the prayer of the appellants for summoning the record of Habib Bank Limited, Gulberg Lahore was essential for the correct decision of the suit, therefore, the said prayer should have been acceded to and the authorized officer of the Habib Bank Limited should have been summoned along with record to make a statement whether Rati Muzafar Hussain was in fact holding any account in the said Branch and the cheque mentioned above was encashed in her favour and credited to her said account and by not recording any findings on the said point, the learned First Appellate Court has acted illegally and with material irregularity, therefore, this Court in exercise of its jurisdiction under Order 41 Rule 27 C.P.C. should allow the prayer of the appellant. The contention of learned counsel that the learned trial Court dismissed the application of the appellants on wrong premises and no embargo was put on the powers of the learned trial Court by this Court through its remand order regarding recording of any additional evidence, which was essential for the correct decision of the case and to support his contention the learned counsel has placed reliance on the provisions of Order 18 Rule 2 (Explanation-I) CPC, as inserted by Lahore High Court Amendment. The learned counsel has also argued that summoning of official witnesses not incorporated in the list of witnesses is no bar and the Court can examine any witness at any stage, if the Court finds the examination of such witness essential for the correct decision of the case. The learned counsel in support of his contention has placed reliance on the case "GHULAM ZOHRA and 8 others versus NAZAR HUSSAIN through Legal Heirs" (2007 SCMR 1117), 1990 CLC 1877 and 1995 CLC 327).
On the contrary, learned counsel for the respondents has argued that although appellants' application for summoning the record of the Bank was dismissed by the learned trial Court yet the said order was never challenged. Similarly, although in para (f) of memorandum of appeal before the First Appellate Court, the order of the trial Court was challenged but neither the record indicates nor any affidavit by the learned counsel for the appellants has been placed on the record to show that said plea was in fact argued or even pressed before the First Appellate Court, therefore, the same could not be entertained at this belated stage.
On merits, learned counsel for the appellants has argued that from the evidence of Mehmood Ahmad PW-1, Nasir-ud-Din PW-2 and Munawar Ahmad PW-7, the document Ex.P-1 is proved beyond any shadow of doubt and further Muzaffar Hussain in his evidence as DW-1 also admitted the execution of receipt Ex.P-1, therefore, the two Courts below acted illegally and with material irregularity by non-suiting the appellants while deciding Issues No. 5 and 6 against him. The learned counsel has finally argued that since Muzaffar Hussain deceased respondent in his evidence has admitted the receipt of cheque and its encashment, therefore, presumption in terms of Section 118 of the Negotiable Instrument Act arose in favour of the appellants that the cheque was for valuable consideration and the onus had now shifted on the respondents to prove that the same was without consideration. Learned counsel has also relied on the Provisions of Section 123-A of the Negotiable Instrument Act to argue that a cross cheque payable through account ceases to be a negotiable instrument and can only be paid through account of the Payee, therefore, it cannot be said that the said cheque was encashed through the account of some one other then Rati Muzaffar Hussain. Lastly, it is argued that although there existed no formal agreement between the parties yet the mere absence of formally signed contract would not disentitle the appellant from seeking specific performance of the same, if existence of such contract is otherwise supported by actual conduct of the parties coupled with the surrounding facts. The learned counsel has placed reliance on the case "Alexander Brogden and others versus The Directors, & C, of the Metropolitan Railway Company" (2 AC 666 year 1877).
On the other hand, learned counsel for the respondents has argued that in fact there was no agreement to sell ever entered into between the parties and that receipt Ex.P-1 under no provision of law or stretch of imagination can be considered as an agreement within the meaning of Section 2(b) of the Contract Act, 1872. Since only an agreement can be enforced by a suit for specific performance, therefore, the two Courts below rightly non-suited the appellants by dismissing the suit as well as appeal. To show what constitutes an agreement enforcible by a suit for specific performance, learned counsel has placed reliance on the case "Mst. Barkat Bibi and others versus Muhammad Rafique and others" (1990 SCMR 28) and "Mehran Sugar Mills Limited Versus Sindh Sugar Corporation Limited through Chairman and 2 others" (1995 CLC 707). The learned counsel has argued that the appellant/plaintiff had to prove his case on the basis of his own evidence and under no provision the plaintiff could succeed on the weaknesses of respondents' evidence, as pointed out by learned counsel for the appellant in the statement of Muzaffar Hussain respondent/appellant. In this behalf, the learned counsel has placed reliance on the case "Major (Retd) Syed Baqar Hussain Shah versus Mst. Rashida Begum" (1992 MLD 2515). Further argued that on the basis of mere receipt Ex.P-1 the appellant has not been able to establish the existence of a valid agreement to sell between the parties. Lastly, the learned counsel for the respondents has argued that this Court should be slow in disturbing the concurrent findings of two Courts below while exercising jurisdiction under Sections 100 and 101 CPC. Reliance is placed on the case "Fazal Rahman versus Amir Haider and others" (1986 SCMR 1814) and "Amjad Sharif Qazi and others versus Salim Ullah Faridi and others" (PLD 2006 S. C. 777).
The above noted arguments of learned counsel for the parties have been thoroughly considered and examined in the light of the material available on the record as well as the case law referred to above.
The decision of this R.S.A. rests upon the resolution of following important points:--
(I) Whether the receipt Ex.P-1 constitutes an agreement within the meaning of Section 2 of the Contract Act, 1872 for the purposes of specific performance; and
(II) Whether the receipt Ex.P-1 has been proved for consideration, if so its effect.
"Mere signing of memorandum of understanding could not be termed as a valid agreement in the eyes of law and unless an agreement was finalized no legal or valid right would accrue to the plaintiff on the basis of memorandum of understanding."
I am, therefore, satisfied that receipt Ex.P-1 neither fulfils the requirements of agreement as defined in Section 2(a)(b) and (c) of the Contract Act, nor stand to the test of law as declared by the Hon'ble Supreme Court as well as Sindh High Court in the cited judgments and the same may in maximum be construed as an undertaking which cannot be construed equivalent to a contract. Moreover, Ex.P-1 neither discloses the full description of the parties nor the terms and conditions of the agreement. Further it appears that words "approx 1 kanal-5 marla" were added later on with a different pen and ink. Similarly, the words "balance Rs. 40,000/- and Rs. 48,000/- PK is due on registration" also appear to have been inserted afterwards. Further the question arose as to whether on the basis of Ex.P-1 the defendants/respondents or even Muzaffar Hussain alone deceased respondent could file similar suit against the appellant, when the same does not disclose that the receipt is being executed in favour of the appellant or on receipt of the amount mentioned therein from the appellant. On the above analysis of Ex.P-1 it cannot be held that receipt Ex.P-1 is an agreement within the contemplation of Section 2 of the Contract Act, thus no suit for specific performance could either be filed by the appellant nor the same was maintainable at all.
Although, learned counsel for the appellant by placing reliance on some judgment from House of Lords in the case "Alexander Brogden and others versus The Directors, & C, of The Metropolitan Railway Company" (2 AC 666 year 1877) has argued that although no formally executed agreement in writing came into existence between the parties yet the act and conduct of respondents, especially with reference to the execution of Ex.P-1, receipt of cheque and also handing over the original sale-deed to the appellants issued in favour respondents by L.D.A., though not exhibited, can constitute an act on the part of the respondents to signify their willingness for entering into a valid contract in terms of Section 2(d) of the Contract Act, 1872, therefore, the suit was rightly filed on the basis of receipt Ex.P-1 and the same was maintainable. However, I am not convinced with this contention of learned counsel for the appellant for the simple reason that judgment of House of Lords relied upon by learned counsel for the appellants, is based on a general principle of contract as in vogue in England at the relevant time and such law cannot over ride the statutory provisions of the Contract Act, mentioned above. Further the facts of said judgment of Houser of Lords are distinguishable, inasmuch as, in the said judgment, parties to the contract not only gave their mental assent but also physically acted upon the terms and conditions of the same, whereas, in the present case, neither one of the vendors namely Rati Muzaffar ever signed Ex.P-1 nor both the vendors signified their assent to constitute a legal promise within the meaning of Section 2(b) of the Contract Act, therefore, the above mentioned contention of learned counsel for the appellant cannot be graced with legal sanctity.
So for as the second point with regard to the execution of receipt Ex.P-1 and its being with consideration, is concerned, there is considerable force in the contention of learned counsel for the appellant that the same did stand proved by implication through the statement of Muzaffar Hussain as DW-1. The learned counsel for the appellant has taken the Court through the said statement of Muzaffar Hussain to show that his statement is full with contradictions on the question of receipt of cheque at the time of execution of Ex.P-1, especially when Muzaffar Hussain DW-1 in his statement has admitted that at the first instance some negotiations with regard to the property in dispute took place between him and the appellant but later on the transaction could not materialize and the negotiations broke out. Further, the learned counsel for the appellant has also taken me through the following portions of statement of Muzaffar Hussain DW-1:--
The learned counsel for the appellant has also referred to the evidence/statement of Munawar Hussain PW-7 who is employee (GRADE-III Officer) of United Bank Limited and the said witness in his statement proved the encashment of Cheque No. 238446 (Ex.P-W.7/1) dated 6.7.1974 in favour of Rati Muzaffar Hussain through her account maintained in Habib Bank Limited, Gulberg Branch, Lahore. The contention of learned counsel for the appellant is that since the said cheque was payable with an endorsement "Payee's account only", therefore, the same ceases to be negotiable in terms of Section 123-A of the Negotiable Instrument Act, and could only be paid to the payee named in the cheque through his/her account and since except oral assertion by Mst. Rati Muzaffar no evidence has been produced by her to prove that she was not maintaining any account in Habib Bank Limited, Gulberg Branch, Lahore, hence the evidence of PW-7 supported by bank record must be given due weight to hold that amount of said cheque was received by Rati Muzaffar through her account in view of the presumption raised by Section 118 of the Negotiable Instrument Act and the payment to her through the cheque be construed as part of consideration under the agreement through Ex.P-1. Learned counsel for the appellant has also argued that as execution of Ex.P-1 has been successfully proved by the appellant through the evidence of PW-1 Mehmood Ahmad as well as the above referred portions of statement of Muzaffar Hussain DW-1 and in the absence of any satisfactory rebuttal by the respondents with regard to the receipt of Rs. 10,000/- in cash at the time of execution of Ex.P-1, the amount of Rs. 10,000/- paid in cash under Ex.P-1 be also construed as a part of sale consideration for agreement to sell.
On the other hand, learned counsel for the respondents has strenuously argued that it is the appellant who had to prove his case and cannot succeed on the weaknesses of evidence of the respondents and the appellant was required to produce most satisfactory evidence in support of the oral agreement claimed by him. The learned counsel for the respondents further contends that a heavy burden lay on the appellant to prove his case without reasonable doubt and that the presumption under Section 118 of the Negotiable Instrument Act arise only when some document is admitted or proved through legal evidence. Learned counsel in support of his contention has placed reliance on the case "1992 MLD 2515", "2002 MLD 1901", "PLD 1981 Kar. 170" and "2003 YLR 1866".
After careful consideration of the above noted argument of learned counsel for the parties as well as perusal of the evidence, I am inclined to agree with the contentions of learned counsel for the appellant that the appellant has succeeded in proving the execution of Ex.P-1 as receipt and not as an agreement and also passing on of the consideration of Rs. 20,000/- to the respondents viz. Rs. 10,000/- in cash to Muzaffar Hussain respondent at the time of execution of receipt Ex.P-1 on 28.6.1974 and also receipt of Rs. 10,000/- by Rati Muzaffar Hussain respondent/ defendant through cheque Ex. PW. 7/1, especially when through the evidence of PW-7, payment of amount under the said cheque to Rati Muzaffar carrying endorsement "Payee's account only" through her account at Habib Bank Limited, Gulberg Branch, Lahore and her mere denial cannot negate the abovementioned documentary evidence of the appellant nor the provisions of law as contained in Section 123-A of the Negotiable Instrument Act baring payment of any amount under the cheque with endorsement "payee's account only", to a person other than the one named in the cheque. This answers Point No. 2 as noted in Para-10 above. In view of the above conclusion no order is called for on the application filed by the appellant before the trial Court regarding summoning of record of Habib Bank Limited, Gulberg Branch, Lahore for the verification of the existence of account in the name of Rati Muzaffar Hussain. The respondents have been utilizing the amount of Rs. 20,000/- since 1974 so received by them from the appellant, therefore, it is held that appellant is entitled to recover
Rs. 20,000/- along with its profit which have been earned by him by use of the said amount for the period 1974 till date. There is no denying the fact that since 1974 till date due to speedy inflation the value of the currency has gone down several times as compared to the price of immovable property touching the sky. It would, therefore, be most appropriate rather in the interest of justice to direct the respondents to return the said amount of Rs. 20,000/- by multiplying it twenty times coming to Rs. 4,00,000/-, which still to me is much less than the present market value of the property in dispute.
RELIEF
(I) The judgments of two Courts below, one of the learned trial Court dismissing the suit of the appellant for specific performance of agreement and the second by the learned Additional District Judge dismissing the appeal of the appellant against the above judgment of the trial Court, are upheld.
(II) The suit filed by the appellant for specific performance of agreement is converted into one suit for return of Rs. 20,000/- and the same is decreed in. the sum of Rs. 4,00,000/- in favour of the appellant and against the respondents, as held above.
(III) The respondents shall deposit the said amount with the learned trial Court till 15.12.2007, failing which the appellant shall be entitled to recover the said amount by way of filing execution proceedings and in such an eventuality the executing Court shall be free to recover this amount from the respondents and to pay the same to the appellant through sale of portion of the disputed property through auction; and
(IV) Till payment of the abovementioned decretal amount of Rs. 4,00,000/- to the appellant, the property in dispute shall not be alienated by the respondents to any person in any manner.
The decree sheet be prepared accordingly and the record along with decree sheet be returned to the trial Court.
(W.I.B.) Order accordingly.
PLJ 2008 Lahore 925
[Bahawalpur Bench, Bahawalpur]
Present: Saghir Ahmad, J.
ALLAH WASAYA and another--Petitioners
versus
SECRETARY IRRIGATION AND POWER, GOVERNMENT OF PUNJAB, LAHORE and 3 others--Respondents
W.P. No. 1379 of 2008, decided on 6.6.2008.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Request for sanction of lift pump was turned down by Secretary Irrigation and Power--Assailed--Contention--Normal source of irrigation was not sufficient enough to irrigate lands of the petitioners--High Court had ordered to decide matter strictly in accordance with law--Discretion lied with respondent to act within ambit of law--Point of indiscrimination does not lean in favour of the petitioner--Validity--If petitioners were allowed to install lift pumps to carry canal water to their lands, the other formers irrigating their lands at tail of the canal, must certainly be discriminated--High Court in exercise of its constitutional jurisdiction is to strike balance when the petitioners before High Court have not been able to show infringement of any of fundamentally recognized and enforceable right--Held: While turning down the request of the petitioners for sanction of lift pump no irregularity has been committed by Secretary Irrigation and Power--Petitioners cannot be given preferential treatment qua the other falling on the tail--Petition was dismissed in limine.
[P. 927] A & B
PLJ 2007 SC 72 & 1999 SCMR 467, rel.
Mr. Muhammad Hussain Khan, Advocate for Petitioners.
Date of hearing: 6.6.2008.
Order
Through the instant constitutional petition, the petitioners have assailed the order dated 31.5.2008 passed by Respondent No. 1/Secretary, Irrigation and Power, Government of Punjab, Lahore, turning down the request of the petitioners for sanction of lift pump at Bahawal Canal. The contention of learned counsel for the petitioners is that once the Chief Minister being the head of Provincial Government having approved the case of the petitioners in relaxation of ban, it was not open for the respondent to have refused the sanction of lift pump. Further argument of learned counsel for the petitioners is that some other similarly placed persons have been sanctioned lift pumps, thus the petitioners could not be discriminated against. The last contention of the learned counsel is that normal source of irrigation is not sufficient enough to irrigate the lands of the petitioners.
Heard. Record perused.
As regards the argument of learned counsel to the effect that this Court itself had ordered the Secretary Irrigation on 26.3.2008 to decide the matter strictly in accordance with law in the light of order of the Chief Minister dated 20.07.2007, is concerned, that was only a tentative order and the discretion ultimately lied with the respondent to act within the ambit of law and the said respondent having finally decided the matter, the mandate of this Court's earlier order was sufficiently fulfilled and, this Court cannot attach any disobedience of the said order by the Secretary Irrigation. So far as the ground of discrimination is concerned, the petitioner is seeking reference from the letters issued way back in the year 1995-96, whereas, the ban was imposed by the Government vide Letter No. SO(Rev)18-7/78(P-IV) dated 30.08.1997, as such the point of indiscrimination does not lean in favour of the petitioner. On the contrary, if the petitioners are allowed to install lift pumps to carry canal water to their lands, the other farmers irrigating their lands at the tail of the said canal, must certainly be discriminated. This Court in exercise of its constitutional jurisdiction is to strike balance, especially when the petitioners before this Court have not been able to show infringement of any of their fundamentally recognized and enforceable right. Reliance is placed in the case reported in P.L.J 2007 S.C. 72. Even otherwise, this Court in a Civil Revision No. 221/2007 titled "Abid Mahmood, etc. versus Additional District Judge, Bahawalpur, etc" has held that Chief Minister has no authority under the law to pass/approve or sanction the installation of lift pump. It is only the Canal authorities concerned who are competent to pass such an approval/permission for installation of a lift pump. Further, in the said case even the lift pumps already installed were declared to be illegal and without lawful authority. In these circumstances, I am of the considered view that while turning down the request of the petitioners for sanction of the lift pump no irregularity has been committed by Respondent No. 1. The petitioners cannot be given preferential treatment qua the others falling on the tail.
Further this Court has also been able to lay hands on a letter Bearing No. SO(Rev) (I&P)/18-7/78(P.IV) dated 30.08.1997 issued from the office of Secretary to the Government of Punjab, Irrigation and Power Department Lahore to the Chief Engineer, Irrigation Bahawalpur and others, the relevant portion of the said letter is reproduced herein:--
"The Chief Minister, Punjab has taken serious notice of the tail shortage and has desired that concessional shoots in the form of reclamation should be disconnected forthwith.
In deference to the above and in order to improve water supply at the tails, no reclamation supplies be sanctioned.
Besides, additional water for garden should not be allowed on problematic channels. Direct outlets from main canals/branches have already been disallowed to avoid mishaps."
I note that so many writ petitions, as the one in hand are being filed at this Bench claiming point of discrimination qua the others, who were permitted the installation of Lift Pumps from the main canal, and they continue to avail the said facility even today. This being the alarming situation, it not only amounts to insubordination on the part of Irrigation authorities, but at the same it is flagrant violation of Article 25 of the Constitution of Islamic Republic of Pakistan ensuring equality of citizens before law. The Hon'ble Supreme Court of Pakistan in the case "Nizamuddin and another versus Civil Aviation Authority and 2 others" (1999 SCMR 467), laid down:
"Government is not supposed to discriminate between the citizens and its functionaries cannot be allowed to exercise discretion at their whims, sweet-will or as they please; rather they are bound to act fairly, evenly and justly."
In view of the above reference from a judgment of the apex Court, coupled with the fact that this Court is also the custodian of the Constitution, therefore, cannot remain oblivion of the surrounding circumstances and must ensure equality. Resultantly, the office is directed to send a copy of this order to the Chief Secretary, Government of Punjab who shall ensure that above referred/quoted letter is implemented in letter and spirit; the cases where Lift Pumps have already been sanctioned and are in continuous use must be re-examined in the wake of said letter and for future a uniform policy must be adopted in the affairs of installation or disconnection of the Lift Pumps, so that all the concerned are meted out equal treatment without there being any discrimination, further ensuring that the rights of persons falling at tails of respective canals are not infringed in any manner whatsoever.
(R.A.) Petition dismissed.
PLJ 2008 Lahore 928
Present: Ali Akbar Qureshi, J.
ALLAH YAR and others--Petitioners
versus
MAHLA (deceased) through L.Rs. and others--Respondents
C.R. No. 96 of 1998, decided on 18.3.2008.
Limitation Act, 1908 (IX of 1908)—
----S. 148--Suit for redemption of mortgaged property--Limitation for redemption of land as 60 years--Decreed by trial Court--Question of limitation--Held: Question of limitation falling for determination in present case is that limitation as specified in Section 148 of the limitation Act, is 60 years, and the same is to be started when right of redemption or re-possession of the property accrues in present case--Revision allowed. [P. 932] A
Mr. M. Farooq Qureshi Chishti, Advocate for Petitioners.
Mr. Muhammad Hanif Malik, Advocate for Respondents.
Date of hearing: 18.3.2008.
Order
This order shall dispose of Civil Revision 96 of 1998 filed by petitioners to assail the validity of order dated 5.12.1997 by means of which, a learned Additional District Judge Chiniot by accepting the appeal of the respondents herein, set aside the impugned judgment and decree of Civil Judge Chiniot dated 11.12.1995 decreeing plaintiffs/ respondents suit with reference to redemption of suit land.
Relevant facts of the case are that on 21.3.1991, petitioners/plaintiffs instituted a suit against the respondents/ defendants seeking decree for redemption of the mortgage with regard to land measuring 173 Kanal 9 Marla in Khata No. 53 situated in Mauza Bodhranwala Tehsil Chiniot. It further transpires that Pira son of Boota was owner of said land had two wives namely Mst. Satto and Mst. Bhamo. He died issueless and after his demise, said property stood transferred to his above referred wives in equal share under the customary law as the limited owners. Eventually, Mst. Satto one of the widows mortgaged her share in favor of her son-in-law namely Muhammad son of Raja for a consideration of Rs. 600/-. Likewise, Mst. Bhamo the other widow of deceased Pira too mortgaged her share in the property in favour of her brothers namely Nawab and Jalal and in this regard, Mutation No. 52 dated 25.9.1921 was sanctioned for Rs. 700/-. And on the demise of Mst. Satto, her share in the suit property also stood transferred to Mst. Bhamo vide Mutation No. 35 dated 6.8.1934 who became the limited owner of the entire estate left by her late husband Pira.
It was the case of the petitioners/plaintiffs that in the year 1964 in the wake of demise of Mst. Bhamo, the entire suit land stood reverted to the legal heirs of Pira deceased, and in this context, mutation of Inheritance No. 147 was sanctioned on 5.10.1964.
Through the civil suit which was filed on 21.3.1991, the plaintiffs challenged Mutation No. 45 dated 9.1.1920 and mutation 52 dated 22.9.1921 on the ground that since they are owners of the suit property through inheritance, therefore, same be redeemed in their favour and other owners and expressed their willingness to repay the mortgage money of Rs. 1300/- collectively in Court to the mortgagees.
Suit was contested by respondents 1 to 9 by filing their written statement and raising preliminary objection by specifically contending that the suit was hopelessly barred by limitation.
Pursuant to divergent pleadings of the parties, learned Judge seized of the lis framed as many as 10 issues, and consequently, both the parties adduced their respective evidence thereon, and on detail scrutiny and evaluation of evidence of the parties, decreed the suit in favour of plaintiffs/petitioners with the consequence that mortgaged property was redeemed subject to deposit of mortgage money amounting to Rs. 1300/- within one month. In the event of failure to comply with said order, the suit was to be deemed dismissed. And in terms of averments in the plaint, rights of legal heirs of Pira stood determined by the revenue authorities in Mutation No. 147 dated 5.10.1964 and in dictates thereof, legal heirs of Pira will get their shares and revenue authorities will correct their record accordingly.
Respondents/defendants being aggrieved of the judgment and decree of the trial Court filed an appeal and the learned Judge of the First Appellate Court, as stated ibid, accepted the appeal vide the judgment impugned, subject matter of the instant civil revision. It may be noticed that respondents 6 to 15 were already proceeded ex parte by this Court vide order dated 3.4.2004.
Mr. M. Farooq Qureshi Chishti Advocate for the petitioners vehemently asserted that the property in question was mortgaged by two widows of Pira namely Mst. Satto for 20 years in the year vide Mutation No. 45 dated 9.1.1920 and Mst. Bhammu mortgaged her property for 22 years in the year 1921 vide Mutation No. 52 dated 22.9.1921 respectively. Learned trial Judge for resolution of the limitation of 60 years concluded that limitation would commence from years 1920 and 1921 respectively. And that period of 60 years had elapsed since the property was mortgaged by the widows of Pira deceased, and thereafter, inheritance was entered in favour of the petitioners/plaintiffs, but they did not initiate any proceedings of redemption within the stipulated period in law i.e, 60 years. The learned Judge recorded his finding while dealing with Issue No. 5 with reference to limitation for filing the suit of redemption of the mortgaged property by holding that limitation for initiating proceedings for redemption of the mortgaged property under Section 148 of the Limitation Act was to be started after completion of the mortgage period 1940 and 1943 respectively, whereas, the suit was filed in 1991, therefore, the same is held to have been filed within the stipulated period of time as provided by law, so they stood precluded from claiming themselves to be the owners of the disputed property. Learned counsel further contends that it was clearly mentioned in the said mutations that both the mortgagors will not redeem the property before the period stipulated in the said mutation, hence the petitioners were unable to initiate any remedy.
On the question of limitation, it was contended by the learned counsel for the petitioner that as the mutations of mortgage were entered on 9.1.1920 and 25.9.1921, respectively, whereas, the suit for redemption of said property was filed on 21.3.1991, which is well within time, as the limitation provided for said proposition has been defined in Section 148 of the Limitation Act unambiguously 60 years. For facility of reference, it reads as under:
Part X sixty years-Contd.
redeem or to recover years redeem or to
possession of immovable recover possession
property mortgaged. accrues: Provided
that all claims to
redeem arising
under instruments
of mortgaged of
immovable property
in Lower Burma
which had been
executed before the
first day of May, 1863, shall be
governed by the
rules of limitation in
force in that
Province
immediately before
the same day.
Learned counsel interpreted the said provision of law by contending that limitation would start from the date of redeeming the property and not from the date when the mortgage deed was executed, so the suit filed for redemption of said mortgage of the plaintiffs/petitioners is well within time, and the finding of the learned Judge of the First Appellate Court are not only erroneous but in contravention of Section 148 of the Limitation Act, reproduced herein above. Reliance is placed on 1984 CLC 309.
Conversely, learned counsel for the respondents contented that description of the property as given in the suit is incorrect and an objection was raised by filing the written statement. When questioned whether any effort was made by respondents to place on record any document or to rebut the contentions raised by plaintiffs/petitioners with reference to the description of the property, learned counsel for the respondents replied in the negative. As regards application and interpretation of Section 148 of the Limitation Act ibid stipulating the limitation for redemption of mortgaged property as 60 years, learned counsel has expressed his inability to controvert the settled proposition of law.
The crucial question of limitation falling for determination in this case is that limitation as specified in Section 148 of the Limitation Act is 60 years, and the same is to be started when right of redemption or re-possession of the property accrues in this case. Admittedly, property was mortgaged way back in the years 1920 and 1921 respectively, whereas, suit for redemption thereof was filed on 21.3.1991 which on the face of it is well within time.
For the foregoing facts, circumstances and reasons, I am of the considered view that it is a fit case for interference and invalidation of the judgment and decree impugned. Thus, by accepting this petition, I set aside the judgment and decree impugned dated 5.12.1997 and restore that of the trial Court dated 11.12.1995 with the consequence that suit of the plaintiffs/petitioners shall stand decreed in the terms incorporated therein.
(M.A.K.Z.) Petition accepted.
PLJ 2008 Lahore 932
[Rawalpindi Bench Rawalpindi]
Present: Kazim Ali Malik, J.
Mst. RIFFAT SHAHEEN--Petitioner
versus
DISTRICT PUBLIC SAFETY COMMISSION RAWALPINDI through its Chairman and 4 others--Respondents
W.P. No. 1342 of 2005, heard on 1.4.2008.
Police Order, 2002—
----Arts. 37 & 44(i)--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Cancellation of criminal case under investigation--Beyond of jurisdiction--Efficacious remedy to challenge order--Accused made an application before Distt. Public Safety Commission--Correctness of allegation set up in FIR--Public safety--Commission directed investigating agency to cancel the case--Challenged the order of commission through constitutional petition direction to take legal action against delinquent police officer--Validity--Upon the Police Order, 2002 no forum has been provided to challenge or assail the order of commission--Held: Excepting Constitutional petition no other appropriate, alternate and efficacious remedy to challenge the order of commission is available to petitioner--Further held: Commission passed an order beyond its sphere allotted by law and it is a fit case for exercise of constitutional jurisdiction in order to keep the functionaries of government within their limited scope--Petition was accepted. [P. 935] A
Mr. Munir Ahmad Kiyani, Advocate for Petitioner.
Syed Shahid Hussain Kazmi, AAG for Respondents.
Mr. Muhammad Saeed Akhtar Raja, Advocate for Respondent 4.
Date of hearing: 1.4.2008.
Judgment
Mst. Rifat Shaheen, petitioner got registered a case FIR No. 543 dated 30.10.2004 under Sections 337-F(v)/452/420/406/506 PPC read with Section 34 of the same Code at Police Station, Gujar Khan against Raja Muhammad Binaras and Waheed Altaf, respondents.
During the course of investigation Raja Muhammad Binaras, respondent/accused, made an application before the District Public Safety Commission, Rawalpindi (hereinafter to be called the Commission) and called in question the correctness of allegation set up in the FIR. The Fact Finding Commission came to the conclusion that the FIR was based on false information and the machinery of law had been moved against the accused dishonestly. The Commission also directed the Investigating Agency to cancel the case and report compliance within a period of fortnight. Mst. Rifat Shaheen, complainant of the case challenged the above said order of the Commission through this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on the ground that it was beyond the jurisdiction of the Commission to issue an order for cancellation of a criminal case under investigation.
The respondents/accused persons supported the direction/order of the Commission with the plea that the complainant had got registered a false case and that it was within the jurisdiction of the Commission to prepare facts finding report.
I have heard the learned counsel for parties and have gone through the record.
Article 37 of the Police Order, 2002 deals with the establishment of District Public Safety and Police Complaints Commission in every district. Powers and functions of the Commission have been given in Article 44 ibid. Clause (k) to Article 44(i) was invoked by the respondents/accused person by making a complaint in writing before the Commission. When asked during the course of arguments from which provisions of law the Commission derived authority to issue a direction to the Investigating Agency for cancellation of a criminal case, the learned counsel for the accused persons placed reliance on clause (m)(ii)(iii) of the said Article. For facility of reference the above said provisions are reproduced below verbatim--
"(ii) conduct a fact finding inquiry on its own by two or more of its members or through an officer serving in the District, not below the rank of Basic Pay Scale 18 and, in case the complaint is found correct, sent the inquiry report to the Head of District Police and direct him to take legal action against the delinquent Police Officer;
(iii) report the matter to the Provincial Government through the Provincial Public Safety and Police Complaints Commission for action under the appropriate law where the Head of District Police does not submit a report or take action on the direction given by the District Public Safety and Police Complaints Commission."
A bare perusal of the above said provisions of law would show that after having received the fact finding inquiry report the Commission was required to forward the same to the Head of District Police with a direction to take legal action against the delinquent Police Officer. In case no action is taken as proposed by the Commission then the matter is to be reported to the Provincial Government through the Provincial Public Safety and Police Complaints Commission for action under the appropriate law. It is no where provided in the Police Order, 2002 or the Cr. P. C. or any other law touching the subject of investigation of criminal cases, which may authorize or empower the Commission to direct the Investigating Agency to cancel the case.
When confronted with the above said provisions of the Police Order, 2002 and the impugned direction of the Commission, the learned Law Officer very rightly and frankly conceded that the impugned order/direction of the Commission was beyond their allotted sphere.
For the sake of arguments if it is admitted that the Investigating Officer seized of the investigation of the case in question mis-conducted or failed to investigate the case on facts, a direction should have been issued to the Head of District Police for a legal action against him. In the case in hand the Commission assumed the role of Investigating Officer rather encroached upon the functions of the Investigator, DSPO and the Head of Investigation. The Commission has no authority to direct the Investigating Agency to cancel a criminal case under investigation.
The learned counsel for respondents/accused persons unsuccessfully attempted to support the impugned order of the Commission but could not quote any provision of law in support of the contention.
Under the Police Order, 2002 no forum has been provided to challenge or assail the order of the Commission. The complainant is right in his assertion that excepting Constitutional Petition no other appropriate, alternate and efficacious remedy to challenge the order of the Commission is available to her. At the cost of repetition I would say that the Commission passed an order beyond its sphere allotted by law and, therefore, it is a fit case for exercise of Constitutional Jurisdiction in order to keep the functionaries of the Government within their limited scope.
For what has been stated above, I accept this petition and set aside the direction of the Commission under challenge with a direction to the Investigating Agency to conclude the investigation on facts in accordance with law without being influenced by the impugned direction.
(R.A.) Petition accepted.
PLJ 2008 Lahore 935
Present: Muhammad Jehangir Arshad, J.
MUHAMMAD NAWAZ--Petitioner
versus
Mst. ALLAH WASAI alias SWAI--Respondent
C.R. No. 1882 of 2007, decided on 1.11.2007.
West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (V of 1962)—
----S. 2(A) [amended Ordinance (XIII of 1983)]--Civil Procedure Code, (V of 1908) 115--Addition of Section 2(A)--Effect of--Suit was filed when Ordinance 1983, had been enforced--Validity--All the customary rights were abolished and Shariat was declared as rule of inheritance and further any suit, appeal pending on the said date seeking enforcement of custom as a rule of inheritance was abated forthwith.
[P. 937] A
PLD 1985 SC 407, ref.
Hafiz Khalil Ahmad, Advocate for Petitioner.
Date of hearing: 1.11.2007.
Order
This civil revision is directed against the judgment dated 14.12.2006 passed by learned Additional District Judge-I, Bhakar whereby the appeal filed by the petitioner against the dismissal of his suit by the learned trial Court through judgment and decree dated 13.12.2005, was also dismissed.
(i) 1/8th share in favour of Mst. Bhako as widow;
(ii) 1/8th share in favour of Mst. Allah Wasai as daughter/sharer; and
(iii) 3/8 sharer in favour of Muhammad Nawaz being the collateral.
Against the above mentioned judgment and decree of the learned trial Court, two appeals were filed, one by Muhammad Nawaz and the other by Mst. Allah Wasai. In his appeal Muhammad Nawaz sought decree with regard to the entire property in his favour, whereas, Mst. Allah Wasai challenged the decree of the learned trial Court on the ground of her being owner of the entire property left by Muhammad deceased as his daughter under the custom. Both the appeals were heard by learned Additional District Judge who vide consolidated judgment dated 14.12.2006 dismissed both the appeals, hence, this civil revision.
It has been argued by learned counsel that as the parties at the time of death of Muhammad, the original owner, were governed by custom, according to which daughters were only entitled to retain the property till their marriage or death and that as Mst. Allah Wasai had already contracted marriage with one Alu Khan, therefore, under the custom prevalent in the family of Muhammad deceased, the entire property at the time of death, on the marriage of Mst. Allah Wasai would have devolved upon Muhammad Nawaz petitioner being the only male heir member of deceased Muhammad under the said custom and that the two Courts below have wrongly decided the matter on the touchstone of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962.
Arguments considered. Record perused.
Admittedly at the time of death of Muhammad, the last owner of the property, his family was governed by custom. It is also the admitted position that on his death the property devolved on his widow namely Mst. Bhakar under the said custom. On her remarriage the same devolved on his only daughter Mst. Allah Wasai respondent under the custom. The suit was filed on 3.11.2000 when Punjab Muslim Personal Law (Shariat) Act (Amendment) Ordinance XIII of 1983 had been enforced. Through the said Ordinance Section 2(A) in the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 was added w.e.f. 1.8.1983 and according to the said section all the customary rights were abolished and Shariat was declared as rule of inheritance and further any suit, appeal, etc., pending on the said date seeking enforcement of custom as a rule of inheritance, was abated forthwith. In the light of above provisions of law, the two Courts below committed no illegality or irregularity by deciding inheritance of Muhammad deceased under the Muslim Law and passing the decree accordingly. The vires of said Ordinance came under challenge before the Hon'ble Supreme Court of Pakistan in the case "Abdul Ghafoor versus Muhammad Shafi" (PLD 1985 SC 407) and the apex Court on the force of said Ordinance, declared that all the suits, appeals, revisions, whether decided or pending and even in which decrees in favour of plaintiffs on the basis of custom were passed and even execution proceedings seeking possession of land under such decrees were pending except past and closed transaction, where possession of such land already delivered under such decree, stood abated. This petition, therefore, has no force and is dismissed in limine.
(M.A.K.Z.) Petition dismissed.
PLJ 2008 Lahore 938
Present: Muhammad Muzammal Khan, J.
Rana MUHAMMAD AZEEM--Petitioner
versus
Rana ABAD ALI, NAZIM TEHSIL ADMINISTRATION CHUNIAN, DISTT. KASUR and another--Respondents
W.P. No. 7872 of 2007, decided on 22.11.2007.
Constitution of Pakistan, 1973—
----Art. 199--Cancellation of driving licence--Natural justice--No notice was issued--Violation of--Effect of--Vested right had accrued in favour of petitioner when competent authority had granted him licence to ply twenty six seaters A.C. coaches and thereafter, he was allocated a track for such purpose but he was not provided an opportunity of hearing earlier to punitive action taken through impugned order--Complained action is not only violative of mandatory provisions of law but is also contrary to principles of natural justice--Petition was accepted. [P. 939] A
PLD 2002 SC 408, 1991 MLD 267 & 1991 CLC 229, rel.
Mr. M. Shams Iqbal Rana, Advocate for Petitioner.
Mian Subah Sadiq Wattoo, Advocate for Respondents.
Date of hearing: 22.11.2007.
Order
Instant petition assailed order dated 6.7.2007 passed by Nazim Tehsil Administration, Chunian, District Kasur, to be declared illegal, void and of no legal consequence, whereby licence of the petitioner to ply twenty-six seaters A.C. Coaches from Chunian to Lahore, was cancelled.
"The orders issued vide No. TMA-CHN-2007/217-220 dated 01.06.2007 regarding plying of Twenty Six seaters A/C coaches by M/s. Hajvery Travels at Old Tonga Stand of General Bus Stand Chunian City are hereby recalled with immediate effect in the public interest."
Petitioner being aggrieved of cancellation of his licence, filed instant petition for adjudgment of order dated 6.7.2007 passed by Respondent No. 1. Respondents in response to notice by this Court appeared and were represented through their counsel.
I have heard the learned counsel for the parties and have examined the record, appended herewith. Undisputedly, no notice of any kind was issued to the petitioner earlier to cancellation of his licence. The order impugned also does not depict that petitioner was called upon to explain his position or he was heard at the time of taking of complained action. The order above reproduced, shows that Respondent No. 1 has given no reason for cancellation of licence validly issued in the name of the petitioner. This order, on the face of it, is not only sketchy but also lacks reasoning in itself. Stance of learned counsel for the respondents that licence of the petitioner was cancelled on complaints of non-providing of facilities to the public-at-large at the bay allocated to him, has not impressed me for the simple reason that no such reason has been mentioned by Respondent No. 1 in the order under attack.
Under law, a vested right had accrued in favour of the petitioner when the competent authority had granted him licence to ply his twenty-six seaters A.C. Coaches in the name of M/s. Hajvery Travels from Old Tonga Stand Chunian City and thereafter he was allocated a track/bay for this purpose but he was not provided an opportunity of hearing earlier to punitive action taken through the impugned order. The complained action is not only violative of mandatory provisions of law but is also contrary to the principles of natural justice which have to be read in each statute in terms of judgment by the Apex Court in the case of Mst. Zahida Sattar and others vs. Federation of Pakistan and others (PLD 2002 S. C. 408) and the cases of Messrs Murree Brewery Company Limited vs. Director-General, Excise and Taxation and 3 others (1991 MLD 267) and Gul Muhammad and 8 others vs. Buxal and 2 others (1991 CLC 229).
Had the petitioner not provided facilities for the utility of public-at-large, contrary to the terms of his licence, he could have been called upon to explain his position and after providing him an opportunity of hearing, Respondent No. 1 could take punitive action as per law but this course was not adopted, hence the impugned order being bad-at-law, is not sustainable.
For the reasons noted above, instant petition is accepted and the impugned order dated 6.7.2007 passed by Respondent No. 1 is declared to be void and non-existent in the eye of law. Respondent No. 1, however, may proceed against the petitioner after fulfilling the prerequisites of law, as noted above, afresh. Disposed of with no order as to costs.
(M.A.K.Z.) Petition accepted.
PLJ 2008 Lahore 940 (DB)
Present: Maulvi Anwar-ul-Haq and Ali Akbar Qureshi, JJ.
AWAIS JAVAID--Petitioner
versus
PRINCIPAL, PUNJAB MEDICAL COLLEGE, FAISALABAD
and 3 others--Respondents
W.P. No. 7800 of 2008, decided on 30.6.2008.
Educational Institution--
----Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Examination--Failed to pass MBBS Part II--Petitioner remained unsuccess even he availed four consecutive chances--Striking off his name from college roll--Challenge to--Contention that petition stood admitted on self finance basis, he can avail as many chances--Validity of--Contention is rather frivolous as the Rule/Regulation is applicable to all manners of students--Constitutional petition dismissed in limine. [P. 942] A
2002 SCMR 1222 & 1994 SCMR 532, ref.
Mr. Abdul Sadiq Chaudhry, Advocate for Petitioner.
Date of hearing: 30.6.2008.
Order
Maulvi Anwar-ul-Haq, J.--The petitioner, admittedly, availed four chances but failed to pass Part-II MBBS Examination (First Professional). Vide order dated 3.4.2008 (Annex-C) his name has been struck off from College roll.
Learned counsel contends that the said order infringes upon the right of the petitioner to acquire education and the Regulation on which it is based is also ultra vires the Constitution. According to him, the petitioner could not pass the examination as he remained ill.
We have gone through this file. The relevant regulation, framed by the Respondent No. 2-University in accordance with the Rules framed by Respondent No. 4-Council provides that a candidate who fails to clear the First Professional Part-II MBBS Examination in four consecutive chances, availed or un-availed, offered by the University, shall cease to be eligible for further medical/dental education in Pakistan.
The said first contention of the learned counsel is without any force as right to seek admission in an educational institution and to continue studies therein is always subject to the Rules of discipline framed by the institution, and as such, a student who intends to pursue his studies in the institution is bound by such Rules. Rule of passing first Professional MBBS Examination in four attempts did not infringe upon right of a student to pursue his studies in Medical College. On the contrary, it ensures arrest of falling standards of education in the institutions and it was not arbitrary and unreasonable. Reference be made to the case of Ali Yousuf and another v. Chairman of Academic Council and Principal, Dow Medical College, Karachi and others (2000 SCMR 1222) and Akhtar Ali Javed v. Principal, Quaid-I-Azam Medical College, Bahawalpur (1994 SCMR 532).
So far as the said second contention is concerned, the writ petition narrates that the petitioner appeared in the various examinations and availed the following chances to pass the said examination:--
(i) Annual Examination, 2006.
(ii) Supplementary Examination, 2006.
(iii) Annual Examination, 2007.
(iv) Supplementary Examination, 2007.
There is not even a word in the writ petition that the petitioner ever informed the University about the alleged ailment he was suffering from. On the other hand, according to para-6, he approached the University after having availed all the four chances.
The petitioner has not mentioned the dates of the said examinations. He has appended two prescriptions dated 15.2.2007 and 20.3.2007 by one Dr. Shaukat Ali Zahid stated to be a Specialist in Mental Psychology and Intoxicants Diseases. The petitioner has appended only three detailed marks certificates. According to which the examinations were held in December, 2006, November, 2007 and February, 2008. Nothing, therefore, turns on the said contention. We may note here that this plea was also dealt with by the Hon'ble Supreme Court of Pakistan in the said case of Ali Yousuf and another and was rejected notwithstanding the fact that during the pendency of the writ petition, the student, in fact, appeared and had taken an additional chance and passed the examination.
Learned counsel then contends that since the petitioner stands admitted on self-finance basis, he can avail as many chances since he is paying from his pocket. We are afraid the contention is rather frivolous as the said Rule/Regulation is applicable to all manners of students. The writ petition accordingly is dismissed in limine.
(M.A.K.Z.) Petition dismissed.
PLJ 2008 Lahore 942
Present: Hafiz Tariq Nasim, J.
MUHAMMAD AFZAL KHAN, EXECUTIVE ENGINEER, MODEL TOWN EXTENSION, LAHORE--Petitioner
versus
GOVERNMENT OF PUNJAB through SECRETARY TO GOVERMENT OF THE PUJAB, C&W DEPARTMENT
and another--Respondents
W.P. No. 5857 of 2008, decided on 20.6.2008.
Constitution of Pakistan, 1973—
----Art. 199--Civil servant--Promotion--Pendency of long standing enquiry--Effect of--Surprisingly keeping the civil servant continuously for a long period in facing certain enquiries and without concluding the proceedings for an indefinite period smacks arbitrariness and smells malafide when now a days there is a specific provisions that enquiry must be concluded in a specific time--In the form of pendency of enquiry reflects only to deprive from their further lawful right of promotion which can be termed as exploitation and nothing else because there is no bar on the part of administration to reach on logical conclusion and then impose penalty on the very civil servant if he is found guilty, when the part of the administration is unfettered then such like treatment, which is meted out to the petitioner cannot sustain in the eye of law--Petition accepted.
[Pp. 944 & 945] C
Promotion--
----Pendency of enquiry and even minor penalties cannot come in the way of promotion. [P. 944] B
Civil Servant--
----Promotion--Civil servant cannot claim promotion as a matter of right but it is also undisputed fact that it is an inalienable right of every civil servant that he be considered for promotion alongwith his batch mates when he fulfills eligibility criteria. [P. 944] A
Mr. Masood Ahmad Riaz, Advocate for Petitioner.
Mr. Naeem Masood, Assistant Advocate General Punjab with Humayun Akhtar Sahi, Deputy Director Legal.
Date of hearing: 20.6.2008.
Order
The backdrop of this writ petition is that the petitioner being senior most Executive Engineer BS-18 of the Communication Works Department, Government of Punjab was expecting his promotion as Superintending Engineer in BS-19 in the year 2003 but he was deferred. Inspite of his deferment he remained in the field for five long years when again on 23.5.2008 the petitioner's case of promotion was taken up by Respondent No. 1 who prepared working paper and placed it before the Provincial Selection Board, who recommended for deferment of the petitioner on the plea of pendency of some inquiry. The petitioner continuously persuaded for the redressal of his grievance since 2003 but with no result and finally filed this writ petition with the following prayer:--
"(I) Petition may kindly be accepted with costs.
(II) Respondents may kindly be directed to place the petitioner's case of promotion as Superintending Engineer in BS-19 before the Provincial Selection Board within a period of one month positively.
(III) Respondent No. 2 who is the Chairman of Provincial Selection Board may very kindly be directed to consider Petitioner's promotion case fairly, justly and without being influenced by the pendency of any inquiry.
(IV) Respondents may kindly be further directed to consider the petitioner for promotion as Superintending Engineer in BS-19 from 9.7.2003 when the petitioner was eligible for such promotion and when his case was first placed before the Provincial Selection Board.
(V) Impugned show cause notice dated 8.1.2004 and order of inquiry dated 5.9.2007 may kindly be set aside.
(VI) Petitioner may also kindly be granted such other relief/reliefs to which he is found entitled."
Learned counsel for the petitioner submits that so far Prayer No. V in respect of setting aside of show cause notice and order of enquiry is concerned, he does not press the same and it be treated deleted from the prayer clause. However, the learned counsel argued the case in respect of other prayers with vehemence and contends that the petitioner is being victimized with no fault of him, rather on extraneous consideration, with ulterior motive and malice and it is well settled law that any action, which is based on mala fide cannot be termed as a legal action in the eye of law. Further submits that mere pendency of enquiry cannot deprive the petitioner from his lawful right of fair consideration for further promotion. Learned counsel referred Zarar Khan vs. Government of Sind and others (PLD 1980 SC 310), Captain Sarfraz Ahmad Mufti, vs. Government of the Punjab and others (1991 SCMR 1637), Maj. Ziaul Hassan, Home Secretary and others vs. Mrs. Naseem Chaudhry (2000 SCMR 645), Ch. Yar Muhammad Durraiana Vs. Government of the Punjab and another (1992 PLC (CS) 95), Sh. Muhammad Riaz vs. Government of the Punjab (2003 PLC (CS) 1496) and a recent judgment in Writ Petition No. 2573 of 2008 titled as Sanjida Irshad vs. Secretary Health etc., in support of his contentions.
On the other hand learned Assistant Advocate General submits that consideration for promotion of course is right of a civil servant but no civil servant can ask for promotion as a matter of right. Further submits that the petitioner's promotion case was repeatedly placed before the Punjab Selection Board but due to some cogent reasons the petitioner could not be promoted. However, being a deferred case the petitioner's case shall be reconsidered in the forthcoming PSB's meeting.
Arguments heard. Record perused.
There is no cavil from the proposition that the civil servant cannot claim promotion as a matter of right but it is also undisputed fact that it is an inalienable right of every civil servant that he be considered for promotion alongwith his batch mates when he fulfills eligibility criteria and it must be noted that consideration for promotion means a just and fair consideration and not as a matter of routine.
It is well established law laid down by the apex Court that pendency of enquiry and even minor penalties cannot come in the way of promotion. In the present case the departmental representative, who produced the record did not disclose any penalty available in the petitioner's record except pendency of enquiry. However, when confronted with the sole question that how much time it should take to finalize the enquiry, no satisfactory reply could be given by the departmental representative.
Surprisingly keeping the civil servant continuously for a long period in facing certain enquiries and without concluding the proceedings for an indefinite period smacks arbitrariness and smells malafide when now a days there is a specific provisions that enquiry must be concluded in a specific time. Hanging sword on the heads of certain civil servants in the form of pendency of enquiry reflects only to deprive from their further lawful right of promotion, which can be termed an exploitation and nothing else because there is no bar on the part of administration to reach on logical conclusion and then impose penalty on that very civil servant if he is found guilty, when this part of the administration is unfettered then such like treatment, which is meted out to the petitioner cannot sustain in the eye of law.
In the attending circumstances, I have no other option except to allow the writ petition. The respondents are directed to place the petitioner's promotion case before the Provincial Selection Board within a period of two months positively from today and the PSB shall consider the petitioner's promotion case fairly justly and particularly independent of pendency of enquiry if the same is not finalized on the day of consideration for promotion. The exercise must be concluded within two months and result thereof be conveyed to the Deputy Registrar (J) of this Court. The writ petition is accepted in the above terms.
(M.A.K.Z.) Petition accepted.
PLJ 2008 Lahore 945
Present: Hafiz Tariq Nasim, J.
Raja RASHID MEHMOOD--Appellant
versus
PRESIDENT, UBL HEAD OFFICE, KARACHI and another--Respondents
L.A. No. 74 of 2008, heard on 20.6.2008.
Industrial Relations Ordinance, 2002 (XCI of 2002)—
----S. 46--Laboru appeal--Determination of status of workman--Nature of duties--Appellants deposition about the nature of duties not cross-examined--Effect of--Grievance petition--Maintainability of--There is admission of respondent bank in so many words that the appellant deposed before the labour Court about the nature of his duties of a workman and that part of the evidence of the appellant was not cross-examined--Held: When the ground reality is before a Court of law laid down by Supreme Court in respect of determination of the status of aggrieved person on account of nature of his duties, no other conclusion can be drawn except that the appellant was right in invoking the jurisdiction of Labour Court--Labour appeal accepted and remanded for decision on merits. [P. 947] A
Ch. Bashir Ahmed, Advocate for Appellant.
Mian Muhammad Zulqarnain, Advocate for Respondents.
Date of hearing: 20.6.2008.
Judgment
Facts leading to this labour appeal are that the appellant being an officer Grade-I in the UBL was served with show cause notice on 12.03.1999 containing certain serious allegations which were refuted by the appellant but dissatisfied with his reply he was terminated from service through order dated 04.08.1999. The appellant filed departmental appeal, which was rejected on 04.10.1999 and he approached Federal Service Tribunal (FST) in view of Section 2-A of the Service Tribunals Act. However, during the pendency of appeal before the FST law was laid down by the Hon'ble Supreme Court of Pakistan in the case reported as (PLD 2006 SC 602) and the appellant's appeal was abated and he approached the Punjab Labour Court through a grievance petition under Section 46 of IRO 2002 against the termination order dated 04.08.1999. The petition was contested by the bank and ultimately the Labour Court dismissed the same on the ground of being not maintainable, as the appellant did not fall within the category of workman. Aggrieved by the impugned judgment dated 3.3.2008 passed by the Labour Court, the appellant filed this appeal.
Learned counsel for the appellant submits that while dismissing the petition, the Labour Court did not advert to the basic law laid down by the Hon'ble Supreme Court of Pakistan in the cases reported as Dost Muhammad Cotton Mills Ltd. vs. Muhammad Abdul Ghani and another (1975 SCMR 535), Allied Bank of Pakistan Ltd. vs. Muhammad Humayun Khan and others (1988 SCMR 1664) and Abdul Razzaq vs. Messrs Ihsan sons Limited and 2 others (1992 SCMR 505), wherein it was held that for determination of status of workman the rank is not to be seen rather the nature of duties/nature of the work of the aggrieved person is to be taken into consideration. The learned counsel submits that during recording of evidence the appellant appeared before the Labour Court as PW.1 and deposed in so many words that his duties during the bank service were of the nature of workman and this very part of his statement was not cross-examined by the respondent bank, meaning thereby that the respondent bank admitted the contention of the appellant that so far the status is concerned it was within the ambit of Labour Court/Labour Laws. Further adds that in so many judgments it is repeatedly held that when the evidence produced by a party is not cross-examined by the other party, sanctity shall be attached to the examination-in-chief which was not cross-examined. He relied on Muhammad Hassan and another vs. Liaqat Ali Khan (2001 CLC 1743), Nazakat Parveen vs. Ikhlaq Ahmad (2001 MLD 1169) and Muhammad Akhtar vs. Mst. Manna and 3 others (2001 SCMR 1700).
On the other hand, learned counsel for the respondent bank opposed the contentions of the learned counsel for the appellant with vehemence and relied on a judgment reported as Dilshad Khan Lodhi vs. Allied Bank of Pakistan through President and 3 others (2005 PLC 230) as well as the definition of auditor available in Blank's Law Dictionary, whereby the appellant could be treated as an officer and not a workman. Further submits that the Labour Court practically dismissed the petition in consonance to law and the impugned judgment is liable to be upheld.
Arguments heard. Available record perused.
As the matter revolves around only a short point of maintainability of petition before the Labour Court, it shall be appropriate to confine to this proposition particularly when there is admission of respondent bank in so many words that the appellant deposed before the Labour Court about the nature of his duties of a workman and that part of the evidence of the appellant was not cross-examined.
When this ground reality is before a Court of law and if it puts in juxtaposition to the law laid down by the Hon'ble Supreme Court of Pakistan in respect of determination of the status of aggrieved person on account of nature of his duties, no other conclusion can be drawn except that the appellant was right in invoking the jurisdiction of Labour Court and the Labour Court erred in law while dismissing the petition. Resultantly, the impugned judgment is set aside and the case is remanded to the Punjab Labour Court with a direction to decide the same on merits, preferably within a period of three months being the matter relating to the year 1999.
The appeal is accepted in the above terms.
(M.A.K.Z.) Case remanded.
PLJ 2008 Lahore 948
Present: Hafiz Tariq Nasim, J.
Mrs. KHALIDA AMJAD, PRINCIPAL, GOVT. MODEL COLLEGE FOR WOMAN, MODEL TOWN, LAHORE--Petitioner
versus
GOVT. OF PUNJAB through Secretary of Education, Civil Secretariat, Lahore and another--Respondents
W.P. No. 5840 of 2008, decided on 4.7.2008.
Punjab Removal from Service (Special Powers) Ordinance, 2000—
----S. 8--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Exoneration from allegation--De-novo enquiry was ordered--Legality--Petitioner was served with a charge sheet--Allegations were refuted--Enquiry was conducted and petitioner was exonerated by enquiry officer--Representation for posting in view of exoneration from allegation but instead of deciding representation de-novo enquiry was ordered--Validity--Petitioner was exonerated by enquiry officer who was appointed by department--Departmental authority was empowered to order for de-novo proceedings but strictly in accordance with provisions of S. 8 of Punjab Removal from Service (Special Powers) Ordinance, whereas the plain language of the provisions do not permit the authority to do after a lapse of 30 days of submission of enquiry report wherein the petitioner was exonerated--Petition was allowed. [P. 950] A & B
Mr. Asmat Kamal Khan, Advocate for Petitioner.
Mr. Naeem Masood, Assistant Advocate General for Respondents.
Date of hearing: 4.7.2008.
Order
Backdrop of this writ petition is that the petitioner was served with a charge sheet on 11.10.2006 under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000, the allegations were refuted, the enquiry was conducted and finally she was exonerated by the Enquiry Officer through the enquiry report submitted before the authority in December 2006. The petitioner submitted a representation for her posting in view of exoneration from the allegations but instead of deciding the representation, de-novo enquiry was ordered to be held vide order dated 08.09.2007 and finally through order dated 15.05.2008 a notice was issued to the petitioner for submission of her written defence in reference to the charge sheet dated 14.12.2007, which has caused a serious prejudice to the petitioner.
Learned counsel for the petitioner submits that impugned action is violative of Section 8 of the Punjab Removal from Service (Special Powers) Ordinance as according to the provisions of the Ordinance ibid de-novo proceedings could be ordered within 30 days of the submission of enquiry report before the authority and admittedly in the present case the enquiry report was submitted in December 2006, whereby the petitioner was exonerated from all charges and the impugned action was initiated after a period of almost nine months which offends the provisions of Section 8 of the Ordinance.
The learned Assistant Advocate General argued the case at some length and opposed the contentions of the learned counsel for the petitioner with vehemence. He submits that provisions of Section 8 of the Punjab Removal from Service (Special Powers) Ordinance are not mandatory rather directory in nature and if those are not followed no penal consequences are to be faced by the departmental authorities. Further adds that according to Article 254 of the Constitution of Pakistan, the provisions of Section 8 of Punjab Removal from Service (Special Powers) Ordinance are not binding on the departmental authorities and in support of his contentions he relies on the provisions of Order XX Rule 1(2) CPC.
Arguments heard. Record perused.
It shall be advantageous to reproduce the provisions of Section 8 of Punjab Removal from Service (Special Powers) Ordinance, 2000, as follows:--
"Order to be passed upon a finding.--Every finding recorded by the Inquiry Officer or Inquiry Committee under Section 5 shall, with the recommendation provided for in that section, be submitted to the competent authority and the competent authority may pass such orders thereon as it may deem proper in accordance with the provisions of this Ordinance.
[Provided that where the competent authority is satisfied the inquiry proceedings have not been conducted in accordance with the Ordinance or facts and merits of the case have been ignored, it may order initiation of de novo inquiry through a speaking order by giving reasons thereof within a period of 30 days."
Undisputedly, the provisions of Section 8 of the Punjab Removal from Service (Special Powers) Ordinance has force of law and that cannot be kept aside only to confirm the irregularity/illegality committed by the departmental authorities.
So far the provisions of CPC and the Constitution referred by the learned Assistant Advocate General are concerned, those are not applicable to the present case.
Admittedly, the petitioner was exonerated by an Enquiry Officer who was appointed by the department itself. The departmental authority was empowered to order for de-novo proceedings but strictly in accordance with the provisions of Section 8 of the Ordinance ibid, whereas the plain language of the said provisions do not permit the authority to do after a lapse of 30 days of submission of enquiry report, wherein the petitioner was exonerated.
As observed earlier, in the impugned controversy the competent authority did not adhere to the plain language of Section 8 of the Removal from Service (Special Powers) Ordinance, hence the impugned order being passed in excess of jurisdiction is set aside.
The writ petition is allowed in the above terms.
(R.A.) Petition allowed.
PLJ 2008 Lahore 950
Present: Rana Zahid Mehmood, J.
REHMAT ALI--Petitioner
versus
GOVT. OF PUNJAB through Secretary Agriculture, Punjab, Lahore and 3 others--Respondents
W.P. No. 8396 of 2008, decided on 9.7.2008.
Constitution of Pakistan, 1973—
----Arts. 199 & 212(3)--Civil servant--Matter related to transfer of the petitioner--Maintainability of Constitutional petition--Held: No writ lies against a transfer order of Govt. Servant by the competent authority as his case is hit by Art. 212 (3) of Constitution of Pakistan--Petition was not maintainable. [P. 951] A
PLD 1995 SC 530 and 2006 PLC (CS) 952, rel.
Mr. Qamar Riaz Hussain, Advocate, for Petitioner.
Date of hearing: 9.7.2008.
Order
The petitioner claims to be an Assistant in the Office of Respondent No. 3/DDO Agriculture (Extension) Chunian, and was transferred and posted in said Office of Respondent No. 3 vide order dated 31.12.2005 on his request by Respondent No. 2, who is Director General Agriculture (Extension), Punjab, Lahore after the Respondents Nos.3 and 4 had given no objection certificate in the matter of transfer of the petitioner from the Office of Respondent No. 4, i.e., DDO Agriculture, Jhelum to the Office of Respondent No. 3 at Chunian on the ground that the petitioner was disabled person and resident of District Kasur permanently.
Presently the petitioner feels aggrieved against the order passed by Director General Agriculture (Extension), Punjab, Lahore, dated 30.5.2008, whereby the petitioner has once again been transferred and posted in the Office of Respondent No. 4 at Jhelum.
Learned counsel for the petitioner has submitted that since the petitioner is a disabled person and is permanent resident of Kasur, therefore, as earlier no objection certificate was issued by Respondents Nos.3 and 4 for transfer of the petitioner from Jhelum to Kasur (Chunian), therefore, once against the petitioner cannot be transferred to Jhelum vide impugned order dated 30.5.2008 passed by Respondent No. 2. He submitted that further grievance is that Respondent No. 4 is not giving him joining in his office on the ground that there is no vacancy with him. He submitted that then the petitioner filed an application to Respondent No. 2 but no action has been taken on his application, hence present constitutional petition.
After hearing the learned counsel for the petitioner at this preliminary stage, since the matter relates to transfer of the petitioner who claims to be an Assistant with respondent/Department, therefore, no writ lies against a transfer order of a Government servant by the competent authority as his case is hit by Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, as has also been held in Zahid Akhtar Vs. Government of Punjab through Secretary Local Government and Rural Development, Lahore, and two others (PLD 1995 SC 530) followed by a Judgment of this Court passed in Bilqaees Akhtar, Nursing Instructor Vs. Government of Punjab (2006 PLC (C.S) 952). Therefore, this petition is not maintainable. However, since the petitioner claims to have filed some representation/application to Director General, Respondent No. 2, the said respondent is directed to expedite the disposal of said representation/application of the petitioner.
With the above observation, this petition stands dismissed in limine.
(R.A.) Petition dismissed.
PLJ 2008 Lahore 952
Present: Kazim Ali Malik, J.
MUHAMMAD MUSHTAQ--Petitioner
versus
ADDITIONAL SESSIONS JUDGE, LAHORE and 2 others--Respondents
W.P. No. 6622 of 2008, heard on 9.6.2008.
Criminal Procedure Code, 1898 (V of 1898)—
----S. 22-A(b) & 154--Constitution of Pakistan 1973--Art. 199--Power of Ex-Officio Justice of Peace & registration of FIR--Pre-rogative--Delegation of powers to police officials--Held: Ex-officio Justice of Peace to examine the information furnished by the applicant and to decide as to whether it did or did not constitute a cognizable offence--Ex-officio Justice of Peace mortgaged their legal duties and functions to the SHO's of the police stations asking to decide as to whether or not the information constituted a cognizable offence--Further held: Self style procedure adopted by Ex-officio Justice of Peace in disposing of applications filed before them under Ss. 22-A & 22-B of Cr.P.C. could not be approved of. [P. 955] A, B & C
PLD 2007 SC 539 and PLD 2005 Lah. 470, ref.
Mr. Muhammad Akbar Khan, Advocate for Petitioner.
Date of hearing: 9.6.2008.
Judgment
Muhammad Mushtaq, petitioner, made an application under Section 22-A and 22-B Cr.P.C before Ex-officio Justice of Peace, Lahore seeking a direction to the SHO, Police Station, Nishtar Colony, Lahore for registration of a case against his maternal uncle Muhammad Din with an allegation, in brief, that he deceitfully and fraudulently got transferred the land in his favour through a registered sale-deed, which had been inherited by his sister Mst. Hameeda Begum. Ex-officio Justice of the Peace issued a notice to Muhammad Din, aforementioned and also called for a report from the local police. The petition was dismissed vide order dated 03.06.2008 with an observation that it was a civil dispute between the parties.
Feeling dissatisfied with the report of local police and the order of Ex-officio Justice of the Peace, Muhammad Mushtaq, petitioner, filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeking a direction to the SHO for registration of a case against aforementioned Muhammad Din on the charge of cheating, fraud and forgery on the same ground, which did not find favour with the local police and the Ex-officio Justice of the Peace.
The learned counsel for petitioner has contended that the provisions of Criminal Procedure Code and that of the Police Order, 2002 do not authorize Station House Officer of the police station or an Ex-officio Justice of the Peace to hold an inquiry or to analyze the allegations laid before them to determine its truth or falsity. He has further argued that requirement of Section 154 Cr.P.C is to record FIR without holding an inquiry irrespective of the fact whether or not the information is based on facts. The learned counsel has placed reliance on the case law laid down in Muhammad Bashir Vs. Station House Officer, Okara Cantt and others (PLD 2007 SC 539) and has contended that Ex-officio Justice of the Peace was duty bound to get registered a case on the above said complaint of the petitioner without application of legal mind.
I have minutely gone through the precedent case. It has been held by the Apex Court that no provision exists in the Code of Criminal Procedure or any other law which permits the SHO to refuse recording of an FIR provided the information conveyed to him discloses commission of a cognizable offence. The august Supreme Court of Pakistan has also determined the scope, functions and duties of the institution of Ex-officio Justice of the Peace at page 555 of the precedent case as under:--
"Therefore, in our opinion, only jurisdiction which could be exercised by an Ex-officio Justice of the Peace under Section 22-A(6) Cr.P.C was to examine whether the information disclosed by the applicant did or did not constitute a cognizable offence and if it did then to direct the concerned SHO to record an FIR without going into the veracity of the information in question and no more. Offering any other interpretation to the provision in question would be doing violence to the entire scheme of the Cr.P.C, which could not be permitted."
"Officer In-charge of the relevant police station may be under a statutory obligation to register a FIR whenever information disclosing commission of a cognizable offence is provided to him, but the Provision of Section 22-A(6) Cr.P.C do not make it obligatory for an Ex-officio Justice of the Peace to necessarily or blindfoldedly issue a direction regarding registration of a criminal case whenever a complaint is filed before him in that regard. An Ex-officio Justice of Peace should exercise caution and restraint in this regard and he may call for comments of the Officer Incharge of the relevant police station in respect of complaints of this nature before taking any decision of his own in that regard so that he may be apprised of the reasons why the local police had not registered a criminal case in respect of the complainant's allegation. If comments furnished by the Officer Incharge of the relevant police station discloses no justifiable reason for not registering a criminal case on the basis of the information supplied by the complaining person then an Ex-officio Justice of Peace would be justified in issuing a direction that a criminal case be registered and investigated
In an appropriate case, depending upon the circumstances thereof, an Ex-officio Justice of the Peace may refuse to issue a direction regarding registration of a criminal case and may dismiss the complaint under Section 22-A(6) Cr.P.C reminding the complaining person of his alternate statutory remedies under Sections 156(3) and 190 Cr.P.C.
A combined examination of Sections 154, 22-A(6) Cr.P.C and the case law laid down by the Apex Court and the Full Bench of this Court, referred to above, would show that an Ex-officio Justice of the Peace before whom an application under Section 22-A(6) has been laid seeking a direction to the SHO concerned for registration of a case is not expected and required to allow the request of the complaining person mechanically, blindly and without application of legal mind. The Apex Court held in an express terms that it was the duty of Ex-officio Justice of the Peace to examine whether the information did or did not constitute a cognizable offence. In other words the Ex-officio Justice of Peace is competent to examine the complaint obviously with full application of legal mind and is not supposed to accept and believe the same as gospel truth. In case Ex-officio Justice of the Peace after examination of the complaint with full application of legal mind comes to the conclusion that the allegation set up by the complaining person appears to be ridiculous, or self contradictory or vague or barred by of law or offensive to the public policy and accepted standards of morality, he may be legally justified to turn down the request for registration of a case.
I am not in agreement with the learned counsel for petitioner that the august Supreme Court of Pakistan have restrained Ex-officio Justices of the Peace from examination of complaints placed before them under Section 22-A(6) Cr.P.C. However, such examination can not be and should not be with the yardstick of Trial Court. The office of Ex-officio Justice of the Peace is a legal forum. The complaints against an action or inaction of the police are filed by the aggrieved persons before this legal forum, which performs administrative and ministerial functions subject to scrutiny by the superior Courts of Pakistan having Constitutional, supervisory and inherent judicial jurisdiction. Any order passed by an Ex-officio Justice of the Peace is subject to scrutiny on judicial side by the superior Courts of Pakistan, therefore, the administrative legal forum is required to dispose of the applications under Section 22-A and 22-B Cr.P.C by means of speaking and well reasoned orders in the light of available material without holding trial or mini trial of the controversy.
For what has been stated above, I am of the considered view that it is prerogative of an Ex-officio Justice of Peace to examine the information furnished by the applicant and to decide as to whether it did or did not constitute a cognizable offence. I have noted with concern in a sizeable number of cases that Ex-officio Justices of Peace mortgaged their legal duties and functions to the SHOs of the police stations asking them to decide as to whether or not the information constituted a cognizable offence. Here I must say that this self styled procedure adopted by Ex-officio Justices of the Peace in disposing of applications filed before them under Section 22-A and 22-B Cr.P.C cannot be and should not be approved of. At the cost of repetition I would say that an Ex-officio Justice of the Peace is possessed with the jurisdiction under Section 22-A(6) Cr.P.C to decide after examining the information as to whether or not any cognizable offence was made out. He can not delegate such powers and functions to the police.
Now adverting to the complaint in hand, I find it appropriate to bring on record the facts, which are not in dispute or disputable:--
(i) The land in dispute was originally owned by Elahi Bakhsh, grand father of the petitioner.
(ii) On death of Elahi Bakhsh the land devolved upon his two daughters Mst. Hameeda Bibi (mother of petitioner), Mst. Azizan Bibi and his son Muhammad Din, respondent.
(iii) After acquiring ownership in the above said land through inheritance Mst. Hameeda Bibi and Mst. Azizan Bibi transferred their entitlement in favour of their brother Muhammad Din, Respondent No. 3, by means of a registered deed in the year 1985.
(iv) Mst. Hameeda Bibi and Mst. Azizan Bibi did not challenge the transaction in favour of their brother Muhammad Din, respondent.
(v) After death of Mst. Hameeda Bibi, the petitioner filed a civil suit for declaration before the Civil Court at Lahore with the plea that his mother had not alienated the disputed land in favour of her brother, Muhammad Din.
(vi) The above said civil suit is still pending between the parties.
The Ex-officio Justice of the Peace, Lahore examined the complaint laid before him by the petitioner herein in order to determine as to whether it did or did not constitute a cognizable offence. After examining the complaint the Ex-officio Justice of the Peace came to the conclusion that there was a bona fide civil dispute between the parties already placed before the Civil Court for adjudication. Had Ex-officio Justice of Peace accepted and believed the allegation blindly and without application of legal mind, he would have got registered a case against maternal uncle of the petitioner on the charge of cheating, fraud and forgery. After examining the complaint with full application of legal mind it revealed to the Ex-officio Justice of Peace that the petitioner wanted to prosecute his maternal uncle Muhammad Din before the criminal Court on account of a pure civil dispute pending trial before the Civil Court. No doubt an Ex-officio Justice of the Peace cannot go into veracity of the information in question, but at the same time it is permissible for him to examine the complaint. I am, therefore, of the view that the Ex-officio Justice of Peace did not violate the case law laid down by the Apex Court.
The petition before this Court has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The learned counsel for petitioner could not point out any illegality or irregularity in the impugned order. I have already concluded in the preceding paragraphs that in the light of statutory provisions and the case law laid by the Apex Court it was within the exclusive jurisdiction of Ex-officio Justice of Peace to examine and decide as to whether the information disclosed by the complaining person did or did not constitute a cognizable offence. The Ex-officio Justice of Peace, Lahore exercised jurisdiction vested in him and dismissed the complaint rightly with an observation that it was a civil dispute. Admittedly, 22 years old registered sale-deed in favour of the respondent and adverse to the claim of the petitioner still holds the field. How can I follow the petitioner in exercise of Constitutional Jurisdiction to seek cancellation of the sale-deed or to challenge its legality and correctness before SHO of the police station? In case, the petitioner's request for registration of a case Is allowed, it would amount to encroachment upon the powers and functions of Civil Court already seized of the dispute.
The petition being without substance is hereby dismissed in limine.
(W.I.B.) Petition dismissed.
PLJ 2008 Lahore 957
Present: Ali Akbar Qureshi, J.
MUHAMMAD ALI SHAHZAD--Petitioner
versus
BOARD OF INTERMEDIATE AND SECONDARY EDUCATION LAHORE and another--Respondents
W.P. No. 6579 of 2008, decided on 23.6.2008.
Educational Institution--
----Constitutioon of Pakistan, 1973, Art. 199--Constitutional jurisdiction of High Court--Non-issuance withholding of Roll No. slip by College, depriving the petitioners from appearing in examination--Category of students--Responsibility of Board--Board cannot be allowed to absolve itself of the onerous responsibility of monitoring & supervision of the entire system and procedure of pre and post examination scenario, and in such context, the affairs of the school/colleges and the private institutions need to streamlined so as to make sure foolproof procedure of the continued issuance of roll number slips to both the private students and the educational institutions at least two weeks prior to the commencement of examination, so as to enable and satisfy the students to identify the examination centres--If in future any such complaint is filed, stern action involving criminal prosecution shall not only be ordered to be initiated against institution, but person at the helm of affairs sitting in Boards as well would be held directly responsible under E&D Rules. [P. 960] A & B
Mr. Nadeem Saeed, Mr. Irfan Aizad, Mr. Khalid Nawaz Ghuman, Mr. Sarfraz Anwar and Ch. Zulfiqar Ali, Advocates for Petitioner.
Mr. Azam Nazir Tarrar, Advocate for Respondent College Along with Mr. Sohail Afzal, Executive Director Punjab Group of Colleges Lahore.
Sh. Shahid Waheed, Advocate for the BISE Lahore.
Date of hearing: 23.6.2008.
Order
Being aggrieved of the non-issuance/withholding of roll number slips by the respondent College, depriving the petitioners from appearing in the Intermediate (Annual) Examination 2008, several students invoked the Constitutional jurisdiction of this Court and in consequence of this Court's order, were issued roll number slips and the respondent Board has also furnished a detailed report along with the explanation submitted by respondent College.
Essentially two sets of students have been identified and categorized by the respondent Board firstly the private students and secondly the regular students. Students falling in the first category submit their admission forms directly to the respondent Board, whereas, those falling in the second category after getting admission in a school/college, submit their admission forms through their respective institutions, and the Board accordingly issues roll number slips directly to the private students and to the regular students through their respective schools/colleges. Twofold objectives of the respondent Board have also been highlighted under the provisions of the Punjab Boards of Intermediate & Secondary Education Act 1976 inter alia to hold and conduct examinations and to lay down conditions viz a viz recognition/affiliation of institutions. Further the respondent Board also regulates the conditions for admissions to its examinations and to determine the eligibility of the students/candidates for the grant of certificates amongst the successful candidates.
In terms of Rule 1.12 (Rule 1 Chapter 12), an admission form once submitted may be withdrawn by a Principal on the terms & conditions stipulated before the commencement of the examinations:--
When a candidate has been sent up provisionally on account of shortage of attendances, and the same has not been made up or condoned in accordance with rules;
If the attendances of a candidate fall short of the required percentage although his/her name had previously been forwarded by the head of institution to appear in the examination, and the shortage is not condoned or is so much which cannot be condoned in accordance with the rules;
If name of a candidate has been struck off the rolls of the institution of non payment of college/school dues, provided such action has been taken before the commencement of the examination; and
If the candidate has been rusticated or expelled or his character certificate has been withdrawn for misconduct before the conclusion of the examination.
In all the cases, admission forms of the petitioners were received by the Board through respondent College within the stipulated time for appearing in the Annual Examination 2008 commencing from 17th of May 2008, and that the respondent college neither withdrew the admission forms in terms of Rule 1.12 supra nor delivered the same to the petitioners, hence, the Principal of the Punjab College of Commerce replying to the explanation notice by giving justification for withholding the roll number slips has also tendered unconditional apology, and in pursuance thereof, the respondent Board has proposed that students who have appeared in the examination in pursuance of this Court's direction, shall be imparted education in the college without charging any extra fee/funds if they wish to continue their studies until the conclusion of their respective academic course.
Arguments heard. Record perused. The crucial issue that boils down is that respondent college neither intimated the Board nor apprised the students as to the complained of action before 14 days statutory period of the commencement of the examination, and that is why, petitioners/students were desperately constrained to approach this Court. In addition thereto, there is yet another category of the students who could not appear in one of the subjects in the current examinations, of course, again due to the inaction of the part of respondent college, for which, Mr. Sohail Afzal, the Executive Director, Punjab Group of Colleges Lahore, apologizes in the open Court, and also undertakes that the respondent College shall not charge even a single penny from those students until the final conclusion/completion of their respective course/current academic session in which they are currently studying. As regards the other students who were given the roll number slips just a day or two before the commencement of the examination and not within the statutory period of 14 days, Executive Director states that they need not to pay the tuition fee to the respondent College, which comes to about 70% of the total charges.
As a matter of fact, the course of action adopted by the respondent institution is extremely lamentable and the state of affairs prevalent in such like institutions is highly deplorable, rather the same can be termed as sufficiently callous in its nature and character. That is why, Mr. Suhail Afzal, Executive Director of the Punjab Group of Colleges present in Court has apologized in unequivocal terms for what constrained the innocent and poor students in getting the roll number slips issued at the crucial juncture of their career. Instead of running after roll number slips before this Court and wasting their precious time and hard earned money of their parents, petitioners/students in fact, should have been encouraged to concentrate on preparation for their respective papers/examinations.
Similarly, the respondent Lahore Board cannot be allowed to absolve itself of the onerous responsibility of monitoring & supervision of the entire system and procedure of pre and post examination scenario, and in this context, the affairs of the schools/colleges and the private institutions need to be streamlined so as to make sure foolproof procedure of the issuance of roll number slips to both the private students and the educational institutions at least two weeks prior to the commencement of examination, so as to enable & satisfy the students to identify the examination centers. I must reiterate that teaching and educating the students is undoubtedly a noble task, and this should seem to have been done with dedication and devotion, but unfortunately, certain organizations are running these institutions purely for commercial basis & considerations.
Let a copy of this order be transmitted to the Chief Secretary as well as to all the Boards of Intermediate & Secondary Education in the Province of Punjab, directing all the Chairmen/Secretaries to strictly adhere to the statutory provisions viz-a-viz issuance of roll umber slips & conduct of examinations well in time and to enforce the same in letter & spirit. Heads of the Boards are supposed to keep their eyes open and should not leave the poor and innocent students at the mercy of the institutions being run as commercial ventures in their respective divisions. It is further observed that if in future any such complaint/petition is filed, stern action involving criminal prosecution shall not only be ordered to be initiated against the institution individually, but the persons at the helm of affairs sitting in the Boards as well would be held directly responsible under E&D Rules for facilitation and perpetuation of complained of lapses viz a viz Boards affiliated affairs culminating in victimization and harassment of poor students. In this regard, learned counsel for the respondent Board undertakes that every possible effort shall be made so as to avoid similar eventuality in future.
Disposed of.
(W.I.B.) Petition disposed of.
PLJ 2008 Lahore 961
Present: Kazim Ali Malik, J.
AMEER ALI--Petitioner
versus
ADDITIONAL INSPECTOR GENERAL (INVESTIGATION) OFFICE LAHORE and 5 others--Respondents
W.P. No. 5283 of 2008, heard on 4.6.2008.
Police Order, 2002 (22 of 2002)—
----Art. 18(6)--Criminal Procedure Code, (V of 1898)--S. 22-A(6) Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Qatl-i-amd--Change of investigation--Request for--Police authorities did not dispose of--Ex-officio Justice of Peace--Petitioner filed an application before Inspector General of Police with request for changing of investigation which was disposed of with direction to approach police authorities--A written request for change of investigation was filed before Ex-officio Justice of Peace which was disposed of--Assailed--Mian grievance of petitioner, which forced him to approach Ex-officio Justice of Peace was that written request for change of investigation before police authorities had not been disposed of either way--Validity--Ex-officio Justice of Peace may interfere in matter of transfer of investigation where authorities in Art. 18(6) of Police Order, had been approached by petitioner but authorities failed to attend his grievance and application was lying unattended to--Held: Request for change of investigation made by petitioner before police authorities in terms of Art. 18(6) of Police Order, has not been disposed of on its merits and in accordance with law--Matter of impugned order by ex-officio Justice of Peace is not sustainable--Petition accepted. [Pp. 962 & 965] A, B & C
Mr. Zafar Iqbal Chohan, Advocate for Petitioner.
Ch. Shahbaz Ahmad Dhillon, AAG on Court's call.
Date of hearing: 4.6.2008.
Judgment
Ameer Ali, petitioner, got registered a case FIR No. 225 dated 17.03.2008 under Sections 302/324/148/149 PPC at Police Station Saddar, Jhang with an allegation that Syed Hassan Ali and others committed Qatl-i-Amd of his son Ameer Hamza by firing at him and also committed murderous assault on his companions Zaheer and Munir. The motive for the occurrence was election rivalry.
"In view of the law laid down in PLD 2005 Lahore, 470 Justice of Peace cannot interfere in the investigation. The petitioner may apply to the concerned authorities as required by Police Order, 2002. With this observation this petition is hereby disposed of."
Feeling dissatisfied with inaction on the part of police authorities and the above said order of Ex-officio Justice of Peace, Ameer Ali, petitioner/complainant, has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 mainly on the ground that the Police Authorities and the Ex-officio Justice of Peace failed to discharge duties cast upon them by law.
I have gone through the precedent case, the very basis of impugned order, and would say without any fear of contradiction that the Ex-officio Justice of Peace dismissed the application of petitioner/complainant under Section 22-A(6) Cr.P.C summarily without taking into consideration the admitted fact that the main grievance of petitioner/complainant, which forced him to approach Ex-officio Justice of Peace was that his written request for change of investigation before the Police Authorities had not been disposed of either way. The law laid down in the precedent case does not stand in the way of petitioner/complainant to make a complaint before Ex-officio Justice of Peace in terms of Section 22-A (6) Cr.P.C. It was laid down in the precedent case that the Ex-officio Justice of Peace may interfere in the matter of transfer of investigation where the authorities mentioned in Article 18(6) of the Police Order, 2002 had already been approached by the complaining person, but such authorities failed to attend his grievance and the application of the complaining person was lying unattended to. In case of hand the complainant made a written request for change of investigation before the Inspector General of Police, Punjab, Lahore, which was forwarded to District Police Officer, Jhang for redressal of grievance of the petitioner/complainant. Here I would say that the request for change of investigation by the petitioner/complainant should have been placed before the Authorities in terms of Section 18(6) of the Police Order, 2002 for its disposal on its merits and in accordance with law. There was no justification to forward the request for change of investigation to the local police in utter disregard of the statutory provisions of Police Order, 2002 governing the subject of change of investigation. Inaction on the part of Police Authorities escaped notice of the Ex-officio Justice of Peace. In the given circumstances, there was no question of interfering with the matter of transfer of investigation because it was permissible for the Ex-officio Justice of Peace to activate the process of change of investigation in terms of Article 18(6) of the Police Order, 2002 particularly when his written complaint in this regard before the concerned quarter had not been disposed of on its merit. I find it advantageous to reproduce below the key lines of the precedent case, referred to above on the subject, which reads:--
"An ex-officio of the Peace cannot step into the shoes of a competent police authority so as to himself pass an order transferring investigation of a criminal case and his role in this regard is confined only to getting the process under Article 18(6) of the Police Order, 2002 activated if the complaint before him establishes that the complaining person's recourse under Section 18(6) of the Police Order, 2002 has remained unattended to so far. If the complaining person has not yet even applied before the competent authorities under Article 18(6) of the Police Order, 2002 seeking change of investigation then his complaint under Section 22-A(6), Cr.P.C is not to be entertained by an ex-officio Justice of the Peace as no occasion has so far arisen for interference in the matter by an ex-officio Justice of the Peace. If the competent authorities under Article 18(6) of the Police Order, 2002 have already attended to the request of the complaining person regarding transfer of investigation and have found the case to be a fit case for transfer of investigation then too an ex-officio Justice of the Peace cannot interfere in the matter as the competent authorities have already consciously attended to the matter and there is nothing left for the ex-officio Justice of the Peace to get activated or initiated. An ex-officio Justice of the Peace is not to assume the role of an appellate, revisional or supervisory authority in that respect. An ex-officio Justice of the Peace, like any. judicial or other authority outside the police hierarchy, should be extremely slow in directly interfering with the matter of transfer of investigation and in an appropriate case he may interfere only where the authorities mentioned in Article 18(6) of the Police Order, 2002 have already been approached by the complaining person but such authorities have failed to attend to his grievance and the application of the complaining person is lying unattended to. Even in such a case an ex-officio Justice of the Peace may refuse to interfere in the matter unless it is established to his satisfaction that some specific and particular material pieces of evidence had been missed out by the Investigating Officer and the same remain to be collected by the police. An ex-officio Justice of the Peace may not interfere in such a matter unless he feels satisfied that the required evidence had either not been collected or that further evidence is required to be collected in a given case and the recourse of the complaining person to the authorities mentioned in Article 18(6) of the Police Order, 2002 in that regard has so far remained unattended to. In such a case an ex-officio Justice of the Peace may issue a direction to the concerned police authority to get the process under Article 18(6) of the Police Order, 2002 activated so that an appropriate and suitable decision on the complaining person's grievance can be made by the competent authorities under Article 18(6) of the Police Order, 2002 one way or the other".............
While exercising his jurisdiction under Section 22-A(6) Cr.P.C, an ex-officio Justice of Peace is only to activate the available legal remedy or procedure so that the grievance of the complaining person can be attended to and redressed, if found genuine, by the competent authority of the police. In this view of the matter if an ex-officio Justice of the Peace can issue the desired direction under Section 22-A(6) Cr.P.C. activating the available legal remedy or procedure which the High Court would also have done if seized of a writ petition filed in that regard under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 of the Constitution then the remedy before an ex-officio Justice of the Peace under Section 22-A(6), Cr.P.C. can ordinarily be termed and accepted as an adequate alternate statutory remedy ousting a direct recourse by an aggrieved person to the High Court by invoking its extraordinary jurisdiction under Article 199 of the Constitution. It is, therefore, declared that in the matters of complaints against the working of the police covered by the provisions of Section 22-A(6), Cr.P.C and aggrieved person, except where the High Court feels satisfied that is an exceptional case arising out of extraordinary circumstances warranting direct interference by the High Court and rendering the remedy under Section 22-A(6) Cr.P.C. inadequate, cannot file a writ petition before this Court under Article 199 of the Constitution before availing of the normally adequate alternate statutory remedy before an ex-officio Justice of the Peace under Section 22-A(6) Cr.P.C."
(R.A.) Petition accepted.
PLJ 2008 Lahore 965 (FB)
Present: Fazal-e-Mira Chauhan, Hasnat Ahmad Khan & Muhammad Ahsan Bhoon, JJ.
Raja ASHFAQ SARWAR--Petitioner
versus
SHAHID ORAKZAI and 3 others--Respondents
W.P No. 6597 of 2008, decided on 19.6.2008.
Representation of the People Act, 1976 (LXXXV of 1976)—
----S. 14(3)(a)--Constitution Of Pakistan, 1973, Arts. 199 & 63(h)(i)(g)--Condcut of General Elections Order, 2002, S. 8(d)(2)(h)--Disqualification--Rejection of nomination papers on the ground of conviction--Plea of withdrawal of order--Failure to provide any review order--Returning officer, of his own motion exercising his power disqualified the respondent whereas the Appellate Tribunal allowed the respondent to contest the election and a direction was given to include his name in the list of contesting candidates as the order of conviction has been withdrawn by Supreme Court--Held: Conviction has been withdrawn is without material or basis--Conviction and sentence awarded to respondent and undergone by him is covered by a disqualification provide under Art. 63(1) (h) of the Constitution and S. 8D-(2)(h) of Conduct of General Elections Order, 2002.
[P. 969] A
2000 SCMR 1969, PLJ 2002 Tr.C. 369, 2001 SCMR 1968, PLD 2003 Lah. 251, 2003 MLD 939, 1984 CLC 270, 2003 CLC 300 Lah. And PLD 2008 Lah. 128, ref.
Judgment--
----Ingredient--The most important ingredient of an order/judgment is that, it should be a speaking one consisting of statement of grounds of decision. [P. 969] B
M/s. Ashtar Ausaf Ali, Muzaffar Ahmed Mirza and Razaq A. Mirza, Advocates for Petitioners.
Mr. Shahid Orakzai, Respondent No. 1 present in person.
Date of hearing: 19.6.2008.
Order
This order shall dispose of the following writ petitions:--
(i) W.P. No. 6597 of 2008. [Raja Ashfaq Sarwar vs. Shahid Orakzai, etc.]
(ii) W.P. No. 6598 of 2008, [Mohammad Farooq Khattak vs. Shahid Orakzai, etc.]
(iii) W.P. No. 6599 of 2008, [Malik Jehangir vs. Shahid Orakzai, etc.]
(iv) W.P. No. 6601 of 2008, [Khawaja Noor Ellahi vs. Shahid Orakzai, etc.]
as in all these writ petitions, the learned Appellate Tribunal, vide impugned order dated 30.05.2008, accepted the Election Appeal No. 21-R of 2008 filed by Respondent No. 1 and set-aside the order of Returning Officer dated 15.05.2008, whereby nomination papers of Respondent No. 1 were rejected.
Brief facts of the case are that, Shahid Orakzai-Respondent No. 1 submitted nomination papers on 12.05.2008 for seat of PP-10, Rawalpindi before Respondent No. 4 (Returning Officer PP-10). On the day of scrutiny, while arguing before Respondent No. 4 in the matter of Mian Shahbaz Sharif, a candidate of the same Constituency seeking rejection of his nomination papers, Respondent No. 1-Shahid Orakzai conceded that, he was convicted and sentenced in a contempt matter by a Larger Bench of Apex Supreme Court of Pakistan on 03.03.1983. On the admission of Respondent No. 1, Returning Officer, of his own motion, exercising his power under clause (a) of sub-section (3) of Section 14 of the Representation of the People Act, 1976, rejected the nomination papers of Respondent No. 1 declaring him to be disqualified under Article 63(i)(h) of the Constitution of Islamic Republic of Pakistani 1973 and Section 8D(2)(h) of the Conduct of General Elections Order, 2002, Being aggrieved of the same, Respondent No. 1 filed Election Appeal No. 21-R of 2008, which was accepted by the Appellate Tribunal vide impugned order dated 30,05.2008 observing that, charges of conviction levelled against Respondent No. 1 had been withdrawn by the Honourable Supreme Court of Pakistan and set-aside the order of Returning Officer dated 15.5.2008. Respondent No. 1 was allowed to contest the election and a direction was given to include his name in the list of contesting candidates. Being aggrieved of the same, the writ-petitioners have challenged the impugned order.
It is argued by the learned counsel for the petitioner that, the learned Appellate Tribunal erred at law by deciding the appeal without issuing proper notice to the petitioners. The petitioners were condemned unheard. The principle of natural justice that, no one should be condemned unheard has been violated. It is argued that, the order passed by the Returning Officer was unexceptional based on sound reasons and the same could not be set aside. The impugned order gives no reason for over ruling the well reasoned judgment of Respondent No. 4-Returning Officer. Respondent No. 1 failed to produce any order of the Honourable Supreme Court of Pakistan, vide which, the conviction and sentence awarded to Respondent No. 1 had been set-aside. Respondent No. 1 is imposter. He has sworn a false affidavit, mislead the Returning Officer, as well as, Appellate Tribunal. He is neither SADIQ nor AMEEN as required under the law. He acquires disqualification in terms of Article 63(i)(h) of the Constitution for having persistently obstructing the cause of justice and had committed contempt of Court and remained in jail with effect from 03.03.1993 to 22.03.1993. This fact is certified by a Letter No. 112-P, dated 04.06.2003 issued by the Superintendent, Central Jail, Rawalpindi to the effect that, Shahid Orakzai-Respondent No. 1 was admitted in jail on 03.03,1983 by the order of Honourable Supreme Court of Pakistan under Article 204 of the Constitution of Islamic Republic of Pakistan, 1973 and was released from jail on 22.03.1983 by the order of Honourable Supreme Court of Pakistan, therefore, in view of the findings of the Apex Court, reported as Shahid Orakzai vs. Pakistan Muslim League (Nawaz Group) [2000 SCMR 1969], he was convicted for committing contempt of Court, which is covered by Article 63(i)(h) of the Constitution of Islamic Republic of Pakistan, 1973 and Section 8D(2)(g) of the Conduct of General Elections Order, 2002. Further submits that, he was supposed to declare his educational qualification in the nomination papers, which has not been done. He has not deliberately attached the attested copy of his electoral roll, whereas, Section 14(3)(c) of the Representation of the People Act, 1976 requires rejection of nomination papers for non-fulfillment of mandatory provisions. The document annexed with the nomination papers was a computer print out, which does not fulfill the requirement of law. Reference is made to Akhtar Rasool Chaudhry vs. Returning Officer N.A 122, Lahore-5 and 4 others [PLJ 2002 Tr.C (Election) 369], Secretary, Ministry of Defence and another vs. Zahoor Ahmed Javed [2001 SCMR 1968] and Qayyum Azam Khan vs. Returning Officer/Additional District and Sessions Judge, PP-272, District Bahawalpur and 3 others [PLD 2003 Lahore 251].
Conversely, Respondent No, 1, in person, has vehemently opposed this writ petition by arguing that, no objection was raised by any of the contesting candidates of Constituency PP-10 on his nominations papers. In fact, during the scrutiny of nomination papers of Mian Shahbaz Sharif, an objection was raised on the candidature of Respondent No. 1 that, he also suffered disqualification being convicted in a contempt matter, which he frankly conceded before the Returning Officer-Respondent No. 4. During the course of arguments, counter-allegation was levelled against Respondent No. 1 that, he is a convict in a contempt matter, to which he candidly conceded before the Returning Officer-Respondent No. 4 that, he remained in jail for twenty days under the orders of the Honourable Supreme Court of Pakistan for committing contempt of Court and also informed the Returning Officer that, the order of conviction was withdrawn, but the Returning Officer proceeded to. reject his nomination papers. Further submits that, the word used by the Returning Officer that, Respondent No. 1 candidly conceded reflects on the good intention, which proves that he is SADIQ and AMEEN and has not concealed any fact from the Returning Officer to gain any benefit. (When asked to produce the order, vide which, he has been exonerated of charge levelled against him has been withdrawn by the Honourable Supreme Court of Pakistan, he stated that, he is not in possession of any such order passed by the Honourable Supreme Court of Pakistan nor he is in a position to produce the same before this Court). Further submits that, Election Tribunal is not bound and regulated by the High Court Rules and Orders requiring Respondent No. 1 to deposit the process fee in accordance with law. The proceedings of the Election Tribunal are regulated by the rules framed by the Chief Election Commissioner where no such provisions of depositing of process fee is provided, thus, he was not obliged to deposit the process fee. Finally submits that, the learned Appellate Tribunal had rightly set aside the order dated 15.05.2008 passed by the Returning Officer, as the same suffered from material illegality and irregularity.
We have heard learned counsel for the petitioner, as well as, Respondent No. 1 in person and have given anxious considerations to the arguments raised by them. All objections raised by learned counsel for the petitioners highlighting the disqualification from which Respondent No. 1 suffered, were never raised before the Returning Officer Respondent No. 4 at the time of scrutiny of his nomination papers. It was only during the scrutiny of nomination papers of Mian Shahbaz Sharif that, Respondent No. 1 admitted before the Returning Officer that, he was convicted by the Apex Supreme Court of Pakistan vide order dated 03.03.1993 and on receiving this information, the Returning Officer proceeded to reject the nomination papers of Respondent No. 1 by exercising his power under clause (a) of sub-section (3) of Section 14 of the Representation of People Act, 1976. This fact of conviction is not denied by Respondent No. 1 before us but he reiterated that, his conviction and sentence was reviewed and set-aside by the Honourable Supreme Court of Pakistan in a later judgment. He failed to produce any such order or judgment of the Honourable Supreme Court of Pakistan reviewing its earlier decision dated 03.03.1993, before the Returning Officer, the Appellate Tribunal or before us. The observation of learned Appellate Tribunal that, conviction order dated 03.03.1993 has been withdrawn, is without any material or basis. The conviction and sentence awarded to Respondent No. 1 and undergone by him is covered by a disqualification provided under Article 63(l)(h) of the Constitution of Islamic Republic of Pakistan, 1973 and Section 8D(2)(h) of the Conduct of General Elections Order, 2002.
The impugned order passed by the learned Appellate Tribunal, from the face of it, is not a speaking order. The learned Appellate Tribunal without following the settled principles of law and procedure, as well as, without conceiving that, valuable rights of parties cannot be decided in cursory manner proceeded to accept the appeal. The appeal of Respondent No. 1 had been accepted by the learned Appellate Tribunal simply relying upon his oral statement, without any documentary proof. The most important ingredient of an order/judgment is that, it should be a speaking one consisting of statement of grounds of decision, which is missing in the impugned order. It is also admitted by Respondent No. 1 that, he did not deposit the process fee as required by the office; resultantly, no notice was issued in the name of the present petitioners to appear before the learned Appellate Tribunal and to defend their case. The learned Appellate Tribunal while violating the principle of natural justice, proceeded to pass the impugned order without issuing notice in the name of private contesting respondents or proforma respondent or Advocate-General, as required under Section 60 of the Representation of the People Act, 1976, which reads as under:--
"60. Advocate-General to assist the Tribunal.--The Advocate-General for a Province shall, if a Tribunal so requires, assist the Tribunal at the hearing of an election petition in such manner as it may require".
The impugned order, by itself, shows that, none of the respondent was proceeded against ex-parte under the law. The learned Appellate Tribunal should have called upon the Advocate-General to assist the Court on the subject.
In this case, serious allegation had been levelled against Respondent No. 1, who made a statement before the Tribunal that, his conviction had been set-aside by the Honourable Supreme Court of Pakistan, but fact was not probed into by the learned Appellate Tribunal nor Respondent No. 1 was asked to produce any such document. In such like situation, at the minimum, the Advocate-General should have been asked to appear and assist.
The word "moral turpitude" has not been defined in the election laws; however, same has been considered to be covered by clause (h) of Section 99 (1-A) of the Representation of the People Act, 1976. It was held in Akhtar Rasool Chaudhry's case reported as 2003 MLD 939 Lahore that, conviction awarded in contempt case duly attracts the mischief provided under clause (h) of Section 99 (1-A) of the Representation of the People Act, 1976 and Section 8D(2)(h) of the Conduct of General Elections Order, 2002. In this respect, reliance is made to Imtiaz Hussain Phutto vs. Returning Officer [1987 SCMR 468] and Muhammad Shabbir Abbasi vs. Abdul Rasheed Mughal [1984 CLC 270], Pir Mazhar-ul-Haque vs. Election Tribunal-I [2003 CLC 300 Lahore], Sami Ullah Ch. Vs. Returning Officer, Bahawalpur and 2 others [PLD 2008 Lahore 128] and Sikandar Hayat Khan Bosan vs. Sued Yousaf Raza Gillani and another. [2008 CLC 240].
In view of the dictum laid down in the above referred case-law, it is observed that, nomination papers of Respondent No. 1-Shahid Orakzai were rightly rejected by the Returning Officer-Respondent No. 4 holding him to be a convict of a charge of moral turpitude by the Honourable Supreme Court of Pakistan disqualifying him to contest the election under Article 63(1)(h) of the Constitution of Islamic Republic of Pakistan, 1973 and Section 8D(2)(h) of the Conduct of General Elections Order, 2002.
As far as contention of Respondent No. 1 that, none of the petitioners can be termed as an aggrieved person as they have withdrawn their nomination papers, we may observe here that, these writ petitions cannot be dismissed on this technical ground as Respondent No. 1 suffers from patent disqualification, especially considering provisions of Section 5(a) of the Conduct of General Elections Order, 2002 and Section 14(3)(a) of the Representation of People Act, 1976.
In view of above discussion, we observe that, Respondent No. 1 has also incurred a disqualification within the meanings of Article 63 (1)(g)(h) of the Constitution of Islamic Republic of Pakistan, 1973, which is also reproduced:--
Disqualification for membership of Majlis-e-Shoora (Parliament).
(1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament), if--
(g) he is propagating any opinion, or acting in any manner, prejudicial to the Ideology of Pakistan, or the sovereignty, integrity or security of Pakistan, or morality, or the maintenance of public order, or the integrity or independence of the judiciary of Pakistan, or which defames or brings into ridicule the judiciary or the Armed Forces of Pakistan"
(h) he has been convicted by a Court of competent jurisdiction on a charge of corrupt practice, moral turpitude or misuse of power or authority under any law for the time being in force".
"At the commencement of the hearing today when Mr. Sharifuddin Pirzada, learned Senior ASC was asked to address the Court on behalf of the Federation, Shahid Orakzai disturbed the decorum of the Court by coming over to the rostrum uninvited and murmuring that he should be heard. This is not the first time that he has disturbed the decorum of the Court by interrupting the Court proceedings. Earlier too, he was stopped from entering the Court premises for a period of one month by order dated 14.9.2000 passed in Suo Motu Revision Petition (Cr. A. No. 102 of 1999) wherein the following order was passed :--
"The learned Attorney General for Pakistan has concluded his arguments in the titled appeal. In order to give hearing to Mr. Shahid Orakzai, who had moved an application against the impugned order of a three-member Bench of this Court and which application had been turned into an appeal, he was allowed to dress the Court for ten minutes. He rose from his seat and took the rostrum. He started with irrelevant matters. He was stopped to refer to any such matter which has no nexus with the determination of the point involved. He became enraged and started misbehaving. It is not the first time that he has behaved in this manner. His conduct has always been to brow-beat the Courts in such like. matters. He is in the habit of remaining in attendance in all such cases in which he has no interest nor has he ever been a party to such proceedings.
We have, therefore, decided that Shahid Orakzai should be stopped from entering the Court premises for a period of one month or till the conclusion of the case, whichever is earlier so as to avoid any obstruction in the course of justice. This is part from any action that we may deem proper to take against him. Order accordingly.
We direct the learned Attorney General for Pakistan and the Inspector General of Police, Islamabad to take appropriate steps for ensuring compliance of this order.
We were not inclined to pas any order of the nature that we have done but we were compelled to do so on account of the offensive conduct of Shahid Orakzai displayed before this Court, which clearly interfered with the functioning of the Apex Court. We have done so with reluctance but with the full awareness that it was in the interest of justice and to maintain the dignity and decorum of this Court. This is only a preventive order so that Shahid Orakzai does not repeat the same offensive conduct in future. No case; in which he is a party, shall be fixed during this period."
Shahid Orakzai is not a party in any of the review petitions and therefore he has no right to address the Court muchless disturb the proceedings. When asked why he has disturbed the Court proceedings, he gave no explanation whatsoever. We told him that earlier too, he disturbed the Court proceedings, which led us to pass a preventive order so that he may not repeat the same offensive conduct in future. It appears that the above order has no effect on him.
Resultantly, through an oral order of even date, in the interest of justice and to maintain the dignity and decorum of this Court, we have decided through this preventive order that Shahid Orakzai shall be stopped from entering the Supreme Court premises for a period of six months from today. No case, in which he is a party, shall be fixed during this period. The Inspector General of Police/Senior Superintendent of Police, Islamabad shall take appropriate steps for ensuring the compliance of this order under intimation to the Registrar of this Court."
In this view of the matter, these writ petitions are allowed impugned order dated 30.05.2008 passed by the learned Appellate Tribunal is set-aside and that of learned Return Officer dated 15.05.2008 is upheld. No order as to costs. Office is directed, to immediately transmit a copy of this order to the office of Chief Election Commission of Pakistan, Islamabad for information.
(W.I.B.) Petitions allowed.
PLJ 2008 Lahore 973
Present: Hafiz Tariq Nasim, J.
Dr. TASNIM TAHIRA REHMAN, SENIOR WOMEN MEDICAL OFFICER SENIOR REGISTRAR, ALLIED HOSPITAL,FAISALABAD--Petitioner
versus
GOVT. OF PUNJAB through Secretary Health, Lahore and 4 others--Respondents
W.P. No. 5921 of 2008, decided on 10.7.2008.
Constitution of Pakistan, 1973—
----Art. 189--Appointment--Political interference--Exertion of political pressure--Petitioner applied for the Post of Assistant Professor on current charge basis in pursuance of advertisement who could not be appointed--Petitioner approached the Secretary Health for rectification of wrong and prejudice caused to her and she was appointed as Assistant Professor and the order of the respondent was withdrawn--Civil servant/Principal who was the close relative of respondent annoying with appointment of the petitioner did not permit her to join against this post and during that respondent was appointed on the recommendation of Senior Minister on the post, where the petitioner was already appointed--Held: MNAs/MPA's/ Ministers are no body to interfere in the matter of appointments, transfers, promotions and the employees who exert such like pressure are liable to be proceeded under Efficiency and Discipline Rules being guilty of misconduct but unfortunately the directions of the Apex Court which otherwise are mandatory as per provisions of Art 189 of the Constitution are not adhered to--Influence of Minister meaning hereby that respondents appointment was not in the exigency of service rather on political motivation can also not remained in the field and accordingly set aside--Chief Secretary of Punjab is directed to look into the state of affairs, get his Secretaries of the department realized that they must resist before the political pressures in case of transfers/postings, promotions and appointments, in all these matter, the controversies shall be resolve fairly, justly in a transparent manner. [Pp. 974 & 975] A, B & C
Mr. Junaid Jabbar Khan, Advocate for Petitioner.
Mr. Naeem Masood, A.A.G Punjab for Respondents.
Mr. Munawar Javed, Advocate with Respondent No. 3 in person.
Date of hearing: 10.7.2008.
Order
Brief facts leading to this writ petition are that the petitioner applied for the post of Assistant Professor (OBST & GYNAE) on current charge basis in pursuance of advertisement in the daily `Dawn' dated 2.11.2007, could not be appointed; submitted a representation but with no result, whereas Respondent No. 4 Dr. Shazia Saheen was appointed and according to learned counsel for the petitioner this appointment was an outcome of pick and choose, whims and modes particularly when Respondent No. 3 Principal is admittedly related to Respondent No. 4, which caused a serious prejudice to the petitioner, who approached the Secretary (Health), Government of the Punjab/Respondent No. 1 for rectification of wrong and finally through order dated 29.4.2008, the petitioner was appointed as Assistant Professor on current charge basis at Punjab Medical College, Faisalabad for a period of one year. Further submits that due to petitioner's appointment, Respondent No. 4 Dr. Shazia Shaheen's appointment order was withdrawn which annoyed Respondent No. 3 who did not permit the petitioner to join against the post of Assistant Professor despite clear cut order passed by Respondent No. 1. Adds that Respondent No. 5 Dr. Shaista Talib applied for the post of Assistant Professor after the cut of date but on the recommendations of Raja Riaz Ahmad, Senior Minister Punjab she got order dated 10.5.2008 and was appointed against the post where the petitioner was already appointed by the Secretary (Health), Government of the Punjab. The learned counsel for the petitioner further submits that on page-19 (annex-J) of his writ petition is a sufficient proof of political pressure's exertion through Raja Riaz Ahmad, Senior Minister Punjab by Respondent No. 5, which is a sufficient ground for the interference in the impugned matter. In response to the Court's notice Respondent No. 3 Principal is present in Court and explained the entire situation, which reflects the helplessness of the Principal in front of Politicians, MNAs, MPAs and Ministers.
The Principal categorically states that the petitioner as well as Respondent No. 5 did exert political pressure through different means and despite his resentment he could not resist.
It is a really shocking and alarming situation. The Hon'ble Supreme Court of Pakistan repeatedly held that the M.N.As/M.P.As/Ministers are no body to interfere in the matter of appointments, transfers, promotions and the employees who exert such like pressure are liable to be proceeded under Efficiency and Discipline Rules being guilty of misconduct but unfortunately the directions of the apex Court which otherwise are mandatory as per provisions of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 are not adhered to.
In the present case the political influence exerted by the petitioner as well as Respondent No. 5 is established hence the petitioner cannot be held entitled for any relief, thus the writ petition is dismissed.
So far the appointment of Respondent No. 5 as Assistant Professor on contract basis for one year is concerned, it is established through documentary evidence that the same is also procured through the influence of Minister meaning thereby that Respondent No. 5's appointment was not in the Exigency of service rather on political motivation can also be not remained in the field and accordingly set aside.
In the attending circumstances, the Chief Secretary, Government of the Punjab is directed to look into the state of affairs, get his Secretaries of the department realized that they must resist before the political pressures in case of transfers/postings, promotions and appointments. In all these matters, the controversies shall be resolved fairly, justly in a transparent manner. So far the disputed post of Assistant Professor Gynae is concerned, it must be filled through a transparent manner without being influenced from any extraneous pressure within a period of one month positively.
(W.I.B.) Petition dismissed.
PLJ 2008 Lahore 975
Present: Hafiz Tariq Nasim, J.
NAZIA JAVED--Petitioner
versus
GOVT. OF PUNJAB through the Secretary Education Department, Civil Secretariat, Lahore and another--Respondents
W.P. No. 5339 of 2008, decided on 25.6.2008.
Constitution of Pakistan, 1973--
----Art. 199--Academically qualification--Result awaiting candidate--Posts of subject specialist--Conditionally appeared and declared successful in written test by Public Service Commission--Cancellation of interview call due to academically not qualified--Representation also declined--Constitutional petition--Petitioner did qualify the written test and then an interview call was issued to her resulting into accrual of a lawful right in her favour for appearance in the interview--Cancellation of such interview call in a mechanical manner without application of independent mind and without issuance of any show-cause notice and even without hearing the petitioner--Authority who declined the petitioner's request did not adhere to the ground reality that in the entire exercise petitioner could not be found at fault rather the action of the functionaries of the commission is against all canons of justice, equity and law, resulting into a serious miscarriage of justice, ruining the petitioner's future career who otherwise was a legitimate expectant for the appointment in-question--Petition was accepted. [P. 978] A
Mian Manzoor Hussain, Advocate for Petitioner.
Mr. Naeem Masood, Assistant Advocate General.
Mian Ghulam Shabbir Thaheem, Advocate with Syed Hassan Raza and Muhammad Ali Assistant, PPSC for Respondents.
Date of hearing: 25.6.2008.
Order
The backdrop of this writ petition is that some posts of Subject Specialists in Math were required to be filled by Punjab Public Service Commission through advertisement dated 18.02.2007, in response to which petitioner applied, mentioning specifically in her application that the result of University Examination was awaited. The petitioner, as required, appeared in the written test held on 28.11.2007, she was declared successful vide notice dated 22.03.2008 and then a letter dated 11.04.2008 was issued directing her to appear in the interview on 06.05.2008 before the Punjab Public Service Commission. Thereafter through a subsequent letter dated 19.04.2008 the petitioner was informed that she cannot participate in the interview due to academically not qualified and the call letter was withdrawn.
Aggrieved by the letter dated 19.04.2008, whereby the interview call was cancelled/withdrawn, the petitioner filed a representation before the Punjab Public Service Commission which was declined through letter dated 02.05.2008. Learned counsel for the petitioner submits that the petitioner applied for the advertised post without concealing any fact rather mentioning specifically that she is waiting result of the University examination, her application alongwith the documents was examined by the Punjab Public Service Commission and then she was called for written test where she appeared and qualified the same and then a call letter was issued for interview to her. However, later on the development in the form of cancellation of interview letter smells mala fide and arbitrariness, hence calls for interference by this Court.
The learned Assistant Advocate General submits that the writ is not competent against the Punjab Public Service Commission in the process of recruitment. Further submits that it is the domain of the Public Service Commission to assess the eligibility and determine the suitability of the candidate and not of the Court.
Learned counsel appearing on behalf of the Public Service Commission submits that Government of Punjab sent a requisition for recruitment to 17 posts of Subject Specialist in Mathematics (Female) on contract basis for a period of five years. The posts were advertised on 18.02.2007 with the closing date of 12.03.2007, in response to the advertisement 582 applications were received, written test was held on 28.11.2007 and the petitioner was also allowed provisionally to appear in the written test with a condition that, "If you are found ineligible later on at any stage for any reason, your candidature will be cancelled and your application shall stand rejected irrespective of your qualifying the test/interview".
As a result of written test, 30 candidates were cleared including the petitioner and they were called for interview through call letters. So far the petitioner is concerned, she mentioned in her application form that she obtained 792 out of 1200 marks in Part-I and 938 out of 1200 marks in Part-II of M.Sc. Mathematics, respectively and she produced the transcript of M.Sc. Mathematics on 15.04.2008. Despite that the interview was going to be held on 06.05.2008, the petitioner was found ineligible on the ground that closing date for submission of transcripts/complete applications was 12.03.2007 and the petitioner's result was declared in July 2007 and as such no injustice was done with the petitioner rather the Commission adhered to its own instructions for the determination of eligibility of the candidate. Further submits that the Commission had already sent recommendations in respect of those 17 posts and the Government had already issued appointment letters to the recommendees, hence the writ petition being an academic exercise cannot be entertained.
Arguments heard. Record perused.
It is a case of real hardship, which is practically an outcome of irregularities committed by the functionaries of the Punjab Public Service Commission on whose hands the petitioner is victimized with no fault of her.
Record produced by the representative of the Commission clearly reveals that the petitioner applied against the post of Subject Specialist in Mathematics in pursuance of advertisement in the press dated 18.02.2007 with the closing date of 12.03.2007 meaning thereby that before closing date the petitioner applied for the said post, she did not conceal anything from the Commission rather specifically mentioned that the result is in waiting, the result was declared in July 2007, whereas the Commission after going through the entire contents of the petitioner's application issued a letter for appearance in the written test, which was held on 28.11.2007, meaning thereby that at the time of written test the petitioner had already passed M.Sc. Mathematics and her result had already been declared in July 2007 and this very fact is confirmed in the report filed by the Punjab Public Service Commission before this Court.
The petitioner did qualify the written test and then an interview call was issued to her resulting into accrual of a lawful right in her favour for appearance in the interview alongwith others but unfortunately this interview call letter was subsequently cancelled in a mechanical manner without application of independent mind and without issuance of any show-cause notice and even without hearing the petitioner. So much so when represented against this unlawful action of the Commission, the authority who declined the petitioner's request, did not adhere to the ground reality that in the entire exercise petitioner could not be found at fault rather the action of the functionaries of the Commission is against all canons of justice, equity and law, resulting into a serious miscarriage of justice, ruining the petitioner's future career who otherwise was a legitimate expectant for the appointment in-question.
So far the objection of maintainability of the writ petition is concerned, suffice it to refer the law laid down in the cases of Atta Ullah Mehr vs. Punjab Public Service Commission (1983 CLC 2903) and Ahmed Sultan Waris vs. Punjab Public Service Commission (PLD 1997 SC 382).
In a recent judgment reported as Secretary Revenue Division vs. Muhammad Saleem (2008 SCMR 948) it is held that, "Jurisdictions vested with apex and superior Courts are general, wider in scope and extent, while constraints/prohibitions are narrower in their applications and dimensions--Jurisdiction of superior Courts is to be stretched to take into its folds all disputes to be resolved while limitation of jurisdictions and powers are to be squeezed and kept to minimum extent and length--Such is the rule of interpretation of jurisdiction, scope and limitations of superior Courts in Pakistan."
Taking strength from the law laid down supra, the letters dated 19.04.2008 and 02.05.2008 are held to be the result of inaction/irregularities committed by the functionaries of Punjab Public Service Commission and are declared illegal, unlawful and having no legal effect. The petitioner is accordingly held to be entitled for interview before the Punjab Public Service Commission, however, it is up to the Respondents No. 1 and 2 to rectify the wrong to accommodate the petitioner taking all steps within a period of one month from the receipt of this order.
The writ petition is allowed in the above terms.
(M.A.K.Z.) Petition allowed.
PLJ 2008 Lahore 979
Present: Sayed Zahid Hussain, J.
FAIZ MUHAMMAD--Petitioner
versus
MUHAMMAD AZAM--Respondent
C.R. No. 2272 of 2001, heard on 9.10.2007.
Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 13--Civil Procedure Code, (V of 1908) S. 115--Civil revision--Non-performance of talbs--Effect of--The plaintiff/pre-emptor had failed to fulfil the requisite conditionalities of making talb-i-muwathibat whose mere assertion as to performance of talbs and making of some improvements in evidence was not enough--Due to non-performance of talbs, the Superior right to pre-empt the suit land, if any, stood extinguished in terms of S. 13 of the Punjab Pre-emption Act, 1991--Revision was accepted. [P. 981] B
2007 SCMR 1, 2007 SCMR 515, 2007 SCMR 1193 & 2007 SCMR 1491, ref.
Punjab Pre-emption Act, 1991 (IX of 1991)—
----S. 13--Performance of Talb-i-Ishhad--Date, place and time of talb-i-muwathibat and date of issuing the notice was not mentioned--Validity--Plaint wherein date, place and time of talb-i-muwathibat and date of issuing the notice of performance of talb-i-ishhad in terms of S. 13 of Pre-emption Act, is not provided it would be fatal for pre-emption suit. [P. 981] A
PLD 2007 SC 302; PLD 2003 SC 315 and PLD 2005 SC 977 rel.
Rai Muhammad Panah Bhatti, Advocate for Petitioner.
Mr. Amir Abdullah Khan Niazi, Advocate for Respondent.
Date of hearing: 9.10.2007.
Judgment
Muhammad Azam respondent had instituted suit to pre-empt the suit land (23-Kanals 5-Marlas) purchased by Faiz Muhammad petitioner/defendant vide Mutation No. 876 dated 28.5.1997. The suit was contested and was eventually dismissed by the trial Court vide judgment dated 8.3.2000. On appeal the learned Additional District Judge, Mianwali modified the judgment of the trial Court accepting the appeal and decreeing his suit to the extent of half share of the disputed land. This judgment of the appellate Court dated 12.9.2001 has been assailed through this petition by Faiz Muhammad vendee and by Muhammad Azam pre-emptor through C.R.No. 2205/2001. Since both the petitions arise out of the same judgment of the appellate Court, these have been heard together due to the commonality of the controversy involved.
The learned counsel for the parties have been heard and record perused.
There is a common ground that crucial issue between the parties is about performance of Talbs by the plaintiff/pre-emptor in accordance with law and that the fate of these petitions is dependent upon the findings on that issue i.e. Issue No. 6. The trial Court had dealt with Issue No. 6 (Talbs) and 7 (superior right) together and decided the same against the plaintiff/pre-emptor. On appeal, however, the learned appellate Court held that the plaintiff/pre-emptor had proved the performance of Talbs. It needs no emphasis that for succeeding and grant of decree in a pre-emption suit the performance of Talbs as prescribed by S. 13 of the Punjab Pre-emption Act, 1991 is a mandatory requirement and if the same are not performed in accordance with law, even the superior right claimed by the plaintiff/pre-emptor stand extinguished. That is why the Superior Courts have insisted for strict compliance of these requirements. For this purpose the averments made in the plaint are of primary significance. In the instant suit paragraph-3 of the plaint reads as under:--
It is evident from the perusal of the above that it is silent about the timing and the place (Majlis) where the plaintiff/ pre-emptor acquired knowledge of the sale and his immediate declaration of intention. There has been some obscurity in the past about the legal position as to the extent of the duty of pre-emptor qua performance of Talbs. However, the same stand cleared and settled by a larger Bench of the Hon'ble Supreme Court of Pakistan in Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302). By reiterating the view taken in Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 S.C. 315) and Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 S.C. 977), it was held that "a plaint wherein the date, place and time of Talb-i-Muwathibat and date of issuing the notice of performance of Talb-i-Ishhad in terms of Section 13 of the Act is not provided it would be fatal for the pre-emption suit." Similar view is found in Fazal Din through L.Rs v. Muhammad Anayat through L.Rs. (2007 SCMR 1), Nawab Din through L.Rs. v. Faqir Sain (2007 SCMR 401), Mst. Kharia Bibi v. Mst. Zakia Begum and 2 others (2007 SCMR 515), Mst. Lalan Bibi and others v. Muhammad Khan and others (2007 SCMR 1193) and Abdul Rehman v. Haji Ghazan Khan (2007 SCMR 1491). Clearly, therefore, the plaintiff/pre-emptor in this case had failed to fulfill the requisite conditionalities of making Talb-i-Muwathibat whose mere assertion as to performance of Talbs and making of some improvements in evidence was not enough. Due to non-performance of Talbs, the superior right to pre-empt the suit land, if any, stood extinguished in terms of S. 13 of the Punjab Preemption Act, 1991.
As noted above, in the instant case the plaintiff/pre-emptor had failed to lay proper foundation in the pleadings about the performance of Talbs. His alleged superior right of pre-emption stood extinguished due to non-performance of Talbs in accordance with law. The judgment of the appellate Court thus, is not consistent with law. It is unsustainable and is set aside.
As a result, C.R. No. 2272/2001 is accepted whereas C.R.No. 2205/2001 is dismissed. No order as to costs.
(M.A.K.Z.) Revision was accepted.
PLJ 2008 Lahore 982
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
MUHAMMAD NAEEM ABBASI--Appellant
versus
Mst. MUHAMMAD JAN--Respondent
S.A.O. No. 18 of 2008, heard on 27.6.2008.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)—
----Ss. 13(2) & (6)--Agreement of tenancy--Deposit of rent--Limitation for--Section 13(2)(i) of Urban Rent Restriction Ordinance, allows a grace of 15 days to a tenant to pay or tender rent in cases where a time is fixed in the agreement of tenancy with his landlord--A grace of 60 days where there is no such agreement--Matter of deposit of rent in Court during the pendency of an ejectment petition is governed by Section 13(6) of the Ordinance, 1959 and the rent controller is bound to direct a tenant to deposit the rent regularly till the final decision of the case before the 15th day of each month the monthly rent due from him. [P. 983] A
Mr. Kaleem-ud-Din Malik, Advocate for Appellant.
Ch. Rizwan Azar Gondal, Advocate for Respondent.
Date of hearing: 27.6.2008.
Judgment
For purposes of this order, reference to pleaded facts would not be necessary. Suffice it to say that on 7.2.2007 the respondent filed an application for the ejectment of the appellant from two shops located in Rawalpindi urban area on the ground of default in payment of rent and bona fide requirement for personal use and occupation. The application was contested by the appellant. On 8.9.2007 the learned Rent Controller passed an order in terms of Section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959. He directed the appellant to deposit rent at the rate of Rs.1500/- per month per shop w.e.f August, 2006 to September, 2007 on or before the next date (24.9.2007) and directed the deposit of the future rent at the said rate before 15th of each month. On 20.10.2007 the learned Rent Controller passed an order stating that the arrears have been deposited as directed but a receipt for the month of October, 2007, has not been produced. He accordingly struck off the defence of the appellant and passed an ejectment order. A first appeal filed by the appellant has been dismissed by a learned ADJ, Rawalpindi, on 20.3.2008.
Learned counsel for the appellant contends with reference to the case of Mehbood Illahi v. Saqib Mehmood Riaz and others (1990 SCMR 1688) that the rent for October, 2007, could have been deposited before 15.11.2007 and as such the impugned orders are against law. Learned counsel for the respondent has tried to support the impugned order.
I have gone through the records of the learned Rent Controller, with the assistance of the learned counsel for the parties. I have already reproduced above the material contents of the order dated 8.9.2007 passed under Section 13(6) of the said ordinance of 1959. The arrears have admittedly been paid as directed. It will be seen that the learned rent Controller was completely oblivious of the fact that he was passing the order on 20.10.2007 and condemning the appellant for failure to deposit the rent for October, 2007 which has yet to become due for payment and was to be deposited before 15th day of the next month i.e. 15.11.2007. The learned ADJ has completely mis-directed himself and it appears that he has not even cared to read Section 13(6) of the said Ordinance before passing the impugned order. He has observed as follows in Para-9 of his impugned order--
"Every tenant is required to pay rent due in advance until and unless it is specifically agreed between the parties that the rent shall be paid at the end of the month. The learned trial Court had directed in categorical terms that the rent should be paid before 15th of each month, thus, there was no ambiguity in the impugned order to allow the appellant to agitate that the rent was not yet due."
The above observation shows that the learned ADJ has made no attempt to acquaint himself with the provisions of Section 13 of the Punjab Urban Rent Restriction Ordinance, 1959. Section 13(2)(i) allows a grace of 15 days to a tenant to pay or tender rent in cases where a time is fixed in the agreement of tenancy with his landlord; And a grace of 60 days where there is no such agreement. However, the matter of deposit of rent in Court during the pendency of an ejectment petition is governed by Section 13(6) of the said Ordinance and the rent Controller is bound to direct a tenant to deposit the rent regularly till the final decision of the case before the 15th day of each month the monthly rent due from him. The rent for a month, of course, becomes due upon the expiry of the said month and upon thus becoming due it is payable before the 15th day from the said date. This clearly means that rent for October, 2007, was to be deposited before the 15th day of November, 2007. Even if the learned ADJ had concluded that the Rent Controller intended to direct the appellant to deposit the rent of the same month before the 15th of the same month, the order ought to have been struck down being against the express provision of law. The rent for the said month has already been deposited on 8.11.2007 as per copy of the challan receipt. Thus, no default whatsoever has been committed by the appellant within the meaning of Section 13(6) of the said Ordinance. The SAO is allowed. Both the impugned orders passed by the learned ADJ and the learned Rent Controller are set aside. The result would be that the ejectment petition filed by the respondent against the appellant shall be deemed to be pending. The parties shall appear before the learned Senior Civil Judge/Rent Controller, Rawalpindi, on 29.7.2008. Issues have already been framed. The records will be immediately remitted back to the learned Rent Controller who shall proceed to decide the case on merits on or before 31.10.2008. No orders as to costs.
(M.A.K.Z.) S.A.O. allowed.
PLJ 2008 Lahore 984
Present: Muhammad Jehangir Arshad, J.
HILBRO INSTRUMENTS (PVT.) LIMITED through Chief Executive--Applicant
versus
Mst. SIKANDAR BEGUM--Respondents
S.A.O. No. 95 of 2006 and C.M. No. 475-C of 2007, decided on 31.10.2007.
Civil Procedure Code, 1908 (V of 1908)—
----O. XLI, R. 5(2)--Supreme Court Rules, 1980, O. XX--West Pakistan Urban Rent Restriction Ordinance, 1959--S. 15--Second Appellate order--Ejectment order--Execution proceeding was stayed--Application was filed to stay the execution proceedings of ejectment order--Jurisdiction--Remedy of appeal was availed by applicant--Validity--High Court can no more exercise its jurisdiction conferred on it under Order XLI, Rule 5(2) of CPC and as after filing of CPSLA the matter comes within jurisdiction of Supreme Court and any order passed by High Court would not only be an order in percuriam but also in violation of the provisions contained in Order XX of Supreme Court Rules, 1980--Held: Provisions of Order XLI Rule 5(2) of CPC cease to apply after filing of appeal and once the appeal before higher forum is filed, no further indulgence by way of staying the execution of a decree or order appealed against can be shown--Application was dismissed. [Pp. 985 & 986] A & B
Mr. Taqi Ahmad Khan, Advocate for Applicant.
Mr. Sajid Mehmood Sheikh, Advocate for Respondent.
Date of hearing: 31.10.2007.
Order
C.M. NO. 475-C/2007.
The facts in brief are that SAO No. 95-C/2006 against the ejectment order of the learned Rent Controller dated 13.12.2003 and of the learned Additional District Judge/appellate Court dated 12.6.2006, was dismissed by this Court on 30.2.2007. The instant Civil Miscellaneous application was filed with the prayer to stay the execution proceedings of ejectment order for one month to enable the applicant to avail remedy of appeal before the Hon'ble Supreme Court. While issuing notice in this C.M. on 15.5.2007, this Court stayed the execution proceedings to enable the applicant to invoke the jurisdiction of the apex Court.
Today, the matter has been heard. The learned counsel for the applicant submits that although the applicant has filed CPSLA before the Hon'ble Supreme Court but due to heavy workload the same could not be heard by the apex Court nor the applicant was able to obtain the interim relief, therefore, the execution of the ejectment order be kept stayed till time the matter of interim relief comes up before the Hon'ble Supreme Court. In support of his contention, the learned counsel for the applicant has placed reliance on the provisions of Order 41 Rule 5(2) CPC.
On the other hand, learned counsel for the respondents has opposed this application on the ground that since CPSLA already stands filed by the applicant, therefore, this Court has become functus officio and cannot grant further time. It is next argued that in case the prayer of the applicant is allowed it would amount to sitting over the jurisdiction of the Hon'ble Supreme Court of Pakistan.
Arguments considered. Record perused.
There is a considerable force in the contention of learned counsel for the respondent and I am inclined to agree with the same that after filing of CPSLA before the Hon'ble Supreme Court, this Court can no more exercise its jurisdiction conferred on it under Order 41 Rule 5(2) CPC and as after the filing of CPSLA the matter comes within the jurisdiction of the apex Court and any order passed by this Court thereafter, would not only be an order in percuriam but also in violation of the provisions contained in Order XX of the Supreme Court Rules, 1980, as reproduced below:--
"The filing of a petition for leave to appeal or an appeal shall not prevent execution of the decree or order appealed against, but the Court may, subject to such terms and conditions as it may deem fit to impose, order a stay of execution of the decree or order, or order a stay of proceedings, in any case under appeal to this Court."
In similar circumstances, the Hon'ble Supreme Court of Pakistan while disposing of CP No. 48-L/2005 passed the following order on 28.3.2005:--
"Perused the explanation furnished by Mrs. Kaneez Faiza Bhatti, Civil Judge 1st Class/Magistrate Section 30, Sheikhupura. It is not satisfactory. She is warned to be careful in future. She must proceed with the cases unless stay is produced before her. A copy of this order be sent to the Registrar, Lahore High Court for keeping it in her personal file.
The provisions of Order XX of the Supreme Court Rules, 1980 be brought to the notice of the Registrars of all the High Courts for" strict compliance by all the Courts/ Forums working under supervision and control of the High Court.
In view of the above circumstances, no further indulgence can be shown to the applicant and this application is dismissed holding that provisions of Order 41, Rule 5(2) CPC cease to apply after filing of appeal and once the appeal before the higher forum is filed, no further indulgence by way of staying the execution of a decree or order appealed against, can be shown.
(R.A.) Application dismissed.
PLJ 2008 Lahore 986 (DB)
Present: Kazim Ali Malik and Hasnat Ahmad Khan, JJ.
MUHAMMAD YAQOOB--Petitioner
versus
SUPERINTENDENT, CENTRAL JAIL, FAISALABAD and 4 others--Respondents
W.P. No. 9259 of 2008, decided on 30.7.2008.
Constitution of Pakistan, 1973—
----Arts. 48(2), 45 & 199--Power to commute death sentence--Power to grant pardon, reprieve, respite and to remit, suspend or commute sentence--Scope and extent--Power to grant pardon, reprieve, respite and to remit, suspend or commute any sentence passed by any Court, tribunal or any authorities, lies in the exclusive jurisdiction of the President of Pakistan, therefore, tentatively speaking, subject to the decision of Supreme Court where the suo motu matter is pending in such regard--Held: Advice of the Prime Minister to commute the death sentence is not binding on the President of Pakistan, however he may exercise his discretion in this regard on the receipt of summary of the cabinet of the Prime Minister, as the case may be.
[P. 992] A
Constitution of Pakistan, 1973—
----Arts. 45 & 199--Execution of death sentence--Suo motu action by Supreme Court--Pre-empting decision of Supreme Court--Request for suspension of execution of death sentence--Refusal of--Execution of death sentence of petitioner's son is violative of any law or, for that matter, any Presidential Order or Notification--Incumbent President has not passed any order on the subject matter in exercise of his discretion devolved upon him by Art. 45 of the Constitution--Death sentence awarded to petitioner's son, which has been maintained upto Supreme Court would not be violative of Art. 9 of Constitution--C.M. filed by the condemned prisoner is pending before the Supreme Court--Petitioner's son, i.e. condemned prisoner in the changed circumstances of the case may seek the self-same relief from the Supreme Court or may more an application before the worthy President of Pakistan for seeking the relief of respite in the execution of death sentence by invoking the Presidential powers under Art. 45 of the Constitution--During the pendency of suo motu matter before Supreme Court, High Court cannot pre-empt the decision of the Supreme Court--Petition dismissed in limine. [Pp. 992 & 993] B
Sardar Khurram Latif Khan Khosa, Advocate for Petitioner.
M/s. Aamir. Rehman and Qamar-uz-Zaman Qureshi, Deputy Attorney Generals for Pakistan and Ch. Muhammad Hussain, Addl. Advocate-General, Punjab, on Court's call with Mehboob Ali, Section Officer for Respondents.
Date of hearing: 30.7.2008.
Order
Hasnat Ahmad Khan, J.--This writ petition was filed with the following prayer:
"It is, therefore, most respectfully prayed that this petition may very graciously be accepted directing the respondent concerned to postpone the execution of Muhammad Yousaf son of the petitioner till the final adjudication of the decision by the Honourable Supreme Court of Pakistan as well as the Government of Pakistan.
It is further prayed that any further proceedings be immediately stayed till the final adjudication of the matter.
Any other writ relief or directions expedient in the interest of justice be also issued in vindication of the grievances afore-referred."
Briefly, put, the facts, of the case which gave rise to the filing of the petition, as narrated in this petition, were/are that the petitioner's son, namely, Muhammad Yousaf, was booked in the case F.I.R. No. 272/2000, dated 6-7-2000, registered with the Police Station, Batala Colony, Faisalabad, in respect of an offence under Section 302, PPC on the allegation of strangulating his wife, namely, Sheerin Hameed, to death. After due investigation, he was indicted on the charge of murder of the said lady, in consequence whereof, he was sentenced to death by the learned Sessions Judge, Faisalabad. The said Muhammad Yousaf--condemned-prisoner, filed Cr. Appeal No. 1169/2002, which was dismissed by this Court vide judgment dated 28-9-2005, consequently, his death sentence was confirmed. Cr. Petition No. 494-L/2005 filed by the said Muhammad Yousaf against the judgment of this Court was dismissed by the Hon'ble Supreme Court, whereafter, Cr.Review Petition No. 44/2005 was also dismissed by the Hon'ble Supreme Court. A Civil Misc. Application No. 107/2008 in Cr. Review No. 44/2005 in Cr. P.L.A No. 494-L/2005 seeking reversal of the order dated 22-1-2008, whereby the review petition filed by the said Muhammad Yousaf was dismissed by the Hon'ble Supreme Court, is pending adjudication before the Hon'ble Supreme Court, as claimed by the petitioner herein.
It appears that after the dismissal of the Cr. review petition filed by petitioner's son, a black-warrant for the execution of the death sentence awarded to Muhammad Yousaf, petitioner's son, has been issued. According to the petitioner, the said black-warrant is going to be executed on 5th of August, 2008. Muhammad Yousaf--condemned-prisoner filed an application before the learned Sessions Judge, Faisalabad for stay of execution of death sentence, mainly on the ground that his application seeking restoration of his review application was pending before the Hon'ble Supreme Court. However, the said application was dismissed by the learned Sessions Judge, Faisalabad vide order dated 22-7-2008.
This petition came up for hearing before this Court yesterday, i.e. 29th of July, 2008 on which date Mr. Qamar-uz-Zaman Qureshi, learned Deputy Attorney General and Ch. Muhammad Hussain, learned Addl. Advocate-General were directed to submit report and parawise comments on behalf of Respondents No. 3 and 5, respectively. They were further directed to solicit instructions from the concerned quarters.
In pursuance of the said order, Mr. Aamir Rehman, learned Deputy Attorney General as well as Ch. Muhammad Hussain, learned Addl. Advocate-General have entered appearance. The latter submitted the report and parawise comments on behalf of Respondent No. 3, which have been placed on the record. However, Respondent No. 5 failed to comply with the order dated 29th of July, 2008. Explaining the reason for non-submission of the report on behalf of Government of Pakistan, the learned Deputy Attorney General has submitted that on the same issue, the Hon'ble Supreme Court has already taken suo motu notice, which is pending adjudication but neither report nor the parawise comments have been submitted by the Government of Pakistan before the Hon'ble Supreme Court, so far. The preparation of the same, according to the said learned Deputy Attorney General is in the pipeline and some more time is likely to be consumed in the said process.
Be that as it may, both the parties have been heard at length.
Learned counsel for the petitioner has contended that on the eve of birthday of Mohtarma Benazir Bhutto, Ex-Prime Minister of Pakistan, the worthy Prime Minister had announced that a summary would be sent to the worthy President of Pakistan for commutation of death sentence awarded to all the condemned-prisoner in Pakistan into that of imprisonment for life. He further adds that a summary in this regard has already been prepared on the direction of the Prime Minister of Pakistan and has been sent to worthy President of Pakistan; that under Article 48 of the Constitution of Pakistan, the President of Pakistan is bound to act in accordance with the advice of the Cabinet or the Prime Minister of Pakistan; that therefore, there is every likelihood of the said summary being approved by the President of Pakistan, however, in view of the fact that the Hon'ble Supreme Court of Pakistan has already taken suo motu notice in this regard, some time is likely to be consumed in the acceptance of the afore-said summary by the President of Pakistan but if the execution of the black-warrants issued against the petitioner's son is not stayed, the petitioner would suffer irreversible loss; that under Article 4 of the Constitution of Pakistan, it is inalienable right of every citizen to be dealt with in accordance with law; that the Hon'ble Supreme Court has already taken a suo motu notice regarding the summary sent, by the Prime Minister of Pakistan for commutation of death sentence of all the condemned-prisoners into that of imprisonment for life, therefore, propriety demands that till the decision of the matter by the Hon'ble Supreme Court, the execution of the black-warrants, of the condemned-prisoners be stayed; that the Human Rights Organizations in all over the world are crying out for the abolition of the death sentence and in most of the countries `death sentence' has already been abolished; that in the said backdrop, the execution of petitioner's son would amount to sheer violation of Articles 3 and 5 of Universal Declaration of Human Rights adopted and proclaimed by the United Nations in 1948; that the impugned black-warrants if executed, would take away the life of the petitioner's son in violation of Article 9 of the Constitution of Pakistan; that power to remit the death sentence under Article 45 of the Constitution is not open to question as has already been laid down by the Hon'ble Supreme Court in the case of Abdul Malik v. The State (PLD 2006 SC 365). To augment his contentions, the learned counsel has placed reliance on the case of Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others (PLD 1992 SC 595).
Conversely, the learned Addl. Advocate-General has opposed this petition tooth and nail by submitting that the Home Department of the Government of the Punjab has not received any intimation from the Ministry of Interior, Islamabad or the President's Secretariat regarding the commutation of death sentence of the condemned-prisoners into that of life imprisonment, therefore, there is no impediment against the execution of black-warrants of the condemned-prisoners, who are awaiting the execution of death sentence since long; that the petitioner is basing his claim on some news item and there is nothing on the record to suggest that any summary in this regard has indeed been sent by the worthy Prime Minister of Pakistan to the President of Pakistan; that after the publication of the said news item, the death sentence of six condemned prisoners has already been executed in the month of July, 2008, the list of whom has been attached with the report and parawise comments submitted by Respondent No. 3; that the Hon'ble Supreme Court has not taken suo motu notice in favour of the abolition or commutation of death sentence of the condemned-prisoners, rather, it has proceeded other way round, therefore, the pendency of the said suo motu matter cannot advance the case of the petitioner.
Learned Deputy Attorney General has submitted that under Article 48 of the Constitution of Pakistan, on receipt of an advice of the Cabinet or the Prime Minister, the President may require the Cabinet or, as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise. However, in view of the said Article, the President is bound to act in accordance with the advice tendered after such reconsideration, therefore, according to the learned Deputy Attorney General, the advice sent by the Prime Minister if there is any, can be referred back by the President for its reconsideration.
"The provisions of Article 2-A were never intended at any stage to be self-executory or to be adopted as a test of repugnancy or of contrariety. It was beyond the power of the Court to have applied the test of repugnancy by invoking Article 2-A of the Constitution for striking down any other provisions of the Constitution (Article 45)."
It was further held by the Apex Court as under:
"As regards the merits of the question involved in the case, the punishments of death awarded were not by way of Oisas. The sentences of death awarded were under Ta'zir. Just as a sentence of Ta'zir is imposed on State's command and not as a right of the individual under God's law, the State as represented by the President, has and continues to have in respect of Ta'zir punishments, the right of commutation, remission etc."
After going through the said judgment and considering the arguments advanced by the learned counsel for the petitioner, we have observed that there is no cavil with the proposition that in view of the law laid down by the Hon'ble Supreme Court, the President has got a power to commute the death sentence awarded to the condemned-prisoners in the case of ta'zir, while exercising his powers under Article 45 of the Constitution but the facts of the case are distinguishable from those of the case cited by the learned counsel for the petitioner entirely. Admittedly, till today, the President has not accepted the summary, if any, sent by the worthy Prime Minister, so there is no notification in the field to commute the death sentence awarded to the condemned prisoners awaiting the execution of the death sentence. The summary, alleged to have been submitted by the Prime Minister of Pakistan to the President of Pakistan, admittedly, is not available before us. The learned Deputy Attorney General has not taken a concrete stand on the existence of such a summary, rather, the Government of Pakistan has not opted to submit the report and parawise comments before this Court on the ground that the matter is already pending before the Hon'ble Supreme Court and according to him, first of all, the report in this regard would be submitted by Respondent No. 5 before the Hon'ble Supreme Court. Moreover, in view of the provisions of Article 48 sub-clause (4) of the Constitution, this Court feels handicapped to direct Respondent No. 5 to produce the advice tendered by the Prime Minister or the Cabinet, as the case may be, to the President of Pakistan, before this Court. Be that as it may, till today, neither there is any law nor any Presidential Order in the light of which the execution of death sentence could be stayed by this Court.
Insofar as propriety to stop the execution of death sentence during the pendency of the suo motu matter before the Hon'ble Supreme Court is concerned, the said relief can only be granted by the Hon'ble Supreme Court. As far as the contention that the President of Pakistan is bound by the advice of the Prime Minister under Article 48 sub-clause (2) of the Constitution, is concerned, the same has not been found tenable in view of sub-Article (2) of the said Article, which reads as under:
"Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so and the validity of anything done by the President in his discretion shall not be called in-question on any ground whatsoever."
After reading the said provision in conjunction with Article 45 of the Constitution, it appears that the power to grant pardon, reprieve, respite and to remit, suspend or commute any sentence passed by any Court, tribunal or any authorities, lies in the exclusive jurisdiction of the President of Pakistan, therefore, tentatively speaking, subject to the decision of the Hon'ble Supreme Court where the sup motu matter is pending in this regard, we are of the opinion that the advice of the Prime Minister to commute the death sentence is not binding on the President of Pakistan as enshrined in the said sub-Article. However, he may exercise his discretion in this regard on the receipt of summary of the Cabinet of the Prime Minister, as the case may be.
Be that as it may, learned counsel for the petitioner has failed to convince us that the action of execution of death sentence of petitioner's son is violative of any law or, for that matter, any Presidential Order or Notification. So much so, that till today, the incumbent President has not passed any order on the subject-matter in exercise of his discretion devolved upon him by Article 45 of the Constitution. Therefore, there is no violation of Article 4 of the Constitution of Pakistan in this case. Similarly, the death sentence awarded to petitioner's son, which has been maintained upto the level of the Hon'ble Supreme Court, would not be violative of Article 9 of the Constitution of Pakistan. Besides, there are other multiple reasons for the dismissal of this petition. Firstly, admittedly, C.M. No. 107/2008 filed by Muhammad Yousaf--condemned prisoner in Cr.R.P. No. 44/2005 in Cr. PLA No. 494-L/2005 is pending before the Hon'ble Supreme Court. Petitioner's son, i.e. a condemned-prisoner in the changed circumstances of the case may seek the self-same relief from the Hon'ble Supreme Court in the said matter, if so advised. Furthermore, in the backdrop of the peculiar circumstances of this case, the petitioner may move an application before the worthy President of Pakistan for seeking the relief of respite in the execution of death sentence by invoking the Presidential powers under Article 45 of the Constitution of Pakistan. Moreover, we are of the view that during the pendency of the suo motu matter before the Hon'ble Supreme Court, this Court cannot pre-empt the. decision of the Hon'ble Supreme Court.
For all the reasons mentioned above, this petition stands dismissed in limine.
(M.A.K.Z.) Petition dismissed.
PLJ 2008 Lahore 993
Present: Kazim Ali Malik, J.
ZAHID JAMEEL--Petitioner
versus
STATION HOUSE OFFICER POLICE STATION BAGHBANPURA, LAHORE and others--Respondents
W.P. No. 7635 of 2008, heard on 31.7.2008.
Constitution of Pakistan, 1973—
----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 406--Quashment of FIR--Dispute between the seller and purchaser falls within the exclusive domain of Civil Court--High Court is normally reluctant to quash FIRs under constitutional jurisdiction, but the police cannot be and should not be allowed to assume the role of Civil Court--Instead of filing a suit for recovery of disputed amount against the accused, the complainant approached the police for the needful--Incharge investigation directed the investigating officer to undertake an exercise of rendition of accounts between the parties--How can High Court allow the police to take cognizance of money dispute requiring rendition of accounts--Police did not remain within its allotted sphere--FIR was quashed. [P. 997] A
Ch. Abdul Quddoos Kamboh, Advocate for Petitioner.
Rai Tariq Saleem, AAG for State.
Mr. Mushtaq Ahmad Qureshi, Advocate for Complainant/ Respondent.
Date of hearing: 31.7.2008.
Judgment
Tanveer Ahmad, respondent/complainant, got registered a case FIR No. 620 of 2008 dated 29.05.2008 under Section 406 PPC at Police Station, Baghbanpura, Lahore with an allegation that Zahid Jameel a factory owners, purchased furnace oil worth Rs. 2,25,000/- on credit with an undertaking that he would pay its price within a few days; that Zahid Jameel, accused, failed to honour his commitment; that the complainant had been making repeated requests for payment of the outstanding amount spreading over a period of one year, but with no positive response and that the accused finally refused to pay the amount due from him while extending threats.
Asghar Ali, Sub-Inspector, Police Station, Baghbanpura drew up the FIR to the above effect on the statement of Tanveer Ahmad, complainant, with an observation that an offence under Section 406 PPC was made out against Zahid Jameel, accused. The investigation of the case was made over to Irfan Ali, Sub-Inspector, of the same Police Station, who conducted investigation and concluded that Zahid Jameel committed an offence under Section 406 PPC.
Apprehending his arrest Zahid Jameel, accused, made an application for anticipatory bail before the learned Court of Session on 05.06.2008. He was allowed interim pre-arrest bail. Before final disposal of his bail application, Zahid Jameel, accused, filed instant Constitutional Petition before this Court with the prayer for quashing the FIR in-question on the only ground that the complainant laid a pure civil dispute before the Police.
I have heard the learned counsel for parties and have gone through the record minutely. The respondent/complainant approached the local police with the complaint that Zahid Jameel, accused, committed criminal breach of trust. The above named police officials also formed an opinion that the accused was guilty of the offence of criminal breach of trust punishable under Section 406 PPC. Before adverting to the counter claims of both the sides, I find it advantageous to reproduce below Section 405 PPC, which defines criminal breach of trust:--
Criminal Breach of Trust, whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or convert to his own use that property, or dishonestly use or disposes of that property, in violation of any direction of law prescribing the mode in which such trust is be discharged, or of any legal contract, express or implied, which he has made touching the discharge of trust or willfully suffer any other person so to do, commits "criminal breach of trust."
A bare perusal of the above said provisions of law would show that one of the major ingredients of the offence of criminal breach of trust is that the accused must have been entrusted with property. The word entrustment' used in Section 405 connotes that the accused holds property in-question in a fiduciary capacity.
Expressionentrust' in this Section is used in its legal meaning and not in its Dictionary meaning or popular sense. The accused person is entrusted with property in legal sense and he receives it from another otherwise than for himself. Penal provision touching the question of criminal breach of trust would only apply when the owner of the property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on happening of certain event or to dispose of it in the light of certain terms and conditions of the trust. In the case of entrustment the person who transfers possession of the property to the second party still remains legal owner of the property and the person in whose favour the possession is transferred has only custody of the property to be kept temporarily or for its disposal by him for the benefit of first party according to agreed terms and conditions. The word trust' is a comprehensive impression which has been used to cover the relationship of bailor and bailee; master and servant; pledgor and pledgee, guardian and ward and other such like relations, which postulates existence of fiduciary relations between the first party (complainant) and the second party (accused). With no stretch of imagination the relations betweena shop keeper and customer; vendor and vendee; seller and purchaser come within the ambit of criminal breach of trust as defined in Section 405 and punishable under Section 406 ibid.
The allegation set up in the FIR does not qualify the above said legal test. In the case in hand, the respondent/complainant allegedly sold furnace oil to the petitioner/accused on credit. The complainant, himself, stated in the FIR that the accused used the purchased furnace oil in his factory with the assistance of complainant's employees. In other words the complainant sold furnace oil to the. accused and then facilitated its consumption by providing manual labour. There was no relationship of trustee and beneficiary between the seller (complainant) and buyer (accused). Admittedly, there was no express or implied contract between the complainant and the accused with regard to any specific purpose of the sold furnace oil. The complainant had not restrained the accused from using the furnace oil in his factory till payment of its price. Hence the complainant is estopped to allege that the accused misappropriated sold furnace oil. At the cost of repetition I must say that the accused purchased furnace oil from the complainant to use it in his factory. There was no other specified purpose of purchasing the furnace oil. I have already observed that the complainant himself provided manual labour to the accused for consuming/using the furnace oil in-question.
Keeping in view the admitted state of record and the law governing the subject I feel no difficulty in concluding that the offence of criminal breach of trust is not made out against the accused. If the allegation set up in the FIR divorcing vague and general allegation of threats, is believed in toto even then it appears to be a pure civil dispute between the seller and purchaser touching sale price of furnace oil allegedly due to the former from the latter. Here I must say that Police Station is not the competent forum for determination of such like disputes.
For the sake of arguments if it is admitted that the accused did not pay the price of furnace oil, which he purchased on credit, even then, no offence is made out. The only course open for the complainant is to file a money suit against the accused before the Civil Court. Here I may add that in the recent past I have noticed alarming tendency to secure speedy result of bona fide civil dispute exclusively triable by the Civil Court by having recourse to criminal law. This tendency must be curbed with iron hands otherwise the Police will assume the role of Civil Court for unholy considerations.
The learned counsel for respondent/complainant attempted to argue that the accused extended life threats to the complainant when he approached him for the recovery of sale price of furnace oil, therefore, he was liable to face trial under Section 506 PPC. The contention is misconceived. The FIR does not tell as to when, where and in presence of whom, the accused extended threats to the complainant. It was a vague self assertion of the complainant, which must be ignored, particularly when the main controversy does not attract any penal provision of law.
The learned counsel for complainant placed reliance on the case law laid down in Sadiq Vs. Muhammad Ashiq (2006 S.C.M.R 276) and argued that determination of guilt or innocence of the accused should be left to the judgment of Trial Court and that any order by this Court in exercise of Constitutional Jurisdiction will hamper the investigation, which comes within the exclusive domain of the Police. I have minutely gone through the precedent case and would say with extreme respect at my command for the observations made by the Apex Court that the case in hand is entirely distinguishable. The only allegation against the petitioner herein/accused was that he purchased furnace oil on credit for his factory from the complainant and then failed to pay its price on due date. The dispute between the seller and purchaser falls within the exclusive domain of Civil Court. It is true that the High Court is normally reluctant to quash FIRs. under Constitutional Jurisdiction, but the Police cannot be and should not be allowed to assume the role of Civil Court. Instead of filing a suit for recovery of disputed amount against the accused, the complainant approached the Police for the needful. A perusal of the case diaries would show that the Incharge Investigation directed the Investigating Officer to undertake an exercise of rendition of accounts between the parties. How can this Court allow the Police to take cognizance of money dispute requiring rendition of accounts. In the case in hand, the Police did not remain within its allotted sphere. Therefore, it is a fit case for exercise of Constitutional Jurisdiction and inherent powers.
For what has been stated above I allow this Constitutional Petition and quash the FIR.
Before parting with this judgment I would say again that no offence is/was made out against the accused. Asghar Ali and Farman Ali, Sub-Inspectors, took cognizance of a pure civil dispute and thus encroached upon the powers of Civil Court obviously for some considerations extraneous to the record. This is a conduct rather misconduct, which cannot be approved of. The above named Police Officers dragged the accused in frivolous criminal litigation unnecessarily. I, therefore, impose compensatory cost of Rs.50,000/- upon them in equal shares. The learned District & Sessions Judge, Lahore shall recover the said amount by adopting all legal means including coercive measures, if required, and on its realization shall pay to the accused against proper receipt within a period of two months under intimation to Deputy Registrar (Judicial) of this Court.
A copy of this judgment may also be sent to the above named Police Officials through the Inspector General of Police, Punjab directing them to remain within their allotted sphere in future.
(M.A.K.Z.) Petition allowed.
PLJ 2008 Lahore 998
Present: Tariq Shamim, J.
Mst. DAHRAN BIBI--Petitioner
versus
ADDITIONAL SESSIONS JUDGE, PAKPATTAN SHARIF and 12 others--Respondents
W.P. No. 11859 of 2007, decided 14.2.2008.
Criminal Procedure Code, 1898 (V of 1898)—
----Ss. 22-A & 22-B--Constitution of Pakistan, 1973, Art. 199--Registration of case--Refusal of--Constitutional petition--Alternate remedy--Maintainability of--Possibility that the petitioner is making a concerted endeavour to have a false case registered for some ulterior motive cannot be ruled out--Petitioner does not appear to be bona fide but in fact smacks of malice--Order of the Ex-officio Justice of Peace is based on logical conclusions and no error or infirmity has been found therein--Petitioner has an adequate alternate remedy available to her under the law by way of filing a private complaint--Petition rejected. [Pp. 1000 & 1001] A
Mr. Arshad Ali Chohan, Advocate for Petitioner.
Mr. Amjad Ali Chattha, Assistant Advocate General for Respondents.
Mr. Naveed Zaman, Advocate for Respondent No. 9 in person.
Date of hearing: 14.2.2008.
Order
The petitioner seeks registration of a criminal case against Respondents No. 4 to 13 for having committed the murder of her grandson namely Maqsood alias Soodi and his friend namely Sardar alias Dara in an occurrence which took place on 25.4.2003. The petitioner's application for registration of a criminal case was not entertained by the S.H.O. and consequently on directions of this Court the petitioner filed a petition u/S. 22-A/22-B Cr.P.C. which was dismissed by the learned Ex-Officio Justice of Peace vide order dated 19th of November 2007. Hence this petition.
The learned counsel for the petitioner contends that the grandson of the petitioner as well as his friend Sardar alias Dara were killed in a fake encounter by the police officials i.e. Respondent Nos. 4 to 13 as is evident from the inquiry report of the Magistrate in which he expressed doubt about the veracity of the police encounter and that although the petition filed with the learned Ex-Officio Justice of Peace disclosed commission of a cognizable offence, however, a case was not ordered to be registered, which is contrary to the mandatory provisions of Section 154 Cr.P.C.
The learned Assistant Advocate General, on instructions, states that the grandson of the petitioner namely Maqsood alias Soodi and his co-accused Sardar alias Dara were desperate criminals who were involved in a number of criminal cases of heinous nature; that in respect of the occurrence narrated in the petition, case F.I.R No. 190/2003 was registered on 25.4.2003 and after completion of investigation, challan has been submitted in the Court, therefore, the petitioner has a remedy available to her before the learned trial Court; that the petitioner was not vigilant and did not agitate the matter for almost four years before any forum; that the Accused/Respondent No. 8 the former S.H.O. of Police Station Malka Hans, District Pakpattan Sharif was also injured in the occurrence, which implies that a genuine police encounter had taken place; that the petitioner has another remedy available to her under the law by way of filing a private complaint against the accused and that the order of the learned Ex-Officio Justice of Peace whereby he dismissed the petition filed u/S. 22-A/22-B Cr.P.C. is in accordance with law and does not call for interference by this Court.
I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate General and have gone through the documents placed on the record.
The occurrence took place on 25.4.2003 and the facts disclosed in the F.I.R reveal that car Kia Sportage of Nazir Ahmad, MNA, bearing Registration No. IDM/4747 being driven by his driver was stopped by some dacoits and snatched at gun point. Two of the accused drove away in the snatched car, whereas the third one followed in another car. The occurrence was reported to the Wireless Control, Pakpattan Sharif, which alerted the concerned police station. The respondents-accused being police officials, on being alerted by the Wireless Controller, followed the accused, who on observing that they were being chased by the police, stopped the cars and tried to escape on foot. They were followed by the police and an exchange of fire took place between the parties, in consequence of which, two of the accused i.e. the grandson of the petitioner as well as Sardar alias Dara were killed. The third accused, however, managed to escape. On the statement of the driver, a separate case was registered against the accused. From the spot, police took into possession a Kalashnikov, a .30 bore pistol, bullets and both the cars i.e. the snatched car as well as the one being driven by the accused. Since the S.H.O, P.S. Malka Hans-Respondent No. 8 also sustained a fire-arm injury in the occurrence, case F.I.R No. 190/2003 was registered.
As two of the accused had been killed in a police encounter, therefore, a judicial inquiry was ordered, which was conducted by a learned Magistrate who opined that the police encounter appeared to be doubtful. A report was sent to the learned Sessions Judge, Pakpattan Sharif, who after perusing the report and the record disagreed with the findings of the learned Magistrate and consigned the file to the record. After a lapse of about 4 years, the petitioner filed Writ Petition Bearing No. 1009/2007 in this Court, in which on 12th of October 2007 a direction was given to the petitioner to approach the learned Ex-Officio Justice of Peace for the redressal of her grievance. The petition filed under Sections 22-A and 22-B Cr.P.C by the petitioner was dismissed by the learned Ex-Officio Justice of Peace vide the impugned order.
From the above, it is evident that the son of the petitioner as well as his friend and the third accused had participated in the crime of car snatching and had thereafter resorted to firing at the police party, in consequence of which a police encounter took place resulting in the death of two accused. The registration of a case for car snatching and case F.I.R No. 190/2003 u/S. 324 P.P.C regarding the actual occurrence in which Respondent No. 8 sustained a firearm injury, bespeak of a genuine police encounter. Thus, commission of a cognizable offence in the given facts and circumstances is not free from doubt and the allegation levelled by the petitioner of the deceased having been killed in a fake police encounter ex facie does not appear to be credible.
Further, it has been noticed that the petitioner had remained silent for almost 4 years i.e. from the date of occurrence (25.4.2003) till the filing of writ petition before this Court in the year 2007. The petitioner has not been able to putforth any convincing reason for not agitating the matter earlier. It goes without saying that the law favours the vigilant and not the indolent. In any case, the grandson of the petitioner and his co-accused were desperate criminals who were involved in a number of criminal cases, mostly of dacoity. To be more precise, the petitioner had three cases registered against him, whereas his co-accused Sardar alias Dara was involved in 28 such cases. Thus the possibility of the deceased having participated in the crime as asserted by the police does not appear to be preposterous or absurd.
In so far as the opinion of the Inquiry Magistrate is concerned, suffice it to say that the learned Sessions Judge, Pakpattan Sharif after perusing the record and the inquiry report did not find himself in agreement with the opinion formed by the learned Judicial Magistrate. In the given facts and circumstances of the case, the possibility that the petitioner is making a concerted endeavour to have a false case registered against the respondents-accused for some ulterior motive cannot be ruled out. Since the intent of the petitioner does not appear to be bona-fide but in fact smacks of malice, therefore, I am not inclined to interfere in the matter. Even otherwise, the order of the learned Ex-Officio Justice of Peace is based on logical conclusions and no error or infirmity has been found therein. Needless to add that the petitioner has an adequate alternate remedy available to her under the law by way of filing a private complaint against the accused which is an equally efficacious remedy. Reliance is placed on the case of Khizer Hayat & others v. Inspector-General of Police (Punjab) & others (PLD 2005 Lahore 470).
For what has been stated above, this petition has no merit, which is accordingly dismissed.
(M.A.K.Z.) Petition dismissed.
PLJ 2008 Lahore 1001
Present: Tariq Shamim, J.
MUHAMMAD SHAMSHAD--Petitioner
versus
DISTRICT POLICE OFFICER, PAKPATTAN SHARIF and 3 others--Respondents
W.P. No. 3625 of 2007, decided on 27.11.2007.
Police Order, 2002 (22 of 2002)—
----Art. 18(6)--Constitution of Pakistan, 1973 Art. 199--Re-investigation--Violation of mandatory provisions of law--Effect of--In the garb of the order passed by the District Police Officer had conducted a fresh investigation and had arrived at a conclusion other than the one reached by the investigating officer--If at all the D.S.P. had found any fault or illegality in the investigation already conducted, he should have brought the same to the notice of the superintendent of Police (Investigation), who could then initiate proceedings as contemplated by Art. 18(6) of Police Order, 2002 for change of investigation--Petition accepted. [Pp. 1003 & 1004] A & B
PLD 2005 Lah. 470 rel.
Mr. Arshad Ali Chohan, Advocate for Petitioner.
Mr. Amjad Ali Chattha, Assistant Advocate General for Respondents.
Mr. Muhammad Nawaz, Sub-Inspector with record.
Date of hearing: 27.11.2007.
Order
The petitioner through the instant petition has challenged the investigation conducted by Respondent No. 2 on the direction of Respondent No. 1 as being contrary to the provisions of Article 18(6) of the Police Order 2002.
Briefly stated the facts of the case are that the petitioner, who is an accused in case F.I.R No. 344 dated 27.9.2006 for offence u/S. 337-A(i), 337-A(ii), 337-A(iii), 337-F(i), 337-L2 & 34 PPC registered at Police Station Malka Hans, District Pakpattan Sharif, is alleged to have caused injuries with the active participation of his co-accused to the complainant party on 25.9.2006 at about 5 p.m. In the said occurrence, the petitioner also sustained injuries which were suppressed by the complainant in the F.I.R and consequently cross-version had been recorded against the complainant party vide Rapt No. 16 dated 8.10.2006, in which the complainant party had also been challaned. Initially, the investigation of the said F.I.R and the cross case was entrusted to Assistant Sub-Inspector Shahbaz, who visited the spot and got the statements of the witnesses recorded and after finalization of the investigation concluded that three persons from the complainant side namely Manzoor Ahmad, Ghafoor and Ghulam Rasool be challaned in the cross case. On an application submitted by the complainant to the District Police Officer-Respondent No. 1, the investigation was marked to Respondent No. 2, the D.S.P (Investigation) with a direction to ensure fair investigation of the case. Respondent No. 2 instead of confining himself to the direction given by the D.P.O. proceeded to conduct investigation of the case, at the conclusion of which he declared that the cross case lodged by the petitioner against the complainant of the F.I.R and others was false. Being aggrieved by the investigation, the petitioner has approached this Court through the instant petition.
The learned counsel for the petitioner contends that the entrustment of investigation of the above said F.I.R as well as cross case to Respondent No. 2 by the District Police Officer-Respondent No. 1 is in violation of Sub-Article 6 of Article 18 of the Police Order 2002. He has placed reliance on: (PLD 2005 Lahore 470), (PLD 2006 Lahore 95) and (PLD 2006 Lahore 509).
The learned Assistant Advocate General while agreeing with the contention of the learned counsel for the petitioner states that the investigation was entrusted/assumed by Respondent No. 2 against the provisions of Article 18(6) of Police Order 2002 and, therefore, the report submitted by the D.S.P as well as the Zimni No. 23 dated 7.3.2007 incorporated by Muhammad Nawaz, Sub-Inspector, based on the findings of the D.S.P (Investigation), merit to be set aside being contrary to the law.
I have heard the learned counsel for the petitioner at length and have gone through the comments furnished by Muhammad Ashraf, D.S.P (Investigation), Pakpattan Sharif-Respondent No. 2. Allah Dad, the D.S.P (Investigation), who had conducted the investigation in-question, was transferred, whereupon Muhammad Ashraf, D.S.P (Investigation)-Respondent No. 2 assumed the charge of his post. The comments furnished reveal that the first Investigating Officer had maintained the cross-version vide case Diary No. 4 dated 8.10.2006 and vide case Diary No. 20 dated 24.1.2007 had declared the accused Manzoor Ahmad, Abdul Ghafoor and Ghulam Rasool guilty of the alleged offence of the cross version, while accused namely Shakoor and Rehmat were not found present at the time and place of the alleged occurrence. According to the D.S.P, his predecessor had not investigated the case in the real sense of the word but had in fact acted upon the direction of the District Police Officer, Pakpattan Sharif and had only issued directions to the subordinate Investigating Officer.
As against the stand taken by the D.S.P Respondent No. 2 in the parawise comments, it has been observed that the D.S.P Allah Dad after having been directed by the District Police Officer to ensure fair investigation, proceeded to conduct a thorough investigation, in the course of which he not only visited the spot but also recorded the statements of the witnesses and had thereafter arrived at a conclusion that the cross-version was not based on facts. He further held that none of the accused of cross-version was present at the time and place of the alleged occurrence and that all the eight nominated accused of the F.I.R were guilty of the alleged offence. He also held that in the light of the MLR of injured Ghafoor, the offence u/S. 324 P.P.C was attracted. Thereafter, the D.S.P submitted a report to the District Police Officer which is part of the police record and on the basis of his findings, Muhammad Nawaz, Sub-Inspector proceeded to record Zimni No. 23 dated 7.3.2007.
From the foregoing, it is evident that the complainant had filed an application with the District Police Officer for transfer of investigation, whereupon the case was entrusted to Respondent No. 2 with a direction to personally ensure fair investigation. In the garb of the order passed by the District Police Officer, Respondent No. 2 had conducted a fresh investigation and had arrived at a conclusion other than the one reached by the first Investigating Officer. Such an exercise is definitely without lawful authority, as has been held by a Full Bench of this Court in the case of Khizar Hayat and others Vs. Inspector General of Police, Punjab, Lahore and others (PLD 2005 Lahore 470). If at all the D.S.P had found any fault or illegality in the investigation, already conducted by Shahbaz, Assistant Sub-Inspector, he should have brought the same to the notice of the Superintendent of Police (Investigation), who could then initiate proceedings as contemplated by Article 18(6) of Police Order 2002 for change of investigation.
In view of what has been discussed above, this petition is accepted and the report Bearing No. 37 submitted by the D.S.P to the District Police Officer as well as the findings given in Zimni No. 23 dated 7th of March 2007 are hereby declared to be without lawful authority and of no legal effect. All proceedings based on the investigation conducted by Allah Dad, D.S.P (Investigation) are quashed. There shall be no order as to costs.
(M.A.K.Z.) Petition accepted.
PLJ 2008 Lahore 1004
Present: Hafiz Tariq Nasim, J.
NASEER HUSSAIN CHUGHTAI--Petitioner
versus
SECRETARY TO GOVERNMENT OF PUNJAB, FORESTRY, WILDLIFE & FISHRIES DEPARTMENT, CIVIL SECRETARIAT, LAHORE and 3 others--Respondents
W.P. No. 6497 of 2008, decided on 24.7.2008.
Pension Rules--
----Rule 1.8--Constitution of Pakistan, 1973, Art. 199--Retirement on ataining the age of supperannuation--Pension papers were prepared--Show-cause notice--Pension, withdrawal of--Validity of--After one year of retirement no order under Rule 1.8 of the Pension Rules, can be passed--Petition allowed. [P. 1006] A
Syed Aale Ahmad, Advocate for Petitioner.
Mr. Naeem Masood, Assistant Advocate General Punjab with Muhammad Bashir, Planning Officer.
Date of hearing 24.7.2008.
Order
The back drop of this writ petition is that the petitioner while serving Divisional Forest Officer was retired w.e.f 14.4.2001 on attaining the age of superannuation.
On the petitioner's retirement NOC was issued by the Departmental Authorities, pension papers were prepared and finally the petitioner started drawing pension and according to the petitioner he is drawing the same even today but on 18.12.2007 a show cause notice for the recovery of sum of Rs. 98,382/- was issued. The same was replied. However, through an order dated 1.09.2007, 25% of pension of the petitioner was ordered to be confiscated for making up the loss to the tune of Rs. 98,382/-. Petitioner filed representation but with no result, whereas on 23.3.2008, the District Account Officer, District Jhang wrote a letter to the Manager National Bank of Pakistan, Shahrah-e-Quaid-e-Azam, Chiniot, District Jhang to stop the payment of the pension to the petitioner.
Learned counsel submits that through another letter dated 7.5.2008, Accounts Officer of the Office of the Accountant General Punjab, Lahore addressed a letter to the District Account Officer, Jhang, directing to deduct a sum of Rs. 1.05.432/- from the pension of the petitioner, which has caused a serious prejudice, hence this writ petition.
Learned counsel for the petitioner submits that according to Rule 1.8 of the Pension Rules the petitioner could have been proceeded against only within one year of his retirement and not later than, whereas the petitioner, who was retired from service w.e.f 14.4.2001, cannot be made subject of impugned penalty.
Learned AAG submits that the department's action is a justified one and no exception can be taken to that because due to audit paras it was noticed that the petitioner was guilty of certain lapses and was liable to recover.
Arguments heard. Record perused.
It shall be advantageous to reproduce the provisions of Rule 1.8 of the Pension Rules:--
(b) "Government reserves to themselves the right of recovery from pension of Government pensioner on account of losses found in judicial of departmental proceedings to have been caused to Government by the negligence, or fraud of such Government pensioner during his service, provided that such departmental proceedings shall not be instituted after more than a year from the date of retirement of the Government pensioner."
(M.A.K.Z.) Petition allowed.
PLJ 2008 Lahore 1006
Present: Hafiz Tariq Nasim, J.
MUHAMMAD YASIN BUTT--Petitioner
versus
GOVERNMENT OF PUNJAB through Chief Secretary Punjab, Civil Secretariat, Lahore and 6 others--Respondents
W.P. No. 5232 of 2008, heard on 21.7.2008.
Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974—
----R. 3(1)--Constitution of Pakistan, 1937, Art. 199--Absorption against a particular post--Constitutional jurisdiction--Competency of--For the last more than 10 years the petitioner is waiting for the redressal of his grievance and then he had no other option except to invoke jurisdiction of High Court under Art. 199 of the Constitution--Such type of conduct of the departmental authorities smacks arbitrariness, mal-administration, slackness resulting into in human attitude and for that High Court has ample power to interfere and issue a writ of mandamus--Petitioner cannot insist for his absorption against a particular post but at the same time the petitioner has lawful right to be assessed determined for his permanent absorption against a vacant post of his own status through the process of Punjab Public Service Commission as per requirements of Rule 3(1) of 1974, which practically is not followed so for despite a lapse of a decade--Petition allowed. [P. 1010] A
2008 SCMR 948 rel.
Syed Ghazanfar Ali, Advocate for Petitioner.
Ch. Naeem Masood, AAG for Respondents with Mrs. Asifa Murtaza, SO (E-I) S&GAD.
Date of hearing 21.7.2008.
Judgment
Facts leading to this writ petition are that the petitioner joined Punjab Highway Authority, Government of the Punjab of 22.1.1996 as Deputy Director (Planning) BS-17 the said Authority was abolished in 1998, 16-Officers of the defunct Authority were placed on the strength of surplus pool vide Notification dated 12.5.1998 and they were directed to perform their duties in different departments as the petitioner is working as Assistant Director (technical) in Anti-Corruption Establishment sought options for permanent induction under newly framed Anti-Corruption Establishment's Rules 2007 vide letter dated 10.11.2007, accordingly the petitioner also submitted willingness for permanent absorption on 19.12.2007 this option was recommended by the Director (technical) ACE. The petitioner also filed application with a request that his case be referred to Punjab Public Service Commission for selection/absorption against the post of Assistant Director (technical)/Deputy Director (technical) lying under the quota of initial recruitment as procedure laid down in Section 3(1) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 but could not get any respond whereas the posts were advertised by the Punjab Public Service Commission on 9.3.2008. Further submits that the petitioner fulfils the prescribed qualification and experience of both the posts, which are advertised and he is entitled for the appointment against one of those. Adds that his request for permanent absorption in ACE was rejected by the Additional Chief Secretary/Respondent No. 2 with a direction to compete with other candidates for his selection on merit which otherwise is a violative of Rule 3(1) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and instructions, issued by the Government from time to time. Further submits that the petitioner's absorption case was earlier referred to Punjab Public Service Commission on 12.6.1998 and a copy was endorsed to the petitioner with a direction to contact the Punjab Public Service Commission as and when invited for interview which clearly establish the petitioner's right for absorption, a list of 84-surplus Officers were again forwarded to Punjab Public Service Commission (PPSC) for absorption including the petitioner's name at Serial No. 9 but it was sent back to the Additional Chief Secretary, Government of the Punjab/Respondent No. 2 on 19.1.2007 with a suggestion that the list of surplus Officers may first be sent to all Administrative Secretaries with a direction to assess their requirements keeping in view the qualification and experience of surplus Officers against the vacant posts in their respective departments and furnished their consent for absorption against specific posts and then at receipt of further instructions, PPSC shall determine their suitability; accordingly the list of surplus Officers were circulated by Additional Chief Secretary, Government of the Punjab to all the Administrative Secretaries to assess the suitability of absorption through PPSC against posts lying vacant in different departments but unfortunately right from the year 1998 despite a lapse of a decade, the petitioner is running from pillar to post for the redressal of his grievance with no fault of him rather, the impugned order dated 26.3.2008 passed by Respondent No. 2 being a nullity in the eye of law is liable to be interfered with.
(i) "60 % by posting of an officer of the rank of SDO (Civil) from any Engineering Department of Government of the Punjab.
(ii) 20 % by promotion from amongst the Sub-Engineers (Civil) of ACE on seniority cum fitness basis with minimum 5 years service as Sub-Engineer in ACE.
(iii) 20 % by initial recruitment through Punjab Public Service Commission."
Submits that the petitioner has no lawful right in insisting for permanent absorption in ACE, further submits that it is the prerogative of the Government to either accept the petitioner's request for absorption or to decline.
Arguments heard; available record perused.
To resolve the present controversy referring Rule 3(1) of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 shall be advantageous to be reproduced as under:--
"Appointment to posts shall be made by promotion, transfer or initial recruitment, as may be prescribed by the Government in relation to the posts in a grade from time to time:
[Provided that where as a result of retrenchment in, or reorganization of a Government Department/office or an Autonomous or Semi-Autonomous Organization set up by the Government, certain posts or cadres are abolished and Government decides, by a special order, to absorb persons rendered surplus in consequence thereof, such persons may be absorbed against such posts in such manner and on such terms and conditions as may be determined by the Government.
Provided that absorption of such persons shall be made on the recommendations of the Punjab Public Service Commission in case of posts carrying BS-16 and above and in case of other posts on the recommendations of the Committee constituted by the Chief Minister or any officer authorized by him in that behalf;"
The plain reading of this Rule bestows a condition on the departmental Authorities to refer the matter to PPSC for the determination of fitness of a surplus Officer of grade-16 and above and in the present case the Government of the Punjab following this Rule referring the matter to the Punjab Public Service Commission in the year 1998 but reasons best known to the Authorities that a decade have been passed, the petitioner and his similarly placed colleagues could not get the benefit of the Rule ibid, which otherwise an alarming situation reflecting mal-administration and inaction of the departmental Authorities leaving the petitioner and similarly placed ¦ surplus Officers in the air who otherwise are persuading for the redressal of their grievances from pillar to post.
It is well established law laid down by the Hon'ble Supreme Court of Pakistan that if "something is required to be done in a particular manner, if law requires to do something in a particular manner, it must be done in that manner and not otherwise."
It is farther held by the Hon'ble Supreme Court of Pakistan that due to the lapses/inaction of the departmental Authorities the individuals/Government officials should not become sufferer rather the responsibles must be taken to task.
In the present case the petitioner who was admittedly appointed as Deputy Director (Planning) BS-17 in the year 1996 on regular basis under the control of Government of the Punjab in Punjab Highway Authority was declared surplus on the abolition of Punjab Highway Authority on 17.4.1998, his case for absorption under Rule 3(1) of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 alongwith two other colleagues namely Farrukh Sharif and Arif Saeed were sent to PPSC vide letter dated 12.6.1998 is still waiting the outcome of result of letter dated 12.6.1998 meaning thereby for the last more than 10-years the petitioner is waiting for the redressal of his grievance and then he had no other option except to invoke the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 I am afraid that this type of conduct of the departmental Authorities smacks arbitrariness, mal-administration, slackness resulting into in human attitude and for that this Court has ample power to interfere and issue a writ of mandamus particularly keeping in view the law laid down by the Hon'ble Supreme Court of Pakistan reported as Secretary, Revenue Division and others v. Muhammad Saleem (2008 SCMR 948).
It is observed that the petitioner cannot insist for his absorption against a particular post but at the same time the petitioner has lawful right to be assessed/determined for his permanent absorption against a vacant post of his own status through the process of Punjab Public Service Commission as per requirement of Rule 3(1) ibid which practically is not followed so far despite a lapse of a decade.
In the attending circumstances Respondents No. 1 to 3 are directed to send a requisition to the Punjab Public Service Commission following the provisions of Rule 3(1) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 against any existing vacancy including advertised posts of BS-17 and the Punjab Public Service Commission be directed to finalize the petitioner's case fairly, justly without being influenced from any extraneous matter within two months from today; result whereof be conveyed to the Deputy Registrar (Judl.) of this Court.
The writ petition is allowed in the above terms.
(M.A.K.Z.) Petition allowed.
PLJ 2008 Lahore 1010
Present: Hafiz Tariq Nasim, J.
MUHAMMAD SAJID HAMEED--Petitioner
versus
PROVINCE OF PUNJAB through Secretary Government of Punjab, Home Department Lahore and 3 others--Respondents
W.P. No. 7738 of 2008, heard on 21.8.2008.
Constitution of Pakistan, 1973--
----Art. 199--Civil servant--Promotion--Deficiency in respect of upper age limit--Alleged deficiency in respect of upper age limit of the petitioners is resolved by High Court in the year 2006, holding the petitioners eligible for these promotion/appointment consideration but keeping them in vacuum for the last two years, particularly when there is no restraint order by Supreme Court is neither justified not understandable--Mere filing of petition for leave to appeal or grant of leave by Court did not operate to stay the operation of judgment of Division Bench, so Authorities have left no other option except to comply with the directions of High Court implement the judgment passed by the High Court in ICA in letter and spirit--Petition accepted. [P. 1014] A
Rana Rizwan Yousaf, Advocate for Petitioner.
Mr. Naeem Masood, AAG with Ch. Muhammad Ahsan, AIG (Legal) for Respondents.
Date of hearing 21.8.2008.
Judgment
This order will also dispose of W.P. No. 11495 of 2007 as the common question of law is involved.
"25% quota for departmental promotions to the rank of Assistant Sub Inspector shall be filled subject to rules through the selection by the appropriate Public Service Commission from graduate constables and Head Constables of clean record."
Learned counsel for the petitioners submits that in compliance to the provisions of Police Order, 2002, an advertisement was published in the daily `Jang' dated 1.1.2006 by the Punjab Public Service Commission for filling up the posts of ASI (BS-9) in the Punjab Police Department on Range basis, in the same advertisement the post of ASI (BS-9) from amongst graduate serving Constables and Head Constables in the Punjab Police Department on range basis were also advertised. The petitioners being eligible applied for the same. However, due to crossing of upper age limit they were not called for the interview and they filed different writ petitions, which were heard on 23.5.2006 and it was held in W.P. No. 395 of 2006 and W.P. No. 712 of 2006 that the upper age limit for the in service candidates be as 35 years and the petitioners, who fall within this category shall be eligible for the written examination and interview before the Punjab Public Service Commission. The judgment passed by the learned Single Judge was assailed in ICA No. 194 of 2006 and ICA No. 195 of 2006 with a submissions that fixation of upper age limit as 35 years is not inconsonance to the provisions of Police Order, 2002. These ICAs were decided through judgment dated 8.11.2006 and the learned Division Bench of this Court held that "fixation of upper age limit for promotion for in service Constables and Head Constables is not in accordance with law and the appellants are held not ineligible for promotion for the post of ASI on account of their ages before the PPSC."
Learned counsel further submits that new inductees on the recommendations of the Punjab Public Commission as ASI in the direct quota were appointed and they are serving at various places, whereas the petitioners, who otherwise are eligible for their appointments/promotions under 25% quota and despite clear findings in favour of the petitioners by the learned Division Bench of this Court of the year 2006, the petitioners are being deprived with no fault of them, rather on extraneous consideration. This writ petition was fixed on 3.12.2007 when a copy of this petition was delivered to the learned Law Officer with a direction to seek instructions and submit report on 7.12.2007, the case was adjourned time and again, on the request of Assistant Inspector General of Police (Legal) that the matter is under active consideration before the Chief Minister, which is likely to be approved and CPLA is also filed before the Hon'ble Supreme Court of Pakistan against the judgment of the learned Division Bench of this Court.
Time and again it was insisted by the Departmental Authorities to wait the outcome of orders of the apex Court, resultantly the case was adjourned on different dates. However, it was admitted for regular hearing and a last chance was afforded to the Departmental Authorities to apprise this Court with the latest position in respect of outcome of apex Courts' orders.
Today it is informed that the leave has been granted by the Hon'ble Supreme Court of Pakistan but the judgment passed by the learned Division Bench of this Court is not suspended, meaning thereby that the judgment passed by the learned Division Bench still hold the field.
Learned AAG submits that it shall be appropriate to wait for the final out come of Hon'ble Supreme Court's verdicts, which shall be announced on the basis of leave granting order.
On the other hand learned counsel for the petitioners submits that the petitioners are running from pillar to post for the redressal of their grievance since 2006 when a judgment was delivered by the High Court in their favour, admittedly the same was not suspended by the apex Court and as such the Departmental Authorities are under lawful obligations to implement the judgment of the High Court without causing any hindrance.
Arguments heard. Available record perused.
The only stance of the department in the present controversy is that upper limit for in service Constables and Head Constables shall not be different than the direct appointees but I am of the considered view that when this contention of the Department Authorities was not accepted by a learned Division Bench of this Court, the department is left with no other option except to proceed with the petitioners' cases in line with the judgment of the learned Division Bench of this Court, particularly when the Division Bench's Judgment was not suspended by the apex Court.
It is admitted position that quota is prescribed for filling of posts of ASI of police for direct appointment as well as for in service graduate Constables and Head Constables and it is also well settled law laid down by the Hon'ble Supreme Court of Pakistan that quota always be observed strictly and promotees are entitled to be considered against every vacancy, which occurred in their quota. Promotees shall be considered for promotion w.e.f. the dates when the posts in their quota became available. In this respect reliance can be placed on Ch. Muhammad Siddique and 4 others vs. Director, Special Education and 7 others (1997 PLC (CS) 1210) and Dr. Shaukat Tanveer, Dental Surgeon, District Headquarter Hospital, Bhimber vs. Azad Government of the State of Jammu and Kashmir and others (2003 PLC (CS) 1436).
It is also resolved by the Hon'ble Supreme Court of Pakistan that--
"promotion is to be made from the date of occurrence of vacancy and not from the subsequent date. Reliance is placed on Government of the Punjab through Secretary Education and another vs. Rana Ghulam Sarwar Khan and 111 others (1997 SCMR 515) and Tariq Aziz and others vs. Muhammad Khan and others (2001 PLC (CS) 1242)."
The Hon'ble Supreme Court of Pakistan went to the extent even that, "Promotees shall be given their quota first then the direct as held in the case of Dr. Arif Majeed vs. Dr. Shuja-ud-Din Khan and 5 others (2000 PSC (CS) 600).
In the present case there is no cavil from the preposition and there is no denial even today that the petitioners' quota is still unexhausted, whereas the direct appointees have already been benefited since long. This very situation is otherwise offends the law laid down by the Hon'ble Supreme Court of Pakistan in a case reported as (PLD 1994 SC 233), wherein it is held that, "If a civil servant was otherwise fit for promotion then getting the case late for clearance from the selection board is not fair and justified."
Viewing the present case from all angles it is held that the alleged deficiency in respect of upper age limit of the petitioners is resolved by the learned Division Bench of this Court in the year 2006, holding the petitioners eligible for their promotion/appointments' consideration but keeping them in vacuum for the last two years, particularly when there is no restraint order by the Hon'ble Supreme Court of Pakistan, is neither justified nor understandable.
In the attending circumstances, it is held that mere filing of petition for leave to appeal or grant of leave by the apex Court did not operate to stay the operation of judgment of Division Bench, so the Departmental Authorities have left no other option except to comply with the directions of the learned Division Bench, implement the judgment passed by the High Court in ICA in letter and spirit.
This writ petition is allowed, the respondent/Inspector General of Police is directed to send the requisition of the petitioners for the determination of their suitability by the PPSC within a fortnight from today positively.
Punjab Public Service Commission is directed to proceed and finalize the process, within a period of two months after the receipt of the requisition from the Inspector General of Police. The instant writ petition is allowed in the above terms.
(M.A.K.Z.) Petition allowed.
PLJ 2008 Lahore 1014
Present: Hafiz Tariq Nasim, J.
LIAQAT ALI--Petitioner
versus
D.I.G. OF POLICE/CCPO, LAHORE and another--Respondents
W.P. No. 4431 of 2008, decided on 12.8.2008.
Constitution of Pakistan, 1973—
----Art. 199--Civil servant--Promotion--Date of confirmation--Date of confirmation cannot be different from the date of appointment/promotion--Admittedly the petitioner was appointed/promoted as ASI on 1.1.1985, following the law laid down by the Apex Court (1999 SCMR 1594) the petitioner is held entitled for confirmation as ASI w.e.f. 1.1.1985--Constitution petition accepted with the direction to issue confirmation order of the petitioner as ASI w.e.f. 1.1.1985. [Pp. 1015 & 1016] A
Mr. Asif Nazir Awan, Advocate for Petitioner.
Mr. Naeem Masood, Assistant Advocate General with Muhammad Shafiq, DSP (Legal).
Date of hearing 12.8.2008.
Order
Facts leading to this writ petition are that the petitioner, who was appointed as ASI w.e.f. 1.1.1985, admitted to list "E", promoted as SI w.e.f. 8.8.1989, made efforts for his confirmation as ASI and as SI from the date of his appointment/promotion but could not receive any positive response, resulting into filing of this writ petition.
Learned counsel for the petitioner submits that all the colleagues of the petitioner have been benefited i.e. confirmation from the date of their appointment/promotion but the petitioner is being discriminated with no fault of him. Further submits that the Hon'ble Supreme Court of Pakistan held in Inspector-General of Police, Lahore vs. Qayyum Nawaz Khan (1999 SCMR 1594) that "the date of confirmation cannot be different from the date of appointment/promotion", hence the petitioner is entitled for the same relief as was extended to the petitioner's colleagues particularly when the law is settled by the Apex Court.
On the other hand the learned AAG submits that the writ petition is barred by Article 212 of the Constitution of Pakistan, the petitioner has no case at all for his confirmation, as the petitioner could not qualify the Intermediate Course, so there is no question of petitioner's confirmation as ASI what to talk of confirmation as SI.
Arguments heard. Available record perused.
To resolve this controversy I have to confine myself to the judgment of the Hon'ble Supreme Court of Pakistan reported as Inspector-General of Police, Lahore vs. Qayyum Nawaz Khan (1999 SCMR 1594), wherein it is held that "date of confirmation cannot be different from the date of appointment/promotion".
Admittedly, the petitioner was appointed/promoted as ASI on 1.1.1985, following the law laid down by the Apex Court, the petitioner is held entitled for confirmation as ASI w.e.f. 1.1.1985. Furthermore, in a recent judgment passed by the Apex Court dated 29.04.2008 in cases of number of employees titled "Government of Punjab, Secretary Education, Civil Secretariat, Lahore & others vs. Sameena Parveen & others", wherein it is held, "It was held by this Court in the case of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) that if a Tribunal or this Court decides a point of law relating to the terms and conditions of a civil servant who litigated, and there were other civil servants, who may not have taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the said decision be extended to other civil servants also, who may not be parties to the litigation instead of compelling them to approach the Tribunal or any other legal forum. This view was reiterated by this Court in the case of Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others (2005 SCMR 499) and it was held that according to Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 all citizens are ¦ equal before law and entitled to equal protection of law."
On the strength of law supra I have no other option except to allow this writ petition, the respondents are directed to issue confirmation order of the petitioner as ASI w.e.f. 1.1.1985. The writ petition is allowed with all consequential relief.
(M.A.K.Z.) Petition allowed.
PLJ 2008 Lahore 1016
Present: Hafiz Tariq Nasim, J.
UNITED BANK LIMITED, KARACHI through Attorneys and 3 others--Appellants
versus
UMEED ALI--Respondent
Labour Appeal No. 127 of 2008, heard on 22.7.2008.
Removal from Service (Special Powers) Ordinance, 2000 (XVII of 2000)—
----Ss. 3 & 4--Industrial Relations Ordinance, 2002, Ss. 47(3) & 48--Compulsory retirement--Re-instatement with 50% back benefits--Labour appeal--Negligence on the part of (Appellant was found by Labour Court and when and employee was found negligent then of course major penalty could not be imposed however, minor penalty would be a sufficient one which according to Labour Court was imposed as per recommendations of bank's inquiry committee and that is upheld--When the re-instatement is made with even a minor penalty it shall not be appropriate to burden the employer's for granting him all the back benefits--Back benefits is modified and be reinstated into service with a minor penalty of stoppage of three increments and without any back benefits. [P. 1019] A
Sayed Fazal Mahmood, Advocate for Appellants.
Mr. Abdul Hakeem Awan, Advocate for Respondent.
Date of hearing 22.7.2008.
Judgment
Facts leading to this Labour appeal are that the respondent Umeed Ali while serving as cashier in UBL was charge sheeted, inquiry was conducted, inquiry Committee recommended stoppage of three increments but the Bank management disagreeing with the Committee's recommendations, compulsorily retired the respondent from service on 14.3.2001.
The respondent filed appeal before the Federal Service Tribunal in view of Section 2-A of the Service Tribunal Act, however, due to privatization of UBL the appeal was returned and the respondent served grievance notice and then approached the Punjab Labour Court No. VII Gujranwala with a request to set aside the compulsory retirement order and for his reinstatement in service with back benefits. The learned Labour Court accepted the respondent's petition to the extent that punishment of stoppage of three increments would remain intact and petitioner would be reinstated in service, it was further held that as the punishment has remained intact therefore, the respondent would be entitled to the back benefits to the tune of 50%. Aggrieved by this, the UBL has filed LA.No. 127/2008 and respondent Umeed Ali filed LA.No. 137/2008 wherein the UBL requested for upholding the order of compulsory retirement of respondent and setting aside the impugned judgment whereas Umeed Ali respondent in his Appeal No. 137/2008 requested for his reinstatement without any penalty of stoppage of increments and with 100% back benefits.
Both the appeals are heard today.
The learned counsel for the Bank submits that the learned Labour Court exceeded his lawful limits rendering the impugned judgment a nullity in the eye of law when there is a finding of learned Labour Court available in para-17 of the impugned judgment to the extent of accepting the Bank stance in respect of respondent's misconduct, then no justification rested with the learned Labour Court to alter the penalty of compulsory retirement into stoppage of increments, further submits that the learned Labour Court did not advert to the confessional statement of the respondent and as such erred in law while reinstating the petitioner into service. The learned counsel relied on 2008 SCMR 899 and submits for setting aside of the impugned judgment.
Conversely the learned counsel for Umeed Ali respondent submits that the charge-sheet itself was time barred, according to the bank Authorities occurrence took place on 27.9.2000 whereas the charge-sheet was served on 15.12.2000 so under Standing Order 15 (4) of Industrial and Commercial Employment (Standing Orders), Ordinance 1968 the charge-sheet should have been served within one month of the alleged occurrence and bare reading of the charge sheet itself reflects the belated action of the bank Authorities which is a sufficient ground for the quashment of entire proceedings against the respondent he relies on 2001 SCMR 921. Further submits that the charge-sheet and the contents reflects a different picture then the evidence on record and the findings of the inquiry committee and the inquiry committee when recommended for stoppage of three increments, the management could not enhance the punishment by way of retiring the employee compulsory and that too without mentioning any reason. Adds that assuming for a moment not conceding that some lapse was made by the respondent, his entire service record should have been examined and it is well settled law laid down by the Hon'ble Supreme Court of Pakistan that if a person is found throughout his service carrier negligent in the performance of his duties only once then he should only be warned and not imposed any penalty.
Arguments heard; record perused.
So far the question of belated charge-sheet is concerned, the learned counsel for the Bank submits that the proceedings against the respondent were initiated/finalized under the provisions of Removal From Service (Special Powers) Ordinance, 2000 and there is no such provision which could bar the departmental Authorities as is in Standing Order's provisions. With the help of both the learned counsel I have perused the charge-sheet, order of compulsory retirement but could not find any mention of RSO but simultaneously. I could not find the mentioning of provisions of Standing Order also, however, in the inquiry proceedings when the penalty of stoppage of increments was recommended mentioning of provisions of RSO are found, thus in the circumstances of the case there is no need to give any finding on the belated charge-sheet.
So far the merits of the case are concerned, suffice it to refer the plain wording of charge-sheet and the statement of PW. 1 Muhammad Bashir son of Lal Din, wherein he categorically stated that "I went to the bank branch in order to deposit the amount in shape of prize bonds worth Rs. 50,000/- I met the petitioner who was cashier and asked him to deposit the amount in shape of prize bonds in my account. He told me that prize bonds could not be deposited and asked me to change the prize bonds on which I told him that I do not know the procedure. The petitioner Umeed Ali issued me receipt and told me that amount will be deposited after getting the change of prize bonds from Gujranwala. On that date, I did not deposit the amount in cash with the above said bank branch. On my asking the petitioner informed me that the prize bonds have been changed and amount of Rs.50,000/- has been deposited in my account. The petitioner has not used my amount for his personal use."
When the statement of PW. 1 is perused in juxta position with the charge-sheet dated 15.12.2000 it shall be crystal clear that wording of charge-sheet conveyed a different message then the actual happening and this very situation was minutely dealt with by the learned Labour Court in its impugned judgment.
Even RW.2 Syed Qaiser Abbas Naqvi confirms the statement of PW.1 Muhammad Bashir in the following terms:--
Hence the judgment relied by the learned counsel for the appellant of 2008 SCMR 899 cannot be held to be applicable to the present case particularly keeping in view the well reasoned findings recorded by the learned Labour Court that the respondent Umeed Ali did not embezzle/misappropriated any amount.
So far the contentions of Umeed Ali respondent/appellant regarding his full-fledged exoneration without any minor penalty and with full back benefits is concerned, suffice it to say that some negligence on the part of Umeed Ali was found by the learned Labour Court and when an employee is found negligent then of course major penalty could not be imposed however, minor penalty shall be a sufficient one which according to the learned Labour Court was imposed on Umeed Ali as per recommendations of bank's inquiry committee and that is upheld.
There is another aspect of 50% back benefits granted by the learned Labour Court to the respondent Umeed Ali, it is held that when the reinstatement is made with even a minor penalty, it shall not be appropriate to burden the employer for granting him all the back benefits. Resultantly, to the extent of 50% back benefits granted by the learned Labour Court to respondent Umeed Ali, the judgment is modified, the respondent shall be reinstated into service but with a minor penalty of stoppage of three increments and without any back benefits.
For the reasons recorded above, this LA. No. 127/2008 is disposed of in the above terms and LA. No. 137/2008 is dismissed with no order as to costs.
(M.A.K.Z.) L.A. dismissed.
PLJ 2008 Lahore 1020
[Multan Bench Multan]
Present: Zafar Iqbal Chaudhry, J.
Haji ABDUL SATTAR and 5 others--Petitioners
versus
PAKISTAN RAILWAYS through its Chairman Islamabad and 3 others--Respondents
W.P. No. 5860 of 2006, heard on 30.1.2008.
Constitution of Pakistan, 1973—
----Art. 199--Railway Commercial Manual, 1935, Para. 1152--Constitutional petition--Use of word "may"--Connotation of--A perusal of the paragraph shows that word "may" has been used which shows that the land in dispute can be utilized for any purpose according to the policies framed by the department time to time.
[P. 1022] A
Mr. Rafique Ahmad Malik, Advocate for Petitioners.
Rao Muhammad Iqbal, Advocate for Respondent Nos. 1 to 3.
Mahr Ahmad Raza, Advocate for Respondent No. 3.
Date of hearing 30.1.2008.
Judgment
Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have challenged the auction held on 13.6.2005 and the letter dated 22.9.2005 to be mala fide, without lawful authority and of no legal effect and direction has been sought to be issued to Respondent No. 3 to finalize the case of construction of public park pending since 13.8.2004.
The precise facts of the case as mentioned in the writ petition are that Railway land measuring 24-K was lying vacant at Abdul Hakeem, Railway Station Tehsil Kabirwala District Khanewal. In the year, 2005, the said land was leased out to Respondent No. 4 for cultivation purposes through an open public auction held on 13.6.2005 at the Rest House of Shor Kot Railway Station. The Respondent No. 3 by its letter dated 22.9.2005 confirmed the auction in favour of the Respondent No. 4 at the rate of Rs. 10,100/- per acre.
The learned counsel for the petitioners contends that land measuring 24-K at Abdul Hakeem, Railway Station had been auctioned in favour of Respondent No. 4 in an illegal manner for the reasons that under Paragraph No. 1152 of Pakistan Railways Commercial Manual, 1935 the above-said land could not be auctioned for commercial purposes; that disputed land being surrounded by Urban Abadi is not suitable for commercial purposes; that two schools are also situated near the said Abadi and if the disputed land is used for commercial purpose it will cause hazards for the inhabitants; that the disputed land had already been proposed for the construction of Public Park on the application of the petitioners and other citizens by the Tehsil Municipal Officer Town Committee and Letter No. TMO/KBA/2166-4 dated 13.08.2004 in this respect was also addressed to Respondent No. 3 with the request that auction of disputed property being held on 16.8.2004 be postponed till the finalization of the deal with TMA Kabirwala; that the matter was taken up by the Railway Authorities but was not still finalized and the auction was held on 13.6.2005 which was confirmed in favour of Respondent No. 4 on 22.9.2005 at the rate of Rs. 10,100/- per acre by the Railway Authorities in an illegal and unlawful manner with mala fide intention and the same may be cancelled.
Conversely, the learned counsel for Respondents No. 1 to 3 contends that the petitioners have no locus standi to file this petition; that the property had been auctioned on 13.6.2005 and it was confirmed in favour of Respondent No 2 on 22.9.2005, but the petitioners filed the writ petition on 18.11.2008 after about 1« years which shows mala fide of the petitioner, who just to defeat the rights of the respondents have filed this writ petition at a belated stage which is liable to be dismissed on the point of laches; that mala fide of the petitioners can very well be judged from the contents of the writ petition as in grounds B and C of the petition it is admitted that Petitioner No. 1 is Mohtamim of Markazi Jamia Masjid Ahl-e-Hadees and he himself is Imam of the said Jamia Masjid situates adjacent to the land in dispute where Eid and Jumma congregations are also held; that the disputed property is not only being used by the petitioners for the above-said purposes and also for their own gain which is not permissible under the law and for the fulfillment of their obligations/interests they have filed this frivolous petition in this Court, which shows that have not come to the Court with clean hands and as such they are not entitled to any relief from this Court; that neither TMA was impleaded party in this case nor TMA wanted construction of any Public Park over the disputed land. The learned counsel has also produced a letter dated 27.9.2006 in this respect issued by the TMA, Kabirwala in which it is clearly mentioned that the disputed land is not required for the purpose of construction of park and the demand made in this behalf was withdrawn. Lastly the learned counsel for Respondents No. 1 to 3 has contended that under Paragraph No. 1152 there is no embargo for using the said land for commercial purposes because word "may" has been used which shows that it is the entire discretion of the department to utilize its land for any purposes according to the policies. In this behalf he has referred to policy letter dated 31st July, 2006.
Likewise, the learned counsel for Respondent No. 4 contends that just to defeat the rights of Respondent No. 4 this petition has been filed on account of mala fide on the part of the petitioners.
I have heard the learned counsel for the parties and also gone through the documents attached with this petition.
Paragraph No. 1152 of Railway Commercial Manual, 1935 for ready reference is reproduced as under:--
"1152. Railway land may be licensed, when available, for purposes connected with the working of the railway, such as:--
(a) erection of installations for receiving oil or petrol in bulk;
(b) stacking of goods proper to dispatch by rail;
(c) stacking of goods after arrival by rail in special cases, with the approval of the Headquarters Office;
(d) erection of shops for station vendors;
(e) erection of stalls on passenger platforms or waiting halls;
(f) military platforms or stacking yard;
(g) laying of water or oil pipe lines."
A perusal of the above paragraph shows that word "may" has been used which shows that the land in dispute can be utilized for any purpose according to the policies framed by the department time to time and the auction in case in hand was according to the policy referred to above by the Railway Department.
So for as the requirement of the land for construction of a Public Park is concerned, the plea of the petitioners has been negated by the letter dated 27.9.2006 issued by the Tehsil Municipal Officer, Tehsil Municipal Administration Kabirwala in which it has been clearly mentioned that the demand for construction of a public park at the disputed place has been withdrawn and it is not required for this purpose as already four parks have been constructed in the Town and the Finance Municipal Administration is not in a position to bear the more expenses.
There is another aspect of the case that the auction as mentioned in the preceding paras was held on 13.6.2005 and it was confirmed on 22.9.2005, but the petitioners have filed this petition on 18.11.2006 after about 1« years and the same is hit by the principle of laches. Even otherwise, it is admitted in the writ petition that Petitioner No. 1 is Mohtamim of Markazi Jamia Masjid Ahl-e-Hadees and he himself is Imam of the said Jamia Majid situates adjacent to the land in dispute where Eid and Jumma congregations are also held. It shows the mala fide on the part of the petitioners that they have filed this writ petition just to defeat the interest of the respondents. Even otherwise, the petitioners are not owners of the property and they have no locus standi to file this petition.
So far as the point raised by the petitioners that if disputed property is used for agricultural purpose it will create hazard for the public is concerned, the same is also not tenable as nobody else from the Town has come forward to agitate the same. Even otherwise, this is not acceptable that the land if is used for the said purpose it will not create better environment than the place lying vacant to allow the people to throw garb there.
For what has been discussed above, this petition having no force is dismissed. No order as to costs.
(M.A.K.Z.) Petition dismissed.
PLJ 2008 Lahore 1023
Present: Hafiz Tariq Nasim, J.
SHAMIM AHMAD KHAN, EX-TELEPHONE OPERATOR, UNDER A.E.P. DIGITAL (INTERNAL) DEFENCE
EXCHANGE, LAHORE--Appellant
versus
ASSISTANT ENGINEER PHONES, DIGITAL (INTERNAL) DEFENCE EXCHANGE (PTCL), LAHORE and 5 others--Respondents
Labour Appeal No. 351 of 2007, heard on 1.7.2008.
Industrial Relations Ordinance, 2002 (XCI of 2002)—
----S. 47(3)--Labour Appeal--Grievance notice--Meaning and object--Departmental appeal, treatment as grievance notice--Grievance notice means "to bring into the notice of employer the very grievance which to aggrieved party intends to get it redressed" irrespective of the fact that whether it is named as departmental appeal representation, review, grievance notice--Validity--Held: Civil revision can be treated as RFA, RSA and vice versa, when this position is unambiguous in the matter of litigations before other Courts than how an aggrieved person can be non-suited on this hyper-technical objection when admittedly the aggrieved person had already brought his grievance into the notice of his employer--Appeal accepted and case remanded to Labour Court for decision afresh.
[P. 1025] A
PLJ 1985 SC 222; PLD 1995 SC 406 and PLJ 1996 SC 208 ref.
Mr. Asmat Kamal Khan, Advocate for Appellant.
Mr. Umar Sharif, Advocate for Respondents.
Date of hearing 1.7.2008.
Judgment
Facts leading to this Labour appeal are that the appellant joined PTCL as clerk BS-5 in the year 1973 was promoted as telephone operator BS-7 in 1989 but through order dated 4.8.1999 he was dismissed from service.
The only grievance in the present appeal is that the learned Labour Court wrongly dismissed the appellant's petition through judgment dated 29.9.2007 and the appellant's prays for setting aside of the same and remand the case to the learned Labour Court for deciding afresh on merits. The learned counsel for the appellant submits that the petitioner aggrieved of the order passed by the respondent, has filed departmental appeal and then invoked the jurisdiction of Federal Service Tribunal but due to the judgment of Muhammad Mubeen-ul-Islam and others v. Federation of Pakistan (PLD 2006 SC 602) his appeal was abated and then he approached the learned Labour Court but the learned Labour Court dismissed the petition on wrong premises holding that as the petitioner did not serve the respondent a grievance notice, which otherwise a mandatory requirement, his petition before the learned Labour Court is not maintainable. The fact that the petitioner has brought its grievance into the notice of respondent through a departmental appeal and it is well settled law that the departmental appeal can be termed as grievance notice and vice versa.
On the other hand, the learned counsel for the respondent supports the impugned judgment with vehemence and relied on a judgment reported as Mir Jaffar v. Government of N.-W.F.P. Transport Department through Secretary and another (2000 PLC 472) and Allied Bank of Pakistan Limited through Attorneys v. Syed Nasir Abbas Naqvi (2003 PLC 20) wherein the Punjab Labour Appellate Tribunal and NWFP Labour Appellate Tribunal held that the departmental appeal could not be treated as grievance notice and further submits that the learned Labour Court decided the case in its true perspective and cannot be interfered with through the present Labour Appeal.
Arguments heard; record perused.
Suffice it to say that the grievance notice means "to bring into the notice of employer the very grievance which the aggrieved party intends to get it redressed" irrespective of the fact that whether it is named as departmental appeal, representation, review/grievance notice and it is well settled law laid down by the Hon'ble Supreme Court of Pakistan that civil revision can be treated as RFA, RSA and vice versa, when this position is unambiguous in the matter of litigations before other Courts then how an aggrieved person can be non-suited on this hyper-technical objection when admittedly the aggrieved person had already brought his grievance into the notice of his employer.
In the present case, admittedly the appellant filed departmental appeal, which is not denied by the respondents; hence the dismissal of his petition by the learned Labour Court cannot be held a justified one. So far the judgments referred by the learned counsel for the respondents is concerned, both the judgments are of Labour Appellate Tribunal and are not binding on this Court. Accordingly the judgment passed by the learned Labour Court is set aside, the appeal is allowed, and the case is remanded to the learned Labour Court for afresh decision on merits particularly when there is ample law laid down by the apex Court that "while granting relief the Court can dispense with the technicalities and may mould the relief according to the circumstances and requirements" (PLJ 1985 SC 222) and (1998 SCMR 1618). Even the Hon'ble Supreme Court of Pakistan in another case held that non-suiting on technicalities should not be allowed PLD 1995 SC 406. In another case reported as (1995 SCMR 435, the apex Court held "aggrieved person cannot be refused relief on a mere technical ground." In addition to this I may refer another judgment wherein the Hon'ble Supreme Court of Pakistan held "if there is any ambiguity, construction which is favourable to individual should be adopted" PLJ 1996 SC 208 and 1998 SCMR 1794.
As held in the preceding paras that grievance notice means "to bring into the notice of employer the grievances", nothing more nothing less, then only by writing a word departmental appeal/representation instead of Grievance Notice, the purpose of law shall be held to have been served.
(M.A.K.Z.) Case remanded.
PLJ 2008 Lahore 1026
[Rawalpindi Bench Rawalpindi]
Present: Maulvi Anwar-ul-Haq, J.
ICI PAKISTAN LIMITED, JHELUM through its Industrial Relations Manager--Petitioner
versus
Syed SHABBIR HUSSAIN SHAH and another--Respondents
Labour Appeal No. 77 of 2004, heard on 27.6.2008.
Industrial Relations Ordinance, 2002 (XCI of 2002)—
----S. 48--Dismissal from service--Grievance petition--Reinstatement--Assailed--Dismissal order having been passed in violation of the provisions of the Standing Orders Ordinance, 1968 was correctly set aside by Labour Court--However, an examination of the records including the statement of the respondents recorded by Labour Court do reveal that proceedings were commenced against the respondents by petitioner service of charge sheet as well as conduct of an inquiry and its proceedings are admitted--Fair inquiry was not conducted by inquiry officer who has produced the charge sheet, the reply and the proceedings--Appeal dismissed. [P. 1028] A
Mr. Khurram M. Hashmi, Advocate for Appellant.
Ch. Sadiq Muhammad Warriach, Advocate for Respondents.
Date of hearing 27.6.2008.
Judgment
On 18.12.2003 the Respondent No. 1 filed a grievance petition under Section 46 of the IRO, 2002. After referring to a charge sheet earlier issued on 17.8.1994, his dismissal from service and his reinstatement on 14.2.1996, he stated that he contested elections as an Organizer of the Jiay Mazdoor Group. He made some complaints for non-supply of some safety equipment. However, he was issued a warning on 20.6.2003 and he was threatened with dismissal from service. He informed the General Secretary of the CBA Union. Then there is reference to a charge sheet and appointment of an Inquiry Officer. The CBA approached the NIRC to restrain the appellant from resorting to undue labour practice. He was dismissed from service on 20.10.2003 without any written order. He accordingly prayed for his reinstatement. The written statement was filed. Objection to the maintainability of the grievance petition was raised with reference to the pending proceedings in the NIRC. It was further stated that a charge sheet was served and inquiry was conducted. However, no specific reply was given in response to the allegation that the dismissal was ordered without a written order. Evidence of the parties was recorded. Vide judgment dated 16.12.2004 the learned Punjab Labour Court, Rawalpindi, allowed the grievance petition and ordered his reinstatement with all the back benefits. I may further note here that an application filed by the appellant for producing a written termination order was dis-allowed on the same date.
Learned counsel for the appellant contends with reference to Messrs Shell Pakistan Limited through Legal Affairs Advisor and Attorney v. Aurangzeb Khan (2005 PLC 424) that during the pendency of proceedings in the NIRC, the grievance petition was not competent. He also questions the refusal of the learned Labour Court to grant permission to produce the written order of dismissal. Learned counsel for the Respondent No. 1, on the other hand, contends that the application before the NIRC was filed long before the said dismissal of the respondent. According to him, no plea was taken in the written statement and it was neither suggested to the respondent nor it was stated by the witness of the appellant that a written order was passed for dismissal.
I have gone through the records of the learned Labour Court, with the assistance of the learned counsel for the parties. It is categorically stated in para-16 of the grievance petition that no written order of dismissal was passed and it was orally conveyed to him on 25.10.2003 at the gate of the employer organization. In para-12 of the written statement, on merits, paras-16 and 17 were stated to have been admitted to the extent of the receipt of the grievance notice and its reply. However, it was neither stated that any written order was passed nor any particulars thereof were given.
The respondent entered the witness box as PW-3 on 19.8.2004. No suggestion was given to him. Neither he was confronted with any written order of dismissal. Ibrahim Arif, Training Manager, appeared as RW-1 on 17.10.2004 and there is not even a slightest reference to any written order of dismissal having been passed in his entire statement. It was on 30.11.2004 that an application was filed seeking permission to produce the dismissal order. It was contested and has been dismissed by the learned Labour Court vide order dated 16.12.2004. In the afore-noted circumstances, the conclusion arrived at by the learned Labour Court that the dismissal order sought to be produced was not available earlier or that it has been fabricated cannot be interfered with as the presumption could have been drawn from the said circumstances duly reflected on the face of the record.
So far as the said objection of the learned counsel to maintainability is concerned, the application is Ex.R.9. It was filed on 26.7.2003 by the general Secretary of the Union and the respondent. It was claimed that unfair labour practices are being resorted and it was apprehended that the appellant is going to terminate or remove the members of the Union from service. It will, thus, be seen that the said application was filed in a wholly different context long before the dismissal from service. Immediately after being told that he has been dismissed from service, he filed a grievance notice, which was admittedly received by the appellant. This notice is Ex.P. 1 and is dated 18.10.2003, which was replied on 25.11.2003 vide Ex.P.2. I may note here that even in response to this grievance notice, it was not that a written order has been passed or that it has been served when it was specifically alleged that a written order has not been delivered to him.
The said objection accordingly has no force. I may note here that even in the said case of Messrs Shell Pakistan Limited through Legal Affairs Advisor and Attorney relied upon by the learned counsel, the objection was over-ruled.
I, therefore, do hold that the dismissal order having been passed in violation of the provisions of the Standing Orders Ordinance, 1968 was correctly set aside by the learned Labour Court. However, an examination of the records including the statement of the respondent recorded by the learned Labour Court do reveal that proceedings were commenced against the respondent by the appellant. Service of charge sheet as well as conduct of an inquiry and its proceedings are admitted. However, this is subject to an objection that a fair inquiry was not conducted. RW-1 is the Inquiry Officer who has produced the charge sheet, the reply and the proceedings.
In the said circumstances, the appeal is dismissed but with the observation that the appellant may proceed further from the said admitted stage of proceedings. No orders as to costs.
The records of the learned Labour Court be remitted back immediately.
(M.A.K.Z.) Appeal dismissed.
PLJ 2008 Lahore 1029
[Bahawalpur Bench Bahawalpur]
Present: Syed Shaheen Masud Rizvi, J.
Mst. PARVEEN AMANUAL--Petitioner
versus
ADDL. DISTRICT JUDGE-III RAHIMYAR KHAN & 2 others--Respondents
W.P. No. 227 of 2006/BWP, decided on 19.3.2008.
Divorce Act, 1869 (IV of 1869)—
----Ss. 10 & 22--Constitution of Pakistan, 1973, Art. 199--Suit for dissolution of marriage under Christian Law--Better statement of petitioner (wife)--Suit was decreed--Assailed--Case was remanded to trial Court--Challenged through Constitutional petition--Question of--Held: No provision in the nature of "khula" in the Divorce Act, 1869 and as such the mere statement of the petitioner that she was not willing to live as a wife with the husband is not sufficient for the purpose of dissolution of christian marriage--Section 10 of the Divorce Act, 1869 which relates to the grounds when wife may ask for dissolution of marriage and further reference is also made to Section 22 of the Divorce Act, which lays down the grounds when judicial separation is obtainable by wife. [P. 1031] A
Divorce Act, 1869 (IV of 1869)—
----Ss. 10 & 22--Christian law--Grounds of divorce and separation--Bond of marriage between Christian husband and wife is of permanent nature and as such the wife has to prove her case on the concrete facts after leading reliable and cogent evidence to the facts on which the claim of dissolution of marriage is based--Only then the Court can grant a decree for a judicial separation within the meaning of Section 22 of the Divorce Act, 1869 or to dissolve the marriage under Section 22 of the Divroce Act--Therefore, mere assertion of the wife that she is not ready to live with the husband is not sufficient for dissolving the marriage--Case remanded to Family Court, who shall proceed with the case from the stage on which the petitioner made better statement and after framing the issues and recording evidence shall decide the matter. [P. 1031] B & C
Rana Sher Afgan, Advocate for Petitioner.
Mr. John Williams, Advocate for Respondent No. 3.
Date of hearing 19.3.2008.
Order
Mst. Parveen Amanual, the petitioner filed a suit for dissolution of her marriage before the learned Judge Family Court, Rahimyar Khan under the Divorce Act, 1869, which is applicable to the persons professing the Christian religion. The suit was contested by Respondent No. 3, Razzaq Shakir, the husband. The case was still at the initial stage, when on 4.10.2005, the learned Judge Family Court recorded the better statement of the petitioner-plaintiff, wherein she stated that
After recording the above said statement, the suit of the petitioner-plaintiff for dissolution of marriage was decreed.
Respondent No. 3, the husband, feeling aggrieved by the above said order and decree dated 4.10.2005, filed an appeal before the learned District Judge, Rahimyar Khan, which was decided by Mr. Wajahat Hussain, Additional District Judge, Rahimyar Khan, who vide his judgment dated 16.11.2005 remanded the case to the learned Judge Family Court, Rahimyar Khan on the ground that the dissolution of marriage was not in accordance with the provisions of the Divorce Act, 1869, applicable to the parties and directed the learned Judge Family Court to decide the suit for dissolution of marriage of the petitioner-plaintiff afresh, keeping in view the provisions of the Divorce Act, 1869. Hence, this writ petition.
I have heard the arguments of the learned counsel for the parties and have perused the record.
The order dated 4.10.2005 of the learned Judge Family Court reads as under:--
"The plaintiff has specifically deposed on oath that she is not ready to live with the defendant at any cost. In view of statement of plaintiff, the present suit for dissolution of marriage is hereby decreed in favour of the plaintiff and against the defendant. There is no order as to costs. File be consigned to record room after its due completion."
The perusal of the above order dated 4.10.2005 reveals that the learned Judge Family Court was influenced by the Provisions of the Muslim Family Laws Ordinance, 1961 while deciding the case of the petitioner-plaintiff. There is no provision in the nature of `Khula' in the Divorce Act, 1869 and as such the mere statement of the petitioner that she was not willing to live as a wife with Respondent No. 3, is not sufficient for the purpose of dissolution of Christian marriage. In this regard reference is made to Section 10 of the Divorce Act, 1869, which relates to the grounds when wife may ask for the dissolution of marriage and further reference is also made to Section 22 of the same Act, which lays down the grounds when judicial separation is obtainable by wife.
The bond of marriage between Christian husband and wife is of a permanent nature and as such the wife has to prove her case on the concrete facts after leading reliable and cogent evidence to the facts on which the claim of dissolution of marriage is based. Only then the Court can grant a decree for a judicial separation within the meaning of Section 22 of the Divorce Act, 1869 or to dissolve the marriage under Section 10 of the same Act. Therefore, mere assertion of the wife that she is not ready to live with the husband is not sufficient for dissolving the marriage between the petitioner and Respondent No. 1. The learned Additional District Judge has rightly remanded the case to the learned Judge Family Court. The instant writ petition has no force and the same is dismissed. The case shall stand remanded to the learned Judge Family Court, Rahimyar Khan who shall proceed with the case from the stage on which the petitioner made better statement and after framing the issues and recording evidence regarding those issues, shall decide the matter, after issuing notice to the parties to appear before it. The case be decided preferably within three months from the date of receipt of this order.
(MRQ) Petition dismissed.
PLJ 2008 Lahore 1031
Present: Hafiz Tariq Nasim, J.
MUHAMMAD IQBAL--Petitioner
versus
STATE BANK OF PAKISTAN through its Governor/Director, head Office, Karachi and another--Respondents
L.A. No. 241 of 2007, decided on 16.7.2008.
Industrial Relations Ordinance, 2002 (XCI of 2002)—
----S. 48--Dismissal from service--Penalty of dismissal converted into compulsory retirement--Pentionary benefits--Claim of--No benefit of the judgment of the FST--Approching Labour Court after changed circumstances--Dismissal of--Labour appeal--Direction to State Bank--Validity of--Judgment of the FST, whereby the penalty of dismissal was converted into compulsory retirement shall hold the field and it is obligatory on the Bank Authorities to implement the same in letter and spirit--Objection that how in the Labour Appeal such direction could be issued to the State Bank--High Court has ample powers to issue a direction to a "person" and admittedly State Bank of Pakistan falls within the definition of that "person". [P. 1034] A
PLD 2006 SC 602 & 2008 SCMR 948 rel.
Sardar Muhammad Ramzan, Advocate for Appellant.
Mr. Rehan Bashir, Advocate for Respondents No. 1 and 2.
Date of hearing 16.7.2008.
Order
This is a case of real hardship, the appellant has become a mental case practically and that too due to technicalities and non-granting him a relief which otherwise was extended to the appellant by way of converting his Dismissal into the Compulsory Retirement by the Federal Service Tribunal.
The conduct of the employer is evident from the bare facts that he kept the appellant into indecent litigation for a number of years only on flimsy grounds and hyper technicalities.
The appellant could only get a relief from his employer by way of certain pensionery benefits against a period of 14 years of service, which he rendered with the State Bank and nothing more.
Some facts are important to be noted, the appellant was a vault peon in the State Bank of Pakistan, was charged sheeted on 24.6.1996 and finally was dismissed on 13.8.1996. He served a grievance notice and then filed grievance petition before the learned Labour Court under Section 25-A of IRO, 1969 in October, 1996. During the pendency of the petition before the learned Labour Court Section 2-A of the Service Tribunal Act was introduced and the grievance petition was returned to the petitioner on 22.9.1999, on the objections of the respondent-Bank.
On 11.10.1997 the appellant approached Federal Service Tribunal through Appeal No. 896-L of 1997. The appeal was dismissed by the Federal Service Tribunal on 24.1.1998 on the point of maintainability, the appellant assailed the order of the Federal Service Tribunal before the Hon'ble Supreme Court of Pakistan through CP No. 173 of 1999, where the petition was heard and with the consent of the parties the same was allowed and the case was remanded to the Federal Service Tribunal for a decision on merits vide judgment of the apex Court dated 27.9.2004.
It is interesting to note that the appellant could get relief only to the extent of conversion of his penalty of dismissal into compulsory retirement by the Federal Service Tribunal through judgment dated 11.7.2005 but even then the respondent-Bank could not accept the verdict of Federal Service Tribunal and moved before the Hon'ble Supreme Court of Pakistan through CPLA No. 2360 of 2005.
During the pendency of CPLA before the Hon'ble Supreme Court of Pakistan a judgment reported as Mubeen-ul-Islam vs. Government was announced and the respondent-Bank took the plea of that case and the CPLA was disposed of through order dated 8.8.2006.
The poor appellant was not benefited of the judgment of the Federal Service Tribunal, which was in field and particularly when the Bank itself got the disposal of its CPLA from the Hon'ble Supreme Court of Pakistan, resulting into the appellant's hanging in the air, the appellant tried its level best for pensionary benefits but with no result and then he rushed to the Labour Court.
There is another aspect of the impugned controversy that another judgment titled as Muhammad Idrees vs. Government (2007 PLC (CS) 1331) was passed by the Hon'ble Supreme Court of Pakistan, wherein certain parameters were laid down for the implementation of judgment of Mubeen-ul-Islam and according to Muhammad Idrees's case the employees of those statutory bodies having statutory rules shall have to remain amenable to the jurisdiction of Service Tribunal. In another case of National Bank of Pakistan vs. Abdul Qadir (CP No. 552 of 2007 decided on 13.07.2007) where it was contended on behalf of National Bank that their rules are non-statutory so there employees cannot be amenable to the writ/Federal Service Tribunal but it was held by the apex Court in a case titled National Bank of Pakistan vs. Abdul Qadir (CP No. 552 of 2007 decided on 13.7.2007) that firstly the employees of the National Bank of Pakistan were regulated under the statutory rules and later on these statutory rules were convened into non-statutory, this conversion cannot hold the field because the statutory rules cannot become non-statutory through a resolution of Directors of Banks etc., meaning thereby that the earlier rules of National Bank of Pakistan, which were admittedly statutory shall remain in field.
Thus on the same analogy it is held that the State Bank of Pakistan's rules/regulations, which were admittedly statutory could not be treated as non-statutory according to the whims and moods of the Banks Authorities until and unless conversion of the same be in line with law and the judgment of the Hon'ble Supreme Court of Pakistan supra so in the present case whatever the situation of the appellant, who was an employee of State Bank of Pakistan remained amenable to the jurisdiction of Service Tribunal even after the judgment in the case of Muhammad Mubeen-ul-lslam vs. Federation of Pakistan (PLD 2006 SC 602) particularly in the light of Judgment of Muhammad Idrees's case, In the attending circumstances, the judgment of the Federal Service Tribunal, whereby the penalty of dismissal was converted into compulsory retirement shall hold the field and it is obligatory on the Bank Authorities to implement the same in letter and spirit.
At present there may be an objection that how in the labour appeal, which is against the judgment of Labour Court this direction could be issued to the State Bank, suffice it to say that the High Court has ample powers to issue a direction to a "person" as define under Article 199 and admittedly State Bank of Pakistan falls within the definition of that "person" and in that respect, reliance can safely be made on a recent judgment reported as Secretary Revenue vs. Muhammad Saleem (2008 SCMR 948).
Accordingly the State Bank of Pakistan is directed to grant pensionary benefits to the appellant within a period of one month positively by implementing the judgment of Federal Service Tribunal, the result whereof be conveyed to the Deputy Register (J) of this Court.
(M.A.K.Z.) Order accordingly.
PLJ 2008 Lahore 1034
[Bahawalpur Bench Bahawalpur]
Present: Mian Saqib Nisar, J.
ABDUR REHMAN & 68 others--Petitioners
versus
PROVINCE OF PUNJAB through Collector, Bahawalpur and 23 others--Respondents
C.R. Nos. 297-D of 1991/BWP & 12-D of 1992/BWP, heard on 31.10.2007.
Muhammadan Law--
----Gift--Nature of--Absolute or usufructory--Question of--Land was not given in the nature of a gift as permissible under the Muhammadan Law, but it was a gift with a condition such in fact was not an absolute gift, but in the nature of exclusively a usufruct for the purpose of his services rendered to deceased he is no more on the basis of Ex. P has ever become the exclusive owner of the property which could devolve upon any of his legal heirs--Held: Deceased was only for his life time and the moment he had died, the property could not devolve upon any of his legal heirs--No gift existed at that time and any other legal heir of deceased had not challenged the resumption through the mechanism provided by the law and before the forum having exclusive jurisdiction in this behalf.
[Pp. 1037 & 1038] A, B & C
Ownership of Property--
----Decree for specific performance by itself do not mean the transfer of any right in the property on account of which the petitioners could seek the declaration of the ownership of the property until and unless the decrees were got executed. [P. 1038] D
PLD 1975 Lah. 909 rel.
M/s. Ch. Ijaz Ahmed and Ch. Manzoor Ahmed, Advocates for Petitioners.
Syed Shaheen Masud Rizvi, AAG.
M/s. Ch. Naseer Ahmed, Hafiz Muhammad Abdul Qayyum, Masud Ashraf Sheikh, Muhammad Shafi Meyo and Ch. Khalid Pervaiz, Advocates for Respondents.
Date of hearing 31.1.2007.
Judgment
The instant petition as also CR No. 12-D of 1992/BWP, are being disposed of together, as both involve common questions of law and facts and the fate of CR No. 12-D of 1992/BWP, is dependent upon the decision of the noted petition.
The brief facts of the case are that the land measuring 312440 Acres was the "Shakargah" owned by the state of Bahawalpur; out of the above, it is allegedly claimed by the petitioners that Nawab of Bahawalpur, vide instrument dated 5.5.1885, (Ex.P-1), gifted 41959 Beghas and 3 Kanals of land in favour of one Channi Muhammad Khan; the possession is also claimed to have been delivered to the donee by the order of his Highness Nawab of Bahawalpur vide documents Ex. P-2 dated 5.5.1885, Khasra Pamaish (Ex.P-3), envisages the description of the property; Yadashat of the delivery of possession dated 2.4.1886 is Ex.P-4; the acknowledgement of the possession by the donee dated 29.9.1886 is Ex.P-6, thus on the basis of the above, it is asserted by the plaintiffs that the gift in favour of Channi Muhammad Khan, was complete; however, due to lack of the revenue record in Bahawalpur State, the transaction obviously does not find mention in any other public/official record. Channi Muhammad Khan has died since long (exact date and year of his death is not given), but when questioned, the counsel for the petitioners stated it to be in 19th century; however, the plaintiffs assert that Mr. Channi was survived by Jan Muhammad, his paternal cousin, and on his death, the aforesaid property devolved upon Muhammad Sharif, his son. Muhammad Sharif through various agreements of sales, sold the aforesaid land in favour of the Plaintiffs/Petitioners No. 1 to 67 and 69; they brought suits for the specific performance against Muhammad Sharif, which were decreed on 2.5.1974 (Ex.P-22), 14.5.1974 (Ex.P-23), 23.5.1974 (Ex.P-24), 18.7.1974 (Ex.P-25) and 2.9.1974 (Ex.P-26). However, when asked in the Court, the learned counsel concedes that the decrees were not got executed through the process of the Court.
Anyhow, the aforesaid land alongwith the other part of the "Shakargah" was resumed under MLR 1964 on 6.5.68 and considering it to be the part of the Bahawalpur State, it was allotted in favour of Respondents No. 8 to 22 on 18.2.1982 as landless cultivators from some other area. Without prejudice to any one's case, I may refer, on the information provided by the counsel for the parties, that such resumption was challenged by the LRs of his Highness and has been annulled at the level of the Hon'ble Supreme Court of Pakistan. Be that as it may, the petitioners, avowing to be the owners of the property on account of having purchased the same from Muhammad Sharif brought the suit for the declaration on 14.2.1975, impleading the Province of Punjab (Respondent No. 1), the rival claimants, who are the legal heirs of Channi Muhammad Khan (Respondents No. 2 to 17); the allottees under the Land Reforms (Respondents No. 18 to 22); the Cholishtan Development Authority (Respondent No. 23) and The Pakistan Agricultural Research Council (Respondent No. 24); the written statements were filed by all the respondents/defendants and it was controverted that any gift was validly made in favour of Channi Muhammad Khan. It may be pertinent to mention here that Respondents No. 2 to 17, also brought a suit for the declaration alleging that they also are the legal heirs of Channi Muhammad Khan and thus have inherited the suit property, and that Muhammad Sharif could not have solely sold the same to the plaintiffs; both the suits were consolidated; issues were framed accordingly; parties were put to trail and as has been pointed out by the learned counsel for the plaintiffs, Issues No. 7, 8, 9, 10 and 11 are the important issues, upon which the learned Civil Judge, returned its findings against the petitioners and dismissed the suit vide judgment and decree dated 23.7.1984; the appeal of the petitioners has also failed on 30.9.1991. Hence these petitions.
It is argued by Mr. Ijaz Ahmed Chaudhry, learned counsel for the petitioners that both the Courts below have misread the evidence on the record; the finding of the two Courts that there is an interpolation in Ex.P-7, is totally misconceived and is not based upon proper reading of the document. It is also stated that the view set out by the learned ADJ that the exact description of the gifted property cannot be ascertained, is also incorrect; rather it is so proved on the basis of Ex.P-3, as to which specific property was gifted; moreover, the findings that the possession, which was necessary for the purpose of the validity of the gift, is not shown to have been delivered to the donee, are absolutely wrong, as the delivery of possession is established from Ex.P-2, the order of his Highness dated 5.5.1885; Yadashat of delivery of possession Ex.P-4 dated 2.4.1886 and acknowledgement of possession Ex.P-6 by the donee dated 29.9.1886, therefore, the gift for all intents and purpose was complete and valid. The learned counsel also argued that the suit land could never be resumed under the MLR, as being the property of the Bahawalpur State or that of his Highness and allotted to Respondents No. 18 to 22; he further states that both the Courts below have misconstrued Ex.P-7/Ex.D-4 to hold that the document has been interpolated, whereas, from the original, it is very clear that the word " " has been used instead of " "; this view is fortified by Ex.D.130, which was meant for the implementation of the gift and in this document, it stands clearly mentioned that the condition was waived as the word mentioned is " ". Learned counsel has further explained that the view of the Courts that the property is not identifiable is falsified by Ex.P-3; which establishes that the identification was made from Chak Suleh Wala taking it to be a Center; he also submits that his Highness, during his life time, has never exercised the condition, canceling the gift, even if it is assumed to be there, by making any revocation of the gift and therefore Channi Muhammad Khan has become the absolute owner of the property, which had devolved upon his legal heir from whom the petitioners have purchased the same; it is lastly submitted that even the authority of his Highness to revoke the gift was circumvented by the condition laid down in the Ex.P-1, and that is " ", " " or non payment of " " and it is not the case of the respondents that any such condition was violated by Channi Muhammad Khan and therefore, the gift stood revoked.
I have heard learned counsel for the parties. From the document Ex.P-1, it is clear that the land was not given to Channi Muhammad Khan in the nature of a gift as permissible under the Muhammadan Law, but it was a gift with a condition of being " "; such in fact was not an absolute gift, but in the nature of exclusively a usufruct to Channi Muhammad Khan, for the purpose of his services rendered to the late Nawab; he in no manner on the basis of Ex. P-1 has ever become the exclusive owner of the property, which could devolve upon any of his legal heirs, the two Courts have rightly construed Ex.P-1 and my own reading of the document also shows that the condition of
" " was never waived by Nawab at any point of time; the original record has been perused, which fortify the above view. The argument that the exercise of the condition was never made by late Nawab, because there is no instrument of revocation. The submission falsifies on the reasons firstly as mentioned above, " " or " " to Channi Muhammad Khan, in my view was only for his life time and the moment he had died, the property could not devolve upon any of his legal heirs, therefore, in such circumstances, no express revocation was needed; the other reason that the property had been resumed under the land reforms, proves that no gift existed at that time and any other legal heir of Channi had not challenged the resumption through the mechanism provided by the law pad before the forum having exclusive jurisdiction in this behalf.
As regards the argument that the petitioners have procured the decrees for the specific performance against Muhammad Sharif, sole heir of Channi Muhammad Khan, it may be mentioned that the decrees for the specific performance by itself do not mean the transfer of any right in the property on account of which, the petitioners could seek the declaration of the ownership of the property, until and unless the decrees were got executed. It is admitted position and even conceded by the petitioners' counsel that such decrees have never been got executed by the petitioners till to-date. In support of the above, reliance in this behalf has been placed on Muhammad Ishaq. Vs. Muhammad Siddique (PLD 1975 Lahore 909), therefore, I do not find any illegality or error in the judgments and decrees of the two Courts below calling for interference in my revisional jurisdiction; these petitions thus have no merits and the same are hereby dismissed.
(M.R.Q.) Revision dismissed.
PLJ 2008 Lahore 1038
[Multan Bench Multan]
Present: Saif-ur-Rehman, J.
DAWOOD--Petitioner
versus
DISTRICT POLICE OFFICER, D.G. KHAN & 6 others--Respondents
W.P. No. 6069 of 2007, decided on 29.1.2008.
Constitution of Pakistan, 1973—
----Art. 199--Criminal Procedure Code, (V of 1898)--S. 173--Pakistan Penal Code, (XLV of 1860)--Ss. 302, 324 & 34--House trespass--Source of constant threat and danger to--Petitioner slackness of police--Accused committed murders of family members of the petitioner and the accused were still at large, they had again committed trespass into the house of a family member of the petitioner and thus were source of constant threat and danger to the petitioner and that was happening because of slackness of the police--Distt. Police Officer was directed to ensure arrest of the accused who were found guilty and completion of investigation in accordance with law and submit report u/S. 173 of Cr.P.C. [P. 1039] A
Mrs. Saeeda Asif, Advocate for Petitioner.
Date of hearing 29.1.2008.
Order
Submits that in the occurrence reported vide FIR No. 79 dated 19.03.2007 under Sections 302, 324/34 PPC P.S. Kot Mubark, District D.G. Khan two persons were injured and two lost their lives when attacked by the desperate accused. However till now neither the accused have been arrested nor has report under Section 173 Cr.P.C. been submitted. In the years 1992 and 2004 as well the same accused committed murders of family members of the petitioner and since the accused of case FIR No. 79/2007 were still at large, they had again committed trespass into the house of a family member of the petitioner on 04.09.2008 and thus were a source of constant threat and danger to the petitioner and that was happening because of slackness of the police.
(R.A.) Petition disposed of.
PLJ 2008 Lahore 1039
Present: Syed Zahid Hussain, C.J.
SULEMAN DAUD--Petitioner
versus
LAHORE DEVELOPMENT AUTHORITY through its Director General--Respondent
W.P. No. 7160 of 2007, decided on 21.5.2008.
Protection of Economic Reform Act, 1992 (XII of 1992)—
----Ss. 4 & 8--Constitution of Pakistan, 1973, Arts. 23, 24 & 25 & 199--Notification for acquiring land for housing scheme--Challenge to--Petitioner being Pakistani, American had purchased some land through foreign exchange for the development of site by establishing farm house, fish pond, fruit garden and hospital etc.--L.D.A. proceeded to acquire it for a scheme known as L.D.A. Housing Scheme--Validity--Held: Scope & import of S. 4 & 8 of the Act 1992 could not be curtailed or restricted to any particular industrial or commercial enterprise--Other properties of number of person, companies & societies had already been excluded from the view of the scheme but petitioner was not being dealt with like others which was against the spirit of Arts. 23, 24 & 25 of the Constitution--Petitioner was, even on better footing, having brought in foreign exchange--In case of exclusion of his property which was not too large, would not disturb the plan, effectiveness & utility of the scheme--More over after exclusion from a previous scheme the property could not have been acquired again, for a similar purpose--Petition allowed.
[Pp. 1042, 1043 & 1044] A, B, C, F & G
Constitution of Pakistan, 1973—
----Art. 24--Concept--Power to acquire a property compulsorily under a law, as envisaged by Art. 24, is subject to fulfilment of the requisite conditionalities. [P. 1043] D
Constitution of Pakistan, 1973—
----Art. 25--Equality of citizens--Concept & scope--Concept of equality is indeed negation of arbitrariness--Every power has its extent and legal limits--The exercise of such power should be based on fairness and reasonableness--Persons in similar circumstances should have similar treatment unless the differentiation is based upon a valid classification, which should not have the taint of arbitrariness that is the hallmark of any ideal dispensation of justice. [P. 1044] E
Mian Zafar Iqbal Kalanauri, Advocate for Petitioner.
Mr. Muhammad Ghani, Advocate/Legal Advisor LDA for Respondent.
Dates of hearing: 23.4.2008, 28.4.2008, 30.4.2008, 2.5.2008 and 12.5.2008.
Judgment
Order dated 08.6.2007 passed by the Director General, Lahore Development Authority (the respondent), whereby he declined to exclude the property of the petitioner from the Scheme known as Avenue-1 Housing Scheme, is sought to be assailed through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. The background forming part of the petition briefly stated is that:--
The petitioner had purchased land measuring 30-Kanals, 18-Marlas comprising Khasra No. 392, 393, 394 and 395 Mauza Mussala Tehsil & District Lahore vide sale-deed dated 03.12.1995 followed by revenue entries i.e. Mutation No. 648, which was sanctioned soon thereafter. His case is that he had also taken possession of the said land and made some development there. On 27.2.1998 notification under S.4 of the Land Acquisition Act, 1894 for acquiring land for Jubilee Town Housing Scheme was issued, which included the property of the petitioner, but on his objections the same was excluded from that scheme. Later on, the same land was sought to be acquired for a scheme known as `LDA Avenue-1 Housing Scheme'. This was vide notification dated 18.12.2002 published on 24.12.2002. The petitioner again agitated the matter by raising objections, which remained undecided, therefore, W.P. No. 15162/2003 had to be filed by him. His writ petition was disposed of on 16.5.2006, with the direction to the Director General, Lahore Development Authority to consider the matter and pass speaking order. Pursuant thereto application dated 06.6.2006 was filed by him which was eventually dismissed by the respondent on 08.6.2007, through the order impugned herein.
The learned counsel have been heard.
The case of the petitioner centres around primarily on twin pleas that being Pakistani American his investment through remittances (foreign exchange) for the purchase of the land in dispute, was protected under the provisions of the Protection of Economic Reforms Act, 1992; and that many of the landowners whose land fell within the Scheme, was excluded or de-notified but the petitioner was being denied similar treatment without there being any legitimate justification. Instances, of such exclusion are mentioned in clause `H' of the petition also. The learned counsel while stressing for exclusion of the land of the petitioner from the Scheme has endeavoured to bring his case within the ambit of Protection of Economic Reforms Act, 1992 (Act XII of 1992) and Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. The learned counsel/Legal Advisor for the respondent has vehemently sought to support the order passed by the Director General and contends that a new case for invoking the provisions of Act XII of 1992 is sought to be made for the first time in the petition and that no such exclusion/ exemption can be claimed as of right as the land has been acquired for public purpose falling within the controlled area.
In order to consider the first objection of the respondent as to the plea about the petitioner's stance based upon the provisions of Act XII of 1992, it is not necessary to go beyond the pleadings of the parties in this petition and the previous one. W.P.No. 15162/2003, which was filed by the petitioner for a direction to the respondent to exclude his land from the Scheme remained pending for a considerable period. In that C.M. No. 1/2004 as also C.M. No. 1/2005 was filed. The object of these applications was to seek exclusion of the land of the petitioner from the Scheme and for placing documents i.e. bank statements as to remittances of foreign exchange to Pakistan for claiming protection of Act XII of 1992. The said petition as mentioned above, was disposed of on 16.5.2006 with the direction to the respondent "to decide the controversy for which purpose he intend to file a petition containing grounds raised in writ petition and accompanying Civil Miscellaneous." Such a direction was indeed issued by the Court without any objection from the respondent side to decide the matter through a speaking order. It was thus that the impugned order was passed which makes mention of the plea of the petitioner as to the protection claimed under Act XII of 1992. Thus the objection that some new case is sought to be built up by the petitioner or a belated plea is being raised is hardly of any tenability and deserve to be repelled.
Adverting now to the crucial aspects of the matter, it may be observed that the land of the petitioner was initially covered by Jubilee Town Housing Scheme but was excluded as is mentioned in the impugned order itself. It had been purchased by him from remittances from USA through Citibank/Bank of America for the development of the site i.e. Farm House, Fishpond, Plantation of Fruit Garden, Hospital/Care Centre. That the petitioner was Pakistani, American and had made foreign exchange remittances finds support from the bank statements on the record, which relate mostly to the same period (when the land was purchased by him i.e. year 1994-1995) and thereafter. Since he was those days settled in America it is hard to disbelieve his assertion and deny his claim. Indeed the provisions of Act XII of 1992 had attracted and lured many such citizens of Pakistan, resident in Pakistan or outside Pakistan "to bring, hold, sell, transfer and take out foreign exchange" (S. 4). The provisions of the Act are of overriding effect. After remittances or bringing such foreign exchange into Pakistan the mode of investment thereof in projects was left to themselves. Indeed the provisions of S. 8 of the Act are of extensive nature and of wide amplitude. Section 8 reads like this; "8. Protection of foreign and Pakistani investment.----No foreign, industrial or commercial enterprise established or owned in any form by a foreign or Pakistani investor for private gain in accordance with law, and no investment in share or equity of any company, firm, or enterprise, and no commercial bank or financial institution established, owned or acquired by any foreign or Pakistani investor, shall be compulsorily acquired or taken over by the Government." The scope and import of such provisions cannot be curtailed or restricted to any particular industrial or commercial enterprise. In case the approach adopted by the respondent about the said provisions of law is upheld, the whole rationale, object and purpose of the said legislation is likely to be frustrated leaving such persons in a state of quandary. It is thus hard for the Court to uphold the view expressed in the impugned order as to the import and effect of provisions of Act, XII of 1992.
Another aspect of equally importance, which cannot be lost sight of is that the properties of number of persons, companies, societies have been excluded from the purview of the Scheme. The petitioner can thus have a legitimate grievance to urge that he is not being dealt with like others similarly placed and situated. One may at this juncture revert to the provisions of Constitution of the Islamic Republic of Pakistan, 1973. According to Article 23, every citizen has the right to acquire, hold and dispose of property in any part of Pakistan subject to the Constitution and any reasonable restrictions imposed by law in the public interest. Article 24 further guarantees that "No person shall be deprived of his property save in accordance with law": Laws relating to compulsory acquisition of property are also taken care of by this provision. Article 25 enshrines a salutary guarantee that "All citizens are equal before law and are entitled to equal protection of law". To possess and make use of property clearly falls within the scope of Article 23 of the Constitution of the Islamic Republic of Pakistan, 1973. To acquire a property compulsorily under a law as envisaged by the provisions of Article 24 of the Constitution of the Islamic Republic of Pakistan, 1973, provided it fulfills the requisite conditionalities, is undeniable. However, in the instant case the perusal of location plan/map of the Scheme for which the land is sought to be acquired, will make it abundantly clear that large many scattered chunks of land/properties owned by individuals/companies/societies have already been either left out or excluded from the purview of the Scheme. He is merely invoking his right to be dealt with equally like many others. Justice (R) Fazal Karim at Page-871 of "Judicial Review of Public Actions" while dealing with "Equality and Discretionary Powers" comments:--
"Equality, so runs the maxim, is equity. The very concept of discretion, so said Lord Diplock in Secretary v. Tameside "means a right to choose more than one possible course of action." Thus, discreption by its very nature contains an element of discrimination, but as we shall see, it is the vice of arbitrariness that attracts the equality clause. As was said by Justice Douglas, in his opinion for the Court in Furman, discretionary statutes are unconstitutional in their operation, when "they are pregnant with discrimination" for "discrimination is an ingredient not compatible with the idea of equal protection of the laws...." Again at Page-879 while dealing with subject of "Discrimination in entering into Contract and Conferring Benefits" it is said that "In Arif Builders v. Govt., it was held that the Government does not have unfettered powers to deal with its properties and to award contracts, licences or other benefits and "unlike private individuals, it cannot arbitrarily pick and choose persons for bestowing favours." And in Aneel Kumar v. University of Karachi, though the petitioners had no right to claim migration from one college to another, yet, as similar requests of other students, similarly placed, had been allowed, treating the petitioners differently was held to be an infraction of Article 25."
The concept of equality is indeed negation of arbitrariness. Every power has its extent and legal limits. The exercise of such power should be based on fairness and reasonableness. Persons in similar circumstances should have similar treatment, unless the differentiation is based upon a valid classification, which should not have the taint of arbitrariness that is the hallmark of any ideal dispensation of justice.
Even if it be assumed for the sake of argument that all the owners of land cannot be treated similarly for any reason, the petitioner would still be on a better footing having brought in foreign exchange, in claiming the exclusion of his land, which was purchased by him from his foreign savings and remittances. It is thus that the petitioner is clamouring and craving for the exclusion of his piece of property, which is not so large as may be likely to in any way disturb the plan, effectiveness and utility of the said scheme.
It may be recalled that previously as well when the property of the petitioner was acquired for Jubilee Town Housing Scheme, it was excluded. It could not be again acquired for a similar purpose as on such exclusion he had earned a right to hold the same, which also gave rise to a legitimate expectancy that in future his property will not be subjected to a similar acquisition. The contents of paragraph-6 of the petition that the land of the petitioner was excluded from the first acquisition has not been specifically denied and thus is to be taken as correct.
The contention as to whether the acquisition was for public purpose or not and other peripheral matters having no substantial bearing on the fate of the matter need not be gone into, as the petitioner is found entitled to the exclusion of his property from the operation of the Scheme, on the grounds mentioned above.
In view of the above, the petition succeeds which is accepted with no order as to costs.
(J.R.) Petition allowed.
PLJ 2008 Lahore 1045
Present: Kh. Farooq Saeed and Nasim Sikandar, JJ.
Syed ABID HUSSAIN SHAH--Petitioner
versus
FEDERAL GOVERNMENT OF PAKISTAN ISLAMABAD through Secretary Finance, Ministry of Finance Islamabad and 2 others--Respondents
W.P. No. 7179 of 2007, decided on 20.6.2008.
Income Tax Ordinance, 2001 (XLIX of 2001)—
----Ss. 153 (6A) & (6B) & 53(2)--Scope of--Notification by Central Board of Revenue--Lawful jurisdiction available to Member (Direct Taxes) Additional Secretary, Federal Board of Revenue--Mutatis mutandis--Ultra vires--Validity--If it is established that the `milk' imported was contaminated, which can later be used by petitioner and his fellow Pakistani's, the invocation of writ jurisdiction would be justified--Held Notification is in excess of jurisdiction of Federal Board of Revenue, as amendment has reduced the extent of exemption provided u/S. 153 (6A) of Income Tax Ordinance--Federal Board of Revenue under the garb of amendment in Part IV of Second Schedule had proceeded that it has brought the same to full and final discharge to certain manufacturers u/S. 153 (6), which were earlier excluded--Further held Federal Board of Revenue has exercised a power which is available with legislature--High Court has declared the notification to be ultra vires to power available with them--Petitions were allowed. [P. 1046] A
NLR 1990 Civil 622, rel.
Mr. Shahbaz Butt, Advocate for Petitioner.
Mr. Sajjad Ali Jaffari, Advocate for Respondents.
Mr. Muhammad Nawaz Waseer, Federal Counsel.
Dates of hearing 7.5.2008 & 9.5.2008.
Judgment
By this single judgment, I would like to dispose of Writ Petitions No. 7179/2007, 7259/2007, 7260/2007 & 7261/2007, as common questions of law and fact are involved.
In these writ petitions, the questions raised are that whether the provisions of Section 153(6A) & (6B) of Income Tax Ordinance, 2001, are mutually inclusive and whether the Notification under the provisions of sub-section (2) of Section 53 by the Central Board of Revenue through S.R.O. 847(1)/2007 dated 22nd August, 2007, is within the lawful jurisdiction available to the Member (Direct Taxes)/Additional Secretary, Federal Board of Revenue.
The issue has been exhaustively discussed in Writ Petitions No. 7918/2007 and others. Since, facts and law is the same, it shall apply mutatis mutandis on these writ petitions as well.
The purpose of separate order for these writ petitions from the above is that there is one small distinction between them. In the present writ petitions, the assessees have directly challenged the above S.R.O while in the Writ Petitions No. 7918/2007 and others, the department had refused to issue exemption certificate to the petitioners under the provision of Section 153(6A) demanded by them.
The petitioner's counsel while challenging the vires of the Notification has relied upon the judgment of the Sindh High Court reported as NLR 1990 Civil 622 re: Ch. Riaz Ahmad Vazdani (Advocate) vs. Federation of Pakistan, Pakistan Atomic Energy Commission and others, wherein it has been held that if it is established that the `milk' imported was contaminated, which can later be used by petitioner and his fellow Pakistanis, the invocation of the writ jurisdiction would be justified. Applying the said principle, this Court has already held in the aforementioned Writ Petitions No. 7918/2007, that the Notification is in excess of the jurisdiction of the Federal Board of Revenue, as the amendment has reduced the extent of the exemption provided under Section 153(6A). The Federal Board of Revenue under the garb of amendment in Part IV of Second Schedule had proceeded in a manner that it has brought the same to full and final discharge to certain manufacturers under Section 153(6), which were earlier excluded. The Federal Board of Revenue, therefore, has exercised a power, which is available with the legislature only. Hence, this Court has declared the said Notification to be ultra vires to the powers available with them.
However, for the reason of detailed discussion on the issue otherwise these writ petitions are also allowed and the said Notification is held to be void and of no legal effect.
(R.A.) Petitions allowed.
PLJ 2008 Lahore 1047
Present: Kh. Muhammad Sharif, J.
MARTHA BIBI--Petitioner
versus
DISTRICT POLICE OFFICER KASUR and 3 others--Respondents
W.P. No. 5092 of 2007, heard on 31.10.2007.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 561-A & 196--Pakistan Penal Code, (XLV of 1860), S. 295-C--Insult of Holy Prophet--Registration of FIR by unauthorized person--Validity--Quashment of FIR--Held: S. 295-C of P.P.C. does not figure in S. 196, Cr.P.C.--Contention that S. 295-C, should be read in continuity with Ss. 295-A & 295-B, P.P.C. was not tenable as all the three different sections were dealing with different offences--To read
S. 295-C of P.P.C. as part of S. 196 of Cr.P.C. would amount to interfere in the spirit of legislation--Petition dismissed.
[Pp. 1049 & 1050] A, B, D & E
Interpretation of Statutes--
----The wisdom of legislature behind the enactment cannot be challenged--The Courts are to interpret the law and not to make deletions and additions in the same. [P. 1050] C
2003 P.Cr.L.J. 1458; 2001 YLR 484; PLD 2006 SC 53 and
PLD 1997 SC 11, ref.
Ezra Shujaat, Advocate for Petitioner.
Ch. Muhammad Hanif Khattana, Addl. A.G. for State.
Date of hearing 31.10.2007.
Judgment
Succinctly the facts of the case are that FIR No. 33, registered at Police Station Chhanga Manga, on 22-01-2007, for offence under Section 295-C PPC, on the application submitted by Muhammad Rafiq against Martha Bibi-petitioner. Through the instant writ petition the petitioner has sought quashment of the said FIR.
In support of this petition, learned counsel for the petitioner submits that according to Section 196 Cr.P.C. the trial Court could not have taken cognizance of the case; that case cannot be got registered by a private person except any Federal or Provincial Officer; that Section 295-A PPC was inserted in the Statute through Chapter XV in 1927, while Section 295-B PPC was brought on record in 1982 and Section 295-C PPC was introduced in 1986; that all the three Sections i.e. 295-A, 295-B and 295-C PPC are in continuity with each other and should be read with each other. To substantiate his contentions, learned counsel has relied upon on the cases of Qari Muhammad Younas vs. The State (2001 YLR 484) and Ijaz Ahmad vs. Muhammad Azam (2003 P.Crl.L.J. 1458) . Further submits that in view of the above cited judgments proceedings before the learned trial Court on the basis of impugned FIR may be quashed.
On the other hand, learned Addl. A.G. assisted by learned counsel appearing on behalf of the complainant submits that as far as the above cited judgment 2001 YLR 484 is concerned that was passed in an appeal case and all the evidence was discussed along with Section 196 Cr.P.C. thereafter the accused/appellant Qari Muhammad Younas was acquitted. The Court disbelieved the evidence on merit and the mentioning of Section 295-C PPC therein was by way of a passing reference due to inadvertence. Further submits that so far as the other judgment 2003 P.Crl.L.J. 1458 relied upon by learned counsel for the petitioner is concerned, that was a case of Section 295-A PPC and technically learned trial Court could not have taken cognizance of the said case, so the FIR was quashed therein. Adds that difference between the case of present petitioner and that of Qari Muhammad Younas is that said case was an appeal while in the present the petitioner has sought quashment prior to recording of any evidence; that particularly in Section 196 Cr.P.C. Section 295-C PPC does not figure at all; and that as far as the contention of learned counsel for the petitioner that all the three sections i.e. 295-A, 295-B and 295-C PPC should be read in continuity, it will tantamount to add Section 295-C PPC in Section 196 Cr.P.C. which amounts to challenge the fairness and wisdom of the Legislature. The Courts are entitled to interpret the law and not to make the law. Reliance in this respect is placed on Mehr Zulfiqar Ali Babu and others Vs. Government of The Punjab and others (PLD 1997 SC 11) and Ghulam Farid alias Farida vs. The State (PLD 2006 SC 53). Thus, this petition is liable to be dismissed.
I have heard learned counsel for the parties at length and have gone through the entire record of the case. For the just decision of this case I would like to reproduce Section 196 Cr.P.C. below:--
"196--Prosecution for offences against the state.--No Court shall take cognizance of any offence punishable under Chapter VI or IX-A of the Pakistan Penal Code (except Section 127) or punishable under Section 108-A, or Section 153-A or Section 294-A or Section 295-A or Section 505 of the same Code, unless upon complaint made by order of or under authority from, the Central Government or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments."
From the bare perusal of the above said section it reveals that Section 295-C PPC does not figure therein. There is only mention of two Chapter of PPC along with some sections of PPC and it is also mentioned therein that no Court shall take cognizance and case could not be registered without prior permission of the officers mentioned therein. This embargo is only relevant about the Penal Provisions mentioned in Section 196 Cr.P.C. but Section 295-C PPC is not present therein.
"A bare perusal of Section 196 Cr.P.C. would show that the learned trial Court could not have taken cognizance of the instant case without complaint made by order of or under authority from, the Central Government or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments. After scanning the record no such permission or authority has been given to any official of the Central or Provincial Government, so the learned trial Court was not competent to take cognizance and to try the case. It is also evident from the record that the intention of the appellant could not he proved if one goes through the evidence recorded by the learned trial Court, particularly evidence of PW-4. Learned trial Court also did not agree with the inquiry conducted by PW-5 because the same was conducted, on the back of the appellant. Appellant has also denied the allegation leveled against him. Both the sects mentioned above were also proceeded under Sections 107/151 Cr.P.C. Both the sects i.e. complainant party and the appellant party belong to two rival religious groups and deep-rooted enmity exists between them. Evidence produced by the prosecution based on hearsay evidence. No person from the members of meeting in which these words were uttered by the appellant, has been produced. Possibility of false implication cannot be ruled out. In this view of the matter this appeal is accepted and the conviction and sentence awarded to the appellant are set aside. The appellant is ordered to be released forthwith if he is not required in any other case."
As far as the second judgment i.e. 2003 P.Crl.L.J 1458 is concerned, that case was of Section 295-A PPC and not Section 295-C PPC. The concluding para of the judgment clinches the issue. So this judgment is not relevant in the facts and circumstances of the present case.
So far as the contention of learned counsel for the petitioner that Section 295-C PPC should be read in continuity with Sections 295-A and 295-B PPC is concerned, in fact three different offences have been mentioned in these three Sections by the Legislature. The wisdom of the Legislature in this regard cannot be challenged, if the same is challenged it will tantamount to challenge the wisdom of Legislature. The Courts are to interpret the law and not to make deletions and additions in the same. To read Section 295-C PPC as part of Section 196 Cr.P.C. will amount to interfere in the spirit of Legislation. The judgments of Hon'ble Supreme Court of Pakistan relied upon by the learned Additional Advocate General are quite relevant on this proposition.
After having heard the learned counsel for the parties and going through, record and above cited judgments relied upon by learned counsel for the parties, I am of the opinion that no case for quashment is made out. In this view of the matter, this petition stands dismissed.
(J.R.) Petition dismissed.
PLJ 2008 Lahore 1050 (DB)
Present: M. Bilal Khan & Tariq Shamim, JJ.
MUHAMMAD ISHFAQ JAMIL--Petitioner
versus
STATE and 8 others--Respondents
W.P. No. 10301 of 2007, decided on 24.10.2007.
Criminal Procedure Code, 1898 (V of 1898)—
----S. 540--Summoning of witness--Refusal by Court--Validity--Held Trial Court did not feel it expedient to summon the witness and the record due to different reasons--Evidence required to be produced was not essential for a proper and just decision as the same was irrelevant--Prosecution evidence comprised of 20 witnesses which was recorded over a period of 3 years--Purpose of required evidence had been already proved--Evidence sought to be produced has no bearing on determining the guilt or innocence of accused--Discretion exercised by the Court was not shown as arbitrary or fanciful--Petition dismissed in limine. [P. 1052] A & B
NLR 1999 Cr. 707 & 1999 MLD 1069, ref.
Mr. Abdul Razzaq Younas, Advocate for Petitioner.
Date of hearing 24.10.2007.
Order
The petitioner through this petition has challenged the order dated 17.10.2007 passed by the learned Judge ATC IV, Lahore.
Briefly stated the facts of the case are that the petitioner is the complainant of case F.I.R. No. 87 dated 14.3.2004 registered with Police Station Mustafa Abad, Kasur under Sections 324, 379, 396, 452, 337-H(2), 148, 149 P.P.C. read with Section 7 of the Anti Terrorism Act of 1997. After recording of the entire prosecution evidence which took more than three years, the petitioner filed an application for summoning Mst. Fajri as PW, the record keeper of Services Hospital with patient Profile No. 4575 H.No. 251492 dated 03.04.2004, Ghulam Farid Inspector (already examined by the trial Court as PW-19), Doctor Adnan Hakim (already examined as PW-15 and scribes/Moharrars of cases F.I.Rs. Nos.351 of 2002, 629 of 2002 and 678 of 2004 registered at Police Station Sadar Kasur, as being essential for a just and a proper decision of the case. The application was contested by the accused and the learned trial Court after hearing the parties dismissed the application, hence this petition.
The learned counsel for the petitioner has vehemently argued that the evidence sought to be summoned is essential for a just and a proper decision of the case and even though the case is fixed for recording of statements of the accused in terms of Section 342 Cr.P.C. however, there is no bar under the law for summoning the witnesses and the record at this stage. He has placed reliance on the cases of Muhammad Rafiq v. Muhammad Ashraf etc. (N.L.R 1999 Cr. 707) and Abdul Latif Aasi v. The State (1999 MLD 1069).
We have heard the learned counsel at length and gone through the order of the learned trial Court as well as the documents appended with the petition.
The learned trial Court while discussing the evidence sought to be produced at the trial has observed as under:--
"Mst. Fajri and the other companion of Haji Naseeb Khan refused to endorse the statement of Haji Naseeb Khan recorded by the police u/S. 161 Cr.P.C. Haji Naseeb Khan deceased was produced before a learned Magistrate on the same day and was given in custody of Hajan Qabooli Bibi his wife. Haji Naseeb Khan refused to get himself medically examined. In police diary No. 114 dated 28.6.2007, it is recorded that Mst. Fajri submitted her affidavit before the police, in which she went on supporting the case of the complainant. It may be pointed out that during the period of more than three years the said lady no where turned up to get recorded her statement to depose about the version as contained in her affidavit. Therefore, I am of opinion that recording of her statement at this stage would definitely prejudice the defence of the accused persons.
As far as, summoning of the other above mentioned witnesses and the relevant record is concerned, the prosecution has already led evidence about presence of the injuries at the person of the deceased in form of MLR & Post Mortem Examination Report. Direct evidence regarding his abduction had also been adduced. Summoning of the Moharrars to get exhibited the FIRs aims at proving character of the accused persons which per law i.e. Art. 68 of Qanun-e-Shahadat Order, 1984 would be irrelevant. Therefore, I am of opinion that request of the complainant being made through the instant application is devoid of any force and resultantly, the petition is rejected."
From the foregoing it is manifest that the learned trial Court did not feel it expedient to summon the witnesses and the record as prayed for in the petition for a number of reasons and the foremost being that the evidence was not essential for a proper and just decision of the case as the same was irrelevant. The prosecution evidence comprised of twenty witnesses whose testimony had been recorded over a period of three years and the purpose for which the evidence was required to be summoned already stood proved. Any delay in the trial would prolong the agony of the accused who are going through the rigors of the trial since 2004. No doubt, it is for the trial Court to determine as to which evidence is necessary and which is not. However, the facts, the surrounding circumstances and the intent of the parties also has to be looked into. It is evident that the learned Court has made a positive determination that the evidence sought to be produced has no bearing on determining the guilt or innocence of the accused. The learned counsel has not been able to show or point out any aspect of the case whereby it could be said that the discretion exercised by the trial Court was arbitrary or fanciful. The judgments cited by the learned counsel are distinguishable on facts.
For what has been stated above, we find no merit in the petition which is dismissed in limine.
(J.R.) Petition dismissed.
PLJ 2008 Lahore 1053
[Rawalpindi Bench Rawalpindi]
Present: Abdul Shakoor Paracha, J.
Major (Rtd.) SHAKIL-UD-DIN AHMED--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, ISLAMABAD and another--Respondents
W.P. No. 2211 of 2006, decided on 28.11.2008.
Islamabad Rent Restriction Ordinance, 2001 (IV of 2001)—
----S. 21(7), 17(8) & 17(9)--Civil Procedure Code, (V of 1908), O.XLI--Applicability--Defence struck off due to non-depositing amount--Appeal dismissed--Held: First Appellate Court is final Court of facts, therefore, dismissal under Order XLI, S. 21(7) of CPC is not a general rule and provisions of CPC have not been made applicable to an appeal under Islamabad Rent Restriction Ordinance, 2001.
[P. 1055] A
Islamabad Rent Restriction Ordinance, 2001 (IV of 2001)—
----S. 21(7)--West Pakistan Rent Restriction Ordinance, 1959, S. 15(3)--Appellate Jurisdiction of Court--Summoning of record in appeals--Disposal of appeals by and without summoning record--Guidelines--There are two categories of cases which come before the appellate Court--Where the facts are simple and are not disputed, the first appeal is generally dismissed in limine and examination of record of rent controller is not necessary--Second category is that if the facts are not simple or disputed, the first appeal is not generally dismissed in limine in that case the appellate Court can send for record, provide opportunity of being heard to the appellant. [P. 1055] B
Malik Qamar Afzal, Advocate for Petitioner.
Mr. Muhammad Ilyas Sheikh and Mr. Tariq Khurshid, Advocates for Respondents.
Date of hearing 28.11.2006.
Order
This order shall dispose of this writ petition as well Writ Petitions No. 2212/2006 to 2214 of 2006, all titled as Major (R) Shakil-ud-Din Ahmad vs. Additional District Judge, Islamabad and another, as in all of them similar question of interpretation of the orders passed under Section 17(8) and (9) of the Islamabad Rent Restriction Ordinance is involved and further that the order dated 28.6.2006 of the learned Rent Controller and the order dated 13.7.2006 of the learned Additional District Judge, Islamabad, have been assailed. Through the former order the rent application of the respondent-landlord Ms. Zubaida Azam under Section 17(9) of the Islamabad Rent Restriction Ordinance, 2001 has been accepted after striking off the defence of the petitioner, and through the latter order dated 13.7.2006 the learned Addl: District Judge has dismissed the appeal of the petitioner challenging the order dated 28.6.2006 of the Rent Controller.
Brief facts of the case are that Respondent No. 2 Mrs. Zubaida Azam, wife of Brig (r) Muhammad Azam, filed an ejectment petition against the petitioner on the ground of willful default The petitioner/tenant resisted the same by filing the written reply. On 13.6.2006 the learned Rent Controller, Islamabad passed an order under Section 17(8) of the Islamabad Rent Restriction Ordinance, 2001 directing the petitioner to deposit the past rent due and fixed the case for 28.6.2006 for production of the proof of the rent deposited by the petitioner. On the said date the petitioner, instead of depositing the rent, filed an application for extension of time of 15 days for payment of rent The learned Rent Controller in exercise of jurisdiction under Section 17(9) of the Ordinance struck off the defence of the petitioner/tenant, consequently ordered for ejectment of the petitioner vide order dated 28.6.2006. Feeling aggrieved by the said order, the petitioner filed an appeal under Section 21 of the Ordinance ibid before the learned District Judge, and the said appeal has been dismissed by the learned Additional District Judge in limine, hence this Constitutional petition.
The learned counsel for the petitioner contends that the learned Additional District Judge had no jurisdiction to dismiss the appeal of the petitioner in limine. Reliance is placed on the case reported as Abid Hussain vs. Mst. Afsar Jehan Begum and others (PLD 1973 SC 1) and Haji Muhammad Aqil vs. Ghulam Muhammad and another (2002 CLC 969). Further contends that the order of dismissal of the appeal was in illegal exercise of jurisdiction as the Learned Judge did not follow the prescribed procedure under Section 21 of the Ordinance. Adds that the order for deposit of the tentative past rent being interlocutory order could have not been challenged during the proceedings and there is sufficient material on the file to justify that the petitioner had paid
Rs. 40 Lacs (Rupees forty lacs) as good-will and the rent was not payable.
"(7) The Appellate Authority shall after perusing the record of the case and given, the parties an opportunity of being, heard and, if necessary, after making such further inquiry, as it thinks fit, either personally or through the Controller, make an appropriate order which shall be final."
Now, Section 15 (3) of un-amended West Pakistan Rent Restriction Ordinance, 1959 (Ordinance No. VI of 1959) provides as follows :--
"The Appellate Authority shall decide the appeal after sending, for the record of the case from the Controller and. after giving the parties an opportunity of being heard and, if necessary, after making such a further inquiry as it thinks fit either personally or through the Controller."
It was obligatory for the learned Appellate Court under Section 15 (3) of the Urban Rent Restriction Ordinance to send for the record of the case from the Controller and provide an opportunity of hearing to the parties before making decision of the appeal. But, while exercising jurisdiction, under Section 21(7) of the Islamabad Rent Restriction Ordinance, the Appellate Court is not required to send for the record and it depend on facts of each case that if the Appellate Court feels it necessary after perusing the record may give the parties an opportunity of being heard and decide the appeal. It means that there are two categories of cases which come before the Appellate Court. The first category of the cases is where the facts are simple and are not disputed the first appeal is generally dismissed in limine, and examination of record of the Rent Controller is not necessary. Second category of the cases is that if the facts are not sample or disputed, the first appeal is not generally dismissed in limine. In that, case the Appellate Court may send for the record, provide an opportunity of being heard to the appellant. In that case the appellate authority will not dispose of the appeal without first sending for the record from the Controller and hearing the parties and further if necessary making such further inquiry as it deems fit. The duty to call for the record in the first instance is imperative. In the latter case it is difficult therefore to agree that the appellate authority could dismiss the appeal in limine. In the case reported as Begum Humayun Zulfiqar Ismail v. Begum Hamida Saadat Ali (1968 SCMR 828), provisions of Sections 15(3), West Pakistan Urban Rent Restriction Ordinance (VI of 1959) read with Order XLI Rule 11, CPC and Section 96 CPC came up for consideration before the honorable Supreme Court and it had been ruled that dismissal under Order XLI Rule 11 CPC of first appeal is therefore not a general rule. If the facts are not simple or disputed a first appeal is not general dismissed in limine, meaning thereby that if the facts are not disputed and are simple and the appeal on the face of it is frivolous and the record need not to be examined, it can be dismissed. Now, Section 15(3) of the Urban Rent Restriction Ordinance has been amended and there is no need of sending for the record of the Rent Controller.
In the instant case, the facts are very simple. The relationship of land-lord and tenant between the parties is admitted, therefore, on 13.6.2006 the learned Rent Controller correctly passed an order in exercise of jurisdiction under Section 17(8) of the Islamabad Rent Restriction Ordinance, 2001 directing the petitioner to deposit the past rent and fixed the case for 28.6.2006 for production of proof of the rent deposited. The petitioner did not challenge the jurisdiction of the Rent Controller at the time to passing of the order under Section 17(8) of the Ordinance, but he moved an application on the said date for extension of time of 15 days for payment of rent instead of depositing the same. Now he is estopped by his conduct to raise the objection that there is sufficient material on the file to justify that the petitioner had already paid Rs. 40 lacs as good-will and hence the rent was not payable and the restaurant was not operational Since the petitioner violated the order dated 13.6.2006 passed by the Rent Controller under Section 17 (8) of the Islamabad Rent Restriction Ordinance and did not deposit the rent as ordered by the Court, therefore, the Rent Controller had no option except to strike off the defence of the petitioner and passed the order of ejectment in exercise of the jurisdiction under Section 17(9) of the Ordinance. In the case reported as Zikar Muhammad v. Mrs. Arifa Sabir and another (2000 SCMR 1328), where the Rent Controller had struck off defence of the tenant and ordered him to hand over the vacant possession of premises to landlord and the High Court holding that there was no good cause or reasonable explanation for delay/negligence in payment of rent by the tenant dismissed the appeal, the honorable Supreme Court while interpreting the provisions of Section 13(6) of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959), which are pari materia of Section 17 (8) of the Islamabad Rent Restriction Ordinance, 2001 (IV of 2001), has ruled that "High Court having rightly concluded that defence of the tenant was rightly struck off by the Court below, no valid ground existed for interference in the order of High Court" and refused leave to appeal.
In the instant case, not only the rent has not been paid in pursuance of the order passed under Section 17(8) of the Ordinance, but the application was submitted and time was sought by the petitioner to comply with the order. The order of the learned Rent Controller dated 28.6.2006 was unexceptional. The appeal of the petitioner was rightly dismissed by the learned Additional District Judge. No ground to interfere in the well-reasoned order of both the Courts below is made out. This writ petition fails and the same is dismissed in limine.
For the same reasons Writ Petitions Nos. 2212/06, 2213/2006 and 2214 of 2006 also fail and are dismissed in limine.
(W.I.B.) Petitions dismissed.
PLJ 2008 Lahore 1057
Present: Syed Asghar Haider, J.
MEHMOOD ALI MALIK--Petitioner
versus
DEPUTY CONTROLLER DEPARTMENT OF TOURIST SERVICES, LAHORE and 2 others--Respondents
W.P. No. 9107 of 2007, decided on 7.3.2008.
Constitution of Pakistan, 1973—
----Art. 199--Travel Agencies Act, 1976, Ss. 2(b), 4 & 13--Constitutional petition--Maintainability--Remedy of appeal--Objection of--Petitioner was running a travel agency for about 19 year--Due to an accident shifted Canada for treatment--On his return, made request for issuance of a license in the name of OK Travels--Refused by the respondent stating that another entity had been granted license in the name of OK Tours--Validity--Held: Procedure given in S. 4 of Travels Agencies Act, 1976, does not refuse license on the ground of similarity of name--Petition was allowed. [P. 1060] A
Mian Nisar Ahmad, Advocate for Petitioner.
Syed Iftikhar Hussain Shah, Deputy Attorney General for Respondents.
Date of hearing 7.3.2008.
Order
The petitioner was in the business of running a travel agency under the name and style of O.K. Travels, his offices were located in Lahore, Gujranwala and Rawalpindi. He was granted licence to this effect by the concerned authorities, however after 19 years, due to an accident, the petitioner could not continue with his business and was shitted to Canada for treatment, where he remained for quite a while. In December, 2006, the petitioner returned home and made a request for issuance of a licence in the same name, i.e. O.K. Travels. The request was declined by Respondent No. 1, stating that another entity had been granted licence in the name of O.K. Tours, and as word O.K. was common between them, therefore, the request of the petitioner could not be entertained. The petitioner was not satisfied with the explanation offered by Respondent No. 1, he, therefore, addressed a letter through his counsel to Respondent No. 1 challenging the grounds of refusal. The letter was replied alter two months, again declining the request, stating the earlier reasoning. The petitioner approached Respondent No. 2 and filed an appeal, inter alia, contending that the word O.K. was common to so many entities, detailing them, therefore, the explanation offered was not proper. But this appeal was dismissed. Hence the present petition by the petitioner.
(1) Sky Star Travels, (2) Sky Dome Travels, (3) Sky Lark Travels, (4) Travel Base, (5) Travel Smooth, (6) Travel Line, (7) Travel Shop, (8) Travel Easy, (9) Travel Today, (10) Karwan-e-Madina, (11) Karwan-e-Mina and
(12) Karwan-e-Islami.
Thereafter the learned counsel pleaded that the treatment meted out to him is discriminatory and not in consonance with the legal requirements, the petitioner holds expertise in this field and, therefore, has a fundamental right to carry on business of his choice, also that all citizens are equal before law and also entitled to equal protection under it, but the petitioner is being discriminated, because, he is President of the Association of Travel Agents and had been highlighting their grievances before the relevant government authorities, this did not find favour with the respondents, therefore, he is being penalized. To further augment his submissions the learned counsel relied on Articles 18 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973, and also stated that access to justice is a fundamental right guaranteed, he, therefore, can approach this Court for redressal of his grievance.
The learned Deputy Attorney General contended that the name O.K. Travels is deceptive to perspective clients, as it is similar to O.K. Tours, therefore, this is against policy and law, the petitioner has a right of appeal, therefore, the present petition is incompetent. He lastly submitted that if the relief prayed for is granted, it would open up a pandora's box and would cause multiple problems and it would become impossible for the respondents to come to terms with chaos which would be created.
I have heard the learned counsel for the parties. The petitioner is governed by the Travel Agencies Act, 1976. The procedure for the grant of licence is incorporated in Sec. 4 of the Act. The requirements to apply for a licence are detailed therein, it no-where has been mentioned in these terms, that a person can be refused licence on the ground of similarity of name, therefore, it obviously is not part of policy or law, this position is further fortified from the fact that the respondents, already have granted several entities names, which initiate with similar names, e.g. Sky Star Travels, Sky Dome Travels, Sky Lark Travels, Travel Base, Travel Smooth, Travel Line, Travel Shop, Travel Easy, Travel Today, Karwan-e-Madina, Karwan-e-Mina and Karwan-e-Islami. Thus if the respondents were prohibited in law to refuse licence on the ground of similarity of first name, they would not have granted these entities licences. It thus, is clear that the petitioner has been discriminated for whatever reason. This is violative of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973.
As far as the objection of the learned Deputy Attorney General is concerned qua remedy of appeal the petitioner has a right of appeal under Sec. 13 of the Travel Agencies Act, 1976, but, the same is restricted only to a travel agency, which has been granted a licence under Sec. 4 of the Travel Agencies Act, 1976. The petitioner so far is not a "licence" in terms of Sec. 2(b) of the Act and holds no licence, therefore, obviously cannot invoke the right of appeal (although he did make an effort in this context by filing an appeal before Respondent No. 2) this objection, therefore, too has no substance and is thus over-ruled.
In view of what has been discussed above, this petition is allowed and the impugned orders dated 17.2.2007 and 12.7.2007, refusing licence to the petitioner are set aside and Respondent No. 1 is directed to issue, the petitioner a licence, under the name O.K. Travels Agent, as prayed for.
(T.A.F.) Petition allowed.
PLJ 2008 Lahore 1060
Present: Hasnat Ahmad Khan, J.
Mst. ALLAH RAKHI WIDOW--Petitioner
versus
DISRICT POLICE OFFICER, GUJRANWALA and 5 others--Respondents
W.P. No. 11455 of 2007, decided on 31.7.2008.
Criminal Procedure Code, 1898 (V of 1908)—
----S. 154--Constitution of Pakistan, 1973, Art. 199--Secod FIR--There is no bar against the registration of Second FIR regarding the same occurrence--Constitutional petition allowed and direction issued to register a case. [P. 1064] A
PLD 2007 SC 539; PLD 2008 Lah. 103; 2001 SCMR 1556; PLD 1997 Kar. 119 and 2007 PCr.LJ 1939 rel.
Ch. Muhammad Rafiq Jathol, Advocate for Petitioner.
Mr. Tahir Mehmood Gondal, Assistant Advocate-General for Respondents.
Ch. Liaquat Ali Sandhu, Advocate the Respondents No. 4 to 6.
Date of hearing 31.7.2008.
Order
Through this petition, Mst. Allah Rakhi - unfortunate mother of Naeem alias Naeema Butt, who, apparently, was killed in a false police encounter, has filed this petition with the following prayer besides other consequential relief:
"In view of the above submissions, it is, therefore, most respectfully prayed that this petition may kindly be accepted and Respondent No. 2 may kindly be directed to register a criminal case against the Respondents No. 3 to 6, in the interest of justice."
Brief facts of the case, which forced the petitioner to knock the door of this Court, were/are that on 9-9-2007, Imran Abbas, Respondent No. 3, got a case registered with Police Station, Satellite Town, Gujranwala, with the allegation that in a police encounter, which took place between the police and four robbers, who had snatched Car No. LEB-06/2911, Naeem alias Naeema Butt was wounded by the firing, returned by the police contingent. He further alleged that the cohorts of the injured robber managed their escape after leaving Naeem in the robbed car, in injured condition. Once the encounter was over Naeem - petitioner's son, was found dead in the said car. According to the police, after the encounter, he was identified as Naeem alias Naeema Butt - a proclaimed offender.
The petitioner claims that she submitted an application before Respondent No. 2 for the registration of the case against Respondents No. 3 to 6 but he sided with his colleagues/department fellows and refused to register the case. According to the petitioner, her son Muhammad Naeem Butt (deceased), who was a proclaimed offender, was arrested by Respondent No. 3 on 07-09-2007, after raiding her house; that on 08-07-2008, she, along with her relative Shehroze Butt, visited her son, who was detained in Police Station, Satellite Town and gave him food; that Amer, Umar and Razi-Respondents No. 4 to 6 asked Respondent No. 3 that Naeem Butt, who is the murderer of their brother, be eliminated in a fake police encounter. The petitioner beseeched Respondent No. 3 for restraining him to commit such a heinous act but he demanded an amount of Rs. 10,00,000/- to accommodate her. On her refusal he told her that Naeem Butt's foes were ready to pay a lot of amount to lynch Naeem Butt in fake police encounter; that on the fateful day, the petitioner's son - Naeem Butt was gunned down by Respondents No. 3 to 6 in a fake police encounter, after bringing him out from the police lockup and that the petitioner herself witnessed the said occurrence.
Learned counsel for the petitioner has contended that one Usman, real brother of Respondents No. 4 to 6, was murdered on which a case F.I.R.No. 297/2004, dated 16-5-2004, was registered at the Police Station, Model Town, against petitioner's son Naeem Butt (deceased); that after being arrested, the petitioner's son was sent to the judicial lock; that on a date of hearing of the said case, the petitioner's son was brought to the Court and in this process somebody resorted to firing, which caused the death of two police officials; that during the said firing, Naeem Butt managed good his escape and, thereafter, became a proclaimed offender; that Zafar, brother-in-law of Naeem Butt, who was suspected to be the murderer of the two police officials, also became an absconder; that, after arresting Naeem Butt (deceased), the police officials, who wanted to avenge the murder of their colleagues, joined hands with Respondents No. 4 to 6, whose brother had been murdered by Naeem Butt in an earlier occurrence and made a plan to wipe out Naeem Butt in a fake police encounter; that Umer Butt-Respondent No. 5, hired a Suzuki Car No. LEB-06/2911, from `Bhatti Rent A Car' and provided the same to the police; that a receipt dated 08-09-2007 in this regard has been placed on the record along with CM. dated 17-7-2008 filed by the petitioner; that the story, as narrated in the F.I.R lodged by Respondent No. 3 to give the murder of the petitioner's son the colour of an encounter, is totally false and fake; that, interestingly enough, the murderer of Naeem Butt himself became the complainant of the case; that the petitioner being the mother of the deceased has got every right to get a case registered; that the occurrence did not take place at the place where Respondent No. 3 claims it to have taken place; that the application submitted by the petitioner for the registration of the case shows that commission of a distinct cognizable offence, therefore, Respondent No. 2 was bound to register a counter case but he has failed to perform his mandatory duty. To augment his contentions, learned counsel for the petitioner has placed reliance on the cases of Wajid Ali Durani and another v. Government of Sindh and others (2001 SCMR 1556), Muhammad Bashir v. Station House Officer Okara Cantt and others (PLD 2007 SC 539), Muhammad Azam v. Inspector General of Police Islamabad and 2 others (PLD 2008 Lahore 103), Mst. Malka Jan v. Inspector General of Police N.W.F.P., Peshawar and 2 others (2000 P.Crl.LJ 320), Sakina Bibi v. Sessions Judge, Gujrat and 10 others (2007 PCr.LJ 1939), Mrs. Ghanwa Bhutto and another v. Government of Sindh and another (PLD 1997 Karachi 119) and an unreported order dated 11.9.2007, passed by this Court on W.P. No. 8560/2007.
Conversely, learned counsel appearing on behalf of Respondents No. 4 to 6 has opposed this petition, contending that the petitioner has failed to avail the remedy of filing application under Section 22-A/22-B, Cr.P.C; that the allegations levelled by the petitioner are totally frivolous and that as the case has already been registered, therefore, at the most, a counter-version can be recorded in the case.
The learned AAG has not opted to oppose this petition, however, he has stated that the petitioner never approached Respondent No. 2 to get the case registered. He further states that in case the petitioner approaches the said respondent, he shall perform his duty, cast upon him under Section 154, Cr.P.C.
Despite receiving notices, issued in his name by this Court on more than one occasion, Respondent No. 3 did not opt to come forward to contest this petition.
After hearing the learned counsel for the parties and going through the record, first of all, I would like to take up the objection raised by the learned counsel for Respondents No. 4 to 6, regarding the availability of alternate remedy. While doing so, I would like to observe that the availability of adequate remedy is not an absolute bar against the exercise of constitutional jurisdiction by this Court. In exceptional cases, this Court can entertain the constitutional petition directly, therefore, the objection in this regard, is spurned.
Now coming to merits of the case, prima facie, it appears that it is a case of two versions. On the one hand Respondent No. 3 claims that petitioner's son was killed in a police encounter but on the other, the petitioner vehemently asserts that her son was wiped out like a lame duck in a fake police encounter. The petitioner has sought registration of an independent F.I.R on the basis of the facts and assertions, which are entirely different from those, as narrated in the F.I.R, lodged by Respondent No. 3. Regarding the place of occurrence also, the parties are at variance. The grievance of the petitioner is, that to avenge the murder of two police officials, when Respondent No. 3 succeeded in arresting the petitioner's son, he eliminated him with the active connivance, help and assistance of Respondents No. 4 to 6, who had also a background of enmity against Naeem alias Naeema Butt (deceased). The said respondents, allegedly, provided a car, after procuring the same on rent, which was provided to the police in which Naeem alias Naeema Butt was gunned down. The petitioner further asserts that as a part of the said plan, a false case of the robbery, regarding the said car, was got registered by Respondent No. 3, after conniving with another police officer. As the petitioner seeks registration of the case on the basis of entirely different facts, therefore, Respondent No. 2 was under bounden duty under Section 154, Cr.P.C to register the case. Therefore, while refusing to register an independent F.I.R, the said police officer committed an illegality.
The statement of the learned A.A.G is also of significance, because he in the peculiar circumstances of the case has not opposed this petition.
Insofar as the registration of the second F.I.R. is concerned, by now, it has been settled that there is no bar against the registration of second F.I.R. regarding the same occurrence, rather, in the case of Mrs. Ghanwa Bhutto (supra), the order of registration of third F.I.R was passed by Hon'ble Karachi High Court, which was upheld by the Hon'ble Supreme Court in the case of Wajid Ali Durani and another (supra).
Consequently, while placing reliance on the case law, cited by the learned counsel for the petitioner, I am inclined to accept the petition, in hand. Resultantly, Respondent No. 2 is directed to entertain the application of the petitioner and register a case against Respondents No. 3 to 6. After the registration of case, the same shall be investigated by the investigating officer, honestly, fairly, independently and without being influenced by the observations made in this order. It goes without saying that in case the version narrated by the petitioner is found false, she would be liable to be prosecuted under Section 182, Cr.P.C.
(M.A.K.Z. Petition accepted.
PLJ 2008 Lahore 1064 (FB)
Present: Hasnat Ahmad Khan, Zafar Iqbal Ch. And Khurshid Anwar Bhinder, JJ.
NAGHMA MUSHTAQ--Petitioner
versus
ELECTION TRIBUNAL, PUNJAB, LAHORE and 2 others--Respondents
W.P. No. 12077 of 2007, decided on 4.1.2008.
Representation of the People Act, 1976 (LXXXV of 1976)—
----S. 99(1)(cc)--Conduct of General Elections Order 2002, Art. 8-A--Notifications dt. 25.7.2002 & 29.7.2002--Constitution of Pakistan 1973, Art. 199--Sanad "Shahadat-ul-Aalia" issued by Darul Aloom Mehmoodia Dhandi, Azeemabad, Bannu--Whether equal to B.A.--Rejection of papers--Writ Petition--Institution/seminary which issued the "Sanad" did not figure in the list of institutions recognized by the Universities Grants Commission for issuing sanads equivalent to B.A.--There was no illegality in the impugned orders--Nomination papers were rightly rejected--Writ dismissed.
[Pp. 1070, 1071 & 1073] A, B, C & G
Representation of the People Act, 1976 (LXXXV of 1976)—
----S. 99(1)(cc)--Conduct of General Elections Order 2002, Art. 8-A--Notifications dt. 25.7.2002 & 29.7.2002--Constitution of Pakistan, 1973, Art. 199--Sanad, "Shahadat-ul-Aalmia" issued by Wafaqul Madaris-al-Arbia, Multan--Whether equal to B.A.--Rejection of nomination papers--Writ Petition--Held: According to Notification dt. 25.7.2002 the decree/sanad relied upon was recognized as equivalent to M.A. Arabi/Islamic study for teaching purpose only, while for contesting election qualification in further two additional subjects was must--According to Notification dt. 29.7.2002 direction/concession was given only for the forthcoming general elections, held in 2002 and its benefit could not be stretched or extended for general elections to be held for all times to come--Writ dismissed. [Pp. 1071, 1072 & 1073] D, E & G
Constitution of Pakistan, 1973—
----Art. 189 r.w. Art. 185(3)--Interpretation of judgments--Leave granting order--Legal value--Held: Leave granting order cannot be given precedence over the final judgment passed by Supreme Court.
[Pp. 1072 & 1073] F
PLD 2005 SC 962 & 2003 SCMR 195, ref.
Ch. Fawad Hussain & Mr. Muhammad Asif Ismaeel, Advocates for Petitioner.
Mr. Abdul Hameed Rana, Addl. A.G. and Mr. Naeem Masood, AAG.
Mr. Irshad Ahmad Cheema, Advocate for Respondent No. 1.
Mr. Muhammad Shan Gul, Advocate for newly impleaded Respondent.
Sayed Najaf Hussain Shah, Advocate for Respondent No. 3.
Mr. Bashir Ahmad, Deputy Director, HEC, Regional Office Lahore.
Date of hearing: 4.1.2008.
Order
Naghma Mushtaq daughter of Faiz Rasool (candidate for the Constituency PP-206 Multan-XII) by filing this Constitutional petition has called into question an order dated 11.12.2007 passed by Respondent No. 1 i.e. learned Election Tribunal, Punjab, Lahore, whereby her appeal (E.A.No.159-R/2007) against the rejection of her nomination papers for contesting the election from the said constituency had been dismissed by the learned Returning Officer, PP-206 Multan-XII vide order dated 3.12.2007.
Succinctly, facts giving rise to the instant petition are that the petitioner being an aspirant to become a member of Provincial Assembly submitted her nomination papers for Constituency PP-206, Multan-XII, which were rejected by the concerned returning officer vide his order dated 3.12.2007, on the objection raised by Respondent No. 3. The said order was challenged by the petitioner before the learned Election Tribunal, Punjab, vide appeal bearing No. E.A. No. 159-R/2007 which, however, was dismissed vide order dated 11.12.2007. Hence, the instant petition.
In support of this petition learned counsel for the petitioner strenuously contended that the returning officer as well as the learned Election Tribunal committed an illegality while rejecting the nomination papers filed by the petitioner; that the petitioner possessed two "Sanads" namely "Shahadat-ul-Aalia" and "Shahadat-ul-Aalmia" issued by the Darul-Aloom Mehmoodia Dhandi Azeemabad, Bannu and Waqaf-ul-Madaris-al-Arbia, Gordon Town, Sher Shah Road, Multan, respectively. That the said two "Sanads" make her fully qualified to contest the said elections; that while passing the impugned orders both the above-mentioned forums failed to consider the impact of the order dated 8.7.2003 passed by the Hon'ble Supreme Court on C.M.A. No. 1470/2003 in C.A. No. 1147/2003, whereby a stay order was passed by the Hon'ble Supreme Court in favour of the petitioner of the said case who after being elected as an M.N.A from Kohat was de-seated by an Election Tribunal on the ground that the "sanad" possessed by him could not be equated with B.A. unless he took examination in two additional subjects.
Conversely, learned counsel appearing on behalf of the private respondents have opposed this petition tooth and nail, contending that the concurrent findings of the fact, returned by both the forums, cannot be upset in writ jurisdiction; that the petitioner has miserably failed to show that she is a graduate within the contemplation of Article 8-A inserted into the Conduct of General Elections Order, 2002 and Section 99(1)(cc) of the Representation of the People Act, 1976, that the seminary/institution which allegedly issued a degree of "Shahadat-ul-Aliya" in favour of the petitioner is not a recognized institution, therefore, the returning officer did not commit any illegality while rejecting the nomination papers filed by the petitioner; that the other "sanad"/degree of Shahadat-ul-Aalmia, relied upon by the petitioner, cannot be recognized/treated as an equivalent to bachelor's degree because under the law she was required to pass English and two optional subjects equivalent to graduation level so as to qualify for contesting the elections but the petitioner has failed to pass the said subjects; that the Hon'ble Supreme Court has settled the matter and has insisted passing two optional subjects and english courses offered at the graduation level for declaring the degrees of "Deeni" seminaries as equivalent to the bachelor degrees and that the Higher Education Commission has neither recognized the institution, the degree of which Naghuma Mushtaq petitioner possessed, nor the degree it self. Said learned counsel concluded their argument after pinning their faith on the cases of Moulana Abdullah v. Returning Officer and others (2003 SCMR 195) and Abdul Khaliq and another v. Maulvi Muhammad Noor and others (PLD 2005 S.C. 962).
Bashir Ahmad, Deputy Director, HEC, Regional Officer, Lahore, who is present in the Court, has also supported the arguments raised by the learned counsel appearing on behalf of the private respondents. Further, he has placed on record a certificate, dated 3.1.2008, issued by Muhammad Javed Khan, Director General (Attestation and Accredition), Higher Education Commission, Islamabad which shows that Darul aloom Mehmoodia Dhandi Azeemabad, Bannu, which statedly issued a `Sanad', on the basis of which the petitioner is claiming her-self to be a graduate, is not a recognized institution, the said certificate further states that the "Sanad" of Shahadat-ul-Aliya possessed by the petitioner is also not recognized by the Higher Education Commission.
Availing the right of reply, the learned counsel for the petitioner refuted the assertions made by the learned counsel for the respondents and argued that the case-law relied upon by the learned counsel for the private respondents is not applicable to the case in hand as the same related to the interpretation of the provisions of the Local Government Laws. He has further submitted that in view of the Notification No. F. 2(11)/2002-Cord. Dated 29.7.2007 issued by the Election Commission of Pakistan the petitioner who is a holder of the `Sanad' of Shahadat-ul-Aalmia is fully qualified to contest the forthcoming General Elections. He added that the returning officer as well as the learned Election Tribunal, failed to appreciate the impact of the aforementioned notification.
To know the ropes and for proper decision of this case, a survey of the relevant law would be necessary. Besides the already existing law, relating the general elections, in the shape of the Representation of People Act, 1976 and the relevant provisions of the Constitution of the Islamic Republic of Pakistan, Chief Executive Order No.7 of 2002 was issued by the Chief Executive of the Islamic Republic of Pakistan with the nomenclature of the Conduct of General Elections Order, 2002. For contesting the elections to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly possession of a graduation degree by a candidate was made must inserting Article 8-A into the said order which reads as under:--
"8-A. Educational qualification for a member of Majlis-e-Shoora (Parliament) and a Provincial Assembly.--Notwithstanding anything contained in the Constitution of the Islamic Republic of Pakistan, 1973, the Senate (Election) Act, 1975 (LI of 1975), the Representation of the People Act, 1976 (LXXXV of 1976), or any other law for the time being in force, a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he is at least a graduate possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974 (XXIII of 1974)] [or any other law for the time being in force.]"
Simultaneously, an amendment was made in Section 99 of the Representation of People Act, 1976. Amended Section 99 reads as under:--
"99. Qualifications and disqualifications.--(1) A person shall not be qualified to be elected or chosen as a member of an Assembly unless.................
(a)....................
(b)....................
(c)....................
(cc) he is at least a graduate, possesses a bachelor's degree in any discipline or any degree recognized as equivalent thereto by the University Grants Commission under the University Grants Commission Act, 1974 (XXIII of 1974), or any other law for the time being in force; ....."
"NOTIFICATION
Islamabad, the 25th July, 2002
No. D. 2(11)/2002-Cord.--Whereas Article 8-A of the conduct of General Elections Order, 2002 (Chief Executive's Order No. 17 of 2002) provides that notwithstanding anything contained in the Constitution of Islamic Republic of Pakistan, 1973, the Senate (Election) Act, 1975 (LI of 1975), the representation of the People Act (LXXXV of 1976), or any other law for the time being in force, a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he is at least a graduate possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974 (XXIII of 1974).
And whereas a reference was made by the Election Commission to the University Grants Commission vide Letter No. F.2(11)/2002-Cord, dated 18th July, 2002 (copy whereof is at Annexure-I) requesting therein that the list containing the names of degrees recognized as equivalent to a Bachelor degree under the University Grants Commission Act, 1974 (XXIII of 1974) may be communicated to Election Commission.
And whereas the University Grants Commission has sent a reply to the aforesaid reference of Election Commission vide their Letter No. 8-83/UGC/A&C/2002/1142, dated the 22nd July, 2002 (copy whereof is at Annexure-II) in which it has been stated that final Sanad of "Shahadat-ul-AImiya-fil-Uloom-ul-Arabia-wal-Islamia" awarded by the following Wafaq/Tanzeem-ul-Madaris and individual institutions has been recognized by the University Grants Commission as equivalent to M.A. Arabic/Islamic Studies.
Name of Wafaq/Tanzeem/Institution
Wafaq-ul-Madaris Al-Arabia, Markazi Office Gordon Town, Sher Shah Road, Multan.
Tanzeem-ul-Madaris Alhe Sunnat Jamia Nazmia Razvia, Indron Lohari Gate, Lahore.
Wafaq-ul-Madaris. Al-Salfia Hajiabad Post Code-38600, Faisalabad.
Wafaq-ul-Madaris Shia, Jamia-al-Muntazar, H-Block Model Town, Lahore.
Rabita-ul-Madaris-Al-Islamia, Manzoor Road, Lahore.
Jamia Islamia Minhaj-ul-Quran, 368 Model Town, Lahore.
Jamia Taleemat-e-Islamia, Sargodha Road, Faisalabad.
Jamia Ashrafia, Ferozepur Road, Lahore.
Darul Uloom Mohammadia Ghousia Bhera, District Sargodha.
Darul Uloom, Korangi, Karachi.
And whereas in the aforesaid letter the University Grants Commission has inter alia stated:
"It may further be noted that the Sanad Shahadatul-fil-Uloom-ul-Arabia Wal Islamia granted by Wafaq-ul-Madaris and approved individual Deeni Madaris is recognized as equivalent to M.A. Arabic/Islamic Studies for teaching purpose only. However, for purposes of employment other than teaching the holders would be required to qualify in additional two subjects other than Arabic and Islamic Studies at the B.A. level."
And whereas it is expedient and in the public interest to publish the above information received from University Grants Commission.
Now, therefore, in exercise of the powers conferred upon it under Article 4 of the Conduct of General Elections Order, 2002 read with Article 9-B of the Election Commission Order, 2002 and all other powers enabling it in that behalf, the Election Commission is pleased to publish for general information the aforementioned letter dated 22nd July, 2002 received from the University Grants Commission regarding degrees recognized as equivalent to the Bachelor's degree pursuant to Election Commission's Letter No. F.2(11)2002-Cord., dated 18.7.2002."
After a few days another notification dated 25th July, 2002 was issued by Election Commission of Pakistan. The said second notification reads as under:--
"NOTIFICATION
Islamabad, the 29th July, 2002
No. F.2(11)/2002-Cord.--Whereas the information received from University Grants Commission has been notified by Election Commission vide Gazette of Pakistan, Extraordinary, dated the 25th July, 2002 containing Notification No. F.2(11)/2002-Cord, dated 25th July, 2002.
And whereas it is expedient and in the public interest to issue direction for facility of aspiring candidates for the forthcoming general elections.
Now, therefore, in exercise of powers conferred upon it under Article 6 of the Election Commission Order, 2002 (Chief Executive's Order No. 1 of 2002) read with Article 8 of the Conduct of General Elections Order, 2002 (Chief Executive's Order No. 7 of 2002) and in exercise of all other powers enabling it in that behalf, the Election Commission is pleased to make and promulgate the following direction:--
"that for the purpose of forthcoming general elections the holders of the `Sanad Shahadat ul Almiya Fil Uloom ul Arabia Wal Islamia' granted by Walaq/Tanzeem ul Madaris and approved by individual Deeni Madaris, which has been recognized as equivalent to M.A. Arabic/Islamic Studies for teaching purposes by the University Grants Commission, shall be eligible to contest the forthcoming general elections subject to fulfilment of other qualifications laid down in the electoral laws/rules, within the contemplation of Article 8-A of the Conduct of General Elections Order, 2002 (Chief Executive's Order No.17 of 2002)." (underlining is ours)
The institution/seminary which statedly issued a "sanad" to the petitioner admittedly does not figure in the list of the institutions recognized by the University Grants Commission for issuing Sanads equivalent to B.A. degrees. As stated above the representative of Higher Education Commission has candidly conceded that neither the "sanad" on the basis of which the petitioner is claiming herself to be a graduate is recognized nor the institution which has issued the said "sanad" in favour of the petitioner is an approved/recognized seminary. Therefore, we do not see any illegality in the impugned orders, whereby the nomination papers filed by the petitioner were rejected.
As far as the claim of the petitioner to contest the election on the basis of second "sanad" i.e. "Shahadat-ul-Aalmia fill Ulam ul Islamia wal Arbia Waqaf-ul-Madaris-al-Arbia" is concerned, we have noticed that while submitting the nomination papers the said degree was not mentioned therein. We have further gathered that according to the notification, dated 25.7.2002, issued by Election Commission of Pakistan, which is based upon a letter issued by the University Grants Commission, the degree relied upon by the petitioner is recognized as equivalent to M.A. Arabic/Islamic Study for teaching purposes only, while for contesting the election the said degree can only be used after qualifying in two additional subjects other than Arabic and Islamic Studies at the B.A. level, but the petitioner has failed even to claim that she has passed the said additional subjects. At would be apt to point out here that the question of recognition of any bachelor's degree within the contemplation of the law has to be decided by the University Grants Commission. Considering the letter of the said Commission which was referred to by the Election Commission of Pakistan in it's aforementioned notification dated 25th July, 2002, the petitioner is disqualified to contest the forthcoming election even on the basis of the "Sanad" of Shahadat ul Almia.
As far as the second notification dated 29th July, 2002 issued by Election Commission is concerned, without giving any finding as to whether it is in consonance with the object of law as contained in Article 8-A of the Conduct of General Election Order, 2002 or whether the said directions can over-ride the provisions of the said law, it is sufficient to hold that the said notification was issued by the Election Commission of Pakistan for the purposes of General Election held in 2002 as is apparent from its opening phrase which shows that the said direction was only meant for "the forthcoming General Elections". The meaning of the term "forthcoming" has been defined in the IInd Edition of Legal Thesaurus by William C Burton as under:--
"about to happen, advancing, anticipated, approaching, at hand, awaited, close at hand, coming, coming soon, destined, drawing near, due, ensuing, eventual, expected, fated, following, foreseeable, future, imminent, impending, inescapable, inevitable, in store, looming, near, nearing, nigh, on the agenda, on the docket, on the horizon, oncoming, pending, planned, predestined, predicted, projected, promised, prospective, scheduled, to come, ultimate, unavoidable, upcoming, yet to be Associated Concepts: expectancy under a will."
That same term i.e. "forthcoming" has been defined in Chambers 21st Century Dictionary as under:--
"happening or appearing soon said of a person: willing to talk; communicative available on request."
The Oxford Advanced Learner's Dictionary gives the meaning of the said term as under:--
"about to happen or appear in near future".
In the back ground of the said survey of the dictionaries, the term "forthcoming general elections" used in the said notification dated 29th July, 2002 is relatable to the general elections which had been held in 2002. Therefore, the benefit of the said direction/concession cannot be stretched or extended for the general elections to be held for all times to come.
A perusal of the provisions of Section 99 of the Representation of the People Act, 1976 reveals that the said section has been couched in a manner to provide qualification and dis-qualification separately to contest the elections to be elected or chosen as a member of an Assembly. Both the said terms have different connotations and implications. Under the first limb of the said section, a candidate for claiming himself/herself to be qualified to contest such general election has to show that he/she is qualified to contest such elections. Therefore, during the process of scrutiny if any objection is raised against any candidate on the basis of the lack of required qualifications to contest such elections, the burden to prove such a qualification is heavier on the candidate than the objector, but unfortunately in the case in hand the petitioner has miserably failed to establish before the returning officer as well as before the learned Election Tribunal that she is a graduate, within the contemplation of the relevant law, which is a sine qua non for contesting the general elections. Even before us she has failed to show that she is in possession of the equivalence certificate required under the law to contest the elections. The learned counsel for the petitioner has vehemently stressed that the case-law cited by the learned counsel for the respondents is not applicable to the tacts and the circumstances of the case in hand due to the reason that in the case of Abdul Khaliq and others v. Maulvi Muhammad Noor and others (PLD 2005 S.C. 962) the question before the Hon'ble Supreme Court was regarding the qualification required to contest the election for the seats of Nazim and Naib Nazim under the Local Government Laws but we do not see eye to with him because it cannot be perceived by any stretch of imagination that for the purposes of declaring any person qualified to contest the election for Nazim and Naib Nazim the passing of the additional subjects for the holder of "Deeni Sanads" would be necessary but for contesting the election of Majlis-e-Shoora or Provincial Assemblies which obviously stands at higher pedestal than the posts of Nazim etc, the passing of additional subjects by holders of "sanads" issued by the "Dinee" seminaries would be dispensed with. Besides `Abdul Khaliq' case (supra), the dictum, laid down in case of Moulana Abadullah v. Returning Officer and others (2003 SCMR 195), is fully attracted to the facts and circumstances of this case. As far as the leave granting order of the Hon'ble Supreme Court, relied upon by the learned counsel for the petitioner is concerned the same cannot be given precedence over the final judgments of the Hon'ble Supreme Court. Therefore, for purposes of decision of the case in hand, we are respectfully relying upon the case-law cited by the respondents.
For what has been stated above, we do not see any illegality, irregularity or jurisdictional error in the impugned orders. Therefore, this writ petition is found to be devoid of any force and, accordingly, dismissed.
(J.R.) Petition dismissed.
PLJ 2008 Lahore 1073
Present: Hafiz Tariq Nasim, J.
TARIQ SAEED, FORMER CHIEF ENGINEER, MUNICIPAL CORPORATION, GUJRANWALA--Petitioner
versus
PUNJAB LOCAL GOVERNMENT BOARD, through Secretary, Government of Punjab, Local Government & Rural Department and another--Respondents
W.P. No. 10546 of 2008, decided on 25.8.2008.
Constitution of Pakistan, 1973—
----Art. 199--Constitutional petition--Second attempt--Maintainability--Civil Servant--Plea bargain--Petitioner joined Local Council Service--Civil Servant was arrested by NAB Authorities where he entered into plea bargain and released from judicial lockup--Civil servant was not allowed to resume duty--Assailed--Writ petition was dismissed being barred u/Art. 212 of the constitution and being an incompetent petition--After dismissal of the petition by High Court, civil servant approached service Tribunal--Contention--Petitioner will not press the appeal for time being, so appeal was disposed of with observation--After disposal of appeal by service Tribunal, kept silent and now filed the instant petition--Held: Instead of approaching Service Tribunal first the petitioner chose a shorter way through improper and illegal way of invoking the jurisdiction of High Court but the writ petition was dismissed--Again petitioner was trying to knock at the wrong door of justice even though his previous writ petition was dismissed on the ground--Further held: Such particular proposition highly illegitimate but the whole system of allowing plea bargaining with Govt. Exchenquer is also illegal and directly in contravention to the principle of fair play, justice and equity. [Pp. 1076 & 1077] A & D
Principle of Law--
----Bar of latches--An act which cannot or should be done in a particular manner should also not be done in an in direct manner to achieve the result--Petition is also suffering from bar of latches because the civil servant has slept over his cause of action for a period of three years.
[P. 1077] B
Constitution of Pakistan, 1973—
----Art. 199--Constitutional Petition--Second attempt--Government Exchequer--Plea bargain--Contractual compromise--Civil Servant was arrested by NAB Authority--Released from judicial lock up after entering into a plea bargain--Petitioner was declined to resume the duty--Writ Petition was dismissed by High Court--Second attempt through the instant petition to achieve what he could not in the first attempt--Validity--Govt. Exchequer in an attempt to bring about a plea bargain in NAB against allegations of his corruption--Action of the civil Servant is highly disparaging and oblivious of the fact that in going circumstances of the country at the juncture a poor man on street cannot even arrange for one time basic need not to talk about his family and the petitioner is offering a huge amount for contractual compromise with the Govt. Exchenquer which is given the name of plea bargain in order to relieve himself of all corruption he has conducted throughout his career--Petition was dismissed.
[P. 1077] C
Plea bargain--
----Admission of guilt on part of the accused and is normally taken where offender to evade full punishment or a prescribed punishment of offence the offenders accepts an offer from the prosecution to plead guilty in change of a lesser sentence. [P. 1077] E
Civil Servant--
----Plea bargaining--New Pandora box--Loss upon Government Exchenquer--Civil Servant was arrested by NAB Authority--Released from judicial lockup as a result of entered into plea bargaining--Not allowed to resume duty--Assailed--If plea bargaining is continued to be allowed in case of civil servants/government servants of Govt. controlled organizations, it would open a new Pandora box for all other employees who are in a position to inflict a loss upon the Govt. Exchequer to inflict as much loss as they can. [P. 1077] F
Mr. Masud Ahmad Riaz, Advocate for Petitioner.
Mr. Naeem Masood, Assistant Advocate General on call.
Date of hearing: 25.8.2008.
Order
Brief facts leading to this writ petition are that the petitioner joined Local Council service as Assistant Engineer (BS-17) on 13.08.1968, later on promoted to BS-18 and 19, however, in the year 2001 he was posted as Chief Engineer, Municipal Corporation, Gujranwala. The petitioner was arrested on 23.06.2001 by the NAB Authorities where he entered into a "plea bargain" for a sum of Rs.30 million, resultantly, he was released from judicial lockup of NAB on 29.07.2001. When he reported for duty, he was not allowed to resume the duty and finally he was dismissed through order dated 10.03.2004. According to the petitioner's contentions this order of 10.03.2004 was received by him on 19.09.2005 and accordingly be filed a representation on 30.9.2005, which was not decided, so he filed Writ Petition No. 16928/2005, which was dismissed through order dated 04.10.2005 being barred under Article 212 of the Constitution of Islamic Republic of Pakistan and being an incompetent petition. After dismissal of writ petition by this Court, the petitioner approached the Punjab Service Tribunal in Appeal No. 2924/2005, where the petitioner contended that in case a direction is issued to Respondent No. 2 to decide the departmental appeal at the earliest, he will be satisfied and will not press the appeal for the time being, so on the petitioner's request that appeal was disposed of with the observation that if an adverse order is passed by the appellate authority, he may avail of appropriate remedy before the competent forum. The petitioner's appeal was disposed of on 24.04.2006 but he after disposal of his appeal by the Punjab Service Tribunal, kept silent and now has filed the present writ petition with the following prayer:--
"It is therefore respectfully prayed as follows:--
Petition may kindly be accepted with costs.
Impugned order dated 10.3.2004 may kindly be set aside.
Petitioner may kindly be reinstated in service as Chief Engineer in BS-19 with all consequential and book benefits.
In addition Respondent Nos. 1 & 2 may kindly be directed to allow petitioner to actively serves as Chief Engineer in BS 19 after attaining the age of superannuation viz. 11.6.2006 equal to the period for which he was illegally not allowed to serve for no fault of his i.e. from 15.4.2000 till date of his reinstatement (period of over 6 years) on the basis of the law contained in Hon'ble SC above referred unreported judgment dated 11/12.6.2008.
Petitioner may kindly be awarded such other relief/reliefs to which he is entitled."
Learned counsel for the petitioner argued the case at length and submits with vehemence that--
the impugned order was passed without lawful authority and without application of independent mind, 2. the impugned order is based on two charges, one willful absence from duty and the other to enter into "plea bargain", whereas both the charges were not warranted under the law which was in force at that particular time, 3. no regular inquiry into the charge of absence from duty was held despite the fact that the said charge of absence from duty involved serious factual controversy and in that eventuality the regular inquiry could not be dispensed with, 4. the impugned order in respect of allegation of "plea bargain" is repugnant to the Punjab Removal From Service (Special Powers) Ordinance, 2000 and even NAB Ordinance 1999 as it existed on 28.07.2001, 5. the "plea bargain" was forcibly obtained from the petitioner under duress and in custody under the arrest of NAB, so confessions obtained during police custody have no legal sanctity culminating the impugned dismissal order a nullity in the eye of law.
In support of his contentions, learned counsel heavily relies on a judgment dated 12.06.2008 passed by the Hon'ble Supreme Court of Pakistan in Civil Appeal No. 558/2008 titled "Shahid Hayat vs. Federation of Pakistan and others" and submits that on all fours the petitioner's case is at par and he is entitled for the same relief which was granted to Shahid Hayat by the Hon'ble Supreme Court of Pakistan.
Learned Assistant Advocate General opposes the contentions raised by the learned counsel for the petitioner and submits that the writ petition being barred under Article 212 of the Constitution of Pakistan cannot be entertained particularly when the petitioner's earlier writ petition was dismissed on this score in the year 2005. Further submits that on the touchstone of principle of res judicata, this petition is not maintainable. Adds that if at all it is presumed that the writ petition is competent/maintainable then the point of latches shall be an important factor for resolving and the present controversy cannot be decided in favour of the petitioner because after availing remedy before the High Court as well as before the Punjab Service Tribunal, the petitioner slept for a number of years and now has come to this Court without any justification whatsoever.
Arguments heard. Available record perused.
Before going into the actual ratio of this case, it is important to take into account that the petitioner has in fact made a second attempt through this writ petition to achieve what he could not in the first attempt. Admittedly, the petitioner previously filed Writ Petition No. 16928/2005, which was dismissed on the ground that this plea was barred by the operation of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan.
Instead of approaching the Service Tribunal first the petitioner chose a shorter way through improper and illegal way of invoking the jurisdiction of this Court but his writ petition was dismissed on 04.10.2005. Surprisingly, in the present writ petition again the petitioner is trying to knock at the wrong door of justice even though his previous writ petition was dismissed on the same grounds.
It is well established principle of law that an act which cannot or should not be done in a particular manner should also not be done in an indirect manner to achieve the same result, hence this ground alone is sufficient for me to dismiss the instant writ petition. Furthermore, this writ petition is also suffering from bar of latches because the petitioner has slept over his cause of action for a period of three years approximately.
Going into the detail of this case, it is particularly transparent on the face of the record and is admitted by the petitioner himself that he has paid a sum of Rs.30 million to the Government Exchequer in an attempt to bring about a "plea bargain" in the NAB against allegations of his corruption thereby relieving him of any further charges or trial against him. This action of the petitioner is highly disparaging and oblivious of the fact that in the going circumstances of the country at this juncture a poor man on the street cannot even arrange Rs.50/- for one time basic need for himself not to talk about his whole family and a Grade 19 Government servant is offering Rs.30 million for a contractual compromise with the Government Exchequer which is given the name of "plea bargain" in order to relieve himself of all the corruption he has conducted throughout his career.
In my view not only is this particular proposition highly illegitimate but the whole system of allowing "plea bargaining" with the Government Exchequer is also illegal and directly in contravention to the principle of fair-play, justice and equity.
A "plea bargain" is essentially a form of an admission of guilt on the part of the accused and is normally taken where the offender knows that he is and has reasons to believe that he might be convicted of the offence and therefore in order to evade full punishment or a prescribed punishment of offence the offender accepts an offer from the prosecution to plead guilty in change of a lesser sentence or in some circumstances no sentence as the case may be.
It has to be reminded that civil services are one of the most respected services in any given country and officers working for the Government have a special trust placed upon their shoulders by the general public and an additional responsibility to ensure that they work honestly with utmost dedication efficiency and accountability. If "plea bargaining" is continued to be allowed in case of civil servants/government servants/officers of the Government controlled organizations, it would open a new Pandora box for all other employees who are in a position to inflict a loss upon the Government Exchequer, to inflict as much loss as they can. For example, if the petitioner in this case is allowed to escape from departmental proceedings against him on the basis of having reached a plea bargain and in exchange is exonerated from the charges, this would make a bad precedent for the future proposition where an employee loots the Government Exchequer at his whims and fancy until he is caught and with the knowledge that he would be held accountable in NAB and would forego a share in his looted money to get back to his job.
This action of the petitioner is a share violation and misuse of public powers and the trust placed upon him by the public which cannot be allowed in any circumstances.
So far the contention of the petitioner's learned counsel in respect of non-applicability of the provisions of NAB Ordinance at the time of petitioner's "plea bargain" is concerned, suffice it to say that the petitioner was dismissed from service on 10.03.2004 and Section 15 in the National Accountability Bureau Ordinance, 1999 was amended much prior to that. It shall be advantageous to reproduce Section 15 of the Ordinance ibid, which is as follows:--
Disqualification to contest elections [or to hold to public office]:--(a) [Where an accused person is convicted [of an offence under Section 9 of this Ordinance] he shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he is released after serving the sentence, for seeking or from being elected, chosen, appointed or nominated as a member of representative of any public body or any statutory or local authority or in service of Pakistan of any Province:
Provided that any accused person who has availed the benefit of [sub-section (b) of section] 25 shall also be deemed to have been convicted for an offence under this Ordinance, and shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he has discharged his liabilities relating to the matter or transaction in issue, for seeking or from being elected, chosen appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province.]
(b) Any person convicted of an offence [under Section 9 of the Ordinance] shall not be allowed to apply for or be granted or allowed any financial facilities in the form of any loan or advances [or other financial accommodation by] any Bank or Financial Institution [owned or controlled by Government], for a period of 10 years from the date of conviction."
Learned counsel for the petitioner submits that the petitioner was condemned unheard because he was not served with a show-cause notice before the dismissal. Suffice it to say that the petitioner himself appended copy of the show-cause notice published in Nawa-e-Waqt Lahore dated 16.02.2001, which is available at page 22 of the writ petition, hence the contention of the petitioner's learned counsel is repelled.
Learned counsel for the petitioner submits that the impugned order dated 10.03.2004, whereby the petitioner was dismissed from service offends the provisions of Section 24-A of the General Clauses Act being a non-speaking order. This contention of the learned counsel is not convincing one because the bare reading of the impugned order reveals that all aspects were attended to by the punishing authority and this was passed applying its independent mind going through the entire record of the case, hence the petitioner's contention in this respect is repelled.
As discussed above, the learned counsel for the petitioner relied on a judgment of the Hon'ble Supreme Court of Pakistan dated 12.06.2008 and contends with vehemence that the petitioner is also entitled for the same relief which was extended to the appellant before the Hon'ble Supreme Court of Pakistan. I am afraid that the judgment referred by the learned counsel will not be helpful to the petitioner on a short ground that appellant before the Supreme Court of Pakistan in that case did not enter into plea bargain with the NAB, whereas in the present case the petitioner admittedly deposited a sum of Rs.30 million with the NAB Authorities, thus keeping in view the conduct of the petitioner and in view of my findings discussed above, this writ petition is dismissed.
(R.A.) Petition dismissed.
PLJ 2008 Lahore 1079 (DB)
Present: Syed Hamid Ali Shah & Zafar Iqbal Chaudhry, JJ.
MUHAMMAD SHAFIQ ULLAH KHAN--Applicant
versus
M/s. MULTIMODEL TRANSPORT INTERNATIONAL PORT (PVT.) through its G.M. Karachi and antoher--Respondents
R.A. No. 1 of 2008, in L.A. No. 139 of 2006, decided on 29.4.2008.
Review--
----Review Petition is not permissible and as such remedy can only be availed when statutes specifically provides so--In the absence of specific provisions of Review in the IRO the instant Petition cannot proceed and is dismissed. [P. ] A
Mr. Muhammad Aftab, Advocate for Applicant.
Ch. Hanif Ahmed Dogar, Advocate for Respondent No. 1.
Date of hearing: 29.4.2008.
Order
Through this petition the applicant has sought review of order dated 22.11.2007 through filing an application dated 29.2.2008. The application cannot proceed for the same has been filed after the period of limitation. Even otherwise, review is not permissible and such remedy can only be availed when statutes specifically provides so. In the absence of specific provision for review in the IRO the instant petition cannot proceed and is accordingly dismissed.
(R.A.) Petition dismised.
PLJ 2008 Lahore 1080 (DB)
Present: Syed Hamid Ali Shah & Zafar Iqbal Chaudhry, JJ.
SYED SABIR HUSSAIN SHAH, DIVISIONAL DIRECTOR, LOCAL FUND AUDIT, LAHORE--Appellant
versus
GOVT. OF PUNJAB through Secretary Services General Administration and Information Department, Civil Secretariat, Lahore and 5 others--Respondents
I.C.A. No. 262 of 2005 in W.P. No. 9637 of 2005, decided on 3.6..2008.
Constitution of Pakistan, 1973—
----Art. 199--Law Reforms Ordinance, 1972, S. 3(2)--Civil Servant--Incomplete Annual Confidential Reports--It is the responsibility of the department to get ACRs completed.--Record of a civil servant is to be maintained properly by the department. [P. 1081] A
Dr. Ehsan-ul-Haq, Advocate for Appellant.
Mian Tariq Ahmad, Addl. A.G.
Mr. Muhammad Aftab, Advocate Respondent No. 4.
Mr. Muhammad Yaqoob Sindhu, Advocate for Respondent No. 6.
Date of hearing: 29.4.2008.
Order
Appellant, through filing Writ Petition No. 9637 of 2005, has voiced his grievance, against the promotion of Respondent No. 4, as Provincial Director, Local Fund Audit. Appellant claimed that according to relevant Rules, he, being the Division Director, was entitled to be posted as Director Local Fund Audit. The selection of Respondent No. 4 was made on the recommendation of Secretary Finance and the appellant was made victim of prejudice of Secretary Finance. Learned Judge in chamber, while passing impugned order, has observed that case of Respondent No. 4, was considered by Provincial Selection Board, comprising of panel of seven High Officials and allegation of influence of Secretary Finance or his recommendations has no merit. Learned Judge in chamber found other grounds, as not legally tenable and dismissed the petition.
Appellant has now assailed in this Intra Court Appeal, order of the dismissal of his petition, on the grounds that as per Local Fund Audit Rules, 1981, the post of Provincial Director, Local Fund Audit Rules, 1981, the post of Provincial Director, Local Fund Audit, can be filled by promotion, on the basis of selection on merits from the persons, holding post of Divisional Director with 12 years experience in Grade-17 or above. Respondent No. 4, being Deputy Secretary, is not eligible to compete for the post. It was argued that only a person holding post in the same functional, must be appointed and respondents have ignored instruction i.e. Letter No. SOR-III-1-14/75(B), dated 5.10.1985, Learned counsel has contended that the appellant being senior most eligible officer, fulfilled the criterion of fitness and eligibility, but was ignored. Learned counsel has submitted with vehemence that Board which made the impugned selection, was not complete. Disciplinary proceedings were pending against Respondent No. 4 and his 12 ACRs were not available, yet he was appointed. Learned counsel, in support of his contentions, has referred to the cases of "Dr. Mujahid Ali Mansoori and others vs. University of the Punjab and others" (2005 PLC (CS) 694), "Muhammad Liaquat Munir Rao vs. Shamas Uddin and others" (2004 PLC (CS) 1328) and "NWFP through Chief Secretary and another vs. Dr. Irfan Meer and others" (1996 NLR Service 56).
Learned Law Officer, on the other hand, stood behind the impugned order and supported it with full vehemence. Learned counsel for Respondent No. 4, has controverted the assertions of the appellant. He has submitted that the appellant has asserted in his petition that he had filed departmental appeal and representation, but the same were not replied. It is contended that remedy of departmental appeal has been availed therefore ICA is not competent under Section 3(2) of Law Reforms Ordinance, 1972. Learned counsel has submitted that Respondent No. 4, joined Local Fund Audit on 26.8.1984 and completed requisite trainings. It was vehemently denied that 12 ACRs of Respondent No. 4, are not available. He has submitted that no inquiry or disciplinary proceedings are pending against Respondent No. 4. According to Respondent No. 4, petitioner was caught red handed, while receiving illegal gratification. Learned counsel, in support of his contentions, has referred to the cases of "Dr. Aziz-ur-Rehman Meo vs. Govt. of Sindh and another" (2004 PLC (CS) 1142), "Muhammad Yousaf Alvi, Deputy Post Master General, Multan vs. Federation of Islamic Republic of Pakistan, Islamabad and 8 others" (2005 PLC (CS) 607), "Syed Asif Akhtar Hashmi vs. Malik Muhammad Riaz and 3 others" (PLD 2008 Lah. 235) and "Chairman Minimum Wage Board and another vs. Fayyaz Khan Khatak" (1999 SCMR 1004).
Heard learned counsel for the parties and record perused.
Appellant has urged various grounds in this appeal, which were not raised before learned Single Judge in Chambers. Such points cannot be considered, being factual and agitated for the first time in appeal, but for our satisfaction, we summoned the relevant record and perused the same with the able assistance of Farhat Murtaza Khan, Deputy Secretary. We have found that most of the allegations of the appellant, were incorrect. Respondent No. 4 underwent practical training in the Divisional Directorate and Municipal Corporation, Multan from 14.1.1985 to 25.1.1985 and his achievement was found satisfactory. His ACRs were available and were signed by the reporting officer. Some of them are unsigned by the countersigning officers i.e. pertaining to the period from 26.8.1984 to 26.12.1984, 1.10.1995 to 31.12.1995, 5.7.1998 to 31.12.1998 and 1.1.2000 to 3.11.2000. Respondent No. 4 has no role to play in respect of his incomplete ACRs, as it is the responsibility of the Department to get ACRs completed. The record of a civil servant is to be maintained properly by the department. The apex Court, in an unreported case tilted "Secretary Revenue Division etc. vs. Muhammad Saleem" (Civil Appeal No. 1986 of 2001), has held that the law has provided that it is the duty of the Departmental to get prepared PERs of an officer, so that same could be used for other prescribed purposes and at the time of promotion of an official.
Provincial Selection Board has examined the case of the appointment of Respondent No. 4, adhering to the rules and procedure. The board has been validly constituted and the impugned selection was made, with prescribed quorum. The selection/appointment of Respondent No. 4, at this stage, cannot be set at naught, for non compliance of rules, which are regulatory/directory.
For the foregoing, this appeal has no merit and is accordingly dismissed.
(R.A.) Appeal dismissed.
PLJ 2008 Lahore 1082
Present: Sh. Azmat Saeed, J.
IFTIKHAR ALI HAIDERI, TEHSIL MUNICIPAL OFFICER, FEROZEWALA DISTT. SHEIKHUPURA--Petitioner
versus
SECRETARY LOCAL GOVT. & RURAL DEVELOPMENT DEPARTMENT, GOVT. OF PUNJAB, CIVIL SECRETARIAT, LAHORE and 3 others--Respondents
W.P. No. 9020 of 2006, decided on 9.10.2006.
Constitution of Pakistan, 1973—
----Art. 199--Punjab Civil Servants Act, 1974.--S. 9--No civil servant or functionary of the state can claim any vested right for being posted at any particular post of his own choice and is bound to abide by the terms and conditions of his service including transfer and posting.
[P. 1084] A
Mr. Muhammad Asad Ullah Siddiqui, Advocate for Petitioner.
Mr. Muhammad Aftab Alam, Advocate for Respondents.
Malik Zafar Iqbal Awan, Additional A.G.
Date of hearing: 9.10.2006.
Order
This order shall dispose of Writ Petition No. 9020 of 2006 filed by the petitioner to assail the validity of order dated 12.8.2006 whereby the petitioner has been transferred from the post of TMO Ferozwala and directed to report to S&GAD and the order dated 15.8.2006 whereby Respondent No. 3 has been posted as TMO Ferozwala.
"At the outset learned Assistant Advocate General Punjab appearing for Respondents No. 1 & 2 as well as learned AOR for the Respondent No. 3 have stated that they would have no objection if the impugned judgment dated 25.5.2006 is set aside and the Writ Petition No. 3673/2006 filed by the Respondent No. 3 before the Lahore High Court Lahore is dismissed. They have further stated that the Respondent No. 3 is being posted elsewhere."
In this view of the matter, this appeal is allowed and the impugned judgment dated 25.5.2006 passed by the Lahore High Court Lahore is set aside. Consequently, the Writ Petition No. 3673-2006 shall stand dismissed. No order as to costs."
Thereafter, vide order dated 12.8.2006 petitioner was transferred from the post of TMO Ferozwala and directed to report to S&GAD Punjab and subsequently vide order dated 15.8.2006, Respondent No. 3 was transferred and posted as TMO Ferozwala. Both the above referred orders are being impugned herein.
Counsels for the parties and the learned Addl. AG have been heard and comments furnished in the case perused.
It is being canvassed by the learned counsel that impugned orders are mala fide and in violation of the present policy of the Government. Adds that said orders have been passed for extraneous reasons and the respondents have no jurisdiction to transfer the petitioner.
Whereas learned counsel for the respondents and the learned Addl. AG controvert the contentions as raised on behalf of the petitioner. Further contends that petitioner's initial appointment was illegal as has been held by this Court and the order of the Apex Court did not validate his appointment. It is further contended that petitioner had failed to carry out his duties in accordance with law resulting in serious mismanagement necessitating his transfer.
Admittedly, petitioner is an employee of the NTC. His very appointment as TMO Ferozwala is not free from doubt. Furthermore, record reveals that serious dispute arose as to the approval of the budget of TMA Ferozwala. Complaints in this behalf had come on the surface and the Chief Minister of Punjab directed a probe into the matter and deputed DG (Inspection) Local Govt. to submit a report regarding meeting in which the budget was allegedly approved. With reference to the present petitioner, said report indicates that:
"Similarly the TMO has proved himself to be inefficient by not preparing the annual budget according to the rules and was involved in the illegal activities."
In pursuance of the aforesaid report it was suggested that Secretary LG&RD should take disciplinary action against the petitioner and the latter should be repatriated to his parent department. A summary in this behalf was transmitted to the Chief Minister Punjab and it was directed that since the petitioner has been directed to report to his parent department which may be asked to take up the charges against.
In the above perspective this Court is not persuaded to interfere in the matter in its equitable jurisdiction. Even otherwise action of the respondents does not appear to be arbitrary and mala fide and appears to be in consonance with the dictates of good governance. Additionally, no civil servant or functionary of the State can claim any vested right for being posted at any particular post of his own choice and is bound to abide by the terms and conditions of his service including transfer and posting.
For the above mentioned facts and reasons, no case for interference and invalidation of the impugned orders has been made out and this petition being devoid of any merit is dismissed accordingly.
(R.A.) Petition dismissed.
PLJ 2008 Lahore 1084
Present: Muhammad Muzammal Khan, J.
KHALID SAEED KHAN--Petitioner
versus
ZARAI TARAQIATI BANK LTD.--Respondents
W.P. No. 7760 of 2007, decided on 27.8.2007.
Constitution of Pakistan, 1973—
----Art. 199--General Clauses Act, (X of 1897), S. 24-A--Punjab Civil Servants Act, 1974--S. 9--Civil Servant was transferred contrary to wedlock policy--Unwarranted transfer was challenged--Validity--Public Functionaries are under statutory obligation to decide the grievance of the citizens of Pakistan expeditiously and according to law applicable. [P. 1085] A
Mr. Aftab Alam, Advocate for Petitioner.
Date of hearing: 27.8.2007.
Order
Petitioner was posted as Manager, Zarai Taraqiati Bank Limited, Syed Wala Branch, on 9.6.2006 where he claimed to have made hecite efforts to achieve the target of recovery and took other steps for uplift of the Branch and resultantly Zonal Office awarded him the Appreciation Letter on 9.7.2007. Petitioner's wife is a government servant and is posted as Assistant Professor (Chemistry) at Government F.J. College for Women, Chuna Mandi Lahore, where the spouses are living with their three minor children. Petitioner has been transferred on 18.8.2007 to Mazafargarh contrary to the Wedlock Policy, without allowing him to complete his three years period of posting at one station. Petitioner represented to the President of the Zarai Taraqiati Bank Limited against his unwarranted transfer but the same remained un-attended, leading to filing of instant constitutional petition. It was contended that petitioner has no other remedy of challenging his uncalled transfer to a far-flung area, away from his wife and children. It was further submitted that his representation to Respondent No. 2 has to be addressed but the same is being ignored just to give effect to the unwarranted transfer order which is out-come of party-fiction within the Bank. A direction in constitutional jurisdictional of this Court was prayed to be issued, in this behalf.
(R.A.) Petition disposed of.
PLJ 2008 Lahore 1086
[Multan Bench Multan]
Present: Kazim Ali Malik, J.
LIAQUAT ALI--Petitioner
versus
DIRECTOR GENERAL ANTI-CORRUPTION ESTABLISHMENT PUNJAB, LAHORE and 7 others--Respondents
W.P. No. 4543 of 2008, heard on 5.9.2008.
Punjab Anti Corruption Establishment Rules, 1985—
----R. 19--Pakistan Penal Code, (XLV of 1860)--Ss. 420, 467, 468 & 471--Prevention of corruption Act, 1947--S. 5--Constitution of Pakistan, 1973--Art. 199--Judicial action against the accused with a direction to investigator to submit challan against accused in Court--Question of--Governor, Chief Secretary and Director may suo moto call for record of any case pending investigation with establishment and give such direction--Validity--There was no factual and legal justification for Anti Corruption Establishment to sit in appeal against his own order and action--Two conflicting orders by Anti Corruption Establishment are in field--At one time he endorsed and approved the investigation against the accused persons after having examined the record--Held: High Court had gone through Cr.P.C. and Anti-Corruption Laws including Rules and could not find any rule or provision of law which could empower or authorize the Anti-Corruption Establishment to sit in appeal against his own order--Further held: Order of re-investigation by Director being not in line with earlier under judicial action had been approved is not sustainable in the eyes of law--Petition was allowed. [P. 1088] A, B & C
Mr. Muhammad Ramzan Khalid Joya, Advocate for Petitioner.
Mian Abbas Ahmad, Addl. A.G. for Respondent.
Date of hearing: 5.9.2008.
Judgment
Liaqat Ali, petitioner herein got registered case F.I.R. No. 9 dated 11.04.2007 under Section 420/467/468/471 P.P.C. read with Section 5 of the Prevention of Corruption Act, 1947 at Police Station Anti Corruption Establishment, Sahiwal against Revenue officials and private persons. The final result of investigation was in favour of the petitioner herein/complainant, which was laid before the Director General of Anti-Corruption Establishment, Punjab, Lahore who examined the record and approved judicial action against the accused persons with a direction to the investigator to submit challan against the accused in Court.
"Could you please send a report on this within 10 days."
The Director General, Anti-Corruption Establishment took up the matter again in response to the above said order/direction of the Addl. Chief Secretary and ordered reinvestigation of the case. Feeling Dissatisfied, the complainant has called in question legality of the above said orders through this constitutional petition.
The Director General, Anti-Corruption Establishment, Punjab, Lahore has submitted his report to the effect that on perusal of the record, difference of opinion among the Investigating Officers with regard to the guilt of Amir Masood, accused was noticed and it was, therefore, deemed appropriate to get the case re-investigated in the interest of justice.
I have minutely gone through the Punjab Anti-Corruption Establishment Rules, 1985 in order to resolve the controversy. Rule 19 ibid deals with the point in issue and is, therefore, re-produced in verbatim for ready reference.
"Suo moto Examination.--(1) The Director may suo moto or otherwise call for the record of any case/enquiry, pending investigation with the Establishment, examine it and give such directions as may be necessary for the speedy, fair and just disposal of the same.
(2) The director may suo moto or otherwise call for the record of any case or enquiry for the purpose of satisfying himself as to the correctness or propriety of decision taken by the Additional Director under clause (a) of sub-rule (2) of Rule 15, and of the ex-officio Additional Director and Ex-officio Deputy Director under these rules, and may pass such order as may be deemed fit in each case.
(3) The Chief Secretary may suo moto call for the record of any case or enquiry, for the purposes of satisfying himself as to the correctness or propriety of decision taken by the Director under the forgoing sub rules and under clause (b) of sub-rule (2) of Rule 15 and may pass such order as deemed fit in each case.
(4) The Governor may suo moto or otherwise call for the record of any case or enquiry pending or finalized, for the purposes of satisfying himself as to the correctness or propriety of decision taken by any authority under these rules and may pass such orders as deemed fit in each case."
It is manifest from a bare perusal of the above said Rule that the Governor, the Chief Secretary and the Director may suo-moto or otherwise call for the record of any case pending investigation with the establishment and give such direction as may be necessary for the speedy, fair and just disposal of the same. In this case, the Governor has not passed any order or direction. The Chief Secretary also neither summoned nor examined the record. The Additional Chief Secretary also did not call for the record and simply sought a report from the Investigating Agency. Now adverting to the order of the Director General, Anti-Corruption Establishment under challenge, I could not understand as to why he opened the chapter of investigation, which had already been closed by him with a direction to the investigator to submit challan in Court. The state of record was the same when the Director General approved judicial action against the accused persons. In the circumstances, there was no factual and legal justification for the Director General, Anti-Corruption Establishment to sit in appeal against his own order and action. In fact two conflicting orders by the Director General, Anti-Corruption Establishment are in field. At one time he endorsed and approved the investigation against the accused persons including Amir Masood, obviously after having examined the record. But on reconsideration he chose to review and change his earlier order.
I have gone through the Cr.P.C, and Anti-Corruption Laws including the Rules, referred above and could not find any rule or provision of law which may empower or authorize the Director General, Anti-Corruption Establishment to sit in appeal against his own order.
For what has been stated above the order of re-investigation by the Director General, Anti-Corruption Establishment, Punjab, Lahore being not in line with the earlier one where-under judicial action had been approved, is not sustainable in the eyes of law. I, therefore, allow this petition and declare the impugned order as illegal, without jurisdiction and of no legal effect.
(R.A.) Petition allowed.
PLJ 2008 Peshawar 1 (DB)
Present: Talaat Qayyum Qureshi and Ejaz Afzal Khan, JJ.
Haji AMIR ZADA--Petitioner
versus
CHIEF ELECTION COMMISSIONER OF PAKISTAN, ISLAMABAD
and 5 others--Respondents
W.P. No. 1237 of 2007 with C.M. No. 457 of 2007, decided on 2.8.2007.
(i) N.W.F.P. Local Government Ordinance--
----S. 152(2)----Jurisdiction--Power to disqualify--Delegated powers--Chief Election Commissioner u/S. 152 (2) of Local Government Ordinance, has power to disqualify, a candidate for election to any office to Local Government or an elected member of a Local Government, if he is found to have contravened the provisions of S. 152 (1) of Ordinance, but, at the some time, such power has also been delegated to the Election Tribunal by the Chief Election Commissioner. [Pp. 3 & 4] A
(ii) N.W.F.P. Local Government (Conduct of Election) Rules, 2005--
----R. 72--Constitution of Pakistan, 1973, Art. 199--Exercise of jurisdiction--Disqualification--Declaring the election of returned candidate void on account of disqualification--Chief Election Commissioner can be exercised by the Tribunal as well--In absence of any bar or restriction either in the Ordinance or in Rules, it cannot be said to be exclusive either of former or the latter--Held: High Court did not agree with petitioner that it being an exclusive jurisdiction of the Chief Election could not be exercised by Election Tribunal--Petition dismissed. [P. 4] B
(iii) N.W.F.P. Local Government (Conduct of Election) Rules, 2005--
----Rr. 61, 62 & 63--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Maintainability--Correctness of educational certificate--Testification to correctness of certificate not withoutstanding its genuineness--Weightless grounds--Tribunal proves that secondary school certificate thus relied upon by him, to show his qualification to hold the elected office, is not relating to him but to some one else--Case of petitioner when it is weak and vulnerable on many legal as well as factual grounds--Such grounds cannot be given much weight, when it has not been specifically stated in written statement filed before the Tribunal as to how the respondent failed to comply with such rules--Even if, it be so, such grounds cannot render the election petition un-maintainable--Petition dismissed. [P. 4] C & D
PLD 1967 SC 486 & 2004 SCMR 602 rel.
Barrister Masood Kausar, Advocate for Petitioner.
Mr. Abdul Latif Afridi, Advocate for Respondent No. 6.
Mr. Shafique Ahmed, Deputy Election Commissioner in person.
Date of hearing: 2.8.2007.
Judgment
Ejaz Afzal Khan, J.--Haji Amir Zada, petitioner herein, has assailed the judgment dated 18.7.2007 of the Election Tribunal for Kohistan at Battagram, whereby it allowed the election petition filed by Respondent No. 6 and by declaring his election void, directed to hold fresh election of Nazim Tehsil Palis, District Kohistan.
Learned counsel appearing on behalf of the petitioner contended that power to disqualify a returned candidate on the ground of any disqualification exclusively lies with the Chief Election Commission in view of Section 152(2) of the Local Government Ordinance, 2001 and that the Election Tribunal overstepped its jurisdiction by passing an order on such score. The learned counsel next contended that when the question of jurisdiction was raised before the Election Tribunal, it was required to decide it first, especially when a direction in this behalf was also given by this Court, vide its judgment dated 4.4.2007 rendered in Writ Petition No.312 of 2006. The learned counsel next contended that where the Junior Clerk, Inquiry Section, examined on behalf of the Board of Intermediate and Secondary Education, Abbottabad, testified to the correctness of the Secondary School Certificate issued in favour of Haji Amir Zada, it cannot be held fake on any count. No order muchless adverse to the petitioner could be passed, the learned counsel vehemently added, when the petition itself was liable to be dismissed for not complying with the provisions of Rules 61, 62 and 63 of the N.W.F.P. Local Government (Conduct of Election) Rules, 2005.
As against that, the learned counsel appearing on behalf of the respondent submitted that where the jurisdiction exercised by the Chief Election Commissioner under Section 152(2) of the Local Government Ordinance and the one exercised by the Election Tribunal under Rule 72 of the above mentioned Rules is concurrent, the latter has the power to declare the election void on the ground of disqualification. The learned counsel to support his contention placed reliance on the case of Shakeel Shahid vs. Muhammad Younis Zahid and others (PLD 2005 Lahore 357). Responding the other argument, the learned counsel submitted, that when many of the antecedents of the petitioner do not coincide with those mentioned in the Secondary School Certificate, it would prima facie have no nexus with the petitioner, notwithstanding its genuineness is not open to any doubt. The learned counsel by concluding his arguments, submitted that if the petitioner writes the name of his counsel today in the Court, he would concede that his election cannot be declared void on the ground of disqualification.
We have gone through the available record carefully and considered the submissions of the learned counsel for the parties.
It is correct that the Chief Election Commissioner under Section 152(2) of the Local Government Ordinance, has the power to disqualify, a candidate for election to any office of Local Government or an elected Member of a Local Government, if he is found to have contravened the provisions contained in Section 152(1) of the Ordinance, but, at the same time, this power has also been delegated to the Election Tribunal by the Chief Election Commissioner himself. Rule 72 of the Local Government (Conduct of Election) Rules, 2005, listing the premises for the exercise of this jurisdiction by the Tribunal includes the ground of declaring the election of the returned candidate void on account of disqualification. It being coeval, concurrent and co-extensive with that of the Chief Election Commissioner can be exercised by the Tribunal as well. In the absence of any bar or restriction either in the Ordinance or in the Rules, it cannot be said to be exclusive either of the former or the latter. Since it can well be exercised by both of them, we do not agree with the learned counsel for the petitioner that it being an exclusive jurisdiction of the Chief Election Commissioner could not be exercised by the Election Tribunal. Though the Statute itself is clear, all the same, the case of Shakeel Shahid Vs. Muhammad Younis Zahid and others (Supra) may well be referred in this behalf.
Assuming that a Junior Clerk, Inquiry Section, examined on behalf of the Board of the Intermediate and Secondary Education, Abbottabad, testified to the correctness of the Certificate issued by the Board but where its antecedents as to the date of birth etc. do not coincide with those of the petitioner, it cannot be said to have any nexus with him, notwithstanding its genuineness cannot be looked askance at. Failure on the part of the petitioner to write a sentence or so before the Tribunal further proves that the Secondary School Certificate thus relied upon by him, to show his qualification to hold the elected office, is not relating to him but to some one else. The finding handed down by the learned Tribunal on these issues being based on proper appraisal of evidence is thus unexceptionable.
The argument that no order muchless adverse to the petitioner could be passed against him when the petition, filed by the respondent, itself was liable to be dismissed for not complying with the provisions contained in Rules 61, 62 and 63 of the N.W.F.P. Local Government (Conduct of Election) Rules, 2005, would do little to advance the case of the petitioner, when it is weak and vulnerable on many legal as well as factual grounds. Even otherwise such grounds cannot be given much weight, when it has not been specifically stated in the written statement filed before the Tribunal as to how the respondent failed to comply with the Rules mentioned above. Even if, it be so, such grounds cannot render the election petition un-maintainable as held by the apex Court in the cases of S.M. Ayub Vs. Syed Yousaf Shah and others (PLD 1967 Supreme Court 486) and Abdul Nasir and another Vs. Election Tribunal Toba Tek Singh and others (2004 SCMR 602), while interpreting the provisions in para-materia with the provisions mentioned above.
The upshot of the above discussion is that the judgment of the learned Election Tribunal being free from any infirmity muchless jurisdictional is not open to any interference. Therefore, this petition being without substance is dismissed in limine alongwith the C.M.
(N.F.) Petition dismissed.
PLJ 2008 Peshawar 5
Present: Muhammad Raza Khan, J.
Malik MANZOOR ELAHI--Petitioner
versus
ZULFIQAR ALI and others--Respondents
C.R. No. 270 of 2007, decided on 18.9.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O.VII, R. 11--Civil revision--Rejection of plaint--Change nature of land--Question of--Determination--No documentary evidence--Plaintiff has not been able to produce any other documentary evidence to show the encroachment in his area and the urgency of the matter commission be directed to determine the boundary disputes but such can be done if plaintiff prima facie supports that certain construction was being raised in his property--Trial Court cannot create evidence in favour of plaintiff by the appointment of local commissioner when plaintiff himself has not made any efforts to prove his case beyond verbale contentions--Defendants have declared that they have neither interfered in his such property nor they intend to do so--Such a bold and unreserved statement should have pacified the plaintiff and he can certainly proceed against defendants if any encroachment in the suit property was ever found--In such situation there does not appear to be any cause of action vested in plaintiff to institute the suit--Revision dismissed. [Pp. 6 & 7] A, B, C & D
Mr. Muhammad Younis Khan Tanoli, Advocate for Petitioner.
Mr. Khalid Rehman Qureshi, Advocate for Respondents.
Date of hearing: 18.9.2007.
Judgment
This revision petition is directed against the judgment and decree dated 6.6.2007 of the learned Additional District Judge-IV, Haripur whereby the appeal of the plaintiff-petitioner against the judgment under Order 7 Rule 11 CPC for rejection of plaint dated 13.3.2007 was dismissed.
The plaintiff/petitioner has sought a declaration to the effect that he, alongwith others, are the exclusive owners in possession of the suit properly measuring 87 kanals 9 marlas comprising of six Khasra Numbers stated in the head note of the plaint and that the defendants had no right or interest therein and consequently the attempt to change the nature of the land by construction of a road etc. was illegal and ineffective on the rights of the plaintiff. As a consequential relief a prayer for injunction was made and, in the alternative, the prayer for possession of the property by demolition of road and construction was also made if any construction was raised during the pendency of the suit.
The defendants while appearing in response to the summons categorically stated that they were the owners in possession of Khasra Nos.4729/2842 and 4730/2842 measuring 206 kanals 9 marlas and that they were making improvement in their own property having no concern whatsoever with the suit Khasra numbers or the ownership of the plaintiff. An application under Order 7 Rule 11 was also moved. After getting the reply from the plaintiff the learned trial Court rejected the plaint under Order 7 Rule 11 CPC on 13.3.2007 which was maintained through the impugned appellate judgment dated 6.6.2007.
I have listened to the arguments of the learned counsel for the parties. The learned counsel representing respondents/defendants has again reiterated at the at the bar that the respondents/defendants have no concern whatsoever with the suit property and that their activity was restricted to their own Khasra numbers wherein the plaintiff/petitioner has no concern. In such a situation there is no force in the contention of the learned counsel for the petitioner that he should have been allowed to produce evidence or that the Court should have appointed a local commissioner for the demarcation of the property for determining the specific area where the defendants/ respondents were raising construction and making improvements. It is not the responsibility of the Court to make up the deficiency in the case of any of the parties to litigation. It was for the plaintiff to have established a prima facie case that certain activity for the change of the nature of the suit property was being undertaken by the defendant. He should have moved the revenue officials for the demarcation of the property as, being agricultural property, the jurisdiction exclusively vests in the revenue authorities alone. Even otherwise the plaintiff/petition has not been able to produce any other documentary evidence to show the encroachment in his area and the urgency of the matter. Neither a photograph nor even the extract from `Shajara Kishtwar' is placed in support of the contention of the plaintiff. The commission can certainly be directed to determine the boundary disputes but this can be done if the plaintiff prima facie supports that certain construction was being raised in his property. The trial Court cannot create evidence in favour of the plaintiff by the appointment of a local commissioner when the plaintiff himself has not made any efforts to prove his case beyond verbal contentions.
Since the defendants-respondents have clearly, declared (which has again been reiterated by the learned counsel for the respondents) that the respondents have neither interfered in the suit property nor they intend to do so. Such a bold and unreserved statement should have pacified the plaintiff/petitioner and he can certainly proceed against defendants/ respondents if any encroachment in the suit property was ever found.
In such a situation there does not appear to be any cause of action vested in the plaintiff/petitioner to institute the suit and both the Courts have rightly applied the mind to reject the plaint. The Revision Petition is accordingly dismissed with costs.
(N.F.) Petition dismissed.
PLJ 2008 Peshawar 7
Present: Ijaz-ul-Hassan, J.
GOVT. OF N.W.F.P.--Petitioner
versus
AHMAD SHAH--Respondent
C.R. No. 85 of 2006, decided on 16.2.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Barred by time--High Court while sitting in revisional jurisdiction is not supposed to interfere in the concurrent findings of the Courts below unless it is established that the judgments of the Courts below were without jurisdiction or the Courts below committed illegality or material irregularity resulting into miscarriage of justice--Revision dismissed. [P. 10] A
2005 SCMR 1135 ref.
Limitation Act, 1908 (IX of 1908)--
----Ss. 5, 12 & 14--Civil Procedure Code, (V of 1908), S. 115--Condonation of delay--Barred by time--Applicable--In judicial system law of limitation has got its own significance relating to the period prescribed for instituting the proceedings. [P. 10] C
Delay--
----Extension of period of limitation--Validity--Delay of each day must properly and satisfactorily be explained and this is no ground that matter was delayed because it had to pass through the hands of different officials due to which sufficient time was consumed.
[Pp. 10 & 11] E
Administration of Justice--
----Supreme Court has repeatedly laid down that so far as limitation is concerned, the government cannot claim to be treated in any manner differently from an ordinary litigant--In fact the Government enjoys unusual facilities for the preparation and conduct of their cases and its sources are much larger than those possessed by the ordinary litigants. [P. 11] F
2000 SCMR 1028; 1994 SCMR 833; 1979 SCMR 45 and 1979 SCMR 191.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115(i)--Amendment--Barred by time--Application for condonation of delay--Proviso for the full-stop at the end a colon shall be substituted and thereafter the following further proviso shall be added namely:
Provided further that such application shall be made within ninety days of the decision of the subordinate Court--Revision dismissed. [P. 10] B
Limitation Act, 1908 (IX of 1908)--
----Ss. 5 & 29--Civil Procedure Code (V of 1908), S. 115--Condone the delay--Sufficient cause--Applicable--Scope of--Section 5 of Limitation Act has expressly ben made applicable to condone of delay--Section 29 of Limitation Act has not been made applicable in accordance to
S. 29 on the revision u/S. 115 CPC. [P. 10] D
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Bereft of merit--Exhaustive judgments--Both Courts below have given exhaustive judgments after due appraisal of evidence on the file and after discussing all the proves and copes of the cate--Judgments of the Courts below are neither tainted with any illegality or irregularity or irregularity nor are fanciful or arbitrary this no interference is called for by High Court. [P. 11] G
Sardar Shaukat Hayat, A.A.G. for Petitioner.
Mr. Amjad Ali, Advocate for Respondent.
Date of hearing: 22.12.2006.
Judgment
Shortly narrated the facts, leading to the filing of instant civil revision are, that Ahmad Shah and others, plaintiffs filed suit against Provincial Land Commissioner through Chief Land Commissioner/ Senior Member Board of Revenue, NWFP, Peshawar and others, defendants, claiming a declaration to the effect that plaintiffs were owner in possession to the extent of 4/5 share, in suit land, having inherited the same from their forefathers and defendants were not justified to deny rights of the plaintiffs and assert their own. It was alleged that entries in the revenue record adverse to the interest of the plaintiffs, were void, illegal, fictitious and liable to correction. The plaintiffs also prayed for issuance of permanent injunction restraining the defendants to interfere in the possessery rights of the plaintiffs. A prayer for possession of suit land was also made, in case the plaintiffs were not found in possession of the same. The grievance of the plaintiffs in nutshell is, that ex-ruler of Swat, had forcibly obtained thumb impression of Muhammad, a brother of the plaintiffs on a stamp paper to deprive the plaintiffs of their entitlement in property in question. The matter was taken to Provincial Land Commissioner, which was decided in favour of the plaintiffs vide order dated 29.4.1975. However, Defendants Nos. 3 and 5 in collusion with the revenue staff, manipulated to get the entire property in their names to the exclusion of the plaintiffs, which necessitated the filing of suit.
The defendants appeared in Court and contested the suit on all grounds, legal as well as factual. Necessary issues, arising out of divergent pleadings of the parties, were framed. The parties were afforded opportunity to adduce evidence in support of their respective contentions. At the conclusion of the trial, learned Civil Judge/Illaqa Qazi, District Buner at Dagger, accepted the claim of the plaintiffs and passed a decree in their favour, vide judgment dated 21.5.2003. An appeal was filed against the aforesaid judgment and decree, which did not succeed. The same was dismissed by learned Additional District Judge/Izafi Zilla Qazi, Buner at Dagger, vide judgment dated 6.7.2005.
The petitioners, feeling aggrieved, have filed instant civil revision to challenge the concurrent finding of facts, recorded by the forums below and it has been contended by Sardar Shaukat Hayat, learned AAG for the State that judgments and decrees of the forums below are the outcome of misreading and non-reading of material evidence on record and the Courts have acted illegally in the exercise of jurisdiction vested in them. It was submitted that sufficient evidence, oral as well as documentary, was brought on the file to dislodge claim of the plaintiffs and establish that suit land was ownership of Provincial Government and decision of Federal Land Commission dated 29.4.1975 was not in respect of suit land, which has been overlooked and excluded out of consideration without any justifiable reason.
Mr. Amjad Ali, Advocate for the respondents, while exercising his right of reply, refuted the arguments advanced from the petitioners' side and supported the impugned judgments and decrees of the Courts below whole heartedly.
Having considered the arguments of learned counsel for the parties, with reference to the material on file, I find that the trial Court as well as the appellate Court have elaborately discussed every aspect of the case and dealt with the same in detail, leaving no room for further consideration. Both the Courts below have appreciated the evidence in its true perspective and the same did not suffer from any legal or factual infirmity, warranting interference of this Court under Section 115 CPC. The finding of facts arrived concurrently by both the lower Courts is not open to legitimate exception, particularly, when no specific misreading or non-reading of evidence has been pointed out. It is a settled law that the High Court while sitting in revisional jurisdiction is not supposed to interfere in the concurrent findings of the Courts below unless it is established that the judgments of the Courts below were without jurisdiction or the Courts below committed illegality or material irregularity resulting into miscarriage of justice. Reference can be made to Mst. Kulsoom Bibi's case (2005 SCMR 1135).
The civil revision is barred by time. It is accompanied by an application for condonation of delay on the grounds enumerated therein.
The law givers had amended Section 115 CPC by means of an Act XI of 1992, whereby following amendment was incorporated:--
"Amendment of Section 115, Act V of 1908:--In the said Code, in Section 115, in sub-section (1) in the proviso for the full-stop at the end a colon shall be substituted and thereafter the following further proviso shall be added namely:--
Provided further that such application shall be made within ninety days of the decision of the subordinate Court."
The perusal of the above amendment contemplates that an application under Section 115 CPC shall be made within 90 days of the decision of the subordinate Court. Prior to the above amendment, no statutory period was prescribed by the law for filing of the revisions but the superior Courts had always insisted that ordinarily such proceeding should be instituted within the period of 90 days. It is pertinent to mention here that in the judicial system the law of limitation has got its own significance relating to the period prescribed for instituting the proceedings. The Limitation Act contains in its fold remedial provisions like Sections 5, 12, and 14, which empowers the Court to enlarge the period of limitation in peculiar circumstances of each case, provided these provisions have been specifically made applicable on the proceedings and in the absence of its application the Court at its own shall not be competent to make applicable the provisions of these sections. In this behalf it is noticed that under CPC there are various provisions where Section 5 of the Limitation Act has expressly been made applicable to condone the delay in filing the proceedings if sufficient cause exists in favour of the party who seeks the condonation of delay. But this section of the Limitation Act has not been made applicable in accordance to Section 29 of the Limitation Act, on the revision under Section 115 CPC.
It is settled principle of law that delay of each day must properly and satisfactorily be explained and this is no ground that matter was delayed because it had to pass through the hands of different officials, due to which sufficient time was consumed. It is pertinent to mention here that the aforesaid ground is not a valid ground for extension of period of limitation, and does not constitute sufficient ground for condonation of delay. The civil revision deserves dismissal on this score alone. It is also settled principle of law that the Honourable Supreme Court has repeatedly laid down that so far as limitation is concerned, the government cannot claim to be treated in any manner differently from an ordinary litigant. In fact the Government enjoys unusual facilities for the preparation and conduct of their cases and its sources are much larger than those possessed by the ordinary litigants. "Province of East Pakistan Vs. Abdul Hamid Darji and others (1970 SCMR 558), Government of Balochistan Vs. Muhammad Ibrahim (2000 SCMR 1028), Government of NWFP and others Vs. Abdul Malik (1994 SCMR 833), The Deputy Director Food Vs. Syed Safdar Hussain (1979 SCMR 45) and Custodian of Enemy Property Vs. Hoshans M. Dastur and others (1979 SCMR 191).
In view of what has gone above, it follows that both the Courts below have given exhaustive judgments after due appraisal of evidence on the file and after discussing all the prones and cones of the case. There appears to be no legal defect in their judgments, which are in consonance with the evidence on the file. Judgments of the Courts below are neither tainted with any illegality or irregularity nor are fanciful or arbitrary, thus for the reasons discussed above, no interference is called for by this Court. The civil revision is bereft of merit. The same is dismissed on merits as well as found barred by time. The parties are left to bear their own costs.
(N.F.) Revision dismissed.
PLJ 2008 Peshawar 11 (DB)
Present: Ejaz Afzal Khan and Jehan Zaib Rahim, JJ.
MUHAMMAD REHMAN--Petitioner
versus
DIRECTOR FINANCE, PESCO, WAPDA HOUSE PESHAWAR
and other--Respondent
W.P. No. 1759 of 2006, decided on 26.6.2007.
Constitution of Pakistan, 1973--
----Art. 199--Service Tribunals Act, 1973, S. 4--Service matter--Jurisdiction--Constitutional petition--Validity--Terms and conditions of service--Except an order or decision of the departmental authority determining the fitness of a person to be appointed to or hold a particular post or to be promoted to a higher grade, all other orders or decisions relating to the terms and conditions of service can be assailed before the Service Tribunal. [P. 15] A
Service Tribunals Act 1973, (LXX of 1973)--
----S. 4--Constitution of Pakistan 1973, Art. 199--Constitutional petition--Civil servant--Question of--Distinction between eligibility and fitness--Determination--Name despite of eligibility was not forward--Ineligible--No jurisdiction--Being eligible was considered for promotion and found unfit--Name of civil servant despite eligibility was not forwarded to the competent authority for being considered for promotion--Quite obviously, a dispute of such type clearly and squarely falling within the ambit of Section 4 of Service Tribunal Act, can well be urged before the Service Tribunal and not before High Court under Art. 199 of Constitution--When dispute about the passing of prescribed examination by petitioner being one of fact and disputed by respondents, cannot be gone into by High Court while hearing a Constitutional petition. [P. 15] B
WAPDA Act, 1958--
----S. 17(IB)--Constitution of Pakistan, 1973, Art. 260--Provisions of--Service of authority--Question of--Eligibility--Terms and conditions of service--No jurisdiction--Provision of Section 17(IB) of the WAPDA Act, declaring the services of authority to be a service of Pakistan is neither deleted from the Act nor it is any way repugnant to the provision of Art. 260 of the Constitution and eligibility of civil servant being related to the terms and conditions of service can well be urged before the Service Tribunal, High Court has no jurisdiction to intervenue--Held: Court, however, instead of dismissing the writ petition, treat it as an appeal and send it to the service tribunal for decision in accordance with law. [P. 17] D
Constitution of Pakistan, 1973--
----Art. 260 & Scope of--Service Tribunals Act, 1973, S. 4--Civil servant--Terms and conditions of civil servant--Service under authority was declared to be a service of Pakistan for the purposes of Service Tribunal Act--Service of Pakistan means any service declared to be a service of Pakistan by an order or under an Act of Parliament--Service under authority being declared to be a service of Pakistan by the Act of Parliament cannot be said to be repugnant to the provision of Art. 260 of Constitution by any stretch of reasoning. [P. 17] C
Mian Muhibullah Kakakhel, Advocate for Petitioner.
Barrister Arshad Abdullah, for Respondents.
Date of hearing: 26.6.2007.
Judgment
Ejaz Afzal Khan, J.--Muhammad Rehman, petitioner herein, seeks issuance of an appropriate writ directing the respondents to consider him for promotion for the post of AB and AO, on the ground that, he after qualifying the prescribed examination, is eligible therefor.
Learned counsel appearing on behalf of the petitioner contended that where the petitioner after qualifying the required examination was eligible and as such his name should have been sent for being considered for promotion to the post of AB and AO. He next urged that this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has the powers to issue the writ asked for, notwithstanding a thin line of distinction between the eligibility and fitness, especially when the highhandedness of the respondents, in not sending the name of the petitioner to the competent authority for being considered for promotion, is patent and palpable. Resort to the Service Tribunal, the learned counsel urged, cannot be had, when Section 2-A, no more adorns the Service Tribunal Act and stands deleted in view of the dictum laid down in the case of Muhammad Mubeen-us-Salam and others vs. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 Supreme Court 602). Section 17(IB) of the WAPDA Act, 1958, the learned counsel submitted, too, cannot debar the entertainment of the instant petition, when it like Section 2-A of the Service Tribunals Act, on account of its being repugnant to the provision of Article 260 of the Constitution also stands deleted, if seen in the light of the observations made in paragraphs 67, 68 and 69 of the aforesaid judgment. The learned counsel by referring to the case of Muhammad Iqbal and others v. Executive District Officer (Revenue), Lodhran and another (2007 SCMR 682) contended that where a right has been conferred on an eligible civil servant possessing the prescribed qualification under Section 9 of the Civil Servants Act, 1973 for being considered for promotion, he can seek his redress through a constitutional petition, if and when it is denied.
As against that, the learned counsel appearing on behalf of the respondents, contended that the reason for not forwarding the name of the petitioner for being considered for promotion was that he is not eligible for want of qualifying the prescribed examination. But as, the learned counsel concluded, he was not considered altogether, because of his being ineligible, the question of fitness or otherwise does not arise and as such this Court will have no jurisdiction.
We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
Before we discuss the arguments of the learned counsel for the petitioner, it is worthwhile to see what are the disputes to be taken to this Court and what are those to be urged before the Service Tribunal. The relevant provision in this behalf is Section 4 of the Service Tribunals Act, 1973 which is reproduced for the facility of reference and thus reads as under:--
"4. Appeals to Tribunals.--(1) Any civil servant aggrieved by any order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal:
Provided that--
(a) Where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973, or any rule against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;
(b) No appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade; and
(c) .....................................................
.....................................................
(2) .....................................................
.....................................................
(a) .....................................................
.....................................................
(b) .....................................................
.....................................................
Explanation.--In this section, "departmental authority' means any authority other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants.
"We may point out that the question of eligibility and fitness have been treated differently by the Law-Makers in the Civil Servants Act, 1973 and in the Act. In Section 9 oft he former Act, as pointed out hereinabove, a right has been conferred on a civil servant to be considered for promotion if he is eligible on account of the fact that he possesses prescribed minimum qualification but he has no vested right to be promoted. In contrast to above Section 9 of the above Act, the Law-Makers in proviso (b) to sub-section (1) of Section 4 of the Act have not used the word "eligible" but have employed the word "fitness" or otherwise to be appointed or to hold a particular post or to be promoted to a higher post or cadre." In other words, the question of eligibility, which is a term of service by virtue of above sub-section (1) of Section 9 of the Civil Servants Act, 1973, has not been excluded from the purview of the jurisdiction of the Tribunal but the question, whether a person having requisite eligibility has been rightly selected or not selected on account of fitness or otherwise for appointment to hold a particular post or to be promoted to a higher post or grade, has been excluded."
This principle was also reiterated in the cases of Zafarullah Baloch vs. Government of Balochistan and others (2002 SCMR 1056), Muhammad Rahim Khan vs. The Chief Secretary, NWFP and others (PLD 2004 Supreme Court 65), Muhammad Rahim Khan vs. The Chief Secretary, N.W.F.P. and 4 others (1999 SCMR 1605) and Tasleem Jan and others vs. Muhammad Zaman and others (2005 SCMR 695). The case of Muhammad Iqbal and others vs. Executive District Officer (Revenue), Lodhran and another (Supra), being in line with the judgments cited above, is another precedent in this behalf and thus does not advance the case of the petitioner.
Next comes the argument of the learned counsel for the petitioner with regard to the deletion of Section 17 (IB) of the WAPDA Act on account of its being repugnant to the provision of Article 260 of the Constitution. Before we appreciate the true import of this argument, we would like to refer to Section 17(1B) of the WAPDA Act and then the relevant part of Article 260 of the Constitution which read as under:
"17. Employment of officers and servants.--
(1) .........................................................
(1A) .........................................................
(1B) Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under Authority, not being a person who is on deputation to the Authority from any Province, shall be deemed to be a civil servant for the proposes of the Service Tribunals Act, 1973 (LXX of 1973).
"............................................................
............................................................
............................................................
............................................................
............................................................
(a) ............................................................
(b) ............................................................
(c) ............................................................
(a) ............................................................
(b) ............................................................
"service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of `Majlis-e-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney General, Advocate General, Parliamentary Secretary or Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister, or member of a House or a Provincial Assembly;".
A look at the above quoted provision of the Act would reveal that service under the authority was declared to be a service of Pakistan, for the purposes of Service Tribunals Act. While a look at the relevant part of the Article quoted above, would reveal that service of Pakistan means any service declared to be a service of Pakistan by an order or under any Act of Parliament. The service under the authority being declared to be a service of Pakistan by the Act of Parliament cannot be said to be repugnant to the provisions of Article 260 of the Constitution by any stretch of reasoning. Therefore, paragraphs 67, 68 and 69 of the judgment rendered in the case of Muhammad Mubeen-us-Salam and others vs. Federation of Pakistan through Secretary, Ministry of Defence and others (supra) do not have even remote bearing on the above mentioned provision of the Act. The argument, thus, addressed appears to be misconceived and even unconscionable on the face of it.
Having thus considered, we have no hesitation to hold that the provisions of Section 17 (IB) of the WAPDA Act declaring the services of the Authority to be a service of Pakistan is neither deleted from the Act nor it is any way repugnant to the provisions of Article 260 of the Constitution and that the dispute as to the eligibility of the petitioner being related to the terms and conditions of service can well be urged before the Service Tribunal, therefore, this Court has no jurisdiction to intervene. We, however, instead of dismissing this writ petition, treat it as an appeal by following the dictum laid down in the case of Muhammad Anis and others vs. Abdul Haseeb and others (Supra) and send it to the Service Tribunal for decision in accordance with law. This Petition thus stands disposed of.
(N.F.) Petition disposed of
PLJ 2008 Peshawar 18 (DB)
Present: Ijaz-ul-Hassan and Ejaz Afzal Khan, JJ.
Mst. LAL BAHA--Petitioner
versus
Mst. ZELL-E-HUMA and others--Respondents
W.P. No. 885 of 2007, decided on 17.7.2007.
Constitution of Pakistan, 1973--
----Art. 199--Election petition--Requirement of law--Proceeding taken at her back cannot be vested with any sanctity--Application for setting aside the ex-parte proceeding was allowed--Order of recount made at her back could not be left intact--Purpose of--Administration of justice--Stambling blocks in the way of--Validity--Procedural technicalities stand for against petitioner and nothing more--Even otherwise a structure based on a defective order cannot sustain itself and has to collapse together with order--High Courts, therefore, do not feel persuaded to maintain the impugned orders--For transparency in proceeding, from the point of its commencement to the point of its accomplishment, is most cherished requirement of law--Matter was remanded to Election Tribunal decision afresh in accordance with law after making the recount in the presence of petitioner. [P. 19] A & B
Mr. Khalid Mahmood, Advocate for Petitioner.
Mr. Shakeel Ahmad, Advocate for Respondents.
Date of hearing: 17.7.2007.
Judgment
Ejaz Afzal Khan, J.--Petitioner through the instant petition has assailed the proceeding before the Election Tribunal culminating in the order dated 30.4.2007.
The main contention of the learned counsel for the petitioner was that where the petitioner was not served in accordance with the requirements of law, any proceeding taken at her back cannot be vested with any sanctity. He next submitted that once the application of the petitioner for setting aside the ex-parte proceeding was allowed, the order of recount made at her back could not be left intact. Such an order, he added, would defeat the very purpose of setting aside the ex-parte proceeding.
As against that, the learned counsel appearing on behalf of the contesting respondents contended that where the order on the application for setting aside the ex-parte proceeding, leaving the recount done at the back of the petitioner intact, was accepted and acquiesced to, the petitioner cannot turn round now to question that through the instant petition, that too, when no specific prayer for its quashment has been made in the petition.
We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
The record reveals that the petitioner was not served in accordance with the requirements of law. Though substituted service through proclamation in the newspaper was resorted to, but nothing in black and white has been brought on the record to show as to why the normal modes of service were leaped over. We do not understand why the recount, done at the back of the petitioner, was left intact, when the ex-parte proceeding, for quite tenable reasons, has been set aside. No canons of law would justify such a course. The entire proceeding including the recount was to be done de novo, once the Tribunal looked at the ex-parte proceeding with reservation. The Tribunal going wrong in law, goes out side its jurisdiction, conferred on it, therefore, an order, thus, passed cannot be maintained. The cases of Pearlman vs. Governors of Harrow School (1978) 3 WLR 736 and Utility Stores Corporation of Pakistan Limited vs. Punjab Labour Appellate Tribunal and others (PLD 1987 S.C. 447), may well be referred in this behalf.
Yes, many procedural technicalities, as highlighted by the learned counsel for the answering respondents, stumble the way of the petitioner to the redress asked for, but we without a moment's hesitation, would hold that they be taken as the steeping stones rather than the stumbling blocks in the way of administration of justice. This is what the procedural technicalities stand for and nothing more. Even otherwise, a structure based on a defective order cannot sustain itself and has to collapse together with the order. We, therefore, do not feel persuaded to maintain the impugned orders. For transparency in the proceeding, from the point of its commencement to the point of its accomplishment, is the most cherished requirement of law.
6A. For the reasons discussed above, we allow this writ petition, set aside the impugned orders. and send the case back to the learned Election Tribunal for decision afresh in accordance with law after making the recount in the presence of the petitioner. The parties are directed to appear before the learned Election Tribunal on 25.7.2007.
(N.F.) Case remanded.
PLJ 2008 Peshawar 20
Present: Muhammad Raza Khan, J.
Mst. BIBI ROZA--Petitioner
versus
JAN SAID etc.--Respondents
C.R. No. 998 of 2006, decided on 22.6.2007.
Mutation--
----Scope of--Principle of mutation--Mutation is certainly a document for fiscal purposes and it shall not confer title but such principle is applicable when a mutation is examined vis-a-vis the registered sale deed--If a mutation is compared with an unregistered deed, mutation will certainly have additional value unless the constant physical possession of the adversary is proved, as owner or under the belief of ownership--If without considering such distinction, the mutations are nullified. [P. 22] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Suit for declaration and injunction with the prayer for possession in alternative--Consolidated suits--Courts below dismissed--Attested mutation--Unregistered document was given preference over mutation--Without documentary evidence--Validity--Remand the matters for recording additional evidence case has been decided in favour of respondents is their constant possession over entire property but the supporting revenue record has not been placed on file and some of the extracts available with the counsel for parties--Counsel for respondents do not support their possession as such--Held: Remand the matters to the trial Court for recording additional evidence with regard to the physical possession the property from specified period and thereafter the cases be decided in the light of such observations--Revision accepted.
[P. 23] B & C
Mr. Gul Sadbar, Advocate for Petitioner.
Mr. Khalid Khan, Advocate for Respondent.
Date of hearing: 22.6.2007.
Judgment
Through this judgment recorded in Civil Revision No. 998/2006, I also propose to decide the connected Civil Revision No. 999/2006 between the same parties and relating to same property.
and District Charsadda. The first suit was instituted by Mst. Bibi Roza on 21.11.2002 claiming therein that she was the owner in possession of the said property as described in the head note of the plaint and that the defendants Jan Said and Khan Badshah have no concern therewith but they intend to cut the trees in the said property. Hence the suit for declaration and injunction was instituted with the prayer for possession in the alternative. After a month of the institution of the suit, the said Jan Said and Khan Badshah instituted a counter suit claiming that the suit property was originally owned by Abdul Qudoos who sold it, through a sale-deed registered on 18.6.1970, to Defendants No. 2 to 6 and they in turn sold the property to Muhammad Said vide sale-deed dated 13.3.1972. It was claimed therein that the plaintiffs Jan Said and Khan Badshah were the nephews of Muhammad Said who had in fact purchased the said property for the benefit of the plaintiffs and that the plaintiffs were in possession of the said property from the very beginning, and that there was an acknowledgment dated 14.9.2002 in this behalf. It was further added that Defendants No. 2 to 6 have erroneously sold the property to the Defendant No. 1 Mst. Bibi Roza vide Mutation No. 5198 dated 24.3.1997 and thus the prayer for the cancellation of the said mutation was made alongwith the relief of declaration and perpetual injunction with the prayer for possession in the alternative. Both the suits were consolidated and after recording evidence, the learned Civil Judge vide judgment and decree dated 25.1.2006 dismissed the suit of Mst. Bibi Roza whereas the suit of Jan Said etc. was decreed. The appeal filed by Mst. Bibi Roza was dismissed by the learned Additional District Judge-III, Charsadda on 22.7.2006. Hence that said Mst. Bibi Roza challenged the decree in favour of Jan Said etc. through this revision petition and challenged the dismissal of her suit through the connected Civil Revision No. 999/2006.
I have listened to the arguments of both the parties at pre-admission stage and examined the record.
In brief, on the one hand, there is a mutation attested in favour of the petitioner Mst. Bibi Roza in the year 1997 whereas in the counter claim, there is an allegation by Jan Said and his brother that the property was purchased by their uncle for their benefit and that they had been in possession of the property constantly. Both the Courts have concurred that the respondents (herein) are in possession of the property and therefore the unregistered document was given preference over the mutation. Para 11 of the judgment of the learned Appellate Court (being the summary of the grounds on which the controversy was decided in favour of the respondents) is reproduced:-
"11. No doubt, attestation of mutation may be taken as proof, however, mere attestation of mutation without any other evidence does not confer any title on the appellant as mutations are normally maintained for fiscal purposes. In the case in hand the agreement deed dated 13.3.1972 (Ex.P. W.7/3) executed by Respondents No. 3 to 7 is prior in time to the attestation of Mutation No. 5195, which is further supported by long standing possession in favour of Respondents No. 1 and 2. In these circumstances it can easily be held that in order to deprive Respondents No. 1 and 2 from the suit property the appellant and Respondents No. 3 to 7 with connivance of each other have fraudulently attested the mutation in question. In this respect reference can be made to the judgments of honourable Peshawar High Court in cases of "Rehmat Shah and two others v. Sarwar and another" (PLD 1971 Peshawar 205) and Hakim Khan v. Nazeer Ahmad Lughmani (1990 MLD 89)."
Thus, both the Courts were of the view that the respondents have proved the unregistered agreement of 13.3.1972 in favour of Muhammad Said and that the subsequent acknowledgment dated 14.9.2002 coupled with the admission of Respondents No. 8 to 17 by cognovits establishes that their predecessor had purchased the property for the benefit of Respondents No. 1 and 2.
There are certain ambiguities which could not be resolved despite comprehensive arguments and the thorough scrutiny of the record and the evidence. Firstly, Muhammad Said is the father of the Respondents No. 8 to 17. Respondents No. 1 and 2 are the sons of Bacha Said. No relationship has been established between the Bacha Said and Muhammad Said. If Muhammad Said had purchased the property in 1972, his legal heirs i.e. Respondents No. 8 to 17 should inherit the same. If he had subsequently sold the property to Respondents No. 1 and 2, there should be documentary evidence in this regard. Merely by claiming that he had purchased the property for the benefit of Respondents No. 1 and 2 shall not be sufficient for a decree in favour of the Respondents No. 1 and 2 by superseding the mutation in favour of the petitioner. The second ambiguity in the case is that the Respondents No. 3 to 7 have sold the property to the petitioner in 1997 and a mutation was attested. If the contesting respondents were in possession of the entire property right from 1972, they should have got themselves incorporated in the revenue record. Mutation is certainly a document for fiscal purposes and it shall not confer title but this principle is applicable when a mutation is examined vis-a-vis the registered sale-deed. However, if a mutation is compared with an unregistered deed, the mutation will certainly have additional value unless the constant physical possession of the adversary is proved, as owner or under the belief of ownership. If without considering this distinction, the mutations are nullified, I am afraid, more of the 50% of the land holders shall be deprived of their title by some manipulating entrepreneur. Lastly, the major factor prevailed upon both the Courts was related to the constant physical possession of the property by the Respondents No. 1 and 2. I have scanned the available revenue record. The Respondents No. 1 and 2 do not appear to have been recorded as owners or in possession in the entire property rather they do not figure at all anywhere in the revenue record. In 1976, one Noor Said was recorded to be the tenant. He is Respondent No. 9, Muhammad Saeed was said to be having the possession of another part of the land but he is the owner in his own right to the extent of 6/48 share and this does not indicate the purchase by unregistered deed in 1972 because the share of the vendor is recorded as intact. In another jamabandi for the year 1988-89, a small portion of the property was shown to be cultivated by Bacha Said, the father of Respondents No. 1 and 2 but that entry was also not continued in the subsequent years.
The only point on which the case has been decided in favour of Respondents No. 1 and 2 is their constant possession over the entire property but the supporting revenue record has not been placed on file and some of the extracts available with the learned counsel for the parties particularly the learned counsel for Respondents No. 1 and 2 do not support their possession as such.
Therefore, I am constrained to accept these civil revisions, set aside the impugned judgments and decrees and remand the matters to the learned trial Court for recording additional evidence with regard to the physical possession the property from 1970 till 2002 and thereafter the cases be decided in the light of the above said observations. Parties are directed to appear before the learned trial Court on 30.7.2007.
(N.F.) Case remanded.
PLJ 2008 Peshawar 23
Present: Ijaz-ul-Hassan, J.
FAZAL HANAN--Petitioner
versus
MUKARRAM JAN and others--Respondents
C.R. No. 959 of 2005, decided on 2.3.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction of High Court--Scope--Concurrent findings of Courts below--Interference--Held: There are concurrent findings of Courts below and the same cannot be called in-question through a revisional petition unless it is shown that Courts below either had no jurisdiction or failed to exercise the jurisdiction vested in them or committed some illegality and material irregularity, resulting in gross injustice while deciding the suit and appeal--Different view of the evidence could be taken by Courts below is no ground for setting aside such findings in exercise of its revisional jurisdiction by High Courts unless such findings are shown to be perverse. [P. ] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--It is not co-extensive with powers of trial Court and Appellate Court which have to advert to all legal and factual controversies. [P. ] B
Civil Procedure Code, 1908 (V of 1908)--
----O. XXVI, R. 9--Local commission--Appointment of--Discretin of Court--Either local investigaion a substitute of legal evidence--Determination--Held: Discretion lies with Court, whether to appoint local commissioner in cases where controversy could be resolved by producing evidence of the parties, the spot inspection through local commission was not permissible--Court itself has to decide necessity of local investigaion--Appointment of the local commissioner is prerogative of the Court and local investigation through the local commissioner could not be a substitute of legal evidence the local commissioner cannot be appointed to fill in lacuna. [P. ] C & D
2003 CLC 397, 2001 YLR 919, ref.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 118--Onus of proof--Principle of--In order to succeed plaintiff has to stand on his own legs, it is for him to prove his case and cannot be benefited by weaknesses of his adversely--Revision dismissed. [P. ] D
Mr. Said Tahar Khan, Advocate for Petitioner.
Mr. Shamoon Ahmad Bajwa, Advocate for Respondents.
Date of hearing: 2.3.2007.
Judgment
In brief, the factual background of the case is, that Fazal Hanan, plaintiff, had instituted suit on 25.4.1999, aginst Mukarram Jan, and others, defendants, claiming a declaration to the effect that plaintiff was owner in possession of suit property to the extent of « share, on the basis of agreement deed dated 31.2.1968 and agreement deed dated 18.10.1975 executed by Shah Jahan Defendant No. 9 whereby suit land was sold by him in favour of other defendants, was forged, fictitious and ineffective qua the rights of the plaintiff. The entries in the revenue record adverse to the interest of the plaintiff, were also brought under challenge. A prayer for grant of permanent injunction, restraining the defendants to alienate or transfer suit land, in any manner, was also made.
2 The suit was resisted on all grounds legal as well as factual and claim of the plaintiff was repudiated. Relevant issues, arising out divergent pleadings of the parties, were framed. After recording such evidence as the parties wished to adduce, learned Civil Judge/Illaqa Qazi, Gulkadda at Swat, dismissed the suit by her judgment and decree dated 31.7.2004. An appeal was preferred thereagainst which did not succeed. The same was dismissed by judgment dated 14.4.2005 by learned Additional District Judge/Izafi Zila Qazi, Swat.
Fazal Hanan, petitioner, feeling aggrieved thereby, has approached this Court by way of filing instant civil revision under Section 115 CPC which is before me for consideration.
Mr. Said Tahar Khan, Advocate for the petitioner mainly contended that impugned judgments and decrees of the two Courts below are laconic and suffer from the vice of misreading and non-reading of evidence and serious illegalities and irregularities have been committed in deciding the matter in question. Additionally, it was urged that a local commissioner should have been appointed to resolve the controversy effectively and properly and omission on the part of the Courts below to do so, has resulted in manifest injustice.
Controverting the arguments of learned counsel for the petitioner, Mr. Shamoon Ahmad Bajwa, Advocate for Respondents No. 1 to 4, submitted that the material on record has been appreciated in its true perspective and the Courts below have recorded concurrent finding of fact about the genuineness or otherwise of the agreement deed in question dated 21.2.1968 and as the findings of the Courts below neither suffer from any misreading or non-reading of evidence nor entail any jurisdiction defect, therefore, this Court while setting in revisional jurisdiction is not supposed to interfere with such findings.
Having considered the matter from all angles in the light of the material on record, I find that there are concurrent findings of the Courts below and the same cannot be called in question through a revision petition unless it is shown that the Courts below either had no jurisdiction or failed to exercise the jurisdiction vested in them or committed some illegality and material irregularity, resulting in gross injustice while deciding the suit and the appeal. The fact that a different view of the evidence could be taken by the two Courts below is no ground for setting aside such findings in exercise of its revisional jurisdiction by this Court, unless the said findings are shown to be perverse. The Courts below while passing the impugned judgments and decrees took account of every bit of evidence placed before them and were not shown to have over looked any part of the record from their judicious consideration.
The revisional jurisdiction of this Court is restricted and constructed. It is not co-extensive with the powers of trial Court and appellate Court which have to advert to all legal and factual controversies. A revisional Court within the scheme and stance of Section 115 CPC has merely to see whether there were failure to exercise jurisdiction vested in the Court, the jurisdiction was exercise which was not so vested and there was no material illegality and irregularity. Both the Courts below have rightly concluded that agreement deed in question dated 21.2.1968 has not been proved satisfactorily and I see no good reason to differ and take a contrary view.
Adverting to the contention of learned counsel for the petitioner, regarding appointment of a local commissioner, I find that the discretion lies with the Court, whether to appoint a local commissioner or not and Court was not bound to appoint local commissioner in cases where controversy could be resolved by producing evidence of the parties, then spot inspection through local commission was not permissible. The Court itself has to decide necessity of local investigation. The appointment of the local commissioner is the prerogative of the Court and the local investigation through the local commissioner could not be a substitute of legal evidence. Kishwar Bano and 2 others vs. Metropolitan Corporation, Lahore through Administrator and another (2003 CLC 397) and Mirza Muhammad Saeed vs. Muhammad Akram Munir and others (2001 YLR 919). Both the Courts below have not though it necessary to appoint a local commissioner in the matter in dispute for valid reasons which are not open to legitimate exception. The local commissioner cannot be appointed to fill in the lacuna. The petitioner could not seek appointment of local commissioner for his own convenience when he was not in position to prove his plea through evidence. It is settled law that in order to succeed plaintiff has to stand on his own legs, it is for him to prove his case and he cannot be benefited by the weaknesses, if any, of his adversely.
Pursuant to above, I am satisfied that the findings of the Courts below are neither based on misreading or non-reading of evidence nor the same suffer from any jurisdictional defect warranting interference of this Court in its revisional jurisdiction. The civil revision is bereft of substance. The same is dismissed with no order as to costs.
(W.I.) Revision dismissed
PLJ 2008 Peshawar (DB) 27
[Peshawar High Court Abbottabad Bench]
Present: Hamid Farooq Durrani & Salim Khan, JJ.
SARDAR MALIK JAN--Petitioner
versus
STATE and 3 others--Respondents
W.P. No. 303 of 2004, decided on 30.4.2007.
(i) Police Rules, 1934--
----Rr. 23.8, 23.9, 23.4 (3), 23.5. & 27.29--Police Order, 2002, S. 185--Criminal Procedure Code, (V of 1898), Ss. 87, 109, 110, 401 & 565--Restriction of Habitual Offenders (Punjab) Act, 1918, S. 16--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Maintainability--Principle of laches--Opening of history sheet--Entries in Surveillance Register--Challenge to--None issuance of show-cause notice--Principles of natural justice, violation of--Action based on malafides--No conviction was recorded against the petitioner by a competent Court of law--Held: Accused was not a person habitually addicted to crimes--To reach a conclusion resulting in proceedings under Rules 23.8 & 23.9 of Police Rules, 1934, disfavouring a person the requirement would be in terms of involvement of the person in commission of crimes and his conviction in more than one cases--Further held: The opening of history sheet against a person and entry of the name in the Surveillance Register is an act which cannot be kept as a guarded secret of the police--Initiation of an action in the regard would obviously be to the detriment of reputation of the person so subjected to the exercise--It would, therefore, be necessary to give an opportunity of showing cause to the person likely to be affected by proceedings under Police Rules--Admittedly no show-cause notice was issued to the petitioner; no previous conviction was proved against him--Petition was accepted. [Pp. 29 & 30] B, C, D & E
(ii) Constitution of Pakistan, 1973--
----Art. 199--Police Rules, 1934, Rr. 23.6 & 23.9--Constitutional petition--Maintainability of--Entry in Surveillance Register, ensuing the opening of history sheet prior to more than 6 years ago--Principles laches--History sheet against the petitioner was though opened but every fresh entry in the Surveillance Register, ensuing the opening of history sheet, gave the petitioner a fresh cause of action--Held: Constitutional petition was not exposed to rigors of delay affecting the filing of the petition. [P. 29] A
(iii) Interpretation of Statutes--
----Police Rules, 1934, though framed under the Police Act, 1861, having been saved by S. 185 of the Police Order, 2002, are as applicable as framed under the Police Rules. [P. 30] F
(iv) Words & Phrases--
----Word "reasonable" as explained in the Book "Legal Thesaurus" by William C. Burton--Meanings elaborated--A stay, abstract, vague and unsupported by evidence allegation, without notice to the person alleged against him, and without affording him an opportunity of being heard, does not fall, by any stretch of imagination, under the meanings of "reasonably believed". [P. 33] G & H
Mr. Yasir Zahoor, Advocate for Petitioner.
Qari Abdul Rashid, DAG for Respondents.
Date of hearing: 12.4.2007.
Judgment
Hamid Farooq Durrani, J.--The petitioner has questioned, by way of instant constitution petition, the opening of history sheet against him on 18.01.2001 by the local police of Police Station Battal, District Mansehra.
It was claimed by the petitioner that he was a law abiding citizen of the country and was previously engaged in active politics by contesting general elections for the constituencies of National as well as Provincial Assembly. That he was elected as a member of the District Council in 1987. His political rivals do not tolerate his popularity in the locality as the petitioner belongs to a tenant class. He was involved in frivolous criminal cases with the collusion of local police though all of those ended in acquittal of the petitioner. It was ultimately on 18.01.2001 that the local police, on the behest of political rivals of the petitioner, opened his history sheet and entries were started to be made in the Surveillance Register maintained by the former.
Learned counsel for the petitioner contended that the petitioner was not given any notice of the proceedings undertaken against him under Rules 23.8 and 23.9 of the Police Rules, 1934, as a consequence whereof the history sheet was opened. He, while referring to the application by Respondent No. 3 and orders made thereon by Respondent No. 2, stated that the proceedings against the petitioner were taken in haste and the latter, without application of his independent mind, approved the proposed action of Respondent No.3 the day the same was brought before him. In view of the learned counsel the said action of the respondent smacked of mala fide against the petitioner. The learned counsel also referred to various FIRs implicating the petitioner and judgments of the cases ensuing therefrom, as placed on record, and pointed out that in none of the previously recorded cases the verdict of conviction was pronounced against the petitioner. On the other hand, he was acquitted of the charges honourably. He further contended that in the circumstances there was no occasion for the respondents to have opened the impugned history sheet against the petitioner.
The learned DAG, appearing on behalf of the respondents, stated that the petitioner was a dangerous and hardened criminal and was reasonably believed to be addicted to crimes or had aided and abetted crimes in the past. In the said regard he referred to various FIRs available on the record wherein the petitioner had a role in either capacity. While questioning the maintainability of the writ petition in hand, the learned DAG stated that an action of respondents taken in the year 2001 was brought under challenge through the petition in hand in the year 2006. In his view, the constitution petition badly suffered from laches and was not maintainable on that score. Replying to a query of this Court regarding issuance of notice to the petitioner by the respondents before initiating the impugned proceedings, the learned DAG unequivocally claimed that the same was served upon the petitioner before taking action to his detriment. While asked to produce any evidence regarding the service of claimed notice, the learned DAG requested for time and the matter was adjourned to 12.04.2007. On the said date, the learned DAG and Respondent No.2, present in Court, came up with a diametrically opposite stance and frankly conceded that no notice was given to the petitioner before the initiation of impugned proceedings.
We have considered the matter in the light of arguments by learned counsel for the parties and perusal of the available record. The argument regarding maintainability of the petition, as advanced by the learned DAG would have little force because of the reason that the history sheet against the petitioner was though opened on 18.01.2001 but every fresh entry in the Surveillance Register, ensuing the opening of history sheet, gave the petitioner a fresh cause of action. It is, therefore, justifiable to hold that the petition in hand was not exposed to the rigors of delay affecting the filing of petition. It is further noted that the respondents could not bring on record any evidence of judgment of conviction, having been pronounced by a competent Court of law, against the petitioner in the cases he was involved in. As such, it would not be reasonably believed in the light of record placed before this Court that the petitioner was a person habitually addicted to crimes. To reach a conclusion resulting in proceedings u/Rules 23.8 and 23.9 of the Police Rules, 1934 disfavoring a person, the requirement would be in terms of involvement of the said person in commission of crimes and his conviction in more than one cases. In the present case no such fact has been brought to the limelight.
The opening of history sheet against a person and entry of his name in the Surveillance Register is an act which cannot be kept as a guarded secret of the police. The consequences of such act are that the same becomes known to the headmen of the village or other prominent person of the locality. The said persons in turn tend to form an adverse opinion against the person to be kept under surveillance. It is for the said reason that the person put under surveillance is be-littled in the eyes of populous of the locality to which he belongs. The initiation of an action in the said regard would obviously be to the detriment of reputation of the person so subjected to the exercise. It would, therefore, be necessary for all intents and purposes to give an opportunity of showing cause to the person likely to be affected by proceedings u/Rules to 23.8 and 23.9 of the Police Rules, 1934. The principles of natural justice also discourage the condemnation of a person without hearing. Reliance in this regard is placed on a judgment reported as "Government of Pakistan Vs. Muhammad Akhtar Mir" (PLD 1971 SC 55).
As, in the case in hand, admittedly no notice was given to the petitioner before initiating action to his detriment. No record of his previous conviction could be brought forth by the respondent at the same time. We, therefore, consider it appropriate to allow the petition in hand and to hold that the opening of history sheet against the petitioner and entering his name in the Surveillance Register maintained by the respondents, is without lawful authority and of no legal effect. It is, however, observed that the police force is always at liberty to proceed against the criminals or the persons habitually addicted to crimes but in accordance with law and procedure.
Sd/-.
Salim Khan, J.--While agreeing with the conclusions and order of my learned brother as contained in Para No.7 above, my further elaboration of various points for such agreement is as under:--
The Police Rules, 1934, though framed under the Police Act, 1861 (V of 1861), having been saved by Section 185 of the Police Order, 2002, are as applicable as framed under the said Order. Rule 23.4 (3) clearly provides that the names of persons may be entered in Part II of the Surveillance Register at the discretion of the Superintendent (District Superintendent of Police). Rule 23.5 further supports this provision by mentioning that no entry shall be made in Part II except by the order of the Superintendent, who is strictly prohibited from delegating this authority. Rule 23.9 provides that a history sheet may be opened by, or under the written orders of, Police Officer not below the rank of Inspector for any person not entered in the Surveillance Register who is reasonably believed to be habitually addicted to crimes or to be an aider or abettor of such person. But Rule 23.5 (1) provides that no entry shall be made in Part I except by the order of a gazetted officer. Entries shall be made either under the personal direction of, or on receipt of a written order from, an officer authorized by that rule to make them. In the latter case original orders shall be attached to the register until the entry has been attested and dated by a gazetted officer. Rule 23.5(1) further provides that Surveillance Register shall be written up by the officer-in-charge of the Police Station personally or by an Assistant Sub-Inspector in a clear and neat script.
The questions of writing up the register, the opening of the history sheet and making entries in the register have, therefore, been clearly explained in the above rules. The entry in Part I of the register regarding a person shall not be made by any police officer/official except by a gazetted officer or under his order, and no entry shall be made in Part II of the Surveillance Register except at the discretion of, and by the order of, the District Superintendent of Police, who is prohibited from delegating that authority. Once an order of making entry in Part I of the register by a gazetted officer, or as the case may be, in Part II of the Register by the District Superintendent of Police is issued, an officer not below the rank of Inspector shall open the history sheet of such a person as mentioned in Rule 23.4 above. Such an Inspector may, however, open a history sheet of a person for perusal and order of the Superintendent for entry of the name of such person in the Register. Then the officer in charge of the Police Station shall personally or an Assistant Sub-Inspector shall write up the Surveillance Register in respect of the persons whose names have been entered in the said register.
In this case, the respondents could not be able to produce any order of a gazetted officer regarding the entry of the name of the present petitioner in Part I of the Surveillance Register. They could not produce any order of the District Superintendent of Police for entry of the name of the present petitioner in Part II of the said register. A Police Officer not below the rank of Inspector could open the history sheet either for further writing up by the Officer-in-charge of the Police Station or by an Assistant Sub-Inspector in future or for perusal and order of the Superintendent. But such Inspector, in both cases, was subject to the order of a gazetted officer, or as the case may be, of the District Superintendent of Police, for the entry of the name of the person in the Register.
The main contention of the official respondents regarding the petitioner is that the petitioner is a criminal and he remained involved in several criminal cases, the petitioner is presently confined in District Jail, Mansehra, facing trial in murder case vide case FIR No. 151 dated 08.08.2004 u/S 302/148/149 PPC of P.S. Battal, and that the petitioner was acquitted u/S 345 Cr.P.C. by the then learned Court of Extra Assistant Commissioner-I, Mansehra on the basis of compromise vide order dated 18.07.1988, and that the petitioner was acquitted in case FIR No. 154 dated 22.9.2000 u/Ss. 324/148/149 PPC of PS Battal on the ground that the complainant had died and there was no body else to charge the accused or depose against him. It was further contended by the respondents that the petitioner was not enjoying good political status in the general public, and due to his criminal activities and mal-practices, he could not win the elections, even, at Union Council level. It was further contended that the history sheet of the petitioner was opened on 18.01.2001 but he did not challenge the same for a long time.
An application was, however, submitted by SHO of Police Station Battal to SSP Mansehra with the contents that Malik Jan s/o Sher Zaman, caste Gujjar, resident of Sharkool Chattar Plain was a resident of the area of P.S. Battal who belonged to an agriculturist family and he was habitual maker of applications, used to create disputes between the parties, and was involved in abduction and road blocking cases as well as in case of attempt to murder, and was a dangerous person, who used to submit applications against the Government employees in order to harass them and received money in the names of the officials. This application was allowed by SSP Mansehra. Such allowance amounted to grant of permission to open history sheet for perusal and order of the Superintendent under Rule 23.5(2). But such permission was always subject to Rule 23.9(4) above. Such permission was, however, for a one time exercise during a reasonably limited period, was not for a continuous long time process, and could not be utilized to harrass and stagmatise the petitioner in the long run.
None of the above mentioned allegations have ever been proved against the petitioner. The petitioner did not fall in the category of persons in Part I of the surveillance register as he was neither a proclaimed offender nor a released convict in regard to whom order under Section 565 Cr.P.C. has been made, nor a convict the execution of whose sentence was suspended under Section 401 Cr.P.C., nor a person restricted u/S. 16 of the Restriction of Habitual Offenders (Punjab) Act 1918, nor a person not resident of P.S. Battal, who has been proclaimed under Section 87 Cr.P.C. and having friends or relations or other acquaintances living in the area of P.S. Battal whom he was likely to visit.
The case of the present petitioner would fall under Part II of the register, had it been so proved, as mentioned in Rule 23.4 (3). The petitioner, however, was not a person convicted twice or more of offences mentioned in Rule 27.29, or person under security under Section 109 or 110 Cr.P.C. or a convict released before the expiration of his sentence under the Prisons Act or Remission Rules without the imposition of any condition. His case could be considered as a case of a person who was reasonably believed to be habitual offender or receiver of stolen property, whether convicted or not. There is no allegation against the present petitioner that he is a receiver of stolen property. The only ground left for the entry of the name of petitioner in Part II of the surveillance register was that he was to be reasonably believed to be habitual offender. But, for entry of his name in Part II of the Register, a notice was necessarily to be given to the petitioner, in view of Rule 23.5(3).
The respondents contended that conviction itself was not the sole ground for entry of the name of the petitioner in the register. The learned counsel for the Petitioner tried to meet all the objections of the respondents by stating that the petitioner had every right to challenge the preparation of his History Sheet as well as the entry of his name in the surveillance register at any time, especially when no show-cause notice was ever issued to him, for any of the two actions, and it was the general principle of law that no one can be condemned unheard and no action be taken against any person except after notice to him. He referred to (PLJ 1971 Cr.C. Karachi 19, PLD 1971 SC 55 and PLD 1974 SC 3)1 in support of his arguments.
The word "reasonable" as explained in the Book "LEGAL THESAURUS" by "WILLIAM. C. BURTON", as adjective for using it for fairness, means, "conscionable, equitable, fit, fitting, judicious, just, not excessive, not extreme, proper, restrained, suitable, temperate, tempered, tolerable, un-extravagant, un-extreme. The same word, as adjective for using it as rational, means amenable to reason, broad-minded, capable of reason, clearheaded, cognitive, credible, discerning, fit, intelligent, judicious, justifiable, probable, proper, ratiocinative, rational, realistic, right, sagacious, sapient, sensible, sound, tenable, understandable, unjaudiced, unprejudiced, valid, warrantable, well advised, well-founded, wise.
A stray, abstract, vague and unsupported by evidence allegation, without notice to the person alleged against, and without affording him an opportunity of being heard, does not fall, by any stretch of imagination, under the meanings of the words "reasonably believed". There is nothing on record to the effect that a notice either by an Inspector in Police Establishment, for the purpose of the history sheet, or by a Superintendent of Police, for the purpose of entry of his name in Part II of the Surveillance Register, ever given to petitioner with an opportunity of his hearing.
In the light of all that has been said above, the preparation of history sheet of the petitioner, without notice to him and without providing opportunity of hearing to him, and the entry of his name in the Surveillance Register, if any, made without notice to him and without providing opportunity of hearing to him, is without lawful authority and void, and inoperative against the rights of the petitioner.
(M.A.) Petition accepted
PLJ 2008 Peshawar (DB) 34
Present: Ejaz-ul-Hassan Khan and Dost Muhammad Khan, JJ.
ZAHIR SHAH and 11 others--Petitioners
versus
AGENCY EDUCATION OFFICER MOHMAND AGENCY AT GHALLANAI and 3 others--Respondents
W.P. No. 254 of 2006, decided on 11.10.2006.
(i) Pakistan Citizenship Rules, 1952--
----R. 23--Notification EXA (30)8-1/71 dated 8.9.1978--Fronteir Crimes Regulation, 1901, Chapter IV--Constitution of Pakistan, 1973, Art. 199 & 25(1)--Constitutional jurisdiction--Service matter--Principles of natural justice, violation of--Appointment of civil servants as PTC teachers on merits--Withdrawal of appointment orders without show-cause notice on the pretext that civil servants were holding domiciles of category `B'--Denial of right of defence and opportunity of hearing--Validity--Iron clad fact that the petitioners right from their forefathers and by birth were permanent residents could not be refuted by the respondent alongwith their applications for the posts of PTC, civil servants had submitted their original domicile certificates of category "A" undeniably issued by the respondent and no objection about their authenticity or genuineness was raised from any candidates--After initial verification made by the political authorities, the civil servants were issued final appointment orders and they assumed charge of their duties, thus, the matter had become passed and closed chapter for all intents and purposes--Held: Somersault made by director education holding inquiry in a clandestine manner, declaring the petitioners holders of category "B" domiciles appeared a clear act of mala fide; vested rights of inviolable nature in petitioners could not be in such manner--Entire proceedings were conducted in disregard of principle of natural justice, that the subsequently inquiry made was a contrived device to deprive the petitioners of their indefeasible right and to pave way for the influential one. [Pp. 37 & 38] A & B
(ii) Pakistan Citizenship Rules, 1952--
----R. 23--Notification EXA-(30)8-1/71 dated 8.9.1978--Instructions issued through the notification, to the Distt. Magistrates/Political Agents and other authorized officers laying down certain conditions to be fulfilled by the applicant before getting domicile of trible areas, such instructions are not at par with those contained in R. 23 of PCR, 1952--There is no mention of category "A" or "B" domicile certificate in those instructions--Additional conditions categorising the domicile certificates into "A" "B" & "C" could be without lawful authority irrational, imprudent, arbitrary, capricious unreasonable and were not sustainable in law and are undoubtedly in disregard of law and rules on the subject--Such classification is absolutely arbitrary being in violation of constitution, law and rules.
[Pp. 39, 40 & 43] D, E, F, G & M
1981 SCMR 1002, ref.
(iii) Words and Phrases--
----Domicile & residence--Difference--The residence is used to indicates the place of dwelling of a man whether on permanent or temporary basis while the term domicile denotes a fixed permanent residence of a man, his temporary absence there-from would not bring about any substantial change with regard to the regular permanent place of his abode--The word "domicile has been derived from latin word "Domus" meaning a home or a dwelling place and it is the relationship which the law indicates between an individual and a particular locality or country. [P. 41] H & I
AIR 1955 SC 234, ref.
(iv) Words & Phrases--
----Domicile & Citizenship--A legal perspective--The citizenship would confer rights alongwith corresponding liabilities on the citizen towards the State/Society, while a domicile or permanent residence certificate has reference to civil rights and privileges acquired thereunder. [P. 39] C
(v) Constitution of Pakistan, 1973--
----Art. 25(1)--Pakistan Citizenship Act, 1973, S. 17--Equal protection of law--Enjoy to--Discrimination on the basis of ownership of land--Held: It would be highly arbitrary to deny right of domicile to landless tribesmen who enjoy equal status and protection of the Constitution and law; they could not be discriminated on the touchstone of ownership of land if otherwise they were permanently domiciled in the tribal area. [Pp. 41 & 42] J
(vi) Pakistan Citizenship Act, 1951--
----S. 17--Pakistan Citizenship Rules, 1952--R. 23--Frontier Crimes Regulation, 1901, Chapter IV--Conditions for obtaining domicile--Held: Conditions such as sharing of losses and profits and sharing territorial responsibility could not be endorsed being unreasonable arbitrary and in contravention of law and natural human rights.
[P. 42] K & L
(vii) Constitution of Pakistan, 1973--
----Art. 199--Jurisdiction--Reinstatement in service--Cancellation of domicile certificates of civil servants and cancelling their appointment orders on PTC posts, being without jurisdiction, without lawful authority, arbitrary and unsustainable in law, were set aside--Respondents were directed to reinstate civil servants on their PTC posts--High Court declared civil servants entitled to all back benefits including seniority excepts the claim of monthly salary--Their domicile certificates would also be restored--Petition accepted.
[Pp. 43 & 44] N & O
Mr. Khalid Rehman Khan, Advocate for Petitioner.
Mr. Nizar Muhammad Khan, Dy. A.G. for Respondents.
Date of hearing: 11.10.2006.
Judgment
Dost Muhammad Khan, J.--The petitioners, namely, Zahir Shah and 11 others were appointed as PTC teachers by Respondent No. 1 vide order dated 21-11-2005 on the recommendation of the Departmental Selection Committee in the laid down manner, on merits. After initial verification of their testimonials including domicile certificates from the concerned quarters, the petitioners were allowed to assume charge of their posts at the respective places. The arrival reports are (ANNEX-D). During the course of performing duties, on 23-2-2006 Respondent No. 1 without any show-cause notice to the petitioners or giving them any opportunity of hearing withdrew their appointment orders on the pretext that they were holding domiciles of category `B', a term of first impression.
The plea of the petitioners is that they are permanent residents/domiciled of Mohmand Agency and were holding domicile certificates of category A' which they had submitted with their applications and are Annex-G (page 38 to 49) thus the subsequent orders of the respondents describing them holders of categoryB' domiciles is the result of 3rd degree method adopted by Respondent No. 1 under the influence of some influential persons whose relatives could not succeed in the test and interview held for the posts.
In their written comments, Respondents 1 and 2 have taken the plea that the APA concerned has declared the petitioners holders of "B" category domicile certificates, therefore, were ineligible and when they have not challenged the said decision before the Commissioner FCR, the order impugned has attained finality.
Rejoinder to the written statement of Respondents 1 and 2 was filed by the petitioners, pleading therein that, under the law and rules, there is one kind of domicile and category 'B' domicile is self invented arranged idea of the Political Agent which has no sanction of law and this phenomena has been introduced only in Mohmand Agency as in the other tribal agencies the same is not in vogue.
Arguments heard and available record perused.
The grievance of the petitioners is two fold i.e. that they were appointed in the prescribed manner on the basis of domicile certificates of category "A" issued to them by the office of APA, therefore, the u-turn made by Respondent No. 2 after the petitioners were duly appointed and had assumed charge of their duties is an act coram non-judice, without jurisdiction and is seriously offending against the principle of natural justice as neither any proper inquiry was made in the matter nor the petitioners were associated therewith.
The right of defence and opportunity of hearing was denied to them while taking drastic action of converting their A' category domicile certificates to that ofB'. That the devious categorization of the domicile certificates into
"A" and "B" by Respondent No.2 has no backing of law and rules on the subject and that the unquoted custom relied upon both in the written comments and in the impugned orders is an act based on mala fide and is the result of undesirable methodology contrived for depriving them of vested right. A domicile certificate once granted, can only be revoked if it is established that it was obtained through misrepresentation, by practicing fraud or that the person holding it had severed his ties with his natural abode and has permanently settled somewhere else. None of these facts were available to
Respondent No. 2 for taking the impugned action and secondly, that the imperceptible custom in no manner could be given overriding or superimposing effect on statutory law and rules.
The learned Deputy Advocate General defended the impugned orders on the ground that albeit the petitioners are holders of the original domiciles of the agency but they have obtained identity cards of the settled area, therefore, they fall within the second category of domicile holders thus the impugned action is fully justified being based on the custom prevailing in the agency concerned.
We have attended to the rival contentions and the facts of the case minutely.
There is no denial of the fact that the petitioners right from their forefathers and by birth are the permanent residents of Mohmand Agency having permanent abode there. This iron-clad fact could not be refuted by the respondents in any manner. Alongwith their applications for the posts of PTC, the petitioners had also submitted their original domicile certificates of category "A" undeniably issued by the office of Respondent No. 2. Neither the respondents nor the other candidates appearing in the test and interview had raised any objection about the authenticity and genuineness of the same, which were accepted as valid holding the petitioners permanently domiciled in Mohmand Agency right from their forefathers. The said status of the petitioners was accepted when they were selected by the Departmental Selection Committee. The initial verification made by the political authorities also confirmed the above fact where after, they were issued final appointment orders and they assumed charge of their duties at the respective places of their posting thus, the matter had become past and closed chapter for all intents and purposes.
The subsequent somersault made by Respondent No. 2 holding inquiry in a clandestine manner probably at the behest of some influential persons having vested interest in the matter, declaring the petitioners holders of category `B' domiciles appears to us a clear act of mala fide on the part of Respondent No. 2. The object was to undo an act, which had created vested rights of inviolable nature in the petitioners; These rights could not be snatched in the manner so done by Respondent No. 2. Not because the entire proceedings were conducted in disregard of the principle of natural justice but also for the reason that the inquiry subsequently made was a contrived device to deprive the petitioners of their indefeasible right and to pave way for the influential one.
The provision of Section 17 of the Pakistan Citizenship Act, 1951 and Rule 23 of the Pakistan Citizenship Rules, 1952 deal with the domicile certificate. The Provision of Section 17 of the Act reads as follows:--
"S. 17 Certificate of domicile.--The Federal Government may upon an application being made to it in the prescribed manner containing the prescribed particulars grant a certificate of domicile to any person in respect of whom it is satisfied that he has ordinarily resided in Pakistan, for a period of not less than one year immediately before the making of the application and has acquired a domicile therein ".
Rule 23 ibid has been couched in a somewhat more comprehensive language which is reproduced below:--
Rule 23 Certificate of domicile.--The Federal Government, the Provincial Government or any District Magistrate authorized by the Provincial Government in this behalf may on application made to it in this behalf issue a certificate of domicile in Form `P-I in the manner following:--
(a) An application for a certificate of domicile shall be made in Form `P' in duplicate, shall be accompanied by an affidavit affirming the truth of the statement made in it and affirming further that the applicant had not migrated to India after the first day of March 1947 or that, having so migrated, and returned to Pakistan under a permit for resettlement or permanent return issued by an officer authorized by the Government of Pakistan.
(b) Any authority to whom an application is presented may demand such evidence as it may consider necessary for satisfying itself that the facts stated in the application are correct and that the applicant has been continually resident in Pakistan for a period not less than one year and intends to live permanently in Pakistan.
(c) The authority shall pass such orders on the application as it deems fit.
From the bare reading of the above provision, it becomes clear that domicile and citizenship shall represent two different conceptions albeit having mutually overlapping effects. The citizenship would confer rights alongwith corresponding liabilities on the citizen towards the State/Society while a domicile or permanent residence certificate has reference to civil rights and privileges acquired thereunder.
The holders of tribal domicile certificates invariably get preferential treatment in the matters of getting admission in professional colleges or availing of job opportunities because of special concession given to them on the basis of reserved quota, therefore, overridden by greed, unscrupulous persons manage to procure domicile certificates of the tribal areas. This detestable and deceptive phenomenon gave birth to litigation and has been the subject of debate before the Courts of justice in the past.
Generally the domiciles are of two main categories i.e. domicile of country which is called citizenship and of a particular area/district or tribal agency.
A' orB' domicile certificate in these instructions. To channelize the process, the Commissioner FCR Peshawar has vide Letter
No-21979/C dated Peshawar 2-8-1979 addressed to the
Political Agent/District Magistrate given guidelines for grant of domicile certificates. With regard to the tribal areas at page-2 these are as follows:--(1) He (applicant) should be a bona fide member of recognized tribe.
(2) He should be entitled to the tribal allowance paid to the tribe whose membership he claims.
(3) He should be entitled to all profits and bear all losses of his tribe, and
(4) He should share with the tribe territorial and tribal responsibilities.
The sole object behind these instructions was that tribal domicile certificates are to be issued only to eligible tribesmen who are permanent residents of that area, however, we find no reference whatsoever in it to category A' or categoryB' domicile certificate. These instructions refer to the letter of the Home and
Tribal Affairs Department, Government of NWFP No. 5/20-SOPT (HD)/70-Vol.II dated 9-2-1976 and Letter
No. 3170-81/TA/12/316 dated 30th
August, 1958 issued by the Deputy Secretary of erstwhile Government of West Pakistan, Tribal Affairs Department.
The political
Agents at their whims, in addition to the above, without any lawful authority have imposed further conditions categorizing the domicile certificates into
A',B', and C". The additional conditions are undoubtedly in disregard of law and rules on the subject. The law on the subject is clear than crystal.
Once such certificate is issued in due course to tribe man permanently settled in any tribal agency, it shall remain intact unless its holder decides to settle in another place with clear intention not to return to the place of his birth or origin. Only in that eventuality he will loose the right to retain it any more but has to get the same of the new place. The political agents are applying their self-styled and a misconceived formula. They use to issue certificates of categoryA' only to those tribesmen who own property in the tribal area and are member of a tribe which are regularly paid allowance in cash or in kind and bear territorial responsibilities. If such conditions are attached to it as a criteria then those tribesmen who from generation to generation are the permanent residents of the tribal agency would loose their right to get domiciles being landless residents. Such classification is absolutely arbitrary being in violation of constitution, law and rules.
In the case of Government of Baluchistan and others Vs. Rifat Parveen (1981 SCMR 1002) Regulation 18 of the Bolan Medical College through which classification among domiciled candidates was made by prescribing an arbitrary period of 12 years residence for parents of such candidates owing to the apprehension that otherwise unscrupulous persons will manage to obtain false domicile certificates was held by the august Supreme Court as unreasonable, discriminatory and was having no relationship to main classification between local and domiciled candidates thus the Regulation was declared invalid on the above grounds. The principle so laid down is squarely attracted to the subject under discussion.
In law, the term "abode" denotes the place of a man's residence or his business that he may reside elsewhere. The term is quite distinct from domicile', which denotes more than a place of residence. The former is larger in its import thanresidence', which naturally means that he lives or dwells there. The Courts of justice while dealing with the proposition of residence and domicile have also held that both are distinct from each other. The residence is used to indicate the place of dwelling of a man whether on permanent or temporary basis while the term domicile denotes a fixed permanent residence of a man, his temporary absence there-from would not bring about any substantial change with regard to the regular/permanent place of his abode or in other words domicile means the place where a person has his permanent home voluntarily fixed not for temporary but for permanent purposes.
The word "domicile" has been derived from latin word `Domus' meaning a home or a dwelling place and it is the relationship which the law indicates between an individual and a particular locality or a country. Similar view was taken by the Indian Supreme Court in the case of Joshni Vs. MB State (AIR 1955 SC 234).
It would be highly arbitrary and unreasonable to deny such right to landless tribesmen who enjoy equal status and protection of the Constitution and law. They can not be discriminated on the touchstone of ownership of land if otherwise they are permanently domiciled in the tribal area. The additional condition laid down by the Political Agents offends against the strict command contained in Article 25(1) of the Constitution of Islamic Republic of Pakistan, 1973. The classification made on the above yardstick appears to have been based on their own convenience, under the influence of influential and affluent tribesmen. In tribal agencies, considerable number of tribesmen do not own immovable property but by birth are permanent residents/domiciled of those areas for decades with no intention to settle somewhere else. Unless they by their visible conduct or express intention abandon their birth places and settle in another one, their right of domicile of the tribal area can not be taken away.
So far as the other conditions like sharing of losses and profit and sharing territorial responsibility is concerned, those too are unreasonable, arbitrary and in disregard of law thus can not be approved because the provision of Chapter IV of the Frontier Crimes Regulation, 1901 confers ample powers on Political Agents to inflict different types of penalties like heavy fines on failure of a tribe or tribesmen in fulfillment of its territorial or tribal responsibility in case of commission or omission with regard to any offence or the escape of offender etc, therefore, such a condition for obtaining domicile cannot be endorsed being unreasonable, arbitrary and is in contravention of natural human rights. Under the law, every tribe man is entitled to get domicile certificate of the tribal area where he and his tribe is permanently settled. A part that, no further condition of unreasonable nature can be attached to it because in case of denial to grant the certificate, the tribe man would not be able to get domicile certificate of the settled area and his birth right would completely vanish and shall remain at the mercy of whirlwind.
The temporary changing of residence, in view of the growing interaction between different sections of population in the field of business and other spheres of life, has to some extent complicated the subject-matter, therefore, the approach of concerned authorities must be objective, meaningful and logical so that the mischief is suppressed and fundamental rights are preserved. In the fast life of present days majority of tribesmen have got temporary residences, business centers, commercial plazas and other enterprises in the capital of the Province (Peshawar) and other big cities adjoining tribal agencies but they have never severed their permanent ties with their place of birth/permanent residence in the tribal area thus much care is required in determining such delicate issue.
It has been noticed that whenever any crime is committed within the territory of a certain tribe in tribal area, the members of that tribe are chased by the political authorities in the settled area of Peshawar and other districts on the basis of territorial and tribal responsibilities. These tribesmen are arrested and put in prisons and their properties and commercial plazas are invariably sealed. Such actions taken by the Political Agents against the tribesmen who reside temporarily within civic population by itself nullify their claim that because of the change of residence even temporarily, the tribe man comes within category B'. This inconsistent and self clashing approach of the Political Agents is an ample proof of the fact that the categorization made by them intoA', B', andC' is irrational, imprudent, arbitrary, capricious and unreasonable being self devised is, therefore, not sustainable in law.
The crux of the matter thus would be that till the time a tribe man is member of a tribe permanently settled in the tribal area having a permanent abode there with no intention whatsoever to give up the same and to settle somewhere else permanently, he shall be deemed to be domiciled of that area for all legal and practical purposes and no extra condition beyond the parameters laid down by the law can be imposed by the Political Agents of the tribal areas thus, the classification of domicile certificates into the above three categories beside being arbitrary has no sanction of law behind it, therefore, are declared of no legal effect.
In the present case, the appointment order of the petitioners was made subject to verification of their testimonials/domicile certificates earlier issued to them in category "A", however, the subsequent verification inquiry was conducted in a clandestine manner which resulted into cancellation of the said certificates, the action taken seriously offends against the principle of natural justice. The appointment order of the petitioners on PTC posts was equally cancelled on the basis of the same inquiry where neither any show-cause notice was issued to them nor they were given opportunity of hearing or to defend themselves rather the entire process was carried out and completed in a one sided manner which is against all the canons of justice. Apart the above fact, the petitioners were issued even category `A' domicile certificates on the strength of verification made from the elders of their respective tribes thus we are unable to endorse the impugned action because those elders who had earlier verified and supported in writing the domicile of the petitioners have been let scott free as no penal action has been taken against them so far.
The learned DAG was confronted with the above fact but he was helpless to make proper reply and to defend the impugned actions taken by the respondents thus we are of the firm view that the impugned actions taken by the respondents canceling/recalling the domicile certificates of the petitioners on fallacious grounds and then recalling their appointment orders was/is without jurisdiction, without lawful authority, arbitrary and unjustified, therefore, are not sustainable in law. For the above stated reasons, both the impugned orders of the respondents i.e. with regard to cancellation of domicile certificates of the petitioners and recalling/canceling their, appointment orders on PTC posts are set aside. The respondents are directed to reinstate the petitioners on the posts they were holding at the time of passing of the impugned orders, however, the petitioners would not be entitled to claim monthly salary for the period during which they did not practically work against their posts due to the impugned orders but they are held entitled to all other back benefits including seniority etc. Their domicile certificates shall also be restored.
Petition allowed in the above terms.
(M.A.) Petition allowed
PLJ 2008 Peshawar 44
Present: Ijaz-ul-Hassan, J.
NIAZ WARJAN--Petitioner
versus
GUL NAWAZ--Respondent
C.R. No. 911 of 2006, decided on 20.4.2007.
(i) Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. XLI R. 31--Revisional jurisdiction--Concurrent findings of fact non-reading/misreading of evidence--Suit for possession of land on the basis of demarcation proceedings--Allegation of encroachment--Suit land being `Shamilat' was co-owned by the parties--Suit was dismissed by Courts below--Validity--No dispute regarding the legal proposition a co-sharer in possession of a particular area out of joint property was entitled to retain till partition without any interference by other co-sharers was to go for partition--Held: Co-sharer in possession of joint property is not liable to be ousted therefrom except on a partition by metes and bounds taking place between the co-sharers--Further held: Scope of S. 115, CPC is limited, therefore, the concurrent findings on question of fact could not be interfered in revisional jurisdiction unless non-reading and mis-reading of evidence was proved--No illegality or irregularity in the concurrent decisions of Courts below--Revision was dismissed. [P. 46] A & B
PLD 1959 SC 9; PLD 1970 Pesh. 150 & PLD 1989 Pesh. 67, rel.
2006 SCMR 702; 2004 CLC 1345 and NLR 1989 (Civil) 545 Lah. ref.
Mr. Amanullah Khan Khattak, Advocate for Petitioner.
Haji Muhammad Zahir Shah, Advocate for Respondent.
Date of hearing: 20.4.2007.
Judgment
Niaz War Jan plaintiff, brought suit on 26.11.2000 in the Court of Senior Civil Judge, Karak against Gul Nawaz defendant, for possession of suit land claimed to have been found in possession of the defendant in demarcation proceedings vide decision dated 22.8.2000 of Collector Karak. It was averred in the plaint that in view of an application moved by the plaintiff before the Collector Karak, demarcation proceedings in respect of land in suit were carried out and suit land was found to have been encroached upon by the defendant. The defendant was asked time and again to acknowledge the title of the petitioner and surrender the encroached land, but he declined, which necessitated the filing of suit.
The suit was resisted on all grounds, legal as well as factual and claim of the plaintiff was denied. The parties were put to trial on the following issues:--
Whether the plaintiff has got a cause of action?
Whether the suit is incompetent in its present form?
Whether the suit is bad for non-joinder and mis-joinder of parties?
Whether the plaintiff is estopped to sue due to his own conduct?
Whether the plaintiff is entitled to the decree as prayed for?
Relief.
At the conclusion of trial, learned Civil Judge, Karak, seized of the matter, upon consideration of the material placed before him, dismissed the suit, vide judgment and decree dated 17.6.2004. An appeal was preferred thereagainst, which did not succeed. The same was dismissed as `non-maintainable', by learned Additional District Judge, Karak, by his judgment dated 12.6.2006, giving rise to the filing of instant civil revision.
Appearing on behalf of the petitioner, Mr. Amanullah Khan Khattak, Advocate, vehemently contended that both the Courts below have dealt with the matter in cursory manner without application of independent mind and in total disregard to the material on record, which has resulted in complete failure of justice. Additionally, he urged that the appellate Court has not complied with the provisions of Order XLI Rule 31 of CPC and, as such, the judgment and decree of the appellate Court cannot be allowed to remain in tact. To augument the contentions, reliance was placed on Muhammad Sadiq represented by Muhammad Sarwar and others. Vs. Amir Muhammad and others (2006 SCMR 702) and Mahmood Khan Vs. Ilam Din (2004 CLC 1345 Lahore).
Mr. Muhammad Zahir Shah, Advocate, appearing on pre-admission notice, on the other hand, repelled the arguments of learned counsel for the petitioner and supported the impugned judgments and decrees of the Courts below forcefully, maintaining that a concurrent finding of fact recorded by the Courts below cannot be upset by the High Court in exercise of its revisional jurisdiction under Section 115 CPC unless the Courts below while recording the finding of fact have either misread the evidence or ignored any material piece of evidence on record or the finding of fact is perverse to the material on record. In this regard reliance was placed on Mst. Ghulam Sughara vs. Muhammad Ayub Dar (NLR 1989 (civil) 545 Lahore).
It is not denied that suit property is shamilat-e-deh' and respondent Gul Nawaz is one of the co-owners in theshamilat'. There is also no dispute so far as the legal proposition is concerned, that a co-sharer in possession of a particular area out of that property is entitled to retain till partition without any interference on the part of other co-sharers and the remedy of the other co-sharers is to go for partition. The parties are co-sharers and it is well settled that a co-sharer in possession of a joint property is not liable to be ousted therefrom, except on a partition by metes and bounds taking place between the co-sharers Muhammad Mazaffar Khan Vs. Muhammad Yousaf Khan (PLD 1959
S.C. 9), Saadullah Khan and 6 others Vs. Mir Piayo Khan and 14 others (PLD 1970
Peshawar 150) and Isa Khan and 23 others Vs. Barkatullah and 9 others (PLD 1989
Peshawar 67). Adverting to the objection regarding non-compliance of the provisions of Order XLI Rule 31 CPC, learned Court has not been able to advance convincing argument in respect thereof. This objection is repelled. Attending to the last submission regarding non-reading and misreading of evidence on record, it needs no reiteration that the scope of Section 115 CPC is limited and, as such, this Court cannot interfere in its revisional jurisdiction with the concurrent findings on a question of fact rendered by the two Courts below unless it finds misreading and non-reading of evidence therein. Since the learned counsel has not been able to point out any illegality or irregularity in the decisions concurrently arrived at by the forums below, justifying interference of this Court in its revisional jurisdiction, the civil revision fails which is hereby dismissed, with no order as to costs.
(M.A.) Revision dismissed
PLJ 2008 Peshawar 47
Present: Ijaz-ul-Hassan, J.
KHAN KHEL and others--Petitioners
versus
HAJI NASIR--Respondent
C.R. No. 1142 of 2004, decided on 22.1.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115, O. V, R. 20 & O. IX, R. 13--Revisional jurisdiction--Essentials--Suit for possession through pre-emption--Ex-parte decree--Non-appearance of the respondent/defendant--During execution proceedings, the respondent filed application for setting ex-parte decree, but the same was dismissed by the trial Court--Assailed--Case was remanded with direction to record evidence before deciding the application filed under O. 9, Rule 13 of CPC--Challenged through Civil Revision--Validity--Summons were issued to the defendant and returned unserved--Respondent had neither been served through ordinary manner, registered A.D or through publication in newspaper and affixation of notice on his house, contain force--Held: Service under Rule 20, could only be ordered conditions warranting it existed and provisions of Rule 20 were strictly complied with; meaning thereby that unless all efforts to effect service in the ordinary manner were verified to have failed, substituted service could not be resorted to--Where the circumstances in which the substituted service was effected, were demonstrably false, the service would be void--Service of the respondent had not been proved satisfactory, therefore, the impugned order was perfect and not open to legitimate exception--Revision dismissed. [Pp. 49 & 50] A & B
2001 SCMR 99 and 1995 CLC 1346 distinguished.
S.M. Attique Shah, Advocate for Petitioners.
Mr. Abdus Samad Khan, Advocate for Respondent.
Date of hearing: 1.12.2006.
Judgment
Khan Khel, petitioner (since dead and represented by his legal heirs Mst. Sultana, widow and Khan Siddique, son), had instituted suit on 17.1.1996 against Haji Nasir Khan, defendant, seeking possession through pre-emption of suit land detailed in the plaint. The defendant did not appear in Court and suit was decreed exparte by order dated 9.7.1996. In pursuance thereof Mutation No. 6164 was attested on 7.10.1997 in favour of the petitioner. During the execution proceedings, Haji Nasir respondent on 4.2.2003 moved an application for setting aside exparte decree. The application, having been contested was dismissed by order dated 16.9.2003 by learned Senior Civil Judge, Charsadda. An appeal was preferred thereagainst, before learned District Judge, Charsadda. The appeal was accepted by judgment dated 19.7.2004. Order of the trial Court was set aside and case was remanded back to the Court below with the observation:--
"Keeping in view the above facts and circumstances of the case, I hold that the trial Court had decided the application in a cursory manner and no opportunity was given to the petitioner to produce any evidence to substantiate his contention. Thus the present appeal is accepted and the impugned order is set aside and case is remanded back to the trial Court with the direction to record the evidence before giving any order on the application for setting aside exparte decree."
The petitioner, feeling aggrieved thereby, has filed instant civil revision which is before me for consideration.
Appearing on behalf of the petitioner S.M. Attique Shah, Advocate, vehemently contended that impugned order of appellate Court has been recorded in a mechanical manner without application of independent judicial mind; that the material available on the record has not been appreciated in its true perspective; that time-barred application of respondent for setting aside exparte decree has been given undue weight, and that respondent was fully aware of the suit pending against him and he deliberately avoided to appear in Court and answer claim of the plaintiff and thus learned appellate Court had no justifiable reason to accept appeal and unsettle the well reasoned order of the trial Court. To substantiate the contentions, reliance was placed on Mst. Nargis Latif Vs. Mrs. Feroz Afaq Ahmed Khan (2001 SCMR 99) and Metropolitan Steel Corporation Vs. Federation of Pakistan through Secretary, Ministry of Finance, Islamabad and 3 others (1995 CLC 1346).
Mr. Abdul Sattar Khan, Advocate, representing the respondent, on the other hand, refuted the arguments advanced by learned counsel for the petitioner and supported the impugned judgment whole-heartedly.
A perusal of the record would reveal that suit was filed on 17.1.1996. Summons was issued to defendant for 15.2.1996 which was returned un-served. Subsequently, summons were issued on 12.3.1996, 3.4.1996 and. 6.5.1996 respectively which were either returned un-served or not returned. However, vide order dated 12.6.1996 respondent was served through substituted means by affixation of notices on his house and vide order-sheet dated 9.7.1996, exparte proceedings, culminating in exparte decree, were initiated. It has been contended with justification by learned counsel for the respondent that requirement of Order-5 Rule 20 CPC had not been complied with and respondent has neither been served through ordinary manner, registered A.D. or through publication in newspaper and affixation of notice on his house. In order to appreciate the contention of learned counsel, Order-5 Rule-20 CPC is reproduced below:--
Substituted service. (1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order for service of summons by.
(a) affixing a copy of the summons at some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain; or
(b) any electronic device of communication which may include telegram, telephone, phonogram, telex, fax, radio and television' or
(c) urgent mail service or public courier services' or
(d) beat of drum in the locality where the defendant reside; or
(e) publication in press; or
(f) any other manner or mode as it may think fit;
Provided that the Court may order the use of all, or any of the aforesaid manners and modes of service simultaneously.
Effect of substituted service.--(2) Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.
Where service substituted time for appearance to be fixed,--(3) Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require, which shall not ordinarily exceed fifteen days."
Where the defendant evades service or cannot be served in the ordinary way or refuses to accept service, or has not been heard of for a long time and the service cannot be effected in the ordinary manner, the Court if it is satisfied of the same can order substituted service under Rule-20. It can only be ordered when conditions warranting it exist and the provisions of Rule 20 are strictly complied with. Irregularities in this behalf will be of no consequence when the defendant waives proper notice. Unless all efforts to effect service in the ordinary manner are verified to have failed, substituted service cannot be resorted to. Where the circumstances in which the substituted service was effected are demonstrably false, the service will be void. In the instant case, there is nothing on the file to suggest that respondent had knowledge of the suit but he deliberately avoided to appear in Court for reasons best known to him. The service of the respondent has not been proved satisfactorily. The impugned order is perfect and not open to legitimate exception. The case law cited on behalf of the petitioner is distinguishable and speaks of the different situation. It does not promote the case of the petitioner in any manner. The civil revision is bereft of merits. The same is dismissed with no order as to costs.
(M.A.) Revision dismissed
PLJ 2008 Peshawar 50
Present: Ijaz-ul-Hassan, J.
NOOR ALI--Petitioner
versus
Mst. FOLADAI and others--Respondents
C.R. No. 1328 of 2006, decided on 16.1.2007.
(i) Administration of Law--
----Plaintiff has to prove his case from his own evidence and cannot benefit from the weaknesses in the defendant's case--Whoever, desires any Court to give judgment as to any legal right or liability dependent on existence of facts, which he asserts, must prove that those facts exist--Judgments of Courts below are neither tainted with any illegality or irregularity nor are fanciful or arbitrary, thus no interference is called for by High Court. [Pp. 51 & 52] A & B
(ii) Jurisdiction--
----Trial Court has exercised jurisdiction which is upheld by First Appellate Court--High Court seldom interferes unless and until the discretion is exercised arbitrarily. [P. 52] C
(iii) Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Jurisdiction--Concurrent findings--Suit for declaration--Inherited property--Contentions--Violation of parameters--Without inherent informity or legal and jurisdiction error--No error of law--High Court has very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under Section 115, CPC unless and until judgments of Courts below are result of misreading or non-reading of evidence or decision of the case is in violation of parameters prescribed by the superior Courts--Held: No error of law having been pointed--No merit in revision petition or jurisdiction to interfere with the concurrent finding of fact, which do not suffer from any inherent infirmity or legal and jurisdiction error--Revision dismissed. [P. 52] D & E
Mr. Abdul Latif Afridi, Advocate for Petitioner.
Date of hearing: 16.1.2007.
Order
Noor Ali and others, plaintiffs, instituted suit against Mst. Foladai and others, defendants, for a declaration to the effect that plaintiffs were owners in possession of suit property, having inherited the same from their predecessor-in-interest late Mian Khan and entries in the revenue record adverse to the interest of the plaintiffs, were illegal, void, fraudulent and liable to rectification. The plaintiffs also prayed for issuance of permanent injunction restraining the defendants to alienate or transfer the suit property in any manner. The plaintiffs further prayed for possession of suit property in case they were not found in possession of the same.
The suit was resisted by Defendant Nos. 1 to 8 on all grounds, legal as well as factual. Relevant issues, arising out of the divergent pleadings of the parties, were formulated and after recording such evidence as the parties wished to adduce in support of their respective contentions, learned Civil Judge/Illaqa Qazi, District Buner, dismissed the suit by judgment and decree dated 23.12.2004. An appeal was preferred thereagainst, which did not succeed. The same was dismissed by learned Additional District Judge, Buner at Daggar, by judgment dated 27.7.2006. The plaintiffs, feeling aggrieved, have filed the present civil revision, which is before me for adjudication.
Learned counsel for the petitioner mainly contended that impugned judgments and decrees of the Courts below are the result of misreading and non-reading of evidence on file and both the Courts have failed to exercise jurisdiction vested in them and thus have arrived at wrong conclusion. The learned counsel reiterated that sufficient material was available on the file to substantiate the petitioner's claim, which has been put at shelf and ignored without any justifiable reason, which has resulted in complete failure of justice. Concluding the arguments, the learned counsel contended that the impugned judgments and decrees suffer from material irregularities. The Khasra numbers of property in dispute and the one given in the so-called sale-deeds have not been determined, for which a local commission should have been appointed.
It is established principle of civil law that the plaintiff has to prove his case from his own evidence and cannot benefit from the weaknesses in the defendant's case. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist. Both the Courts below have given exhaustive judgments after due appraisal of evidence on the file and after discussing all the prons and cons of the case. There appears to be no legal defect in their judgments, which are in consonance with the evidence on the file. Judgments of the Courts below are neither tainted with any illegality or irregularity nor are fanciful or arbitrary, thus for the reasons discussed above, no interference is called for by this Court.
It is well settled principle of law that in case the trial Court has exercised jurisdiction which is upheld by the First Appellate Court, this Court seldom interferes unless and until the discretion is exercised arbitrarily. It is also settled principle of law that this Court has very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under Section 115 CPC unless and until judgments of the Courts below are result of misreading or non-reading of evidence or decision of the case is in violation, of parameters, prescribed by the superior Courts. The Courts below have property appreciated the evidence available on record and I have not been able to find out any misreading/non-reading of evidence or any material irregularity or any jurisdictional error or defect warranting interference in the concurrent findings of the Court of competent jurisdiction. Abdur Rahim and another Vs. Mst. Jantay Bibi and others (2000 SCMR 346), Haji Noor Vs. Abdul Ghani and 2 others (2000 SCMR 329), Haji Muhammad Din Vs. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rashid Ahmad Vs. Muhammad Siddique (PLD 2002 SC 293).
For what has been stated above, no error of law having been pointed, I find no merit in this revision petition or justification to interfere with the concurrent findings of fact, which do not suffer from any inherent infirmity or legal and jurisdictional error. The civil revision is without substance. The same is dismissed in limine.
(N.F.) Revision dismissed
PLJ 2008 Peshawar 52
Present: Ijaz-ul-Hassan, J.
MUHAMMAD AYUB--Petitioner
versus
IFTIKHAR AHMAD QURESHI, RETURNING OFFICER FOR THE SENATE ELECTIONS 2006 FATA and 9 others--Respondents
Election Petition No. 1 of 2006, decided on 9.7.2007.
Senate Election Act, 1975
----Ss. 34 & 47--Constitution of Pakistan, 1973, Art. 62--Constitutional petition--Disqualification to contest the election--Not less than 30 years of age--Date of birth correctly in his original identity card--Determination of age--Documentory evidence--Dates of birth mentioned in NADRA record is not conclusive evidence of actual date of birth--When NADRA itself does not claim the correctness of date of birth recorded in the identity card, then Tribunal is left with the only authentic evidence, which is father of respondent, who has narrated not the date of birth of respondent but also date of birth of his other children--Contention of counsel for petitioner that extracts of Diary having come from an independent source, cannot be relied upon to determine age of respondent, is not tenable--Respondent in order to procure the qualification and to conceal his disqualification has managed to prepare the forged, fabricated new identity card carrying same number, but with a different date of birth, is equally without substance--At the time of filing of nomination papers, respondent was not less than 30 years of age, was qualified to contest the election and did not suffer disqualification in terms of Art. 62 of Constitution of Pakistan, 1973 and Senate (Election) Act, 1975--Petition was dismissed. [P. 57] A
Malik Qamar Afzal, Advocate for Petitioner.
Qazi Muhammad Anwar, Advocate for Respondent No. 2.
Mr. Iltaf Ahmad, Advocate for Respondent No. 3.
Date of hearing: 2.7.2007.
Judgment
Shortly narrated the facts, leading to the filing of the present Election Petition, are that Hafiz Rashid Ahmad, Respondent No.2, (hereinafter referred to as the respondent), contested the election of year 2006 for the membership of the Senate of Pakistan, on General Seat from the Constituency of Federally Administered Tribal Area. As a pre-requisite to the election process, the respondent furnished his particulars alongwith his nomination papers. Alongwith his nomination, respondent submitted his Identity Card, Bearing No. 17101-1023876-9 and after the initial scrutiny contested the election and has been declared as a returned candidate. Consequent thereto the Election Commission of Pakistan issued the notification thereby notifying the respondent as the returned candidate.
Muhammad Ayub, petitioner, one of the rival candidates, feeling discontended, has filed instant Election Petition under Section 34 read with Section 47 of the Senate (Election) Act, 1975, (hereinafter referred to as Act), before the Hon'ble Chief Election Commissioner, which was entrusted to this Tribunal for trial and disposal in accordance with law. It was alleged in the petition that at the time of filing of the nomination papers, respondent was less than 30 years of age and, as such, was not eligible to contest election in view of the bar contained in Article 62 of the Constitution of Islamic Republic of Pakistan, 1973 and the Senate (Election) Act, 1975. It was also pleaded that respondent has Identity Card of the NADRA and the NADRA in its record, carried his date of birth as 28.9.1977 and according to this entry, respondent is of far less than 30 years of age. The respondent in order to procure the qualification and to conceal his disqualification has managed to prepare a forged, fabricated new I.D. card carrying the same number, but with a different date of birth. It was asserted that the election of the returned candidate i.e. respondent as Senator is void and consequent upon declaration his election as void, the petitioner be declared as duly elected Senator.
The respondent filed written statement and he besides raising legal objections and controverting the contents of the petition, maintained that at the time of filing of the nomination papers, he was not less than 30 years of age and was eligible and qualified to contest the election.
This Tribunal on 11.9.2006, framed the following preliminary issue for trial:--
"Whether on the date of nomination the respondent was qualified/eligible to contest the election for office of the Senate of Pakistan from FATA."
In evidence, the petitioner appeared as (PW2) and he produced Shaukat Ali, Assistant Director NADRA, Peshawar as (PW1). In rebuttal, the solitary statement of Maulana Ghulam Muhammad Sadiq, MNA, father of respondent was recorded as (RW1). Documentary evidence was also produced.
Malik Qamar Afzal Advocate, appearing on behalf of the petitioner, contended which vehemence that one day of filing of the nomination papers i.e. 11.2.2006, respondent was less than 30 years of age and he was not qualified to contest the election in view of the bar contained in Article 62 of the Constitution of the Islamic Republic of Pakistan, 1973 and the Senate (Election) Act, 1975, prescribing the qualification and disqualification to contest the election as Senator. The learned counsel submitted that respondent intentionally used redundant I.D. card issued to him on 29.4.2004 and not used the new I.D. card issued to him on 29.10.2005, for reasons not far to seek. The learned counsel also contended that respondent gave a false declaration on oath under Section 11 (2) of the Senate (Election) Act, 1975 to the effect that he was qualified to contest the election of Senate and, as such, committed an act of forgery and fraud upon the authority. Concluding the arguments, learned counsel reiterated that election of the respondent as Senator is void and on consequent upon declaration of respondent's election as void, petitioner be declared as newly elected Senator. To augment the contentions, reliance was placed on Bakhtawar etc. Vs. Amin etc. 1980 SCMR (89-(b), Sarli Gul Vs. Fayyaz Ahmed and others (PLD 2004 SC 485), Abdul Khaliq and another Vs. Maulvi Muhammad Noor and others (PLD 2005 SC 962 (d), Mst. Razia Khatoon through legal heirs Vs. Dr. Roshan H. Nanji and another (1991 SCMR 840 (b) (I.D. card), Tehmash Khan and another Vs. Gohar Ali and 13 others (PLD 2004 Peshawar-202 (age of candidate would be determined on the day of filing of nomination papers, Syed Akhtar Hussain Zaidi Vs. Muhammad Yaqinuddin (1988 SCMR 753), Mst. Razia Khatoon through Legal Hiers Vs. Dr. Roshan H. Nanji and another (1991 SCMR 840), Zulfiqar Ali Vs. Haji Kamal Hussain and 27 others (1995 CLC 1383, Naheed Usmani Vs. Mst. Anwari Begum (1991 CLC 1774), and Master Muhammad Yuseen VS. Moeenuddin (1990 CLC 703).
Qazi Muhammad Anwar Advocate, learned counsel for the respondent, on the other hand, rebutted the arguments of learned counsel for the petitioner and submitted, that at the time of filing of the nomination papers on 11.2.2006, respondent was not less than 30 years of age and was eligible to contest the election; that neither entry in the educational certificates nor in the Identity Cards is conclusive evidence of date of birth and that petitioner was estopped to question the election of respondent as petitioner has at no stage raised any objection on the nomination papers of respondent and it is only after his defeat that he has filed the petition, which merits outright dismissal. To substantiate the contentions, reliance was placed on:--
(i) Nath Roy and others Vs. Jyotish Chandra Acharya Chowdhury (A.I.R. 1941 Calcutta 41).
(ii) Muhammad Nawaz Khan Vs. The Collector District Gujran-wala and another (PLD 1960 (W.P.) Lahore 1123 and.
(iii) Haji Khizar Hayat VS. Sarfaraz Khan and another (PLD 1968 Lahore 381).
I have heard arguments of learned counsel for the parties, in the light of the material on record and the case law cited at the bar. I have also perused the arguments in writing submitted by learned counsel for the parties in support of their respective stances. I proceed to decide the issue against the petitioner for reasons to follow, holding that at the time of filing of the nomination papers answering respondent Hafiz Rashid Ahmad was not less than 30 years of age and was qualified to contest the election.
A perusal of the record would reveal that the date of birth of respondent is 30.7.1975 and the same has been correctly mentioned in column of date of birth in the nomination papers annexed by the petitioner with his Election Petition. The law has only required declaration of date of birth in the nomination papers and there is no requirement of proving the date of birth at the time of filing of nomination papers through Identity Card or School certificate or other evidence. It may be pertinently mentioned here that before nomination day, respondent got published public notice that he was born in 1975 and not 1977 and the same public notice was published by Daily `Pakistan' on 8.2.2006. Besides above, respondent filed Civil Suit No. 16/1 of 2006 in the Court of Senior Civil Judge, Charsadda on 10.2.2006, seeking declaration and permanent injunction that his date of birth is 30.7.2005, which has been correctly mentioned in his original Identity Card and also computerized Identity Card dated 29.4.2004 and that his date of birth in the Identity Card dated 29.10.2005 has been wrongly mentioned as 28.9.1977 and for permanent injunction that his date of birth be corrected as 30.7.1975 in the Identity Card as well as in the educational certificates. Alongwith suit, respondent filed application dated 10.2.2006 for status quo that his date of birth be treated as 30.7.1975 and not 28.9.1977. The Senior Civil Judge, Charsadda, vide order dated 10.2.2006, directed maintenance of status quo in terms of application. In the said suit NADRA was arrayed as defendant No.3. NADRA did not contest the suit and resultantly, suit was decreed by the Senior Civil Judge, Charsadda, by judgment dated 21.4.2006. It may be noted here that judgment and decree of Senior Civil Judge, Charsadda has not been questioned either by the petitioner or by NADRA. It is evident from the contents of the decree dated 21.4.2006 that respondent has attained the age of 30 years before the target date and the same having been not assailed in the appropriate proceedings was still holding the field. The validity of the decree passed by the Civil Court neither could be challenged before the election tribunal nor the same could be ignored to be given legal effect and thus I am of the view that so long as the decree of the Civil Court, determining the age of respondent on the date of filing of nomination papers was intact, the objection that he was less than of 30 years of age on the date of filing of nomination papers could not be raised to contend that he was suffering from disqualification the age to contest the election. In this view of the matter I am fortified by the observations made in Atique Rehman vs. Haji Khan Afzal and others (2007 SCMR 507).
During the trial, Maulana Ghulam Muhammad Sadiq, MNA, father of the respondent was examined as RW1, who filed affidavit before the Tribunal, not only disclosing the date of birth of respondent as 30.7.1975, but in the affidavit, he has mentioned date of birth of respondent, who is his first son and has recorded in his own hand writing in the Diary of 1975 as 30.7.1975. This witness has not only made statement before the Tribunal about the birth of respondent on 30.7.1975 but also produced documentary evidence in form of his writing on the diary of 1975. This writing has not been questioned. The witness was subjected to lengthy and searching cross examination but nothing could be elicited favourable to the petitioner. His testimony inspires confidence and deserves credence. In Civil Appeal No. 50 of 1987, titled Nawabzada Salhuddin Vs. Begum
Fakharuzzman Khan etc, the Supreme Court relied on a diary of a family friend in respect of date of birth of Nawabzada Salahuddin against the date of birth in Burn Hall Abbottabad, Edwards College, Peshawar and in this judgment the
Court went to the extent that statement ofMirasee' and Barbar can be given credit over school certificate or entry in the National Identity Card, because they have first information. The petitioner has not produced any evidence in respect of actual date of birth of respondent. The only evidence, which he has produced is NADRA record, where in the earlier two Identity Cards, the date of birth of respondent was recorded as 30.7.1975 and that in 2005 on his own application, it was changed to 28.9.1977, which was again corrected in compliance of the decree of the Court as 30.7.1975.
The law declared by the superior Courts is that neither entry in the educational certificates nor in the identity card is conclusive evidence of date of birth. Shaukat Ali (PW1) Assistant Director NADRA himself admits the date of birth mentioned in the NADRA record is not conclusive evidence of actual date of birth. When NADRA itself does not claim the correctness of date of birth recorded in the Identity Card, then the Tribunal is left with the only authentic evidence, which is Maulana Ghulam Muhammad Sadiq, MNA, father of respondent, who has narrated not the date of birth of respondent but also the date of birth of his other children. The contention of learned counsel for the petitioner that extracts of the Diary having come from an independent source, cannot be relied upon to determine age of the respondent, is not tenable.
The submission of learned counsel that respondent in order to procure the qualification and to conceal his disqualification has managed to prepare the forge, fabricated new Identity Card carrying the same number, but with a different date of birth, is equally without substance. The mere assertion of the learned counsel in this regard, without a positive attempt on his part to substantiate the same, is of no consequence.
In view of what has gone above, it follows that at the relevant time i.e. at the time of filing of the nomination papers on 10.2.2006, respondent was not less than 30 years of age, was qualified to contest the election and did not suffer disqualification in terms of Article 62 of the Constitution of Islamic Republic of Pakistan, 1973 and Senate (Election) Act, 1975. The petition, having been found bereft of merit, is dismissed, with no order as to costs.
(N.F.) Petition dismissed
PLJ 2008 Peshawar 58 (DB)
Present: Hamid Farooq Durrani and (Deciperable), JJ.
Haji ALI ZAMAN--Petitioner
versus
ABDUL KHALIQ and 2 others--Respondents
W.P. No. 220 of 2006, decided on 2.2.2007.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13--Constitution of Pakistan, 1973, Art. 199--Application for ejectment on the ground of personal need--Default in payment of rent--Case was remanded by First Appellate Court--Assailed--Question of title--Relationship of landlord and tenant was admitted--Jurisdiction--Validity--Controversy--Appellate Court was not within its jurisdiction to have remanded the matter to the Rent Controller with observation for re-opening the controversy between the parties regarding the issue of a alleged defect in title of petitioner in respect of disputed property--Once relationship of landlord and tenant was admitted by respondent, he could not question the title of landlord/petitioner without first surrendering the possession of disputed premises in favour of landlord--Appellate Court, should have proceeded to decide the appeal on merits instead of passing a remand order--Petition allowed. [Pp. 60 & 61] A & B
Mr. Sajjad Ahmad Assari, Advocate for Petitioner.
Mr. M. Shafique Awan, Advocate for Respondents.
Date of hearing: 2.2.2007.
Judgment
Hamid Farooq Durrani, J.--This Constitution petition arises out of a remand order passed on 19.4.2006 by the learned Additional District Judge, Abbottabad in Rent Appeal No. 01/RC of 2006. The learned appellate Court, while deciding the matter observed that the Rent Controller ought to have determined "whether disputed shops fell within the sphere of ownership of respondent (landlord) as a purchaser from one Mst. Bilquees or the said ownership vested in the Central Government. In the wake of the above, the Rent Controller should have discussed the issues relating to estoppel, incompetence and relationship of landlord and tenant".
The facts relevant for the purpose of petition in hand are that the petitioner filed an application for ejectment of Respondent No. 1 from the shop situated near Karimpura Masjid, Link Road, Abbottabad on the ground of personal need for the use and occupation of son of the petitioner. The default in payment of rent by the respondent was also taken as a ground in the said ejectment petition. The respondent joined the proceedings by filing his written reply wherein the relationship of landlord and tenant between the parties was duly admitted. It was, however, refuted that respondent was a defaulter of rent. It was claimed that the respondent had paid a sum of Rs. 20,000/- as security to the previous owner. The respondent further averred that the petitioner, in addition to the property in dispute, owned other considerable property which could be vacated for the personal need of the petitioner and that the petition against the respondent was mala fide with the sole purpose to have the monthly rent enhanced.
It was on 29.5.2003 that the learned Rent Controller, on allowing the ejectment petition, ordered the eviction of the Respondent No. 1 from the shop in dispute. The Respondent No. 1, aggrieved from the order of his ejectment, filed an appeal which was allowed by the learned Additional District Judge, Abbottabad on 4.5.2004 and the matter was remanded to the learned Rent Controller for deciding it afresh. In view of the learned Appellate Court the impugned order was a non-speaking one.
During post remand proceedings the Respondent No. 1, on 7.10.2004, submitted an application before the learned Rent Controller for consigning the ejectment petition without taking further proceeding on the ground that the Deputy Settlement Commissioner, Abbottabad, had issued notice to the Respondent No. 1 whereby required the letter not to pay/tender rent of the disputed shop to any person as the land underneath the disputed shop was owned by the Central Government. It was further revealed through the said notice that an inquiry was in progress regarding the said fact. The Respondent No. 1 also stated in the application that the ownership of the petitioner regarding the shop in dispute, had become under question therefore, the ejectment proceedings against the Respondent No. 1 had to be consigned. The said application was, however, dismissed by the learned Rent Controller on 18.1.2005. Aggrieved from the order of dismissal, the Respondent No. 1 filed an appeal which met the same fate and was declined on 5.7.2007. On 29.11.2005, the Respondent No. 1 repeated similar application, however, with a different prayer in terms of permission for amendment in his written reply filed in response to the ejectment petition on 1.7.2002. The grounds taken in the said application were almost verbatim to those mentioned in previous application which already stood dismissed. The later application for amendment of pleading was also disallowed on 21.2.2006, through a separate order while deciding the ejectment petition in favour of the petitioner. An appeal against the ejectment order was filed which resulted in the order impugned through the writ petition in hand.
Learned counsel for the parties heard and available record including written statement filed by Respondent No. 1, perused.
It is noticeable that the application for consignment of the ejectment petition was filed by Respondent No. 1 during the proceedings as entertained by the learned Rent Controller against him wherein the relationship of landlord and tenant was duly and unequivocally admitted by the Respondent No. 1. The said application was rejected through a reasoned order passed by the learned Rent Controller and was affirmed by the learned Appellate Court. A similar exercise was under taken by the respondent again at the fag end of the trial in ejectment petition wherein an amendment of his written reply was sought. The record shows that the amendment so sought was pressed on the strength of the notice by the Deputy Settlement Commissioner Abbottabad indicating the claim of the Central Government in respect of property in dispute. The contents of said notice transpired that the alleged dispute was between the petitioner and the Settlement Authorities. It is pertinent to note that the order passed by DDO/(R&E) Abbottabad in that regard was set aside by the Appellate Authority in due course. The said notice and the ensuing proceedings, therefore, did not affect the rights and obligations of Respondent No. 1 in his capacity as a tenant of the petitioner in disputed property. Besides, the matter agitated before the Rent Controller was finally set at rest by the appellate Court on 5.7.2005. The same could not have been re-agitated at the stage of conclusion of the ejectment proceedings. It also did not lie in the mouth of Respondent No. 1 to reprobate his relationship of a tenant towards the petitioner.
The record divulges that there was ample evidence before the learned Appellate Court while passing the impugned order in appeal. That Appellate Court was not within its jurisdiction to have remanded the matter to the Rent Controller with the observations for re-opening the controversy between the parties regarding the issue of alleged defect in the title of petitioner in respect of disputed property. Once the relationship of landlord and tenant was admitted by Respondent No. 1, he could not question the title of the landlord/petitioner without first surrendering the possession of the disputed premises in favour of the landlord. Reliance in this regard is placed on a judgment reported as PLD 1992 Supreme Court 401. The learned Appellate Court, in the circumstances, should have proceeded to decide the appeal on merits of the case instead of passing a remand order.
In the light of the above we are constrained to allow the petition in hand and to hold that the impugned order/judgment dated 19.4.2006 passed by the learned Addl. District Judge(1), Abbottabad is without lawful authority and of no legal effect. The same is set aide with the observations that the learned Appellate Court should proceed with the appeal and decide the same on its merits canvassing the entire controversy between the parties while keeping in view the contents of instant judgment.
(N.F.) Appeal allowed.
PLJ 2008 Peshawar 61
Present: Ijaz-ul-Hassan, J.
ALI RAHMAN--Petitioner/Plaintiff
versus
GOVERNMENT OF NWFP through Home Secretary--Respondent/Defendant
C.R. No. 953 of 2006, decided 12.1.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Suit for declaration--By virtue of inheritance--Defendants also filed a civil suit--Trial Court framed issues on the basis of divergent pleadings and the suits were dismissed--Appeal was also failed--Civil revision--Concurrent findings--Appreciation of evidence--Jurisdiction of High Court--In condition of misreading of evidence--Violation of parameters prescribed by the Superior Courts--Miscarriage of justice--No error of law having been pointed--Discretion was exercised arbitrarily--High Court has very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under S. 115, CPC unless and until judgments of the Courts below are result of misreading or non-reading of evidence or decision of the case is in violation of parameters prescribed by the Superior Courts--Held: High Court has not been able to find out any misreading/non-reading of evidence or any material irregularity or any jurisdictional error or defect warranting interference in the concurrent findings of the Courts of competent jurisdiction--Revision dismissed.
[Pp. 63 & 64] C
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Trial Court framed issues on the ground of divergent pleadings and were dismissed--Appeal was also dismissed--Civil revision--Legal right or liability dependent on existence of facts--Onus to prove--Discretion was exercised--Petitioner has to prove his case from his own evidence and cannot benefit from the weaknesses in the defendant's case--Whoever, desires any Court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that such facts exist--Held: Trial Court has exercised jurisdiction which is upheld by First Appellate Court--High Court seldom interferes unless and until the discretion was exercised arbitrary--Revision dismissed. [Pp. 63 & 64] A & B
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 31--Elaborate findings--Self evident and self-explanatory--Objection was misconceived--Justification to interfere--Legal and jurisdictional error--Validity--Compliance of requirements--It must to self-evident and self-explanatory in other words it must contain reasons should be such that disinterested reader can find then convincing at least reasonable--Held: All legal formalities have been duly complied with and no prejudice seems to have been caused to the petitioner--Appellate Court has given elaborate findings on each and every point--Objection raised by counsel was misconceived--Revision dismissed. [P. 64] D
Mr. Khan Bahadur Khattak, Advocate for Petitioner.
Ex-parte for Respondent.
Date of hearing: 12.1.2007.
Judgment
Shortly narrated the facts relevant for the disposal of instant civil revision are, that Ali Rehman, plaintiff instituted suit against Government of NWFP, through Secretary Home and others, defendants, for a declaration to the effect that plaintiff was owner in possession of suit land, detailed in the plaint, by virtue of inheritance and defendants had no justification to deny title of the plaintiff and assert their own. In the alternative, possession of suit land was also sought. The defendants also filed civil suit. Both the suits were consolidated. The learned trial judge on the basis of the divergent pleadings of the parties, framed as many as 13 issues and Issues Nos. 1, 5 and 7 to 12 being pivotal to the decision of the matter are being reproduced below:
After close of evidence of the parties and as a result of findings on the aforesaid issues, both the suits were dismissed by judgment and decree dated 30.9.2005. An appeal was preferred thereagainst, which did not succeed. The same was dismissed by learned Additional District Judge/Izafi Zilla Qazi, Swat, by judgment dated 9.6.2006, giving rise to the filing of instant civil revision under Section 115 CPC.
Mr. Khan Bahadar Khattak, Advocate appearing on behalf of the petitioner, vehemently contended that both the Courts below have incorrectly dismissed suit of the plaintiff-petitioner out of mis-reading the evidence on the file, thus the judgment being contrary to the record and law and tainted with illegality and irregularity as envisaged by Section 115 CPC, are not sustainable at law. Additionally, it was urged, that provisions of Order 41, Rule 31 CPC have not been complied with by the Appellate Court, which has resulted in complete miscarriage of justice. Concluding the arguments, it was reiterated that ex-ruler of Swat had no interest in suit land and decision (Ex. DW.4/1) of Federal Land Commission was in respect of some other property having no nexus with suit land.
It may be noted here that no one appeared on behalf of the defendants despite service and thus they were proceeded ex parte.
It is established principle of civil law that the petitioner has to prove his case from his own evidence and cannot benefit from the weaknesses in the defendant's case. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exists. The onus to prove Issue N os. 1, 5 and 7 to 12, was heavily placed on the shoulders of the petitioner, but he has failed to discharge the same by producing cogent and independent evidence. The evidence produced by him is discrepant and cannot be considered sufficient to sustain his clam. Both the Courts below have given exhaustive judgments after due appraisal of evidence on the file and after discussing all the prons and cons of the case. There appears to be no legal defect in their judgments, which are in consonance with the evidence on the file. Judgments of the Courts below are neither tainted with any illegality or irregularity nor are fanciful or arbitrary, thus for the reasons discussed above, no interference is called for by this Court.
It is well settled principle of law that in case the trial Court has exercised jurisdiction which is upheld by the First Appellate Court, this Court seldom interferes unless and until the discretion is exercised arbitrarily. It is also settled principle of law that this Court has very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under Section 115 CPC unless and until judgments of the Courts below are result of mis-reading or non-reading of evidence or decision of the case is in violation of parameters prescribed by the Superior Courts. the Courts below have property appreciated the evidence available on record and I have not been able to find out any mis-reading/non-reading of evidence or any material irregularity or any jurisdictional error or defect warranting interference in the concurrent findings of the Court of competent jurisdiction. Abdur Rahim and another vs. Mst. Jantay Bibi and others (2000 SCMR 346), Haji Noor vs. Abdul Ghani and 2 others (200 SCMR 329, Haji Muhammad Din vs. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rashid Ahmad, vs. Muhammad Siddique (PLD 2002 SC 293).
Reverting to the other objection raised on behalf of the petitioner regarding non-compliance of the requirements of Order XLI, Rule 31 CPC, no doubt, it is true that the characteristics of a good judgment is that it must be self-evident and self-explanatory, in other words, it must contain reasons that justify conclusions arrived at and these reasons should be such that a disinterested reader can find them convincing at least reasonable. In the instant case all the legal formalities have been duly complied with and no prejudice seems to have been caused to the petitioner. The learned Appellate Court has given elaborate findings on each and every point. The judgment of the Appellate Court has been recorded keeping in view the provisions contained in Order XLI, Rule 31 CPC. The objection of the learned counsel is misconceived.
For the aforesaid facts and reasons, no error of law having been pointed, I find no merit in this revision petition or justification to interfere with the concurrent findings of fact, which do not suffer from any inherent infirmity or legal and jurisdictional error. The revision petition is bereft of substance. The same is dismissed, with no order as to costs.
(N.F.) Revision dismissed.
PLJ 2008 Peshawar 64
Present: Ijaz-ul-Hassan, J.
UMAR HAYAT and others--Petitioners
versus
Mst. KHATOON BIBI and others--Respondents
C.R. No. 102 of 2002, decided on 11.7.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Suit for declaration--Suit was decreed--Controverted by defendants--Preliminary objection including non-joinder of necessary parties and maintainability of suit--Appeal also accepted--Assailed--Question of--Misreading and non-reading of evidence--No legal defect--Court has given exhaustive judgment after due appraisal of evidence on file and after discussing all the proves and cones of case--No legal defect in judgment, which is consonance with the evidence on file--Held: Nothing could be pointed out effectively and convincingly which may persuade the Court to disagree with the findings of Courts below on issue in-question--Appellate Judge has scanned the entire evidence in true perspective and his findings cannot be termed either perverse or arbitrary--Revision dismissed.
[P. 68] A
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 20 & O. 1, R. 9--Scope of--Mis-joinder and non-joinder--Applicability of rule--Discretionary power--Determination--Mis-joinder by itself is not fatal nor is non-joinder per se fatal--Held: Though non-joinder is not fatal yet where there is non-joinder of a necessary party i.e. a party who ought to have been joinder and in whose absence an effective decree cannot be passed, suit will ultimately fail unless such necessary parties are made parties to the suit--Court cannot decide the suit in absence of necessary parties.
[P. 69] C
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 31--Mandatory provisions--Non-compliance of provision--Determination--Held: It is necessary for appellate Court to record the points for determination, so that it can be determined whether the Court has deal with all the points--Appellate Court must state its reasons for the decision--Revision dismissed. [P. 69] D
Civil Procedure Code, 1908 (V of 1908)--
----S. 151 & O.I, R. 9--Matter of adding as respondents--Non-joinder is not of necessary parties--Applicability--Power given under Rule 9 can be exercised suo moto or on application--Persons who were not parties to the suit can however be added as respondents in exercise of powers u/S. 151 of CPC--Principles of O.I, R. 9 of CPC are also applicable to appeals and where the non-joinder is not of necessary parties--Appeal will continue but the non-joinder of a necessary party can be fatal--Held: A person can be added as a respondent in an appeal even though in the suit he was on the same side as the appellant. [P. 68] B
Mr. Abdul Sattar Khan, Advocate for Petitioners.
Mir Adam Khan, Advocate for Respondents.
Date of hearing: 25.6.2007.
Judgment
Shortly narrated the facts, giving rise to the filing of the present civil revision are, that Umer Hayat and others, plaintiffs instituted suit on 2.6.1996, in the Court of Senior Civil Judge, Nowshera, against Mian Azim and others, defendants, claiming a declaration to the effect that plaintiffs were owners in possession of suit land detailed in the plaint; that defendants had no concern with it and that the entries in the revenue record, wherein Abdur Rauf, predecessor-in-interest of the defendants, has been recorded in possession of suit land as `bila lagan bawaja qabza' are illegal, contrary to facts, inoperative on the rights of the plaintiffs and liable to correction. The plaintiffs also prayed for possession of suit land, in case, they were not found in possession of the same.
The suit was controverted by the defendants, by filing written statement. The defendants refuted the claim of the plaintiffs and also raised some preliminary objection including bar of limitation, estoppel, non-joinder of necessary parties and maintainability of the suit. Following issues were framed in the light of the pleadings of the parties:-
Whether the suit of the plaintiff is time barred?
Whether the plaintiffs are estopped from suing?
Whether the suit of the plaintiffs is liable to be dismissed for non-joinder of parties?
Whether Defendant No. 3 is the wife of Asheab and Abdur Rauf?
Whether the plaintiffs are owners in possession of the suit property according to the fard jamabandi for the year 1990. If so, its effect?
Whether the plaintiffs are entitled to decree for declaration as prayed for?
Whether the plaintiffs are entitled to decree for possession in the alternative, as prayed for?
Relief.
At the conclusion of the trial, learned Civil Judge, Nowshera, seized of the matter, upon consideration of the material, oral as well as documentary, accepted the claim of the plaintiffs and decreed suit, vide judgment dated 5.4.1999. Feeling aggrieved thereby, an appeal was preferred thereagainst, which was accepted by judgment dated 8.11.2001, passed by learned Additional District Judge, Nowshera. The judgment and decree of the trial Court was set aside and suit was dismissed. Hence instant civil revision.
Arguing on behalf of the petitioners, Mr. Abdul Sattar Khan, Advocate, contended that the judgement and decree of learned appellate Court is illegal, against material available on record and in utter disregard of relevant provisions of law; that judgment and decree of learned trial Court was based on well founded reasoning and was the result of proper application of relevant law; that learned Appellate Court, while dismissing the suit of the petitioners on the ground of non-joinder of necessary parties, has committed a patent illegality; that provisions of Order XLI, Rule 20 read with Order 1, Rule 9 CPC escaped the notice of learned Appellate Court; that the impugned judgment has been recorded contrary to the requirement of Order XLI, Rule 31 CPC and that learned Appellate Court has wrongly rested the burden of proof on the petitioners and on this score also violated the settled principle of law. In support of his submissions, learned counsel placed reliance on the following precedents:
Shafaullah and 13 others vs. Saifur Rehman and 7 others (PLD 1991 Supreme Court 1106), Qutab-ud-Din vs. Gulza and 2 others (PLD 1991 Supreme Court 1109), Ghulam Haqani and another vs. Mst. Zulekha and others (PLD 1953 Peshawar 53), Sahib Jan Khan vs. Muhammad Nawaz Khan and another (PLD 19053 Peshawar 68), Muhammad Nazeef and others vs. Mst. Mumtaz Begum (2002 CLC 1517) Nasrullah Jan vs. Mst. Farzana Begum and 6 others (2002 CLC 1523) and Mian Hayatullah vs. Mst. Shamo Sahar and another (PLD 1983 Peshawar 202).
Khalique Ahmed vs. Abdul Ghani and another (PLD 1973 Supreme Court 214), Noor Muhammad Khan vs. Haji Muhammad Ali Khan and 24 others (PLD 1973 Supreme Court 21), Ahmed Miaji and others vs. Eakub Ali Munshi and others (PLD 1961 Dacca 25) and Muhammad Nawaz and others vs. Sh. Abdul Latif and another (PLD 19071 SCMR 198).
I have heard, in detail, the arguments of learned counsel for the parties in the light of the material on the file and the case cited at the bar.
The dispute relates to land bearing Khasra Nos. 375 and 376, measuring 6 kanals 2 marlas, situated in the area of Pabbi, Tehsil and District Nowshera. It is averred in the plaint that the entries in the revenue record, wherein late Abdur Rauf, predecessor-in-interest of the defendants, has been recorded in possession of suit land as `bila lagan bawaja qabza', are illegal, contrary to fact, ineffective on the rights of plaintiffs and liable to rectification. Both the parties have produced evidence in support of their respective stances. After closure of evidence, Patwari Halqa was examined as Court witness, who exhibited certain revenue record (Annexure K-1 to K-27) on the file.
Upon the examination of the impugned judgment, I find that the learned Appellate Court adverted to every aspect and rightly decided issues agitated and rendered a reasoned judgment, which is not open to legitimate exception. Learned counsel for the petitioners has not been able to prove that the impugned judgment is the outcome of mis-reading and non-reading of evidence or suffers from illegality or material irregularity. The Court has given exhaustive judgment after due appraisal of evidence on the file and after discussing all the prones and cones of the case. There appears to be no legal defect in the judgment, which is in consonance with the evidence on the file. Nothing could be pointed out effectively and convincingly which may persuade me to disagree with the findings of the Court below on the issues in question. The learned appellate Judge has scanned the entire evidence in true perspective and his findings cannot be termed either perverse or arbitrary. The same are immune from further scrutiny in a petition under Section 115 CPC.
Rule 41 Order 20 CPC is applicable only where the proposed respondent was a party to the suit from whose decree the appeal has been preferred. This rule is applicable not only to cases where the Court discovers the defect, but also to cases where the appellate desires the addition of a respondent. It is for the appellant alone to determine the respondents against whom he wishes to prosecute his appeal. The power to add parties can only be exercised at the hearing. This rules gives the Appellate Court discretionary powers in the matter of adding respondents. Powers given under this rule can be exercised suo moto or on application. Persons who were not parties to the suit can however be added as respondents in exercise of powers under Section 151 CPC. The principles of Order 1 Rule 9 CPC are also applicable to appeals and where the non-joinder is not of necessary parties, the appeal will continue but the non-joinder of a necessary party can be fatal. A person can be added as a respondent in an appeal even though in the suit he was on the same side as the appellant. The term interested in the result of the appeal has reference to whether the proposed party is one whose interests are likely to be prejudiced by the determination in the appeal and not as to whether his presence is necessary for the adequate disposal of the appeal.
The joinder of any person as a party to the suit contrary to the provision of the Code is mis-joinder and Rule 10 empowers a Court to remedy such defeat. The non-joinder or mis-joinder of parties will not by itself, defeat a suit and the Court shall deal with the matter in so far as regards the parties actually before it, and shall dispose of the suit provided it can be effectively disposed of between the parties on record. Objection to mis-joinder or non-joinder of parties should be taken at the earliest possible opportunity. Mis-joinder by itself is not fatal nor is non-joinder per se fatal. Though non-joinder is not fatal yet where there is non-joinder of a necessary party i.e. a party who ought to have been joined and in whose absence an effective decree cannot be passed, the suit will ultimately fail unless such necessary parties are made parties to the suit. The Court cannot decide the suit in the absence of necessary parties. The submission of the learned counsel that provisions of Order 41, Rule 20 and Order 1 Rule 9 CPC have escaped notice of the Appellate Court, has failed to impress me.
Adverting to the objection regarding non-compliance of provisions of Order XLI Rule 31 CPC, it needs no emphasis that an appellate judgment should state the points arising for determination, its decision thereon and the reasons for its decision. It is necessary for the Appellate Court to record the points for determination, so that it can be determined whether the Court has deal with all the points. The Appellate Court must state its reasons for the decision. The provisions of Order XLI Rule 31 CPC are mandatory. In the instant case, the impugned judgment has been recorded in consonance with the requirements of Order XLI Rule 31 CPC and no prejudice seems to have been caused to the petitioner.
In the result and for the forgoing reasons, finding no substance in this civil revision, I dismiss the same with no order as to costs.
(N.F.) Revision dismissed.
PLJ 2008 Peshawar 69
Present: Ijaz-ul-Hassan, J.
LAL ZADA--Petitioner
versus
MIAN TAUHEEDULLAH--Respondent
C.R. No. 374 of 2005, decided on 16.7.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revisional jurisdiction--Appreciation of evidence--Interference--Held: High Court in revisional jurisdiction can interfere with a concurrent finding of fact where an error of jurisdiction is apparent, or an illegality and irregularity is found in the proceedings of Court--Revisional Court cannot interfere with a concurrent finding of fact based on evidence on the ground that appreciation of evidence was not proper--Appeal accepted.
[P. 72] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Suit for possession, decreed--Revision petition--No material mis-reading and non-reading of evidence--Framing of proper issues--No material misreading and non-reading of evidence was pointed out during evidence--Petitioner could neither pointed out as to which issue was not properly framed nor he could draw Court's attention to any material portion of evidence, which was overlooked or misread by Courts below--No evidence has been led by petitioner to suggest that improvements were made with the consent and permission of respondent and thus, petitioner was entitled for aware of compensation--Revision dismissed. [Pp. 72 & 73] B, C & D
Mr. Muhammad Ismail Fahmi, Advocate for Petitioner.
Mr. Asghar Khan, Advocate for Respondent.
Date of hearing: 6.7.2007.
Judgment
This civil revision is directed against the judgment and decree dated 11.1.2005, passed by learned District Judge, Charsadda, whereby appeal against the judgment and decree dated 31.3.2004 of learned Civil Judge, Charsadda, decreeing Suit No. 122/1, filed by Mian Tauheedullah respondent, has been dismissed.
Brief but relevant facts for the disposal of instant civil revision are, that Lalzada petitioner, instituted Suit (No. 123/1) on 15.5.2001, against Mian Tauheedullah, respondent, for issuance of perpetual injunction to the effect that petitioner was owner in possession of suit house, detailed in the plaint and respondent had no right to interfere in the possession of suit house Mian Tauheedullah, respondent, also filed Suit (No. 122/1) on 21.9.2001, for possession of the suit house by demolition of superstructure and also prayed for permanent injunction, restraining the petitioner to raise further construction on it. He also prayed for recovery of Rs. 6000/- as `Khakshora' for the year 1998 to 2000. Lalzada, claimed ownership of the suit house on the basis of PTI whereas Tauheedullah based his claim through inheritance Mutation No. 10658. Both the suits were consolidated and following issues were framed in Suit No. 122/1, for trial:--
Whether the plaintiff has got cause of action?
Whether the suit is within time?
Whether the plaintiff is estopped to sue?
Whether the suit is incompetent. Hence, liable to be cancelled?
Whether the suit is bad for non-joinder of necessary party?
Whether the defendant has made improvement in the suit house. Hence, entitled to the compensation?
Whether the plaintiff is owner of the suit house and the defendant being tenant has been paying (Khakshora)?
Whether the defendant is owner in possession of the suit house, since his fore-father?
Whether the plaintiff is entitled to the decree for possession and perpetual injunction as prayed for?
Relief.
At the conclusion of trial, learned Civil Judge, Charsadda, seized of the matter decreed Suit No. 122/1 filed by Mian Tauheedullah plaintiff-respondent and dismissed Suit No. 123/1 filed by Laalzada plaintiff/petitioner, by virtue of judgment and decree dated 31.3.2004. An appeal was preferred thereagainst by Lalzada, petitioner which did not succeed. The same was dismissed by learned District Judge, Charsadda, by order dated 11.1.2005, giving rise to the filing of instant civil revision.
Mr. Muhammad Ismail Fahmi, Advocate, learned counsel for the petitioner strenuously contended that judgments and decrees of both the Courts below, are outcome of mis-reading and non-reading of evidence, hence not sustainable; that suit of the respondent is hopelessly barred by time; that learned trial Court has failed to frame issues according to the pleadings of the parties and that a local commission should have been appointed to determine the cost of improvements made by the petitioner.
Mr. Asghar Khan, Advocate, learned counsel for the respondent, on the other hand, contended that High Court has very limited jurisdiction to interfere in concurrent findings of Courts below while exercising jurisdiction under Section 115 CPC unless and until judgments of the Courts below are result of mis-reading or non-reading of evidence or decision of the case is in violation of parameters prescribed by the Superior Courts. The material on the record, learned counsel reiterated, has been appreciated in its true perspective and warrants no interference. The learned counsel also submitted that improvements, if any, has been made without consent and permission of the respondent and thus the Courts below had valid reasons to decline to award cost of improvements. In support of the last submission, he placed reliance on Jan Muhammad vs. Mst. Zubadia Begum (1982 SCMR 367) and Allah Ditta vs. Muhammad Ziaul Haq and others (1985 CLC 2020).
The main question, falling for determination, would be, whether the petitioner is owner in possession of suit house or otherwise. The petitioner has claimed ownership on the basis of PTI. According to him, the petitioner and his fore-fathers had been residing in the suit house for the last 200 years without any interference. As against that, respondent has claimed ownership on the basis of inheritance Mutation No. 10658. The evidence produced by the petitioner is discrepant and cannot be considered sufficient to prove his stance. On the contrary, the respondent has produced sufficient evidence to substantiate his claim. The evidence produced by the respondent has not been successfully challenged. It is established principle of law that the plaintiff has to prove his case from his own evidence and cannot benefit from the weaknesses in the defendant's case. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exists. Both the Courts below have given exhaustive judgment after due appraisal of evidence on the file and after discussing all the prones and cones of the case. There appears to be no legal defect in their judgments, which are in harmony with the material on record. The impugned judgments are neither tainted with any illegality or irregularity nor are fanciful or arbitrary, thus, no interference is called for by this Court. The High Court in the revisional jurisdiction can interfere with a concurrent findings of fact where an error of jurisdiction is apparent, or an illegality and irregularity is found in the proceedings of the Court. The revisional Court cannot interfere with a concurrent finding of fact based on evidence on the ground that appreciation of evidence was not proper. The finding of facts recorded by the two Courts below is neither arbitrary nor perverse nor capricious.
Both the Courts below have applied their mind to the factual and legal aspect of the matter, giving cogent reasons in support of their decisions and have properly appreciated the evidence on record. No material mis-reading and non-reading of evidence was pointed out during the hearing. Reappraisal of evidence is not permissible nor can any conclusion drawn by Courts below be upset merely because an opposite is also feasible.
Adverting to the objection regarding non-framing of proper issues, learned counsel for the petitioner could neither point out as to which issue was not properly framed nor he could draw my attention to any material portion of evidence, which was overlooked or misread by the Courts below. Neither there appears to be any mis-reading of evidence nor any material piece of evidence appears to have been ignored.
So far as the question, regarding payment of compensation is concerned, no evidence has been led by the petitioner to suggest that improvements were made with the consent and permission of the respondent and thus the petitioner was entitled for ward of compensation.
Adverting to the question, concerning appointment of local commission, no application in this respect has been moved. The petitioner cannot be allowed to agitate the plea at this stage.
In the result and for the foregoing reasons, finding no substance in this civil revision, I dismiss the same with no order as to costs.
(N.F.) Revision dismissed.
PLJ 2008 Peshawar 73
[Abbottabad Bench]
Present: Hamid Farooq Durrani, J.
MUHAMMAD PERVEZ--Petitioner
versus
ABDUL HAMEED--Respondent
C.R. No. 470 of 2006, decided on 18.12.2006.
Civil Procedure Code 1908, (V of 1908)--
----S. 115 & O.XXXIX, Rr. 1 & 2--Suit for specific performance--Temporary injunction required from further alienating the suit property--Application was dismissed--Assailed--Not justifiable--Revisional petition--Plaintiff prima facie had no claim regarding the area owned by defendant/respondent an order restraining the defendant from alienating the area was not justified--Held: Courts below have rightly declined to exercise their jurisdiction in terms of issuing temporary injunction against respondent--The findings, therefore, do not merit any interference by High Court in revisional jurisdiction. [Pp. 74 & 75] A, B & C
Mr. M. Ayub, Advocate for Petitioner.
Mr. Khalid Rehman, Advocate for Respondent.
Date of hearing: 18.12.2006.
Judgment
The petitioner filed a suit for specific performance of an agreement to sell land measuring 384 Kanals 17 Marlas situated in Mauza Kotla, Tehsil and District Haripur. It was alleged therein that the defendant/respondent, on 23.9.2004, entered into an agreement with the petitioner/plaintiff for the sale of land mentioned above for a consideration of Rs. 1,53,94,000/- i.e. @ Rs. 40,000/- per Kanal. An amount of Rs. 10,00,000/- was paid to the defendant at the time of execution of the said agreement and the plaintiff was willing and eager to pay the remainder of the sale consideration to the defendant/ respondent against proper transfer of the land in dispute. Alongwith the plaint an application for temporary injunction, requiring the defendant/ respondent from further alienating the suit property, was also filed.
The defendant/respondent filed written statement and also reply to the temporary injunction application. On 5.11.2005 the learned trial Court was pleased to dismiss the application for temporary injunction and on 28.9.2006 the learned Appellate Court was also pleased to dismiss the appeal filed by the petitioner.
Learned counsel for the petitioner heard and available record gone through.
It is noticed that the defendant had categorically stated in the written statement that the plaintiff/petitioner remained unsuccessful in paying the balance of the sale consideration within the stipulated time i.e. 2« months from the date of execution of the agreement to sell. It was further stated that the petitioner/plaintiff was also served with a written notice to the said effect and ultimately after the expiry of the period provided in the agreement the land in dispute was sold away to a third person by the defendant/respondent.
It is also seen on the record that the total area of the disputed land measuring 384 Kanals 17 Marlas and the entire sale consideration of Rs. 1,53,94,000/- as alleged in the plaint, does not find mention in the agreement to sell dated 23.9.2004. Undoubtedly, the said agreement has been made basis of the suit filed by the petitioner. In the circumstances, when the plaintiff/petitioner, prima facie, had no claim regarding the area of 384 kanals 17 marlas owned by the defendant/respondent an order restraining the defendant/respondent from alienating the said area was not justifiable.
For the aforesaid reasons it is found that the learned two Courts have correctly appreciated the facts of the case and have rightly declined to exercise their jurisdiction in terms of issuing temporary injunction against the respondent/defendant. The said findings, therefore, do not merit any interference by this Court in revisional jurisdiction.
The revision petition in hand being meritless is dismissed in limine.
(N.F.) Revision dismissed.
PLJ 2008 Peshawar 75 (DB)
Present: Ejaz Afzal Khan and Dost Muhammad Khan, JJ.
MUHAMMAD ILYAS KHAN PATWARI--Petitioner
versus
DISTRICT OFFICER REVENUE AND ESTATE OFFICER, PESHAWAR and another--Respondents
W.P. No. 835 of 2007, decided on 23.5.2007.
Constitution of Pakistan, 1973--
----Art. 199--Civil servant--Order of transferring and posting as Patwari was withdrawn--Constitutional petition--Jurisdiction--Validity--Transfer and posting being related to the terms and conditions of service would fall within exclusive domain of Service Tribunal and High Court cannot step into interfere therewith under Art. 199 of Constitution--Even the order mativated by malafides and passed on political considerations to accommodate some blue-eyed-chap, being justiciable can be challenged before the Service Tribunal which has the exclusive jurisdiction to inquire into such matters--Held: Orders of transfer and posting of civil servants passed by the bureaucrats on dictates of the elected representatives or on account of mala fides or political considerations, but when redress can be had by an appeal before departmental authority and then before the Service Tribunal, on proof of such facts--High Court would not like to interfere with such orders in exercise of extra-ordinary equitable discretionary Constitutional jurisdiction--Further held: High Court does not feel persuaded to interfere with impugned order--Instead of dismissing it, treat it as an appeal before departmental authority and send it thereto for decision in accordance with law within one month--Petition disposed of. [Pp. 76, 77 & 80] A, B & C
Mr. Abdul Maabood Khattak, Advocate for Petitioner.
Date of hearing: 23.5.2007.
Judgment
Ejaz Afzal Khan, J.--Petitioner through the instant petition has impugned the order dated 19.3.2007 of the District Officer Revenue and Estate Peshawar, whereby the order dated 13.3.2007 transferring and posting him as Patwari Halqa, Sardar Garhi, was withdrawn.
Learned counsel appearing on behalf of the petitioner contended that if the impugned order and the orders preceding it are looked at in their proper perspective, the appear to be motivated by the mala fides and political considerations as such they have to be struck down. The learned counsel to support his contention placed reliance on the judgment rendered in the case of Gulzar Ahmad vs. District Officer Revenue and Estate Peshawar and others in Writ Petition No. 1819 of 2006 decided on 22.11.2006.
We have gone through the available record carefully and considered the submissions of the learned counsel for the petitioner.
It has been consistently held by the Hon'ble Supreme Court in the cases of Miss Rukhsana Ijaz vs. Secretary, Education, Punjab and others (1997 SCMR 167), Ayyaz Anjum vs. Government of Punjab, Housing and Physical Planning Department through Secretary and others (1997 SCMR 169), and Rafique Ahmad Chaudhry vs. Ahmad Nawaz Malik and others (1997 SCMR 170), that transfer and posting being related to the terms and conditions of service would fall within the exclusive domain of the Service Tribunal and that the High Court cannot step in to interfere therewith under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Even the order motivated by mala fides and passed on political considerations to accommodate some blue eyed-chap, being justiciable can be challenged before the Service Tribunal which has the exclusive jurisdiction to inquire into such matters. The case of Secretary Education NWFP Peshawar and 2 others vs. Mustamir Khan and another (2005 SCMR 17) may well be referred in this behalf. In the case of Peer Muhammad vs. Government of Baluchistan through Chief Secretary and others (2007 SCMR 54), the Hon'ble Supreme Court while dealing with a similar proposition reiterated the same view by holding as under:
"It is settled by now that the question of posting of a Government servant squarely falls within the jurisdictional domain of the Competent Authority subject to law and rules made there under. The question of posting/transfer relates to terms and conditions of a Government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matters and Constitutional jurisdiction cannot be invoked to get such controversies resolved. We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in Constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such like matters."
"We need not stress here that tamed and subservient bureaucracy can neither be helpful to Government nor it is expected to inspire public confidence in the administration. Good Governance is largely dependent on an upright, honest and strong bureaucracy. Therefore, mere submission to the will of superior is not a commendable trait in a bureaucrat. Elected representatives placed as incharge of administrative departments of Government are not expected to carry with them a deep insight in the complexities of administration. The duty of a bureaucrat, therefore, is, to appraise these elected representatives the nicety of administration and provide them correct guidance in discharge of their functions in accordance with the law. Succumbing to each and every order or direction of such elected functionaries without bringing to their notice, the legal infirmities in such orders/directions may sometimes amount to an act of indiscretion on the part of bureaucrats, which may not be justifiable on the plane of hierarchical discipline. It hardly needs to be mentioned that a Government servant is expected to comply only those orders/directions of his superior, which are legal, and within his competent. Compliance of an illegal or an incompetent direction/order can neither by justified on the plea that it came from a superior authority nor it could be defended on the ground that its non-compliance would have exposed the concerned Government servant to the risk of disciplinary action."
"A reading of Rule 21(2) with Schedule V of the Rules of Business ibid, makes it clear that the transfer of a Section Officer/Under-Secretaries and other officers of equivalent rank within the department is to be done by the Secretary of that department. Rule 21 of the Rules of Business, which deals with power of posting, promotion and transfer of Government servants, does not contemplate exercise of these powers by the Minister. The normal period of posting of a Government servant at a station, according to the above referred policy decision of the Government, is 3 years, which has to be followed in the ordinary circumstances, unless for reasons of exigencies of services mentioned in the aforesaid policy of Government, a transfer before expiry of 3 years' period becomes necessary in the opinion of competent authority. The transfer orders in the present case, therefore, could neither be justified on the plane of policy directive of Government referred to above, nor they were sustainable on the language of Rule 21(2) read with Schedule V of the Rules of Business, ibid. We are in no doubt that if the transfer orders in the case before us would have been made in accordance with the policy directives of the Government referred to above and power was exercised by the competent authority as contemplated by Rule 21(2) read with Schedule V of the Rules of Business, ibid, there would have been no room for manoeuvering by the officers affected by such transfer. The fact that the transfers were made in violation of policy directive of the Government, which has the status of a Rule, and provisions of Rule 21(2) ibid, were not followed strictly opened the door for the Government servant concerned to bring in outside influences to obtain the desired transfers. We are also sorry to note that the Secretary LG & RD, neither resisted these unethical and undesirable moves of his subordinate nor he pointed out to the Hon'ble Minister Incharge, that the transfer orders made by him from time to time in respect of various officers of his department were neither in conformity with the declared policy of Government nor these transfer orders conform to the provisions of Rule 21(2) of the Rules of Business, ibid. It was the duty of the Secretary LG & RD to have pointed out to the Minister concerned the extent of his authority in such matter, besides bringing to his notice that such frequent transfer of a Government servant could neither be justified as the exigencies of service nor it could be described in the Public interest. We are constrained to observe that such unconcerned and lukewarm attitude on the part of a Head of a Government is not expected to promote discipline or efficiency in the Department. On the contrary such attitude may have a demoralizing effect on his subordinates encouraging to seek intervention and favours of outside agencies, which may ultimately adversely affect the overall discipline and efficiently in the department. We, therefore, expect that the guide lines mentioned in the policy directives of the Government referred to above and the provisions of Rule 21 of the Rules of Business, ibid, will be kept in view by all concerned while dealing with the transfers of Government servants. The office is directed to send a copy of this judgment to the Government of Punjab for circulating it to all its departments, for future guidance. with these observations, this petition stands dismissed as not maintainable."
We, too, by respectfully following the above quoted dictum of the Hon'ble Supreme Court condemn the orders of transfer and posting of the Civil Servants passed by the bureaucrats on the dictates of the elected representatives or on account of mala fides or political considerations, but when redress can be had by an appeal before the Departmental authority and then before the Service Tribunal, on proof of such facts, we would not like to interfere with such orders in the exercise of our extraordinary equitable discretionary Constitutional jurisdiction. This is what we held in the cases of Bakhtiar Ahmad vs. SMBR in W.P. No. 1167 of 2006 decided on 3.8.2006, Professor Rehana Matiullah vs. Chief Secretary and others in W.P. No. 1496 of 2006 decided 12.2.2006, S. Mansoor Hussain Shah vs. Secretary LG/Rd in W.P. No. 1153 of 2006 decided on 3.8.2006, Waqif Khan vs. Government of N.W.F.P. in W.P. No. 1114 of 2006 decided on 28.7.2006, Pervez Khan vs. Addl. Chief Secretary FATA in W.P. No. 2261 of 2006, decided on 14.2.2007, Serat Bibi vs. Government of NWFP in W.P. 1559 of 2006 decided on 5.10.2006, Addal Qadir vs. Government in W.P. No. 561 of 2006, 12.5.2006, Nawab Gul vs. SMBR in W.P. No. 1033 of 2006 decided on 18.7.2006 and Sardar Ali vs. Director School in W.P. No. 942 of 2006 decide don 13.7.2006.
The case of Gulzar Ahmad vs. District Officer Revenue and Estate Peshawar and others in Writ Petition No. 1819 of 2006 decided on 22.11.2006 cited by the learned counsel for the petitioner would not be relevant to the case is hand, when, it is distinguishable on legal as well as factual plane.
Having thus considered in this background, we do not feel persuaded to interfere with the impugned order. However, we by following the dictum rendered in the case of Muhammad Anis and others vs. Abdul Haseeb and others (PLD 1994 Supreme Court 539) instead of dismissing it, treat it as an appeal before the departmental authority and send in thereto for decision in accordance with law within one month. The petitioner may, if so advised, pray for the interim relief before the same forum. This writ petition thus stands disposed of.
(N.F.) Petition disposed of.
PLJ 2008 Peshawar 81 (DB)
Present: Hamid Farooq Durrani and Muhammad Alam Khan, JJ.
MUHAMMAD SIRAJ KHAN--Petitioner
versus
RETURNING OFFICER FOR PF-62, KOHISTAN-II/EXECUTIVE DISTRICT OFFICER (SCHOOL & LITERACY) KOHISTAN AT DASSU and 2 others--Respondents
W.P. No. 2057 of 2007, decided on 2.1.2008.
Chief Executive Order, 2002 (VII of 2002)--
----Art. 8(a)--Representation of the People Act, 1976--S. 99(cc)--Constitution of Pakistan, 1973--Art. 199--Question of eligibility to contest election--Educational qualification for nomination to contest general election--Equivalence to degree/graduation--Nomination papers of the rival candidate of the petitioner were accepted--Appeal was failed by Returning Officer--Assailed--Notification--Educational qualification, forming basis for nomination was not recognized by Higher Education Commission--List of individual madrassas was provided--In light of the Notification the contesting candidate was not eligible to contest the general election--Sanad has been made basis of educational qualification for his nomination for election to Provincial Assembly which mentioned in Notification issued by H.E.C. while requirement of law also speaks of Bachelor Degree in any discipline or any Degree recognized as equivalent by U.G.C would educationally qualify a candidate to contest the election for Assembly--Held: Findings of Returning Officer as well as Election Appellate Tribunal do not suffer from legal infirmity or jurisdictional defect--Petition dismissed. [Pp. 82 & 83] A & B
Petitioner in person.
Respondent No. 2 in person on pre-admission notice.
Pir Liaqat Ali Shah, Advocate General NWFP on pre-admission notice.
Date of hearing: 2.1.2008.
Order
Hamid Farooq Durrani, J.--The Respondent No. 2 Muhammad Asmatullah is a rival candidate of the petitioner in elections to the NWFP Provincial Assembly PF-62, Kohistan-II. His nomination papers were accepted by the concerned learned Returning Officer on 27.11.2007 where after the petitioner filed an appeal before the Election Appellate Tribunal. In the said appeal, the petitioner remained unsuccessful in obtaining a favorable decision when the appeal was dismissed on 11.12.2007. He has now questioned the eligibility of Respondent No. 2 through the constitution petition in hand on the ground that the educational qualification, forming basis for nomination of said respondent, was not recognized by the H.E.C for the purposes of equivalence to the Degree/Graduation requisite to contest the general elections. In the said regard, he referred to Notification dated 25.1.2007 issued by the H.E.C wherein the list of Wafaq/Tanzeem and Rabitul Madaris, besides five individual Madrassas, was provided. The Sanad of "Shahadatul Almiya Fil Uloomal Arabia wal Islamia" granted by the enlisted institution was rated equivalent to M.A. Arabic/Islamic Studies for the purpose of teaching Arabic and Islamic Studies in Colleges and Universities. The petitioner was of the view that in the light of said Notification the contesting respondent was not eligible to contest the forthcoming elections for Provincial Assembly Constituency as he did not fulfill the criteria laid down in Article 8(a) of Chief Executive Order No.VII of 2002 as well as Section 99 (CC) of the Representation of Peoples Act, 1976. In support of his submissions, the petitioner relied on Sanaullah Khan's case (PLD 2005 SC 858).
The Respondent No. 2, on the other hand, stated that he was holder of Sanad "Shahadatui Almiya" which was duly and competently issued by the institution, namely, Wafaqul Madaris, Pakistan at Multan, besides, he also held a Sanad Shahadatul Almiya conferred by Jamia Darul Uloom, Korangi, Karachi. The said two institutions were enumerated under their respective headings in Notification issued by H.E.C. for the purposes of equivalence. He was, therefore, qualified to contest the proposed elections.
On 18.12.2007, learned Advocate General, NWFP was put on notice in order to assist the Court in the matter. He informed at the bar that the issued raised through the writ petition in hand was directly a matter subjudice before the Apex Court through Constitution Petition No. 37/2003 (Dr. Muhammad Aslam Khaki Vs. Speaker, National Assembly, Islamabad and others). As the said matter was pending adjudication, it was not for this Court to dilate upon in the meanwhile, the learned Advocate General opined.
We have gone through the record available before us and have noticed that the Sanad conferred upon Respondent No.2, as has been made basis of educational qualification for his nomination for election to the Provincial Assembly has been issued by an institution which finds mention in the Notification issued by the H.E.C. while the requirement of law also speaks of Bachelor Degree in any discipline or any Degree recognized as equivalent thereto by the U.G.C, would educationally qualify a candidate to contest the elections for the Assembly. We have also gone through the text of Constitution Petition No. 37/2003 ibid, as provided by learned Advocate General and have noted that the subject-matter of the said petition is similar to the present writ petition. The said Constitution Petition is admittedly pending decision before the Apex Court while most of the candidates having qualification similar to that of Respondent No. 2, have been found educationally qualified to contest elections in various constituencies by the respective Returning Officers. For the Constituency PF-62 itself, there are various other candidates with similar qualification but their nomination has admittedly gone unchallenged by the petitioner. It is to be noted here that in the event of Apex Court returning a finding disfavoring the respondent and other candidates having similar qualification, there would be legal remedy available to the petitioner to have recourse to.
It is also observed that the judgment cited by the petitioner in Sanaullah Khan's case (PLD 2005 SC 858) ibid would not attract to the facts of present petition as the question involved in the referred matter was regarding the eligibility of a candidate for the elections under Local Governments Laws.
Resultantly, finding no merit in the petition in hand, we dismiss the same.
(R.A.) Petition dismissed.
PLJ 2008 Peshawar 83 (DB)
Present: Hamid Farooq Durrani and Muhammad Alam Khan, JJ.
GULISTAN KHAN--Petitioner
versus
REHMAT ULLAH and 2 others--Respondents
W.P. No. 2061 of 2007, decided on 1.1.2008.
Constitution of Pakistan, 1973--
----Art. 199--Educational qualification for contesting the general elections--Petitioner was declared ineligible for contesting elections to Provincial Assembly on the ground of he being not duly educated person--Constitutional petition--No longer affiliated with Wafaqual Madaris--Darul Uloom Mehmoodia was not affiliated--List of approved/recognized Deeni Madaris issued by Higher Education Commission--Sanad "Shahadatul Almiya Fil Uloomal Arabia Wal Islamia" is recognized by Commission as equivalent to M.A Studies for purpose of teaching--Held: Name of Darul Uloom Mehmoodia, however, does not find mention in either of two categories enumerated in the list--Petitions claims his eligibility in term of educational qualification on the ground of affiliation granted, yet there is no document evidencing the fact that Darul Uloom was affiliated with Wafaqul Madaris, when petitioner claims to have obtained Sanad--Petition dismissed. [Pp. 85 & 86] A, B & D
Higher Education Commission--
----Scope of--Higher Education Commission is a competent body to grant inter se equivalence to various Degree/Sanads issued at the national and international levels. [P. 86] C
Chaudhry Fawad Hussain, Advocate for Petitioner.
Pir Liaqat Ali Shah, Advocate General NWFP on pre-admission notice.
Mr. Sarwar Khan, Special Attorney for Respondent No. 1.
Date of hearing: 1.1.2008.
Order
Hamid Farooq Durrani, J.--The petitioner has questioned through instant constitution petition the validity of judgment pronounced on 10-12-2007 by the learned Election Appellate Tribunal in Election Appeal No. 27 of 2007. He was declared ineligible for contesting the general elections to Provincial Assembly Constituency PF-69 through the impugned judgment on the ground of he being not duly educated person. The concerned Returning Officer had though dismissed the objections in the said regard and had found the petitioner as one of the competent candidates through order dated 3.12.2007.
The learned counsel, while referring to judgment in Election Appeal No. 9/A of 2007, passed by the Election Tribunal at Lahore on 7.12.2007, urged that the Sanad of the candidate issued by Darul Uloom Mehmoodia, Dhandi Azeem Abad, Bannu was held by the Tribunal to be sufficient educational qualification for contesting the general elections.
We have also heard the special attorney of contesting respondent who opposed the averments made on behalf of the petitioner. He added that the Madrassa at Bannu was no longer affiliated with Wafaqul Madaris at Multan. In the said regard, he provided a copy of letter issued by Nazim, Central Office, Wafaqul Madaris Al-Arabia Pakistan, Multan. Through the said letter, it is acknowledged that Darul Uloom Mehmoodia at Bannu was not affiliated with the former.
It is also an admitted fact that the Sanad relied upon by the petitioner is issued by Darul Uloom Mehmoodia, Dhandi Azeem Abad, Bannu and not the Wafaqul Madaris Al-Arabia at Multan which is an institution recognized for the purpose by the H.E.C. It is also a fact that petitioner claims his eligibility in term of educational qualification on the ground of affiliation granted to the former by the latter in the year, 1999, yet there is no document evidencing the fact that the said, Darul Uloom was affiliated with Wafaqul Madaris in the year, 1995 when the petitioner claims to have obtained the Sanad. Learned counsel for the petitioner also could not deny the contents of letter dated 16.12.2007 issued by Wafaqul Madaris conveying the non-affiliation of concerned Darul Uloom.
It would be appropriate to mention here that the judgment passed in Election Appeal No. 9/A of 2007 by the learned Tribunal at Lahore would not be applicable to the facts of the present case as the question before the Tribunal was to determine the authenticity and veracity of Sanad issued by Darul Uloom Mehmoodia, Dhandi Azeem Abad, Bannu while the appeal was filed also on the ground that the candidate was pursuing studies in two different tiers hence, was not qualified to contest elections. We also observe that the argument of learned counsel for petitioner in terms that the specific objection was raised by the contesting respondent for the first time in appeal, does not have any force owing to the fact that it was the petitioner who did not furnish the entire particulars qua his educational qualification at the time of filing nomination papers while an exception in the said regard was taken through the objection petition by the respondent.
In the wake of the above, finding no merit in the petition in hand, we hereby dismiss the same.
(R.A.) Petition dismissed.
PLJ 2008 Peshawar 87 (DB)
Present: Hamid Farooq Durrani and Muhammad Alam Khan, JJ.
KHURSHID AHMAD KHAN--Petitioner
versus
RETURNING OFFICER, PF-27 TAKHTBAI DISTRICT MARDAN
and 4 others--Respondents
W.P. No. 2062 of 2007 with C.M. 720 of 2007, decided on 2.1.2008.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--DMCs and Provisional Certificates--Appeared in examination conducted by Al-Khair University--Certificates were issued by Al-Khair University--Applied for issuance of degree which was to be issued in due course but after a period of at least six months--Validity--Nomination papers were rejected on the ground that they were not educationally qualified to contest general elections--Held: DMCs issued by Al-Khair University of examination taken by petitioners also bears a foot note in terms that any entry appearing in the Certificates would not confer any right or privilege independently to grant of a proper Degree--Petitions dismissed. [P. 89] D
Words and Phrases--
----"Graduate"--Definition of "Graduate" as given in Black's Law Dictionary. [P. 88] A
Interpretation of Statute--
----Right to vote or contest election--Not a civil rights--Right to vote or contest as candidate in elections is not a civil right but is creature of statute or special law must be subject to limitations imposed by it.
[P. 88] B
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 99(cc)--Chief Executive Order, (VII of 2002), Art. 8(a)--Constitution of Pakistan, 1973--Art. 199--Educational qualification to contest general elections--Requisite of Graduate--Provisions of law--Held: Person shall not be qualified to be elected or chosen as a member of an Assembly unless he is at least a graduate, possesses a Bachelor Degree in any discipline or any Degree recognized as equivalent by University Grant Commission or any other law for time being in force. [P. 88] C
Mr. Ihsan Ali Khan, Attorney for Petitioner.
Pir Liaqat Ali Shah, Advocate General, NWFP on pre-admission notice.
Mr. Sharifullah, Assistant Election Commissioner for Respondent No. 2 on pre-admission notice.
Date of hearing: 2.1.2008.
Order
Hamid Farooq Durrani, J.--We propose to decide instant writ petition as well as connected W.P. 2067/2007 titled "Muhammad Asad Vs. Returning Officer etc." together, as similar issue has been raised in both the petitions.
On the other hand, learned Advocate General, NWFP appearing on Court notice, took us through various provisions of law as contained in Article 8 (a) of Chief Executive Order No. VII of 2002 and also Section 99 (CC) of the Representation of the Peoples Act, 1976 and contended that the petitioners were not possessing the Bachelor Degrees which was, inter alia, basic requirement of relevant law for a candidate to qualify for elections to the Assembly. The learned Advocate General further took us through the definition of "Graduate" as given in "Black's' Law Dictionary" and also that of the term "Degree" itself.
In the cases in hand, admittedly, both the petitioners have not been awarded Degrees/title acknowledging the completion of their respective course of studies and also having graduated in the claimed disciplines. It is also noted that the DMCs issued by Al-Khair University in respect of examinations taken by the petitioners also bears a foot note in terms that any entry appearing in the said Certificates would not confer any right or privilege independently to the grant of a proper Certificate/Degree.
It is also noted that the case law cited at the bar by the attorney of petitioner has no nexus to the issue involved in the present case, therefore, the same would render no support to his cause.
Resultantly, the petitions in hand are dismissed being meritless. C.M. 720/2007 in W.P. 2062/2007 becomes redundant in the circumstances and is accordingly dismissed.
(R.A.) Petition dismissed.
PLJ 2008 Peshawar 89
Present: Muhammad Alam Khan, J.
AHMAD DIN--Petitioner
versus
Mst. GUL ZEBA and others--Respondents
Rev. P. No. 30 of 2007 in C.R. No. 467 of 2006, decided on 18.1.2006.
Civil Procedure Code, 1908 (V of 1908)--
----S. 114--Review--Factual and legal aspects--Question--New material emerged warranting the filing of review petition--Determination--Review is competent when a person is aggrieved by a decree or order from which an appeal is allowed by High Court, but from which no appeal has been preferred or by a decree or order from which no appeal is allowed. [P. 91] A
Civil Procedure Code, 1908 (V of 1898)--
----O. XLVII, R.1 & S. 114--Review petition--Question of law and fact--Review can be sought enumerated--Application for review of judgment--Applicability--Review will be competent, on discovery of new and important matter or evidence which after the exercise of due efforts or diligence was not in the knowledge of a party, if the same was in existence at the time when the lis was subjudice before Court and at the time of its decision--Review jurisdiction will not be applicable to a case if the important material or evidence had come into existence after the matter is decided by Court. [P. 92] B
Review--
----Principle of law--Review jurisdiction--If there is some mistake or error apparent on the record of the case that can also be a ground for review--Held: No such new material has been brought on record to warrant interference in review jurisdiction of High Court--Petition dismissed. [P. 92] C
Petitioner in person.
Said Wali son of the respondent as well as Attorney for Respondents.
Date of hearing: 18.1.2008.
Order
Parties were heard in details in support of the Review Petition. Perusal of the record reveals that this Court on 9.3.2007 heard C.R. No. 467/2006 on merits in which both the parties were being represented by their learned counsels. Ahmad Din petitioner was being represented by Mr. M. Qasim Khan Khattak, Advocate while Mst. Gul Zeba was being represented by Mr. Abdul Qadir Khattak, Advocate. The Hon'ble Judge Mr. Justice Ijaz-ul-Hassan heard the Revision Petition in detail touching all factual and legal aspects of the case. The case-law cited by the learned counsels for the parties was also referred to and after scanning the entire evidence and perusal of the record of the case, the learned Judge came to the conclusion as under:--
"Pursuant to above, I find that appraisal of evidence undertaken by the trial Court and Appellate Court is perfectly in accordance with the principles settled by the superior Courts about appraisal of evidence in civil cases and the same does not suffer from any legal infirmity, which could be interfered with by this Court in exercise of its revisional jurisdiction under Section 115 CPC. The civil revision is devoid of force. The same is dismissed. The parties are left to bear their own costs."
Sd/- Ijaz-ul-Hassan, Judge.
Dated 9.3.2007
In support of the review petition nothing is available on the record that what new material emerged warranting the filing of the instant review petition under Section-114 CPC which is reproduced below in verbatim--
Review. Subject as aforesaid, any person considering himself aggrieved.
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred.
(b) By a decree or order from which no appeal is allowed by this Code, or
(c) By a decision on a reference from a Court of Small Causes; may apply for a review of judgment to the Court which passed the decree or made the order, and Court may make such order thereon as it thinks fit.
(2) Nothing contained in sub-section (1) shall apply to a review of any judgment pronounced or any order made by the Supreme Court."
The above reproduction of section of law would show that review is competent when a person is aggrieved by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred or by a decree or order from which no appeal is allowed.
In the case in hand the right of appeal and revision petition were fully exhausted by the petitioners and in support of the respective contentions of the parties arguments were advanced and case law cited, which were duly incorporated in the judgment and taken into consideration by the honourable Judge while deciding Civil Revision Petition No. 467 of 2006 titled Ahmad Din Vs. Gul Gulzeba, nothing new has been brought on record to show as to what important question of law or fact has not been taken into consideration by this Court. The grounds on which a review can be sought are enumerated in Order XLVII, Rule 1 of the Civil Procedure Code which are follows:--
Application for review of judgment.--(1) Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred.
(b) By a decree or order from which no appeal is allowed, or
(c) By a decision on a reference form a Court of Small Causes, and who, from the discovery "of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed, or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."
The above reproduction of the provisions of Civil Procedure Code would show that review will be competent, on discovery of new and important matter or evidence which after the exercise of due efforts or diligence was not in the knowledge of a party and that too, if the same was in existence at the time when the lis was subjudice before a Court and at the time of its decision. Review jurisdiction will not be applicable to a case if the important material or evidence had come into existence after the matter is decided by a Court. The other principle of law is that party will also show to the Court that he was never negligent and the new material discovered must have a direct nexus with the matter under Review, which if taken into consideration will directly affect the judgment or order under review. Lastly if there is some mistake or error apparent on the record of the case that can also be a ground for review in the present case no such new material has been brought on record to warrant interference in review jurisdiction of this Court.
The judgment in Civil Revision No. 467/2006 has been announced by the honourable Judge of this Court after hearing the learned counsels for the parties and scanning the entire evidence on record and also considering all the relevant case law cited at the bar such detailed and speaking judgment based on merits, is not open to review unless and until new material is brought on record or it is pointed out that some important document has not been considered by this Court, while deciding the main revision petition.
In view of the facts and circumstances of the case narrated above, this Review petition is without any merit, which is hereby dismissed, with no order as to costs.
(R.A.) Petition dismissed.
PLJ 2008 Peshawar 93
Present: Muhammad Alam Khan, J.
REGISTRAR, COOPERATIVE SOCIETIES, N.W.F.P. PESHAWAR
& 3 others--Petitioners
versus
COOPERATIVE SOCIETY through its Finance Secretary
Tehsil and District Mardan --Respondent
C.R. No. 49 of 2007 with C.M. No. 43 of 2007(M), decided on 28.1.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, Rule 10--Cooperative Societies Act, 1925, Ss. 5 & 70(A)--Return of plaint--Bars the jurisdiction of civil Court--Suit for rendition of accounts of the loan--Plaintiff obtained loan from the cooperative department and they were insisting for the return of the loan--When there is bar of jurisdiction so the barring statute should be interpreted so as to loan in favour of conferment of jurisdiction on the Civil Court--It is so because the functionaries created under the statute must Act within the four corners of their jurisdiction as conferred upon then by the statute the moment they skip over at travels beyond their jurisdiction the civil Court will sit as a Court of corrective processes to undo the wrong done by those functionaries--When a Court lacks the jurisdiction it cannot be conferred by he consent of the parties, order of the Court or through passing remarks--In present case the barring provisions will be attracted ousting the jurisdiction of the Civil Court--Petition accepted.
[Pp. 96 & 97] B, C, D & E
Cooperative Societies Act, 1925--
----Ss.51 & 70-A--Civil procedure Code, 1908 (V of 1908)--S. 9--Bars the jurisdiction of civil Court--Barring provisions--Provisions of the Cooperative Societies Act, 1925 bars the jurisdiction of civil Court in the matter covered by the Act, i.e. the winding up proceedings and the matter pertaining and ancillary to the loans of the co-operative society--Under the provisions of CPC, Section 9, the Civil Court has got over-all plenary jurisdiction to entertain all suits of civil nature until and unless, its jurisdiction is specifically or impliedly barred by a particular statute and in the instant case Sections 51 & 70(A) of the Act are the barring provisions. [P. 96] A
Mr. Muhammad Khalid, Regional Manager, Frontier Provincial Cooperative Bank Ltd. and Fazal Rahim, Assistant Registrar, on behalf of Petitioner.
Nemo for Respondent (placed ex-parte).
Date of hearing : 28.1.2008.
Judgment
Muhammad Alam Khan, J.--The petitioner has called in question the judgment/order of learned Additional District Judge-II, Mardan in Civil Appeal No. 67/13 of 2006 dated 7.10.2006 through which the order/judgment of the learned Civil Judge-X, Mardan dated 15.6.2006 directing the return of plaint to the plaintiff/respondent, under the provisions of Order-7 Rule-10 CPC, for presenting the same before a competent forum.
Briefly stated that facts of the case are, that the plaintiff/respondents filed a suit for rendition of accounts of the loan obtained by the plaintiff respondent. It was averred in the plaint that the plaintiff obtained loan from the cooperative department and they are insisting for the return of the loan. In fact the plaintiff has paid some of the loan, which requires the rendition of accounts the plaintiff respondent has also challenged a notice regarding the recovery of the said loan.
This Civil Suit Bearing No. 571/1 came for hearing before Ikramullah Khan, Civil Judge, Mardan and who after hearing the parties on the point of jurisdiction came to the conclusion that under Sections 51 and 70(A) of the Cooperative Societies Act, 1925 the Civil Court is bereft of jurisdiction and thus, on the assessment of the data available on the record ordered the return of the plaint, for presenting the same before the proper Court under the provisions Order-7 Rule-10 CPC vide order dated 15.6.2006 in Suit No. 571/1.
The plaintiff-respondent filed an appeal before the District Judge, Mardan which came for hearing before Additional District Judge-II, Mardan and who vide judgment, in Civil Appeal No. 67/13 decided on 7.10.2006, not concurring with the learned trial Court, accepted the appeal and by setting aside the impugned order remanded the case back to the trial Court with direction to decide the same on merits. The petitioner/defendants Government of NWFP and other have come-up in revision to this Court challenging the last mentioned order of Additional District Judge-II, Mardan.
On behalf of the Register Cooperative Society NWFP, Peshawar Muhammad Khalid, Regional Manager, Frontier Provincial Cooperative Bank Limited and Fazal Rahim, Assistant Registrar who are the heads of the Cooperative Society addressed the arguments Muhammad Amin plaintiff/respondent could not be served inspite of the repeated notices and is placed ex parte.
The petitioner argued that the Civil Court lacked the jurisdiction in the cooperative matter as the matter involved in the present case is the recovery of loan advanced to the respondent under the Cooperative Societies Act, 1925 and the learned trial Court was right in holding that the Civil Court lacks the jurisdiction and has rightly ordered the turn of the plaint for presentation to the proper Court under the Provisions of Order-7 Rule 10 CPC, and the learned Additional District Judge had fallen into an error by setting aside the order and remanding the case to the learned trial Court for decision on merits and thus, it was prayed that the matter being financial one, which relates to the loan of cooperative society is solely amenable to the jurisdiction of functionaries constituted by Cooperative Societies Act, 1925.
I have given may anxious consideration to the facts and circumstances of the case, the ouster of jurisdiction has been provided in the Cooperative Society Act in Section 51 and in Section 70-A which for the sack of convenience is reproduced as under:
Bar of suit in winding up and dissolution matters.--Save in so far as expressly provided in this Act no Civil Court shall take cognizance of any matter arising out of any proceedings under Chapter VIII-A or connected with the winding up of dissolution of a society under this Act and when a winding up order has been made on suit or other legal proceeding shall lie or be proceeded with against the society except by leave of the Registrar and subject to such terms as he may impose.
70-A. Bar of jurisdiction.--(1) Notwithstanding anything provided in any other law for the time being in force, but save as expressly provided in this Act--
(a) no Court or other authority whatsoever shall have jurisdiction to entertain, or to adjudicate upon, any matter which the Provincial Government, the Registrar, or his nominee, any arbitrator or liquidator, a society, a financing bank, a co-operative bank or any other person is empowered by or under this Act, or the rules or bye-laws framed thereunder, to dispose of or to determine;
(b) the validly of anything done or an order passed by the Provincial Government, a society, a financing bank, a co-operative bank, the Registrar or any other person referred to in clause (a), under this Act or the rules and bye-laws framed thereunder, shall not be called in question in any manner whatever before or by any Court to other authority whatsoever; and
(c) no Court or other authority whatsoever shall be competent to grant any injunction or pass any other order in relation to any proceedings under this Act or any rules or bye-laws framed thereunder before the Provincial Government, a society, a financing bank, a co-operative bank, the Registrar or any other person referred in clause (a).
(2) The provisions of sub-section (1) shall be applicable to proceedings, appeals and revisions pending adjudication or disposal before or in any Court or other authority whatsoever on the date that the Co-operative Societies (Amendment) Ordinance, 1966, comes into force and any order passed in such proceedings, whether before or after the coming into force of the said Ordinance, in regard to matters referred to in sub-section (1), shall stand vacated and be without any force.
The re-production of the above provision of the Act ibid, would show, that it bars the jurisdiction of Civil Court in the matter covered by the Act i.e. the winding-up proceedings and the matter pertaining and ancillary to the loans of the co-operative society. Under the provisions of CPC Section 9 the Civil Court has got over-all plenary jurisdiction to entertain all suits of civil nature until and unless, its jurisdiction is specifically or impliedly barred by a particular statute and in the instant case Sections 51 and 70-A of the Act bid are the barring provisions.
It is pertinent to note that the learned Additional District Judge was impressed by an order of this Court in W.P. No. 670/2005 decided on 15.9.2006, through which the writ petition filed by the plaintiff/respondent, subject-matter, of this suit was dismissed with a passing on remarks that the controversy involved in this writ petition is factual controversy which cannot be resolved by this Court and the proper forum would be the Civil Court. The writ was thus dismissed. The mentioning of the word Civil Court was just a passing remarks when a Court lacks the jurisdiction it cannot be conferred by the consent of the parties, order of the Court or through passing remarks.
I am conscious of the fact and legal position that when there is bar of jurisdiction so the barring statute should be interpreted so as to lean in favour of conferment of jurisdiction on the Civil Court. It is so because the functionaries created under the statute must Act within the four corners of their jurisdiction as conferred upon then by the statute the moment they skip over at travels beyond their jurisdiction the Civil Court will sit as a Court of corrective processes to undo the wrong done
PLJ 2008 Peshawar 100 (DB)
Present: Hamid Farooq Durrani and Muhammad Alam Khan, JJ.
HABIB ULLAH KUNDI--Petitioner
versus
MALIK GULISTAN--Respondent
W.P. No. 2052 of 2007 with C.M. No. 3 of 2008, decided on 15.1.2008.
Conduct of Election Rules, 2002--
----R. 8(a)--Constitution of Pakistan, 1973--Art. 199--Nomination papers to contest general election was filed by the petitioner--Objections were rejected--Appeal was allowed by Election Appellate Tribunal--Not in possession of valid degree equivalent to B.A. from recognized University--Bona fide student of Al-Khair University--Original Degree for BIT was issued by University--Petitioner was not in possession of Degree at the time of scrutiny of nomination papers--Registration number of petitioner was conveyed to Returning Officer--Validity--Original Degree of BIT and relevant record--Prima facie, it was not possible for the petitioner to have produced original Degree or copy before Returning Officer on the same date--Petitioner has stated on affidavit that he was delivered requisite Degree after the decision of appeal by Appellate Tribunal--Held: High Court without entering into factual controversy regarding availability of petitioner in the country on relevant dates or allow the petition in hand--Petitioner was holder of a BIT certified by Higher Education Commission. [P. 104] A
Constitution of Pakistan, 1973--
----Art. 199--Conduct of Election Rules, 2002--R. 8(a)--Election petition--Original Degree or copy--Factual controversy--Produced by controller of Examination--Link between petitioner and Al-Khair University to validity--Eligible for contesting election--Exception taken regarding nexus of Degree with the petitioner stands answered by virtue of application form for issuance of Degree, submitted by the petitioner to University through the College--Attested copy was produced by Controller of Examination does not only contain the particulars of petitioner including parentage and postal address but also bears his photograph--Thus, there appears a clear link between the petitioner and the Degree issued by Al-Khair University--Held: Respondent would not be attracted to facts of the present case as no matter requiring recording of evidence has been undertaken for settlement by High Court through the instant petition. [P. 104] B
Mr. Asmat Ullah, Special Attorney for Petitioner.
Mr. Zafar Baig, Attorney for Respondent No. 1.
Pir Liaqat Ali Shah, Advocate General alongwith Shafiq Ahmed Provincial Election Commissioner, M. Hussain Deputy Controller Al-Khair University.
Date of hearing: 15.1.2008.
Judgment
Hamid Farooq Durrani, J.--Factual background of the petition in hand prompts that the petitioner filed his nomination papers as a candidate to contest the General Elections, 2008 for Provincial Constituency No. PF-69, Tank, NWFP. To his nomination, objection petitions were submitted by the Respondent No. 1 Malik Gulistan Khan as well as one Engineer Dawar Khan Kundi before the learned Returning Officer concerned. The said objections were rejected through order dated 3.12.2007 and nomination papers of the petitioner were accepted.
Against the acceptance of nomination papers pertaining to the petitioner, only Malik Gulistan Khan, Respondent No. 1 filed an appeal before the learned Election Appellate Tribunal, Peshawar which was allowed on 11.12.2007 and it was held that the petitioner was not in possession of valid degree equivalent to B.A. from a recognized University/Institution, therefore, he was not qualified to contest the forthcoming elections. Aggrieved from the findings of the said Tribunal, the petition in hand was brought before this Court on the grounds that the petitioner was a bona fide student of Al-Khair University (AJK) and had passed the examination requisite for awarding of the Bachelor Degree (Bachelor of Information Technology). He was, therefore, fully eligible for contesting the elections by meeting the requirements as contained in Article 8(a) of the Conduct of Election Rules, 2002 read with other relevant provisions of law.
On 17.12.2007, a miscellaneous application was filed by the petitioner with the prayer for bringing on record some additional documents coming to the hands of the petitioner which were relevant for the purpose of decision in the instant matter. Another application of similar nature was filed on 2.1.2008 whereby the certified copy of Degree of Bachelor of Information Technology bearing Serial No. 021504, awarded by Al-Khair University (AJK) to the petitioner, was sought to be made part of the record. This Court on 3.1.2008, on the request of special attorneys for the contesting parties, summoned Deputy Controller of Examinations. Al-Khair University (AJK), Islamabad alongwith the relevant record for today.
At the time of hearing of petition in hand, the attorney for respondent filed reply of C.M. 3/2008 and also advanced certain oral objections. He contended that the Degree of Bachelor of Information Technology produced as by the petitioner and claimed to have been awarded to him by Al-Khair University (AJK), was for the academic session 2001-2003 while the petitioner was not available in the country during the said period. An Accountability Reference was filed against him on 28.8.2003 while his house was raided on 6.6.2001 and 7.6.2001. On the said occasions, the petitioner was reported to have gone abroad. He was convicted on 9.1.2001 by the Accountability Court at Peshawar in absentia. The petitioner, however, appeared before the Apex Court on 28.8.2003 for protective bail. In the mentioned circumstances, in his opinion, the award of Degree in favour of the petitioner was not free from doubts. The said attorney did not, however, grudge the genuineness or authenticity of the Degree itself. He further contended that the petitioner, having been considered ineligible by the learned Election Appellate Tribunal, was debarred from producing the Bachelor Degree before this Court in a matter under constitutional jurisdiction. He relied on judgments reported through 2007 MLD 146; PLD 2006 Lahore 198 and PLD 2003 Lahore 106.
On the other hand, the attorney for the petitioner stated that the petitioner had completed his first semester in March, 2000 while second semester was completed in September/October, 2000. He, however, left the country after the second semester and appeared for completion of third semester in November, 2003. The fourth semester was completed by the petitioner in April, 2004. He was duly issued Detail Marks Certificate by the University and requisite acknowledgement of result etc. by the concerned institution i.e. College of Global Technologies, Rawalpindi Compus.
The attorney for petitioner also referred to the operative part of judgment recorded by learned Election Appellate Tribunal and stated that the criterion observed by it for declaring the petitioner as ineligible was in terms that he was not in possession of a Bachelor's Degree in his favour. Now that the petitioner was awarded the requisite Degree, he was eligible to contest the forthcoming elections.
Learned Advocate General, NWFP, who was put on notice by this Court through order dated 18.12.2007, appeared and at the outset stated that by virtue of award of Bachelor Degree in favour of the petitioner he had legally become entitled to participate in the forthcoming General Elections. He, however, indicated his reservation in terms that the record produced by the Controller of Examinations. Al-Khair University (AJK) did not establish nexus with the original Degree produced before the Court by the attorney of the petitioner.
We have gone through the entire record appended with the writ petition, brought before the Court through miscellaneous applications, original Degree for Bachelor of Information Technology issued by Al-Khair University (AJK) and the certified copies of record maintained by the University in respect of the Degree so issued as produced before us by Mr. Muhammad Hussain, Deputy Controller of Examinations, Al-Khair University (AJK), Islamabad. It is noted that the petitioner was not in possession of a Bachelor's Degree at the time of scrutiny of his nomination papers by the learned Returning Officer, however, the documents supporting his claim of having graduated were brought before the learned Returning Officer. The said Returning Officer, in pursuance to the objections by the Respondent No. 1 and other objector, inquired into the matter and required the authentication of the documents relied upon by the petitioner. The said documents were verified and it was reported that the petitioner had passed BIT courses and was accordingly issued DMC No. 239 regarding all the semesters. The registration number of petitioner was also conveyed to the learned Returning Officer. Resultantly, the nomination papers were accepted by the learned Returning Officer. The learned Election Appellate Tribunal was, on the other hand, pleased to hold that as no Degree was ever issued to the petitioner nor the same was produced by him at the time of scrutiny of nomination papers, he was not qualified to contest the elections keeping in view the provisions of Article 8(a) of the Conduct of Election Rules, 2002.
At present, the petitioner has brought before the Court the original Degree of BIT and other relevant record which shows that the Degree in question was prepared in favour of the petitioner by Al-Khair University (AJK) on or about 3.12.2007. Prima facie, it was not possible for the petitioner to have produced the original Degree or copy thereof before the learned Returning Officer on the same date. Besides, it is also noted that the petitioner has stated on affidavit that he was delivered the requisite Degree through application filed on 2.1.2008 (C.M. 2/2007), after the decision of appeal by the learned Election Appellate Tribunal.
We would like to add here that the exception taken by the learned Advocate General, NWFP regarding nexus of Degree in question with the petitioner stands answered by virtue of application form for issuance of Degree, submitted by the petitioner to Al-Khair University (AJK) through the concerned College. The said form, attested copy whereof was produced by the Deputy Controller of Examinations, does not only contain the particulars of petitioner including his parentage and postal address but also bears his photograph. Thus, there appears a clear link between the petitioner and the Degree issued by Al-Khair University (AJK) bearing Sr. No. 021504.
It is also noted that the case law relied upon by the Respondent No. 1 would not be attracted to the facts of the present case as no matter, requiring recording of evidence, has been undertaken for settlement by this Court through the petition in hand.
Since the writ petition stands accepted. C.M. 3/2008 has become infructuous in the circumstances which is accordingly disposed of.
(R.A) Order accordingly
PLJ 2008 Peshawar 111
Present: Muhammad Alam Khan, J.
Mst. NUSRAT BEGUM--Petitioner
versus
MUHAMMAD IQBAL KHAN and 10 others--Respondents
C.R. No. 1453 of 2007, decided on 28.1.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, R. 1 & S. 115--Entitlement to ad-interim injunction--Aim and object of injunction is to restrain future wrong being done to a party and not to disturb status quo ante, prevailing before institution of suit--Where construction in-question, had already been completed and the same was functioning i.e. the Act was done and completed, no injunction would ensue--In temporary injunction, prima facie, case is not the only requirement but other two requirements viz balance of convenience and irreparable loss must co-exist in order to warrant temporary injunction. [P. 113] A
Contract Act, 1872 (IX of 1872)--
----S. 2(h)--Undertaking given by defendant during pendency of suit finding mention in judgment of Court--Such undertaking would be binding on defendant. [P. 113] B
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, R. 1 & S. 115--Alienation and transfer of property during pendency of suit--Property in-question being joint property, the same could neither be alienated nor transferred by one co-sharer during pendency of suit--Plaintiff to the extent of alienation and transfer of such property during pendency of suit was entitled to ad-interim injunction restraining defendants not to dispose of the same till disposed of suit. [Pp. 113 & 114] C
1982 CLC 344; PLD 1968 Lah. 876 and 1995 SCMR 753, ref.
Petitioner in Person.
Date of hearing: 28.1.2008.
Order
Mst. Nusrat Begum daughter of Gul Rehman has filed this revision petition against the interim order of the learned Civil Judge, Charsadda dated 30.5.2007 and that of the learned Additional District Judge-I, Charsadda dated 6.10.2007 vide which the application submitted by the petitioner in a pending suit for declaration permanent injunction, possession through partition and demolition of cellular tower and other construction raised by defendants/Respondents No. 12 and 13, the application of the petitioner for ad-interim injunction was refused.
Facts of the case are that the plaintiff/petitioner brought a suit for declaration, permanent injunction, and possession by way of partition and also for possession by way demolition of construction in the Court of Senior Civil Judge, Charsadda which was marked to Mr. Ubaidullah, Civil Judge, Charsadda. The petitioner had also annexed with the plaint an application for temporary injunction under the provisions of Order 39 (1) CPC praying therein that the respondents be restrained to raise construction in the suit property and a prohibitory order not to alienate the same or change its nature.
The case of the petitioner was that she being co-sharer, and the property has not been partitioned, so she was entitled to the temporary injunction as prayed for in her application dated 29.3.2007.
The learned Civil Judge after calling for the written statements and replication and hearing the learned counsels for the parties vide order dated 30.5.2007 refused to grant the injunction as prayed for on the ground, that although the plaintiff being a co-sharer has a prima facie case but for grant of temporary injunction all the three principles must co-exist to entitle the plaintiff-petitioner to the grant of requisite injunction, while in the instant case the plaintiff/petitioner lacks the two requisite i.e. The balance of convenience and irreparable loss in her favour.
The plaintiff then filed an appeal before Mr. Muhammad Hussain, Additional District Judge-I, Charsadda who vide Civil Appeal No. 12/14/2007 decided on 6.10.2007 dismissed the same by concurring with the trial Court. Hence, the present revision petition.
The petitioner was heard at great length in support of this revision petition and on previous dated i.e. 14.1.2008 Zaiullah attorney of the petitioner was also heard.
Perusal of the record reveals that the cellular U-Fone Mobile Tower in the suit property has already, been constructed as is evident from the contents of the plaint filed by the petitioner. The aim and object of the injunction is to restrain the future wrong being done to a party and not to disturb the status quo ante, prevailing before the institution of the suit. The other important aspect of this case is that admittedly the tower had already been completed and was functioning so when an Act is done and completed, no injunction will ensue as held in the case of Salahuddin Khan and three others vs. Sultan-i-Room and three others (PLD 1973 Peshawar Page 5 Note No. 72 and in case of Mst. Sughra Bai v. Mst. Rabia reported in 1982 CLC 344 (a).
In temporary injunction prima facie case is not the only requirement but the other two essentials must co-exist in order to warrant the issuance of temporary injunction as held in the case of Messer Sui Northern Gas Pipeline Company Limited vs. Messer Pakistan Cement Industries reported in PLD 1968 Lahore 876 (d).
It is pertinent to note that the defendant/Respondent No. 3 Muhammad Ayaz son of Muhibullah Khan during the pendency of civil appeal before the learned Additional District Judge, Charsadda has submitted an undertaking to the effect that he has only provided electric connection to the already installed U-fone Mobile Tower and in case of partition, if the suit property underneath the tower is allotted to the petitioner-plaintiff, he will not claim any cost or damage from the plaintiff. The undertaking find mention in Paras No. 6 and 7 of the impugned judgment of Additional District Judge, Charsadda dated 6.10.2007 which is binding on the defendant/respondent and has sufficiently protected the rights of petitioner/plaintiff as the Respondent No. 3 has installed the U-Fone Mobile Tower at his own risk and costs for which the defendant/respondent will not be entitled for any compensation as held in the case of Zakia Khatoon vs. Roomi Enterprises reported in 1995 SCMR Page 753.
As regard the alienation and transfer of the property during the pendency of the suit, prayer for keeping the status quo intact, was altogether ignored by the two Courts below. The defendants/ respondents are not within their right to transfer the suit property during the pendency of the suit and the petitioner was entitled at-least to this relief, hence, while modifying the impugned judgments and orders of the two Courts below. It is ordered that the respondents/defendants shall not alienate the suit property during the pendency of the suit filed by Mst. Nusrat Begum, plaintiff/petitioner.
This being the position, with the above modification, there is no force in this revision petition, which is dismissed in limine with no order as to costs. Copy of this judgment be sent to District Judge, Charsadda for placing the same on the file of Civil Suit No. 216/1 instituted on 29.3.2007 titled Mst. Nusrat Begum vs. Muhammad Iqbal Khan and others pending in the Court of Mr. Obaidullah, Civil Judge, Charsadda.
(A.A) Order accordingly
PLJ 2008 Peshawar 116 (DB)
Present : Muhammad Alam Khan & Said Maroof Khan JJ.
MAULANA ATTA-UR-REHMAN--Petitioner
versus
AL-HAJ SARDAR UMER FAROOQ MIANKHEL and others--Respondent
W.P. No. 236 of 2008, heard on 11-03-2008.
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 39(6)--Constitution of Pakistan 1973, Art. 199--Recounting of votes--Jurisdiction of returning officer--Held : Returning officer had the jurisdiction to order the recounting of vote especially when the allegations were that, the consolidation process were not made in presence of the candidate or their agents. [P. 120] A
S. Masaud Kausar, Bar at Law for Petitioner.
Mr. Abdul Latif Yousafzai, Advocate for respondents.
Date of hearing : 11.3.2008.
Judgment
Muhammad Alam Khan, J.--By this single judgment, we propose to dispose, of W.P. No. 236/2008 (Maulana Atta-ur-Rehman Vs. Alhaj Sardar Umer Farooq Miankhel and others) and W.P. No. 254/2008 (Habibullah Khan Kundi Vs. District Returning Officer, NA-25 Tank-Cum-D.I.Khan and others), as both these pertain to one and the same constituency.
Maulana Atta-ur-Rehman son of Maulana Mufti Mahmood, petitioner in W.P. No. 236/2008. a contesting candidate for constituency NA-25 Tank-cum-D.I.Khan has filed the present Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, wherein he has challenged the order dated 21.2.2008, passed by Respondent No. 12, Returning Officer of the above constituency, ordering the recounting/re-checking of the entire votes/ballet papers, polled in the said constituency NA-25 Tank-cum-D.I.Khan. In the connected W.P. No. 254/2008. Habibullah Khan Kundi, petitioner has prayed that the impugned order dated 27.2.2008, passed by District Returning Officer NA-25, Tank-cum-D.I.Khan, Respondent No. 1, be declared as illegal, without lawful authority and of no legal effect besides being without jurisdiction and coram-non-judice.
Briefly narrated the facts of the case are that the petitioners and Respondents No. 1 to 11 contested the election as candidates for constituency NA-25 Tank-cum-D.I.Khan, in the recently held Election on 18.2.2008. It is alleged that when the polling was completed, each Presiding Officer after counting the votes submitted the statement of counts to Respondent No. 12, namely, Capt: (Rtd) Muhammad Naseem Khan, Additional Sessions Judge, Tank.
It is further alleged that after consolidation of counting, un-official result was announced on 19.2.2008, wherein Maulana Atta-ur-Rehman, petitioner had secured the highest votes to the tune of 44,676/- and allegedly he was declared as a returned candidate.
Further averments in the petition are that on 20.2.2008, Engineer Dawar Khan Kundi, a contesting candidate, Respondent No. 2, submitted an application to the Returning Officer making certain objections to the counting of votes. It was, inter alia, objected that the consolidation or tabulation of results were neither prepared in presence of the applicant nor its polling agents; that the counting by the Presiding Officer was also carried out in the absence of applicant Engineer Dawar Khan Kundi. There was neither independent observer nor any media person was present at the time of preparation of statement of counts by the Presiding Officer. It was also objected in the application that an abnormal delay occurred in the results of said constituency, which suggests manoeuvering in the result.
That the above application was accepted by the Returning Officer on 21.2.2008, quoting Section 39(6)(A)(B) of the Representation of the People Act, 1976 and the recounting was ordered in the circumstances of the case.
That the petition came for hearing on 28.2.2008, wherein the Division Bench of this Court passed an order issuing pre-admission notice to the respondent for 5.3.2008 and an interim relief notice was given to the respondents for the date fixed and in the meantime the process of recounting was ordered to remain stayed.
That in the counter writ petition, Habibullah Khan Kundi petitioner is aggrieved from the order of Returning Officer/Respondent No. 1 dated 27.2.2008, wherein the same Returning Officer Cap: (Rtd) Muhammad Naseem Khan stopped the recounting of votes. It was further mentioned in the impugned order that the recounting of 181 Polling Stations was completed while in 79 Polling Station the recounting was going on. In the meantime Maulana Atta-ur-Rehman Respondent No. 2 raised an objection to the recounting vide his application dated 27.2.2008, requested for the stoppage of recounting, which was stopped.
It is alleged that the learned Returning Officer had already passed an order for recounting of votes and the recounting was conducted from 23.2.2008 to 26.2.2008 in presence of Respondent No. 2 and the other contesting candidates, so the stoppage of recounting of votes which had already commenced, could not be stopped, so the impugned order dated 27.2.2008 is illegal, not in accordance with law and is liable to be struck down being without lawful authority and of no legal effect.
The learned counsel for the petitioner barrister Masaud Kausar, Bar-at-law, submitted that once the results were consolidated pursuant to the statements of counts submitted by the Presiding Officers to the Returning Officer, the Returning Officer had become functus officio and he had no jurisdiction to order the recounting/re-checking of votes vide the impugned order dated 21.2.2008 and thus in view of the provisions contained in section 39 sub-section (6) of the Representation of the People Act, 1976 The Returning Officer had no jurisdiction to order the recounts and thus the entire process of recounting was void and without jurisdiction, thus, it was prayed that the impugned order be set aside as without lawful authority and of no legal effect.
Mr. Abdul Latif Yousafzai, Advocate, learned counsel, appearing for the respondents submitted that the application submitted by Engineer Dawar Khan Kundi and Habibullah Khan Kundi respondents was based on solid reasons which prevailed with the Presiding Officer, Respondent No. 12 and vide the impugned order the recounting was ordered in which Maulana Atta-ur-Rehman petitioner participated in the process of recounting which continued for four days and the votes of 181 Polling Stations were counted and the subsequent stoppage of recounting on the application of Maulana Atta-ur-Rehman and the order passed on that application is without jurisdiction; that the petitioner was legally estopped by his conduct to challenge the process of recounting as he participated in recounting of 181 Polling Stations unreservedly and without objection, thus under the doctrine of approbation and reprobation he could not challenge the process of re-counting. It was also submitted that in view of the provisions contained in Section 39(6) ibid, the Returning Officer, Respondent No. 6 had no jurisdiction to order the recounting of votes and the subsequent stoppage of the recounting specially when the counting was carried on for four days, was without jurisdiction. Reliance was placed on Umer Hayat Vs. Azad Government of the State of Jammu and Kashmir through Chief Secretary and 3 others (1999 PLC (C.S) 93), Adul Qadir Vs. Abdul Karim through Chief Secretary and 4 others (1999 PLC (C.S) 947) and Muhammad Hussain Munir and others Sikandar and others (PLD 1974 SC 139).
We have gone through the record of the case with the assistance of the learned counsel for the parties and have considered their respective submissions.
Under the provisions of Section 30 (6) of the Act ibid, the Returning Officer had the jurisdiction to order the recounting of votes, if that upon the request or challenge in writing made by the contesting candidate or his agent, he was satisfied, could order the recounting of votes. The provision of Section 39 of the Act ibid is reproduced below:--
"(6) The Returning Officer may recount the ballot papers--
(a) upon the request of, or challenge in writing made by a contesting candidate or his election agent, if the Returning Officer is satisfied that the request or the challenge is reasonable; or
(b) if so directed by the Commission, in which case the recount shall be held in such manner and at such place as may be directed by the Commission."
The reproduction of the above provision of law would show that the Returning Officer had the jurisdiction to order the recounting especially when the allegations were that, the consolidation processes were not made in presence of the candidate or their agents and once the Returning Officer, Respondent No. 12, was satisfied about the genuine objections of the respondent, he could pass the impugned order which was well within the jurisdiction of the Returning Officer.
Further more, when the petitioner participated in the recounting for four days from 22.2.2008 uptill 26.2.2008, and the recount of 181 Polling Stations was carried out, he cannot say that the process of recounting was without jurisdiction by the Returning Officer, Respondent No. 12, on the principles of approbation and reprobation, as held in the case of Said Ahmad Khan Vs. Akram Khan and 3 others (PLD 1989 Peshawar 201).
With regard to W.P. No. 254/2008, titled Habibullah Khan Kundi vs. District Returning Officer and others, once the Returning Officer had passed an order of recounting, he was under the law to have completed the process of re-counting and could not withhold/stop the process by a subsequent order dated 27.2.2008, passed by the Returning Officer, impugned in this writ petition and the same was without jurisdiction.
In view of the facts and circumstances of the case narrated above, there is no force in W.P. No. 236/2008, which is dismissed in limine. The interim relief granted by this Court on 28.2.2008, staying the process of recounting is hereby vacated. The connected W.P. No. 254/2008 titled Habibullah Kundi Vs. Returning Officer etc: is accepted and the impugned order dated 27.2.2008 is held to be illegal, without jurisdiction and without lawful authority and the same is set aside. Resultantly, the District Returning Officer, Respondent No. 12 is directed to complete the process of recounting and consolidate the results of constituency NA-25 Tank-cum-D.I.Khar. and submit the same to the Election Commission of Pakistan, Respondent No. 15. Parties are directed to bear their own costs.
(W.I.B.) Petition dismissed
PLJ 2008 Peshawar 121
Present : Syed Musadiq Hussain Gilani, J.
MUHAMMAD ANSARULLAH--Petitioner
versus
MASOOD BAKHTIAR and others--Respondents
Civil Revision No. 1047 of 2007, decided on 1.4.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115 & O. VII, R. 11--Rejection of plaint--Suit for recovery as damages for defamation, mental torture and malicious prosecution was filed by respondents wrongly--Application under Order VII, Rule 11 of CPC was dismissed--Trial Court was therefore, bound to reject the plaint filed by respondents without proceeding further and by not doing so, material illegality was committed--Question involved is a question of fact which is to be determined after recording pro and contra evidence of the parties--Held: Respondents have properly valued the suit for the purpose of Court fee and jurisdiction and also disclosed the cause of action which is not barred by law--Discretion which is neither perverse nor arbitrary, has been properly exercised--No illegality to warrant interference in revision--Petition was dismissed in limine. [P. 122] A
Petitioner in person.
Date of hearing: 1.4.2008.
Order
Heard Contends that the suit for the recovery of Rs. 4 Crore as damages for defamation, mental torture and malicious prosecution, was filed against him by the respondents wrongly. He contested the suit, and put in written statement, as well as application under Order 7, Rule 11 CPC, for rejection of the plaint. The said application was contested by the respondents, and after hearing arguments, the learned Civil Judge dismissed the same vide order dated 22.2.2007. The petitioner stressed that while passing the impugned order, the trial Court ignored the material point in issue. Respondents were prosecuted in accordance with law, and there was no reason for filing suit for the recovery of damages. The trial Court was, therefore, bound to reject the plaint filed by the respondents without proceeding further, and by not doing so, material illegality was committed.
(R.A.) Petition dismissed
PLJ 2008 Peshawar 122 (DB)
Present: Shah-ji-Rehman and Muhammad Alam Khan, JJ.
MAULANA ABDUL MALIK WAZIR--Petitioner
versus
ELECTION COMMISSION OF PAKISTAN, CONSTITUTION AVENUE, ISLAMABAD through its Secretary and others--Respondents
Writ Petition No. 211 of 2008, decided on 7.3.2008.
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 52--Constitution of Pakistan, 1973, Art. 225--Held: Factual controversy of forgoing result on simple paper is involved alternate and efficacious remedy is available to petitioner by filing election petition for redressal his grievance-Petition dismissed. [P. 125] A
PLD 1989 SC 396, fol.
M/s. Barrister Masood Kausar and Kamran Murtaza, Advocates for Petitioner.
Mr. Salahuddin Khan, Deputy Attorney General for Respondents No. 1 to 3 alongwith Respondent No. 3 in person and Mr. Sharifullah, Assistant Election Commissioner, on behalf of Respondents Nos. 1 and 2.
Respondents No. 6, 7 & 8 in person.
Qazi Muhammad Anwar, Advocate for Respondent No. 9.
Date of hearing: 7.3.2008.
Order
Muhammad Alam Khan, J.--Maulana Abdul Malik Wazir son of Ahmed Jan candidate from the seat of NA-41 Tribal Area-VI, South Waziristan Agency, WANA has filed the instant writ petition, wherein, he has challenged the validity and legality of order dated 21.02.2008 of Election Commission of Pakistan, Respondent No. 1, whereby, an order was passed for re-polling of two Polling Stations i.e., Polling Station No. 60, GMS Khan Kot No. 1 and No. 62 GMS Khan Kot No. 2 (Zermillan), without notice and hearing to the effected parties.
"It is respectfully prayed that this Hon'ble Court may graciously to entertain the Petition and also to set aside the Notification dated 21.02.2008 issued by Respondent No. 1 directing re-poll on two of the Polling Stations i.e. No. 16 (GMS) Khan Pur No. 1 Zermillan and 62 (GMS) Khan Pur No. 2, Zermillan in constituency NA-41 Tribal Area VI."
On the other hand, the respondents submitted written statement to the writ petition wherein, besides the factual objection, a preliminary objection was raised that this Court has got no jurisdiction to entertain the instant petition as no flaw in the impugned notification affecting the election in the constituency has been pointed out and that in view of Section 52 of the Representation of the People Act, 1976 read with Article 225 of the Constitution, the election dispute are amenable to the exclusive jurisdiction of the Election Tribunal, which have already been established.
On 25.02.2008 this Court admitted this petition to regular hearing and interim relief was granted to the effect that the result of re-polling in the above-mentioned Polling Stations shall not be declared.
We have heard the learned counsel for both the parties and have gone through the record with their valuable assistance.
The learned counsel for the petitioner, vehemently argued that printed Form-XIV was not available with the Presiding Officers of the two Polling Stations, therefore, result of the said Polling Stations was prepared on simple paper and that has not vitiated the result of the said Polling Stations and the order passed by the Election of Pakistan is against the law and rules on the subject, therefore, the same be declared void and without lawful authority and that this Court has got ample powers to redress the grievance of the petitioner in exercise of the constitutional jurisdiction.
On the other hand, the learned counsel for the contesting respondent, supported the impugned order dated 21.02.2008 passed by the Election Commission of Pakistan and it was inter-alia submitted that under Rule 24 of the Representation of the People (Conduct of Election) Rules, 1977, the statement of the count under sub-section (9) of Section 38 shall be prepared in Form-XIV and the Presiding Officer having not prepared the result in accordance with law and rules and result of these Polling Stations was delayed and forged, therefore, the same was rightly not accepted by the Election Commission of Pakistan vide impugned order. That in the re-polling, the petitioner having participated, cannot turn around and challenge the impugned order of re-polling in the two Polling Stations, mentioned above, therefore, the Writ Petition be accordingly dismissed as infructuous and not maintainable in light of Section 52 of the Representation of People Act, 1976 read with Article, 225 of the Constitution, 1973.
Since, the factual controversy of forgoing result on simple paper is involved in this case and alternate and efficacious remedy is available to the petitioner for the redressal of his grievance by filling an Election Petition in the Election Tribunal, constituted under Section 57 of the Representation of People Act, 1976. The jurisdiction of this Court is also excluded under Section 52 of the Representation of People Act, 1976 read with Article 225 of the Constitution. If any, authority is required, reference can be made to "Election Commission of Pakistan through its Secretary Vs. Javed Hashmi reported in PLD 1989 S.C. 396."
For what has been discussed above, finding no merit and substance in the instant Writ Petition, the same is hereby dismissed and Interim Order issued on 25.02.2008 with-holding the result of re-polling of the aforesaid two Polling Stations, is hereby vacated.
(M.S.A.) Petition dismissed
PLJ 2008 Peshawar 125(DB)
Present: Said Maroof Khan and Muhammad Alam Khan, JJ.
SYED HUSSAIN ALI SHAH AL-HUSSAIN--Petitioner
versus
ELECTION COMMISSION OF PAKISTAN through Secretary Election Commission and 11 others--Respondents
W.P. No. 234 of 2008 with interim relief and C.M. No. 90 of 2008, decided on 6.3.2008.
Representation of the People's Act, 1976 (LXXXV of 1976)--
----S. 52--Constitution of Pakistan, 1973--Art. 199--Constitutional election petition--Exclusive jurisdiction--Resorted to pre-poll rigging and even on the day of election he created law and order situation--Refusing the re-count of votes--Vast rigging was committed which resulted in polling of bogus votes is a controversial question of fact which an elaborate inquiry and recording of evidence, which cannot be undertaken in constitutional petition--Question of maintainability--Election Tribunal has also been constituted for adjudication of disputes regarding holding and conduct of general elections in the country--Held: Exclusive jurisdiction lies with those tribunals as envisaged under Section 52 of Representation of the People's Act, which provide that no election shall be called in-question except by election petition, made by a candidate--Further held: Since factual controversy is involved and adequate and efficacious remedy in shape of election petition is available to petitioner he can raise the grievance before competent forum that is election tribunal and he cannot question the legality of election before High Court in its extra-ordinary constitutional jurisdiction--Petition being not maintainable was dismissed. [P. 128] A, B & D
PLD 1989 SC 396 rel.
Constitution of Pakistan, 1973--
----Art. 225--Representation of the People's Act, 1976 S. 52--Election dispute--Rigging was committed--Polling of bogus votes was a controversial question of fact--No dispute in connection with an election to a house or Provincial Assembly shall be called in-question except by an election petition. [P. 128] C
Mr. Naveed Maqsood Sethi, Advocate for Petitioner.
Qazi Muhammad Anwar, Advocate for Respondent No. 10.
Date of hearing: 6.3.2008.
Order
Muhammad Alam Khan, J.--The petitioner through the instant Writ Petition under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973 has called in question the action of Respondent No. 3 dated 26.2.2008 refusing the re-count of the votes with respect to the election of National and Provincial Assembly seats for NA-16 Hangu and PF-42 Hangu in the recently held election on 18.2.2008.
It is averred in the petition that the general election in the country was conducted on 18.2.2008 pursuant to the notification dated 20.11.2007, which was subsequently amended through notification dated 2.1.2008. It is also alleged in the petition that even prior to the election Respondent No. 10 was posing to be establishment's candidate and during the poll, he resorted to pre-poll rigging and even on the day of election he created law and order situation and had left no stone un-turned to commit the gross illegality. It was also alleged that there were sectarian clashes in the area and the same resulted in polling of bogus votes.
On 28.2.2008 pre-admission notice was issued to the respondents, pursuant to which they appeared and submitted written statement in which inter alia preliminary objection was raised with respect to the competency of the writ petition in view of Article-225 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 52 of the Representation of People Act 1976. It was averred in the written statement that the result have already been consolidated and the allegations raised in the petition are exclusively amenable to the jurisdiction of the election tribunal which has duly been constituted by the Chief Election Commissioner through a notification.
Learned counsel for the petitioner contended that because of the mass rigging and irregularities conducted during the process of election, the election is liable to be set aside.
On the other hand learned counsel for the respondents submitted that once the result is consolidated then it become an election dispute, which cannot be questioned, in the extra-ordinary constitutional jurisdiction of this Court.
It was also argued that as the election tribunal have been constituted and thus the only fourm available for such like disputes is the election tribunal. It was further submitted that at no stage the election or its process was objected to by the petitioner and thus, by his own conduct the petitioner is estopped to challenge the said election.
We have gone through the available record of the case and have considered the submission of the learned counsel for the parties the contention of the learned counsel for the petitioner that on the day of poll vast rigging was committed which resulted in polling of bogus votes is a controversial question of fact which require an elaborate inquiry and recording of evidence, which cannot be undertaken in this Constitutional petition and specially when there are factual controversies, which requires the detailed recording of evidence which is the exclusive domain of the election tribunal.
Admittedly the election was held in the disputed constituency and the result was compiled according to the available procedure. Election tribunal have also been constituted for adjudication of the disputes regarding holding and conduct of general elections in the country. Once the tribunals are constituted, then the exclusive jurisdiction lies with those tribunals as envisaged under Section 52 of the Representation of the People's Act which provides that no election shall be called in question except by election petition, made by a candidate for that election. Similarly Article-225 of the Constitution of Islamic Republic of Pakistan, 1973 also provides that no dispute in connection with an election to a house or Provincial Assembly shall be called in question except by an election petition.
Since factual controversy is involved in this case and adequate and efficacious remedy in the shape of election petition is available to the petitioner he can raise the grievance before the competent forum i.e. the election tribunal and he cannot question the legality of the election before this Court in its extra-ordinary constitutional jurisdiction under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973 as held in the case of election Commission of Pakistan through its Secretary Vs. Javed Hashmi reported in (PLD 1989 S.C. 396).
This writ petition being not maintainable is dismissed in limine. The interim relief granted by this Court on 28.2.2008 prohibiting the issuance of notification of Respondent No. 10 also stand vacated.
(R.A.) Petition dismissed
PLJ 2008 Peshawar 129
[D.I. Khan Circuit Bench]
Present: Muhammad Alam Khan, J.
RASHID KHAN--Petitioner
versus
GHULAM RASOOL--Respondent
C.R. No. 119 of 2007, decided on 15.2.2008.
NWFP Pre-emption Act, 1987--
----S. 24--Civil Procedure Code, (V of 1908), S. 115--Civil revision--Challenged reversal of order--Suit for pre-emption--Plaintiff/ petitioner who was pre-emptor has withdrawn the portion of the sale consideration and resultantly when under the provision of Section 24 of the NWFP Pre-emption Act, 1987, Court will direct the pre-emptor to deposit 1/3rd of the probable value of the pre-empted land which shall remain in deposit, if the preemptor failed to deposit the same or after deposit withdraw then suit is liable to be dismissed--High Court fixed sale consideration to be specific amount--Petitioner was required to deposit the remaining sale consideration within one month, which was not done and a portion of the sale consideration was withdrawn by the plaintiff--Petitioner vide receipt thus making the decree to be a nullity in the eyes of law and there was no subsisting decree in the field to be executed--Revision dismissed in limine. [P. 132] A & B
Petition in person.
Date of hearing: 15.2.2008.
Order
Rashid Khan son of Sardar r/o village Yarak Tehsil and District Dera Ismail Khan, has filed the instant Civil Revision under Section-115 of the Code of Civil Procedure, wherein he has impugned the judgment and decree dated 13.1.2007 passed by the learned Additional District Judge-V Dera Ismail Khan in Appeal No. R.C.A-23/2006, vide which he has challenged the reversal of the order dated 10.6.2006 passed by the learned Civil Judge-III Dera Ismail Khan; in Misc: Application No.77/6.
Briefly narrated the facts of the case are that the plaintiff-petitioner brought a suit for preemption regarding land, the description of which has been given in the heading of the plaint in the Court of Senior Civil Judge, Dera Ismail Khan, which was entrusted to the learned Civil Judge Dera Ismail Khan for disposal. It was averred that Ghulam Haider and Niamat Khan had also preempted the said sale transaction and thus, the learned trial Court consolidated the two suits and after recording of evidence and hearing the arguments of the learned counsels for the parties, the rival preemptors withdrew their suit and resultantly the plaintiff-petitioner submitted an amended plaint. After hearing the arguments of the learned counsels for the parties qua the amended plaint the suit of the plaintiff-petitioner was decreed on payment of Rs. Seventy thousands as sale consideration, vide judgment and decree in Suit No.331/1 of 2000 decided on 3.7.2000.
That lateron the petitioner being partly aggrieved from the sale consideration of the preempted land as fixed by the trial Court filed an appeal from the judgment and decree of the Civil Judge-III dated 3.7.2000 which came for hearing before the Additional District Judge, Dera Ismail Khan for disposal. However, as the respondent-defendant being aggrieved from the main decree also filed a cross appeal. Both of the appeals were consolidated and the learned Additional District Judge while dismissing the appeal of the respondent, accepted the appeal of the plaintiff-petitioner to the extent of sale consideration which was reduced to Rs. 35000/- vide judgment and decree dated 10.11.2001 in Civil Appeal No. 66 of 2006 decided on 10.11.2001.
Two civil revisions were filed by the parties before the Peshawar High Court Dera Ismail Khan Circuit Bench being Civil Revision Nos. 8 of 2002 and 9 of 2002 which came for hearing before this Court and this Court vide order dated 6.6.2005 disposed of the two revision petitions vide common judgment recorded in C.R No.8/2002. Consequently, this Court accepted Civil Revision No. 8 of 2002 filed by the defendant-respondent and the sale consideration was enhanced to Rs. Seventy Thousand as decreed by the trial Court. However, the Civil Revision No. 12 of 2002 filed by the plaintiff-petitioner was dismissed.
Lateron the defendant/respondent filed a Review Petition Bearing No. 117 of 2005 in Peshawar High Court Circuit Bench Dera Ismail Khan, which was disposed of on the ground that the learned counsel for the petitioner does not want to pursue the said review petition and thus, the review petition of the respondent-defendant was dismissed on 25.10.2005. However, it was held by this Court in the review petition aforesaid as under:
"3. If the plaintiff-petitioner has withdrawn a part of the sale consideration, he should have deposited the same within thirty days of the order of this Court dated 6.6.2005 but if the said amount of Rs.70,000/- is not available to be paid to the vendee-defendant-petitioner, that means the decree of the learned trial Court, which was otherwise conditional on payment of the balance amount of sale consideration, stood reversed as under the Preemption Act, balance of sale consideration has to be deposited within thirty days of the date of decree. Even if the amount was deposited within the prescribed period but the same was withdrawn in the meanwhile, the amount should have been deposited within thirty days of the order of this Court dated 6.6.2005 and since a period of more than four months has expired, therefore, the plaintiff-pre-emptor has lost his rights firstly, for an incorrect statement as reproduced in para-4 and secondly, for non-compliance with the statutory requirement of deposit of amount within thirty days of date of decree.
At the most the objection with regard to the non-existence of decree can be raised in the executing Court when the execution proceedings commence or the petitioner may move the learned trial Court for nullifying the effect of decree which was restored by the orders of this Court."
In this background the defendant-respondent filed an application under Section-144 read with Section-151 C.P.C in the Court of Civil Judge-III Dera Ismail Khan for restoration of possession on the grounds that as the plaintiff-preemptor, i.e the present petitioner has withdrawn a portion of the sale consideration from the Court of Civil Judge-III and thus, the decree initially passed had become infructuous and nullity in the eyes of law.
The learned trial Court while seized of the application aforesaid held vide order in Misc: Application No. 77/6 decided on 10.6.2006 that as the pre-emptor had earlier withdrawn, the portion of sale consideration of Rs. 35000/- from this Court and after the reversal of the part of sale consideration to the tune of Rs. 70,000/- the plaintiff-petitioner was bound to have deposited the sale consideration within thirty days from the order dated 6.6.2005, in Civil Revision No. 8/2002, decided by this Court. As the plaintiff has not complied with the order and failed to deposit the same within a month. There was no subsisting decree in his favour in the field.
The plaintiff-petitioner filed an appeal before the learned District Judge Dera Ismail Khan, which was entrusted to the learned Additional District Judge-V Dera Ismail Khan, who after hearing the counsels for the parties vide order judgment and decree dated 13.1.2007 dismissed the appeal and concurred with the learned trial Court by holding that there was no existing decree in favour of the plaintiff-petitioner as the portion of the sale consideration had been withdrawn. The plaintiff-petitioner has now come up in revision to this Court.
Rashid Khan petitioner in person present. He was heard in detail with respect to the factual aspect of the case. He submitted that he has not withdrawn the partial sale consideration which is lying intact in the Court of the learned Civil Judge, thus Mr. Umar Farooq Incharge Civil Nazir of the Court of Senior Civil Judge, Dera Ismail Khan was called and his statement was recorded on oath which read as under:
"States that Rashid Khan pre-emptor had deposited Rs.70,000/- as preemption money in view of the order of the Civil Judge in Suit No. 331/1 of 2000 decided on 10.3.2000 vide Register No. 71 dated 16.6.1992. Subsequently, the plaintiff-preemptor had withdrawn Rs. 35,000/- from the Court and now only Rs.35,000/- are lying in deposit in the case titled Rashid Khan v. Ghulam Rasool."
then finally determine the probable value and will order the preemptor to deposit the same within a stipulated period. In this case the decree
for preemption which had been passed by Miss. Sofia Waqar
Khattak Civil Judge-III, Dera Ismail Khan, vide Suit No. 331/1 of 2000 decided on 3.7.2000 the sale consideration was fixed to be Rs. Seventy thousand and after contest when finally that sale price was maintained upto this Court vide C.R. No. 8 of 2002 which was partially accepted and the sale consideration was fixed by the Court which was also maintained in Review Petition No. 177 of 2005 decided on 25.10.2005 and the petitioner was supposed to have deposited the same within one month, even if he had withdrawn the same, which was not deposited within one month.
The record reveals that initially 1/3rd of the sale consideration had been fixed to be Rs. 35,000/-but when this Court fixed the sale consideration to be Rs. Seventy thousand, the plaintiff-petitioner was required to deposit the remaining sale consideration of Rs. 35,000/- within one month, which was not done and a portion of the sale consideration was withdrawn by the plaintiff-petitioner vide receipt dated 20.11.2001 thus making the decree to be a nullity in the eyes of law and there was no subsisting decree in the field to be executed.
The orders of the trial Court as well as of the appellate Court are perfectly sound, legal and strictly in accordance with law which calls for no interference.
Resultantly, this revision fails, which is dismissed in limine, with no order as to costs. This revision petition has been dismissed vide short order dated 15.2.2008 and the above are the reasons for the same.
(M.S.A.) Revision dismissed
PLJ 2008 Peshawar 133
Present: Zia-ud-Din Khattak, J.
MUHAMMAD KARIM and 2 others--Petitioners
versus
SHER BAHADAR and 6 others--Respondents
C.M. No. 52 of 2007 in C.R. No. 52 of 2003, decided on 28.2.2008.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 12(2) & 115--Judgment/decree of Civil Court--Re-affirms judgment or order of a Civil Court--Affirmed by Appellate Courts--Maintainability--Held: High Court by dismissing revision application had affirmed and not reversed the judgment & decree of Civil Judge, so the final judgment & decree is of Civil Judge--Petition under
S. 12(2), C.P.C. was competent before Civil Judge--Petition dismissed. [P. 134] A
1999 SCMR 1516, ref.
Mr. Amir Rehman, Special Attorney for Petitioners.
Respondent No. 1 in person also Spl. Attorney for rest of the Respondents.
Date of hearing: 28.2.2008.
Order
Muhammad Karim and two others, petitioners herein have filed this application under Section 12 (2) C.P.C. against the judgment of this Court in Civil Revision No. 52/2003 dated 10.5.2004 whereby the judgment/decree of learned Civil Judge/Illaqa Qazi, Dir in Suit No. 28/1 dated 14.10.1999 and that of the learned District Judge/Zilla Qazi, Dir Bala in Appeal No. 86/14/Nim of 1999 dated 18.11.2002 were affirmed.
It is alleged that petitioners are real owners of suit property and that the decree obtained by the Respondents 2-5 from learned Civil Judge/Illaqa Qazi, Dir upheld upto this Court, being the outcome of fraud may be set aside and as a consequence thereto the suit be dismissed. The application has been filed in this Court in view of apparent scheme of Section 12 (2) C.P.C. that an application is to be filed in the Court which passed the final order.
Heard. Record perused.
The law on the subject now stands clarified and settled in view of the dictum of august Supreme Court of Pakistan reported in 1999 SCMR 1516 that if the High Court merely re-affirms judgment or order of a Civil Judge/District Judge by dismissing revision petition under Section 115 C.P.C., the final judgment in terms of Section 12(2) C.P.C. will be of the Civil Judge/District Judge and not of the High Court. If, however, the High Court reverses a judgment of a Civil Judge/District Judge and records a finding on question of fact or law contrary to what was held by the lower fora, the final judgment or order would be of the High Court for the purpose of Section 12 (2) C.P.C.
In the case in hand, this Court by dismissing Civil Revision No. 52/2003 vide order dated 10.5.2004 had affirmed and not reversed the judgment/decree dated 14.10.1999 of the Civil Judge/Illaqa Qazi, Dir, the final judgment/decree in terms of Section 12 (2) C.P.C. is, therefore, of the Civil Judge and as such there can be no dispute with the proposition that jurisdiction to entertain and decide the application under Section 12 (2) C.P.C. moved by the petitioners vests exclusively, in the Civil Judge/Illaqa Qazi, Dir.
Accordingly, this application under Section 12 (2) C.P.C. is dismissed being not maintainable in this Court.
(J.R.) Petition dismissed
PLJ 2008 Peshawar 134 (DB)
Present: Said Maroof Khan and Zia-ud-Din Khattak, JJ.
BACHA-UD-DIN--Petitioner
versus
GOVERNMENT through Collector Customs, Customs House, Peshawar and 6 others--Respondents
W.P. No. 1169 of 2007, decided on 17.1.2008.
Custom Act, 1969 (IV of 1969)--
----Ss. 169(4) & 201--Constitution of Pakistan, 1973, Art. 199--Auction of vehicle--Contention that no notice was issued--Violation of procedural law--Notice was given to petitioner/owner regarding sale/auction of the vehicle--No violation of any provision of the Customs Act--Constitutional petition was dismissed in limine.
[P. 136] A
Petitioner in person.
Mr. Zubair Shah, Assistant Collector, Customs (Auctions)/ Respondent No. 4.
Date of hearing: 17.1.2008.
Order
Zia-ud-Din Khattak, J.--The staff of Police Station, Shergarh detained Toyota Land Cruiser Chassis No. LJ 78-0014304, Engine No. 2L-3878981, Model 1991 under Section 523/550 Cr.P.C. on suspicion of having involved in the commission of an offence. The occupant namely, Bachauddin, (herein after called as the petitioner) could not produce any document regarding legal import of the vehicle whereupon the police authorities sent the vehicle to FSL which could not detect any tampering with chassis frame thereof, as a result, the vehicle was handed over to the Customs Anti-Smuggling Unit, Mardan for further necessary action. As no documentary evidence of legal import was produced, therefore, the vehicle was seized under Section 168 of the Customs Act, 1969 (herein after referred to as the Act) for violation of Section 16 of the Act read with Section 3(1) of the Imports and Exports (Control) Act, 1950. A show-cause notice was issued to the concerned and after hearing the parties, the Additional Collector, Customs Peshawar vide order in Original No. 666/671 of 2006 communicated on 20.12.2006 (whereby five other cases were also disposed of) confiscated the vehicle to the State.
Bachauddin, petitioner went in appeal to the learned Collector of Customs (Appeals), Peshawar; in that he requested for release of the vehicle on payment of duty and taxes which find favour with the latter who vide order in Appeal No. 91/2007 dated 10.4.2007 (communicated on 16.4.2007) ordered the release of the vehicle to its lawful owner on payment of redemption fine equal to 30% of Customs Value thereof, in addition to duty and taxes leviable thereon in terms of SRO 255 (1)/2007 dated 17.3.2007.
By the time the impugned order in appeal was communicated, the Customs Department had already auctioned the vehicle on 11.4.2007 which offended the petitioner who filed this writ petition, under Article 199 of the Constitution of the Islamic Republic of Pakistan. It was, inter alia, pleaded that the vehicle was auctioned on 11.4.2007 in undue haste, a day after the impugned order in appeal and that no notice was given to the petitioner. The Customs Department denied the allegations and urged that a notice under Section 201 of the Act was given to the petitioner through registered post vide C. No. 423 dated 27.12.2006. Mr. Zubair Shah, Assistant Collector Customs (Auctions)/Respondent No. 4 argued that the department is empowered to auction goods seized under the Act during the pendency of adjudication proceedings or appeals under Section 169(4) of the Act. He submitted that the request of the petitioner to pay duty and taxes on the vehicle is itself an admission to the fact that the vehicle was smuggled one.
Heard. Record perused.
The only point argued before us on behalf of the petitioner was regarding violation of the impugned order in appeal dated 10.4.2007 (whereby the vehicle was ordered to be released on payment of redemption fine, in addition to duty and taxes leviable thereon). Undoubtedly, sub-section (4) of Section 169 of the Act, does authorize the sale/auction of the seized goods that include vehicles even prior to the conclusion of the adjudication proceedings. However, the procedure for the sale/auction of goods are provided under Section 201 of the Act, which states that goods shall be sold after due notice to the owner by public auction or by tender or by private offer or with the consent of the owner in writing in any other manner. Thus, goods seized under the Act can be sold under sub-section (4) of Section 169 but only after due notice to the owner, who is even given the right to make proposal of the manner in which the goods may be sold.
Coming to the facts of the present case, the vehicle was seized vide Case No. 78/2006 dated 26.9.2006. The learned Collector of Customs (Appeals), Peshawar ordered for release of the vehicle on payment of 30% redemption fine, in addition to leviable duty and taxes vide order in Appeal No. 91/2007 communicated on 16.4.2007 under Section 215 of the Act vide C. No. CUS-54/2007/501 dated 16.4.2007 i.e. five (5) days after the auction that held on 11.4.2007.
We have gone through the record and find that a notice (Annex-A) was given to the owner, petitioner herein under Section 201 of the Act on 27.12.2006 regarding sale/auction of the vehicle. Thus, the department cannot be held to have violated any provision of the Act or impugned order in appeal by selling/auctioning the vehicle.
In this view of the matter, the writ petition being devoid of merit is dismissed in limine. However, as the learned Collector of Customs (Appeals), Peshawar allowed the petitioner to redeem the vehicle on payment of redemption fine, in addition to duty and taxes leviable thereon vide impugned order in Appeal No. 91/2007 dated 16.4.2007, therefore, the petitioner/owner is entitled to receive the sale proceeds from the department in accordance with law.
(M.A.K.Z.) Petition dismissed
PLJ 2008 Peshawar 137 (DB)
Present: Zia-ud-Din Khattak and Raj Muhammad Khan, JJ.
GHANI-UR-REHMAN--Petitioner
versus
BOARD OF INTERMEDIATE AND SECONDARY EDUCATION through its Chairman, Peshawar and 3 others--Respondents
W.P. No. 69 of 2008, decided on 13.5.2008.
Constitution of Pakistan, 1973--
----Art. 199--Cancellation of Certificate issued by Board of Intermediate and Secondary Education--No notice was given--Principle of natural justice--Court and departmental proceedings that start from an identical charge, are to run parallel on the same set of facts and yet may not differently without affecting each other--Under the law BISE, was required to issue at least a notice regarding resuming the inquiry proceedings before taking the drastic action of cancellation of the certificate but it did not do so and hence erred in law--Petition was allowed. [P. 139] A
Mr. Q. Muhammad Anwar, Advocate for Petitioner.
Miss Shakeela Begum, Advocate for Respondents.
Syed Zafar Abbas Zaidi, Advocate for Respondent No. 4.
Date of hearing: 13.5.2008.
Judgment
Zia-ud-Din Khattat, J.--This writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan calls in question the order of Board of Intermediate & Secondary Education (BISE), Peshawar issued vide Notification No. 7793/SSC, dated 7.1.2008 whereby the duplicate certificate of SSC (Supplementary) Examination, 1972 Bearing No. PBD/2607 issued to Ghani Rahman son of Said Malook under Roll No. 6770 was cancelled being fake and collusive.
"It is notified for information of all concerned that the duplicate certificate bearing Serial No. PBD/2607 issued by this Board to Mr. Ghani Rahman S/o Said Malook under Roll No. 6770 of SSC (Supplementary) Examination, 1972 being fake and collusive stands cancelled."
The petitioner assailed the impugned order/notification dated 7.1.2008, inter alia, on the grounds that the Secondary School Certificate (SSC) in question is a legitimate educational document, that the BISE, Peshawar/Respondent No. 1 did not communicate the grounds that formed basis for the order nor the petitioner was issued any show-cause notice before the cancellation thereof, as such, the petitioner was condemned unheard. Therefore, the impugned order/notification was stated to be without lawful authority being against the principle of natural justice and of no legal effect. Conversely, the BISE, Peshawar/Respondent No. 1 supported the impugned order and submitted that the petitioner was asked twice to attend the office and return the certificate but he failed to do so, and that after the decision of the Election Tribunal, Hangu (which held the certificate as fake), there was no need of further inquiry or issuance of show-cause notice to the petitioner.
We have heard learned counsel for the parties and have perused the available record.
A bare reading of the impugned order at para 2/ante would show that it discloses no ground for cancellation of the Secondary School Certificate (SSC) issued by the Board to the petitioner. However, as narrated by the BISE, Peshawar in their comments, the Election Tribunal, Hangu had declared it fake vide judgment dated 3.1.2008 and it is in this background that the Secondary School Certificate (SSC) issued to the petitioner was cancelled.
The question that needs determination is whether the BISE, Peshawar after decision by the Election Tribunal, Hangu was required to issue a show-cause notice to the petitioner before cancellation of the Secondary School Certificate (SSC)? The answer to this question must be in the affirmative.
It is manifest from the record that the BISE, Peshawar had issued a duplicate Secondary School Certificate (SSC) to the petitioner in August, 2005. Subsequently, the Board suspected it as a doubtful case and according to them, they vide Letter No. 628 dated 3.10.2005 (Annex-D) asked the petitioner to attend their office and return the certificate for further verification. It is unknown whether the letter was received by the petitioner or not, however, he filed Writ Petition No. 1816/2005, wherein this Court vide order dated 1.11.2005 had directed the BISE, Peshawar not to take any adverse action against the petitioner without giving him an opportunity of being heard. Thereafter, the BISE, Peshawar initiated inquiry and vide Letter No. 5/legal dated 27.7.2006 asked the petitioner to attend the office of its Secretary on 3.8.2006 alongwith the certificate. In the meantime, the Ejection Tribunal, Hangu vide order dated 2.8.2006 granted status quo and the BISE, Peshawar had to stay the inquiry proceedings. The Election Tribunal, Hangu, however, finally disposed of the case vide its judgment dated 3.1.2008 whereupon the BISE, Peshawar resumed the proceedings.
It is well settled that Court and Departmental proceedings that start from an identical charge, are to run parallel on the same set of facts and yet may end differently without affecting each other. Under the law, the BISE, Peshawar was required to issue at least a notice regarding resuming the inquiry proceedings before taking the drastic action of cancellation of the certificate but it did not do so and hence erred in law.
In the result, we allow this writ petition, set aside the impugned Order/Notification No. 7793/SSC, dated 7.1.2008 and direct the BISE, Peshawar to decide the matter afresh providing due opportunity to the petitioner of being heard and thereafter to finalize the matter one way or the other in accordance with law, within a month positively.
(M.A.K.) Petition allowed
PLJ 2008 Peshawar 139
Present: Syed Yahya Zahid Gillani, J.
DARUL-ULOOM QASMIA--Petitioner
versus
SHER ALI KHAN and others--Respondents
C.R. No. 1304 of 2007, decided on 19.5.2008.
Parda Nasheen Ladies--
----Facilitate to maximum--Valuable rights--Examination through local commissioners is permissible in law and the facility is liberally utilized, so that the respectable pardanasheen ladies are not exposed to public--Valuable rights cannot be protected unless they are "personally examined" by the "reliable local commissioner" duly identified by their kith and kin, having no clash of interest with them--Just like some times a Pardanasheen lady has to expose herself before a medical doctor or surgeon for her required treatment she should allow to be directly examined by a local commissioner at her residence to protect their valuable rights. [P. 141] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Pardanasheen ladies--Appointment of commission--Comparison of signatures thumb-impression of lady--Statement recorded not by commission himself but by some other person--Effect of--In view of the statement of local commissioner, it is truly and seriously needs further inquiry that whether the ladies had consented to attestation of the impugned Waqaf mutation or not--Remand of case for further evidence and specially to get the thumb-impression/signatures of the ladies comparatively studies by the expert for report, proper and just--Appellate Court has exercised its vested powers with reasonable grounds--No illegality or material irregularty--No interference in remand order. [P. 141] B
Mr. Rahim Muhammad, Advocate for Petitioner.
Date of hearing: 19.5.2008.
Order
This revision petition calls in question the judgment and decree of Mr. Muhammad Younas Khan, Additional District Judge-II, Swabi, dated 4.7.2007, whereby accepting the appeal of plaintiff-respondent Sher Ali, he set aside the judgment and decree of the trial Court dated 21.9.2006 and remanded the case back for recording further evidence and comparison of the signatures/thumb impression of the lady-plaintiffs allegedly present on impugned mutation, through experts.
Learned counsel for the petitioner agitated that full opportunity was given to plaintiffs-respondents to prove their case. Since they had failed to establish their case in trial, there was no need of providing them another opportunity to lead evidence, and to avail of expert opinions about the signatures and thumb impressions, because the correctness of signatures and thumb impressions of the ladies on the impugned mutation has been proved.
Record reveals that in the instant case male plaintiffs coupled with four ladies namely Mst. Muhsin, Mst. Hameeda, Mst. Saeeda, daughters of Jamroz and Mst. Zuhra widow of Jamroz, have challenged the validity of Mutation No. 949 attested on 29.5.1998 whereby their land measuring six Kanals has been mutated to Darul-Uloom Qasmia defendant petitioner as "Waqaf".
Persual of record reveals that this mutation was attested on the basis of report of commission. Syed Tahir Shah, Girdawar Circle, was deputed by the Tehsildar as Local Commissioner to get the signatures/thumb impressions of the aforementioned ladies on mutation. The Local Commissioner came in the witness box as DW-5. He unequivocally admitted in the cross-examination that he himself did not record the statement of the ladies named above nor saw them. Their statements were recorded through Muhammad Yousaf, husband of Mst. Muhsina and he did not personally ask the ladies that whether they were intending to transfer the land to Darul-Uloom Qasmia or not. This admission at the part of Girdawar Circle proves that the extremely important task entrusted to him by the Tehsildar was further delegated by him to Muhammad Yousaf, husband of Mst. Muhsina. The commissioner, Tahir Shah (PW-5), not only defeated the trust of Tehsildar posed in him, but acted totally in violation of law while entrusting his duty to some one else, about whom it is not known that whether he was "competent enough" or "trust worthy" to do the job or not. Even if he was having such credentials, still in this regard satisfaction of the Tehsildar was required. The Local Commissioner was not competent to entrust his delicate and sacred duty to others and deprive himself of personal knowledge of relevant facts to depose in Court of law in present like eventuality, when the validity of mutation stood challenged. Such a practice of Local Commissioners is depreciated.
The argument that the ladies were Pardanasheen and they were facilitated according to local customs, is forcefully repelled and not approved. Indeed we do respect the Pardanasheen ladies and facilitate them to the maximum. For this reason their examination through Local Commissioners is permissible in law and the facility is liberally utilized, so that the respectable Pardanasheen ladies are not exposed to public, but, at the same time, we must not ignore the hard reality that their valuable rights can not be protected unless they are "personally examined" by "the reliable Local Commissioner", duly identified by their kith and kin, having no clash of interest with them. Just like some time a Pardanasheen lady has to expose herself before a Medical doctor or Surgeon for her required treatment, she should allow to be directly examined by a Local Commissioner at her residence, to protect valuable rights related to properties. Otherwise, the paramount activity to create direct evidence to be use in future disputes would remain in jeopardy. At this juncture, I would deem it appropriate to guide all relevant forums to utilize the services of trustworthy lady Advocates as Local Commissioners for examination of the ladies who are Parda observing, extravagantly.
In this case, in view of the statement of the Local Commissioner, it is truly and seriously needs further enquiry, in the interest of justice, that whether the ladies had consented to attestation of the impugned Waqaf mutation or not. This factual aspect of the case rightly prompted learned Additional District Judge-II, Swabi, to ask for further evidence and specially to get the thumb impressions/signatures of the ladies comparatively studied by the expert for report.
The learned appellate Court has exercised the vested power with reasonable grounds and no illegality or material irregularity could be detected therein. Hence, the revision petition, found devoid of force, is dismissed in limine.
(M.A.K.Z.) Revision dismissed.
PLJ 2008 Peshawar 142 (DB)
Present: Syed Yahya Zahid Gillani and Zia-ud-Din Khattak, JJ.
SULTAN KHAN and others--Petitioners
versus
PUBLIC FUNCTIONARIES--Respondent
W.P. No. 194 of 2008, decided on 21.5.2008.
Principles of Natural Justice--
----Duty of--Entitlement of generation allowance--Rapidly increasing tendency in the offices of public functionaries to delay disposal of appeal and representations--Such delay prolongs uncertainties, snatch peace of minds and create agonizing tensions--Public functionaries should act in a way to eliminate problems and not in a way to create further problems. [P. 143] A
Mr. Misbahullah Khan, Advocate for Petitioners.
Date of hearing: 21.5.2008.
Order
Syed Yahya Zahid Gillani, J.--Learned counsel for the petitioner submits that Departmental appeal of petitioners dated 12.4.2007 regarding their entitlement to "generation allowance" are still pending before respondents. Disposal of these appeals is being delayed without any reason. He stated that he would not press this writ petition if a direction is issued to respondents to dispose of the aforementioned pending appeals of the petitioners, on merits, at the earliest. He Placed reliance on MLD 2007 page 1898, wherein a similar direction was issued in the identical circumstances.
There can be no difference with the opinion that when Departmental Appeal is submitted, the Public Functionary/Competent Authority is duty bound to decide it within reasonable time, after application of independent mind, by giving reasons. This is a requirement of law as well as of principles of natural justice.
The public functionaries, by no stretch of imagination, are justified to remain indifferent on pending issues, vitally important for their employees. When they do have powers to either accept or reject an appeal, the power must be exercised and the appeals must be decided on merits, within reasonable time, so that the aggrieved employees should either get satisfied or seek further available remedy.
In view of rapidly increasing tendency in the offices of public functionaries to delay disposal of appeals and representations, we, over here, must express our observation that such delays prolong uncertainties, snatch peace of minds and create agonizing tensions. The Public Functionaries should act in a way to eliminate problems and not in a way to create further problems, as in this case, where 252 petitioners (Employee of WAPDA at Tarbela Dam, Tarbela) could not find any other legal mean, but to file this constitutional petition for mobilizing their relevant authorities, simply, to decide their appeals dated 12.4.2007 which are pending for last more than one year. Such an attitude must be given up by the Public Functionaries, in public interest.
We, therefore, deem it appropriate to issue direction to respondents for disposal of Departmental Appeals of petitioners dated 12.4.2007 within a shortest time, but not later than one month.
Resultantly, the counsel for the petitioners does not press this writ petition, which is accordingly dismissed.
(M.A.K.Z.) Petitions dismissed
PLJ 2008 Peshawar 143
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
ABDUL MANAN--Petitioner
versus
ABDUL HAKEEM KHAN and others--Respondents
C.R. No. 116 of 2007 with C.M. No. 50 of 2007, (PAN), decided on 2.6.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXVI & Ss. 115 & 151--Appointment of local commissioner--Reqest for--Principles--Sufficient evidence available on record enabling the appellate Court to conclusively determine the matter in controversy between the parties--During trial no request, either oral or through an application has been made by the petitioner for the spot inspection through the appointment of a Local Commissioner--Question of appointment of Local Commissioner can not be agitated by the petitioner by way of his own conduct--Revision dismissed.
[P. 145] A
Mr. Salimullah Khan Ranazai, Advocate for Petitioner.
Haji Zafar Iqbal, Advocate for Respondent No. 4 on pre-admission notice.
Date of hearing: 2.6.2008.
Order
Abdul Manan petitioner has filed this civil revision under Section 115 read with Section 151 C.P.C vide which he has impugned the order of the learned Additional District Judge-I. Lakki Marwat dated 21.3.2007, through which the application for the appointment of a Local Commission, to ascertain that since how long the suit house is in existence on the suit land, was rejected.
Briefly narrated, the facts of the present litigation are that the petitioner filed a suit for declaration to the effect that he alongwith the proforma defendants-respondents are owners in possession of land measuring 03 kanals 12 marlas out of Khasra No. 411 Khata No. 736 situated in the revenue estate of Baist Khel, Tehsil and District Lakki Marwat. They also challenged the vires of Mutation No. 9901 attested on 05.8.1978 to be without consideration, illegal, based on fraud and collusion and ineffective against their rights. Similarly, the petitioner asserted his own title on the basis of Mutation No. 11501 dated 22.8.1990.
The defendants-respondents submitted their written statement and the learned trial Court, after affording an opportunity to the parties to lead their evidence and hearing their learned counsel, dismissed the suit of the petitioner vide Suit No. 110/1 decided on 16.11.2005.
Aggrieved and dissatisfied from the judgment and decree aforesaid the petitioner filed an appeal before the learned District Judge, Lakki Marwat which came for hearing before the learned Additional District Judge-I, Lakki Marwat which is still pending. During the pendency of the appeal, the present petitioner submitted an application for the appointment of a Local Commissioner under the provisions of Order XXVI C.P.C requesting therein that the Local Commissioner be appointed and be directed to determine as to since how long the suit house is in existence and its location and similarly the period for which the petitioner is occupying the same. The learned appellate Court, after calling for replication from the respondents and hearing the learned counsel for the parties, declined the request of the petitioner for the appointment of Local Commissioner vide order dated 21.3.2007 impugned now before this Court in revision.
The learned counsel for the petitioner submitted that the Court of law is required to decide the lis strictly in accordance with law judicially and to provide substantial justice to the parties. Elaborating his view point, the learned counsel submitted that the determination of the question involved to be thrashed out in the appeal was a spot related question for which the appointment of the Local Commissioner was necessary for the parties as well as for the Court to do substantial justice in the matter.
On the contrary, learned counsel for Respondent No. 4 submitted that the learned trial Court provided full opportunity to the parties to lead evidence pro and contra with respect to their respective contentions and there was sufficient evidence available on the record from which the appellate Court could determine the legal and factual points involved in the case and there was no need for appointment of Local Commissioner.
I have gone through the file and the documents annexed with the same.
Firstly, there is sufficient evidence available on record enabling the learned appellate Court to conclusively determine the matter in controversy between the parties. Secondly, during the trial no request, either oral or through an application, has been made by the petitioner for the spot inspection through the appointment of a Local Commissioner. So, in this way when during the pendency of the suit before the trial Court no request was made, thus, by way of his own conduct the petitioner cannot agitate the question for the appointment of a Local Commissioner.
When sufficient evidence is available on the record which can lead to the conclusive determination of the rights of the parties, then resort to the appointment of a Local Commissioner is made in exceptional cases. This proposition of law has been coined by the apex Court in the case of Jalal Khan and 10 others. Vs. Khandoo Malik and 24 others (2003 SCMR 1351) which dictum of the apex Court on all four covers the facts and circumstances of the present case.
In view of the facts and circumstances of the case narrated above, there is no force in this revision petition which is dismissed in limine. Parties are directed to appear before the learned Appellate Court on 14.6.2008.
(M.A.K.) Petition dismissed
PLJ 2008 Peshawar 146 (DB)
Present: Raj Muhammad Khan and Zia-ud-Din Khattak, JJ.
LAIQ ZAMAN and another--Petitioners
versus
FAZAL RAHMAN and 2 others--Respondents
W.P. No. 727 of 2005, decided on 30.4.2008.
Oath Act, 1873 (X of 1873)--
----Ss. 9 & 10--Qanun-e-Shahadat Order, (10 of 1984), Art. 163--Constitution of Pakistan, 1973--Art. 199--Provisions relating to decision of a case on basis of oath--Respondent filed a suit for recovery--Application for deciding the case on oath was submitted by respondent--Application was accepted and respondent allowed to take oath on Holy Quran--Assailed--According to Oaths Act, offer and acceptance are must and are also relevant ingredients for deciding the case on oath, while Art. 163 envisage that when plaintiff takes oath in support of his claim, the Court on the application of plaintiff call upon the defendants to deny the claim on oath--Petitioner had declined the offer of decision of the case on oath as such Court should have asked respondent to adduce evidence in support his claim but it did not do so and instead allowed to take oath on Holy Quran which is not permissible under Shariah--Case was remanded. [P. 147] A
Oath--
----Hedaya--Book VI, Chapter 11--Oath may be expressed by using the name of Allah or any of his customary attributes--Quoted--Held: If any man takes an oath, he must swear by name of Allah, or else his oath is void--If a person swear by Holy Quran, it does not constitute an oath, Although, Holy Quran be the word of Allah because men do not swear by Quran. [P. 147] B
Mr. Muhammad Safdar Khan, Advocate for Petitioners.
Nemo due to Ex-parte for Respondents.
Date of hearing: 30.4.2008.
Judgment
Zia-ud-Din Khattak, J.--Fazle Rehman, plaintiff (herein after called as "the Respondent No. 1") filed Suit No. 9/1 of 2003 for the recovery of Rs. 6,35,000/- against Laiq Zaman, etc. defendants (herein after called as "the petitioners"). The latter contested the suit by filing a written statement. During the proceedings, the Respondent No. 1 submitted an application for deciding the case on oath. The petitioners, however, declined the offer and requested that the Respondent No. 1 may be asked to prove his case. However, the learned Civil Judge/Illaqa Qazi, Samarbagh who seized of the case, accepted the application and vide order dated 7.7.2004 allowed the Respondent No. 1 to take oath on the Holy Quran in support of his claim in terms of Section 10 of the Oaths Act, 1873. Civil Revision No. 19/12 Nim of 2004 filed against the said order was dismissed by the learned District Judge/Zilla Qazi, Dir Payeen vide judgment dated 5.4.2005.
Feeling aggrieved of the order, the petitioners filed this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan on the ground that they could not be compelled to take oath and that the case should be decided on merits as it is the basic requirement of the law.
The Respondent No. 1 despite service omitted to turn up hence was placed ex-parte. We have heard Mr. Safdar Khan, Advocate, learned counsel for the petitioners and perused the documents annexed with the petition.
The provisions relating to decision of a case on the basis of oath are contained in Section 9/10 of the Oaths Act, 1873 and Article 163 of the Qanun-e-Shahadat Order, 1984. According to the Oaths Act, 1873, offer and acceptance are must and are also the relevant ingredients for deciding the case on oath, while Article 163 envisage that when the plaintiff takes oath in support of his claim, the Court on the application of the plaintiff call upon the defendant to deny the claim on oath. However, it does not lay down the consequences if defendant does or does not deny plaintiffs claim on oath. In this case, the petitioners had declined the offer of decision of the case on oath, as such, the Court should have asked the Respondent No. 1 to adduce evidence in support of his claim but it did not do so and instead allowed the Respondent No. 1 to take oath on the Holy Quran which is otherwise not permissible under Shariah. In Book VI, Chapter II of the Hedaya by Hamilton, it is provided that an oath may be expressed by using the name of Allah or any of his customary attributes such as Rehman, Rahim and 97 others. The Hedaya has also quoted the Holy Prophet (S.A.W.) that "if any man takes an oath, he must swear by the name of Allah, or else his oath is void. If a person also swear by the Holy Quran, it does not constitute an oath, although, the Holy Quran be the word of Allah because men do not swear by the Quran".
In the result, we allow this writ petition, set aside the impugned order of the learned two Courts below and remand the case to the learned trial Court for decision of the case on merits.
(R.A.) Petition allowed
PLJ 2008 Peshawar 148 (DB)
Present: Haimd Farooq Durrani & Syed Yahya Zahid Gilani, JJ.
ARBAB FAZAL-E-RAUF and another--Petitioners
versus
ARBAB SAJJAD and 6 others --Respondents
W.P. No. 180 of 2008, decided on 20.3.2008.
Constitution of Pakistan, 1973--
----Art. 199--Revisional and appellate jurisdictions--Revision does not lie when appeal lies--Impugned order has been passed in exercise of revisional jurisdiction--Impugned order may be treated as if passed in appeal, is not tenable at such stage because legal complexities in future, due to amalgamation of two different jurisdiction, specifically and purposefully segregated in law. [P. 149] A
2007 SCMR 834, rel.
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXIX, Rr. 1 & 2--Temporary injunction--As a matter of right--Ingredients--Prima facie case, balance of convenience and irreparable loss--Temporary injunction cannot be claimed as a matter of right and the Court has to take into consideration many relevant factors--Petition accepted. [P. 150] B
PLD 1968 Lah. 876, Rel.
Mr. Naveed Maqsood, Advocate for Petitioner.
Mian Mohibullah Kakakhel, Advocate for Respondents.
Date of hearing: 20.3.2008.
Judgment
This writ petition invokes Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan to challenge vires of the order dated 18.12.2007 of Syed Anees Badshah Bukhari, learned Additional Sessions Judge-IV, Peshawar, whereby status quo order was imposed to stop completion of CNG Pump being constructed by petitioners, on a piece of land owned by them, jointly with respondents.
Initially, the temporary injunction prayed for the aforesaid purpose, was declined by the Civil Court vide his order dated 29.11.2007, in the civil suit instituted by Respondents No. 1 and 2, for partition of land. The Civil Judge, simply relied on the undertaking of petitioners that the on-going construction is on their own risk and cost.
However, the order of the Civil Court was set aside vide the impugned order dated 18.12.2007 by learned Additional District Judge-IV, Peshawar, in exercise of revisional jurisdiction.
Mr. Naveed Maqsood Advocate argued for the petitioners. He contended that the impugned order is patently violative of law and not sustainable. The petitioners had no other forum to avail remedy. Hence, constitutional jurisdiction of this Court has been invoked.
He pointed out that the order of Civil Court, dated 29.11.2007, refusing temporary injunction, was appealable under Order 43, Rule (1) (r) C.P.C. but instead of appeal, a revision petition was preferred, which did not lie. In this respect he relied on the case Abdul Ghani vs. Mst. Shaheen (2007 SCMR 834). He added that the revision was ex facie incompetent and the jurisdiction exercised thereon was illegal. Hence, the impugned order is not sustainable, being nullity in the eyes of law.
He next argued that the impugned order of status quo is illegal also because the suit is defective and the order is not backed by prima facie case. Enumerating the defects, he stated that the suit land is assessed to land revenue but partition suit has been instituted in Civil Court without clarifying that why Revenue Court has not been approached. Partition has been prayed without decree for possession. Many co-owners are visible but they have not been arrayed as defendants. He concluded that plaintiffs/respondents cannot be treated as possessors of prima facie case in such a defective suit. He concluded that since the undertaking has already been given by his clients that the construction is on their own risk and cost, they are entitled to continue construction in the light of decision reported in PLD 1995 S.C. 426, 2006 MLD 435 and 1994 MLD 550.
Mian Mohibullah Khan Kakakhel Advocate professing the case of respondents 1 and 2, argued that although the impugned order has been passed in exercise of revisional jurisdiction, and the revision did not lie, but since the appeals can be treated as revisions, and the revisions, as appeals, subject to law of limitation; the impugned order may be treated as an order in appeal.
On facts, he argued that the pointed out defects in the suit are rectifiable. The parties are admittedly co-owners. So, the stoppage of construction of CNG Pump, till the partition by meats and bounds is, fully justified in law.
We have cerebrated over the points argued before us. As laid down in the case of Abdul Ghani, reported in 2007 S.C.M.R. 834 (a), revision does not lie when appeal lies. Impugned order has been passed in exercise of revisional jurisdiction. The request of learned counsel for Respondents No. 1 and 2 that the impugned order may be treated as if passed in appeal, is not tenable at this stage because it would set wrong trends and create legal complexities in future, due to amalgamation of two different jurisdiction, specifically and purposefully segregated in law. So, we are constrained to hold that the impugned order is patently illegal and void ab initio on this score.
We further view that it is established law that the three ingredients i.e. prima facie case, balance of convenience and irreparable loss, must co-exist for grant of temporary injunction. The pointed out defects in the suit may be rectifiable but they presently deprive the plaintiffs/Respondents No. 1 and 2 of prima facie case. Even if a prima facie case is available to a party, temporary injunction cannot be claimed as a matter of right and the Court has to take into consideration many relevant factors, like those mentioned in the case, M/s. Sui Northern Gas vs. M/s. Pakistan Cement Industries (P.L.D. 1968 Lahore 876-C). The relevant extract is quoted below for ready reference.
"In matter of temporary injunction; prima facie case is not the only requirement, but a Court is also required to examine the concepts of balance of convenience; irreparable loss; conduct of the parties; nature of suit; the time likely to be absorbed in it; the stakes of the parties involved and the work ability and reasonableness of the orders proposed to be passed. If by issuing an order it is intended to relieve a party from certain oppression care should be taken at the same time as not to create oppression for the other party."
(M.S.A.) Petition accepted
PLJ 2008 Peshawar 151 (DB)
Present: Hamid Farooq Durrani &
Syed Musadiq Hussain Gilani, JJ.
DAWAR KHAN--Petitioner
versus
NATIONAL ACCOUNTABILITY BUREAU through its Chairman and 3 others--Respondents
W.P. No. 1775 of 2007, decided on 13.5.2008.
Constitution of Pakistan, 1973--
----Art. 199--National Accountability Ordinance, (XVIII of 1999), S. 17(a)--Transfer of two References to one Court for joint trial--Charge of misappropriation by issuing bogus money orders, less generalization of money orders & collection of utility bills of WAPDA, whereas in second reference charge related to misappropriation of WAPDA utility bill offences in both References were of same kind and allegedly committed during same period--Feasibility of joint trial--Question of--Entire evidence has been completed in both the References and only the investigating officer is yet to be examined--No illegality or irregularity was committed in this regard justifying transfer of References to one Court for fresh joint trial--Provision of Section 17(d) of the Ordinance are permissive and not mandatory--Convenience of the parties and to avoid conflicting decisions, when most of the witnesses in both the References are common transfer of both the References to one Court's is proper. [P. 152] A, B & C
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 17(d)--Joint trial of both references involving similar offences in same period--For convenience of parties and to avoid conflict of judgments--Joint trial allowed. [P. 152] A
Mr. Fazali Karim, Advocate for Petitioner.
Mr. Haider Ali, Spl. Pro. for Respondents.
Date of hearing: 13.5.2008.
Judgment
Syed Musadiq Hussain Gilani, J.--Petitioner Dawar Khan filed instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, against the respondents, NAB etc, seeking transfer of two References against him pending in the Courts No. III & IV, Peshawar, to one Court, with the directions for framing one charge and trial of all the offences together. The petitioner pleaded that Respondents No. 1 & 2 filed Reference No. 22/2005 against him in the Court of Respondent No. 3 on the allegation of misappropriation of Rs. 54,24,809/- on the charges of issuance of bogus money orders, less generalization of money orders and collection of utility bills of WAPDA etc. Respondent No. 3, after framing charge, examined 13 witnesses, and during trial of the petitioner, respondents No. 1 & 2 filed another Reference No. 1/2007 against the petitioner qua misappropriation of WAPDA Utility Bills of Rs. 4,84,328/-. The offences in both the References were of the same kind, and allegedly committed during the same period. Therefore, two trials of the petitioner were unlawful.
We have heard the learned counsel for the parties. The learned counsel for the petitioner stressed that submitting separate challans for the same kind of offences was wrong and in contravention of Section 17(d) of the NAB Ordinance. He prayed that the References pending in the Court of Respondents No. 3 and 4 be transferred to one Court for joint charge and trial.
On the other hand, learned counsel for the respondents controverted that the petitioner was being tried for different offences in two separate References filed against him. The trial of the petitioner was in progress in first Reference, when misappropriation of an amount of Rs.4,84,328/- was discovered against the petitioner, regarding which separate Reference was filed, and without prejudice to the rights of the parties, the trials for different offences were being conducted in two Courts.
Admittedly, the entire evidence has been completed in both the References, and only the Investigating Officer is yet to be examined. The attested copies of charge sheets are available on the file. In the first Reference, petitioner was charged specifically for fraudulent embezzlement, and misappropriation of amounts of Rs.54,24,809/-, while in the second Reference he was charged for misappropriation of Rs. 4,84,328/-, meaning thereby that no illegality, or irregularity was committed in this regard, justifying the transfer of References to one Court for fresh joint trial. Moreover, the provisions of Section 17(d) of the Ordinance are permissive and not mandatory. However, for the convenience of the parties, and to avoid conflicting decisions, when most of the witnesses in both he References are common, we deem it proper to transfer the Reference pending in the Accountability Court-II to the Accountability Court-I, Peshawar. Both the Courts, where References are presently pending, be informed accordingly. The instant petition is disposed of in the above terms.
(M.R.Q.) Petition disposed of.
PLJ 2008 Peshawar 153 (DB)
Present: Jehanzaib Rahim & Zia-ud-Din Khattak, JJ.
IBRAHIM SHAH & 11 others--Petitioners
versus
EXECUTIVE DISTT. OFFICER, SCHOOLS & LITERACY DEPTT. DISTT. MARDAN & 2 others--Respondents
W.P. No. 1818 of 2006, decided on 18.3.2008.
NWFP Civil Servants (Appointment, Promotion & Transfer) Rules, 1989--
----R. 12(2)--Constitutional of Pakistan, 1973, Art. 199--Service matter--New recruitment policy--Mode of appointment--Ratio of recruitment for the post of PTC Teacher--Such posts were to be filled in the ratio of 25% on merit at District level and 75% on merit batch-wise/year-wise basis from the candidates who were bonafide residents of the Union Council where the vacancies existed--Notification--Held: Rules applicable & conditions required to be satisfied on the date of appointment are to be considered--Court has authority to bring about changes in rules for recruitment to maintain efficiency in services & held that rules in force at time of appointment would apply and that no one had a vested right to be regulated by the earlier rules since modified--No prohibition on recruitment at Union Council level within district the same is permissible--Petition dismissed.
[P. 155] A & B
1990 SCMR 1321.
Mr. Amjad Ali, Advocate for Petitioners.
Mr. Muhammad Saeed Khan, AAG for Respondents.
Date of hearing: 18.3.2008.
Order
Zia-ud-Din Khattak, J.--The dispute in this writ petition relates to the mode of appointment to the post of PTC Teachers in the Districts of N.W.F.P. Previously, such posts were to be filled up in the ratio of 25% on merit at district level and 75% on merit batch-wise/year-wise basis from the candidates who were bonafide residents of the Union Council where the vacancies existed. Subsequently, in the year 2004, the Provincial Government issued new recruitment policy, as incorporated in the Notification dated 23.12.2003 which brought about a change in the method of recruitment. The basic change was that the batch-wise/year-wise criteria was done away with and 25% of the vacancies were to be filled at the District level on merit and 75% at the Union Council level on merit.
Ibrahim Shah and eleven (11) others, petitioners herein feeling aggrieved of the abolition of the batch-wise/year-wise recruitment have impugned the policy of 2004 through this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan.
Mr. Amjad Ali. Advocate, learned counsel for the petitioners contended that the petitioners who possessed the requisite prescribed qualification including the pre-service training had waited for a long time for their turn to be appointed as PTC teachers on batch-wise/year-wise basis, that when their turn for appointment was near the Provincial Government changed the policy of recruitment and abolished the batch-wise/year-wise system without notice to them which was not fair and unjust. He next contended that according to Rule 12(2) of the NWFP Civil Servants (Appointment. Promotion and Transfer) Rules, 1989, initial recruitment to post in Basic Pay Scales 3 to 15 on the district cadre is to be made from the bonafide residents of the district concerned and that since the post of PTC Teachers is a district cadre the same cannot be filled up on the basis of Union Council. Conversely, Mr. Muhammad Saeed Khan, AAG on the strength of authority of the Apex Court in the case of Government of NWFP Vs. Dr. Muzaffar Iqbal (1990 SCMR 1321) argued that it was the prerogative of the Government to bring about changes in the method of recruitment and that the issue has been settled by this Court once for all in Writ Petition No. 659/2004 vide judgment dated 13.10.2004 which was also upheld by the Apex Court vide judgment dated 5.6.2006.
After hearing the learned counsel for the petitioners, Additional Advocate General for the respondents-government and on perusal of the record, we find that prior to the impugned modification in the recruitment rules, 25% of the PTC Teachers vacancies in a district were to be filled on open merit at the district level and 75% at the Union Council level batch-wise/year-wise basis. The impugned modification in the rules has brought about only one change, namely, that the Union Council level vacancies are also to be filled up on open merit and has abolished the batch-wise/year-wise criteria. Thus those teachers waiting for appointment on batch-wise/year-wise basis were no longer to be appointed automatically according to that criteria but now have to compete with other candidates on open merit and obviously their chances of selection has been considerably reduced as they have to face tough competition. The grievance of the petitioners is directed against the open competition and insist that they should be dealt with according to the old rules and the impugned modification in the rules be struck down. The question that needs determination is whether the impugned modification in the rules is applicable to the petitioners or otherwise? The issue has been settled by this Court in Writ Petition No. 659/2004 vide judgment dated 13.10.2004. It has been held that rules applicable and the conditions required to be satisfied on the date of appointment are to be considered. The Court has also recognized the Government's authority to bring about changes in the rules for recruitment to maintain efficiency in the services and held that rules in force at the time of appointment would apply and that no one had a vested right to be regulated by the earlier rules since modified. The open merit competition, instead of batch-wise/year-wise recruitment otherwise appears to be better option for the benefit of the students. It merits mention that the petitioners are not excluded for selection but they have to compete with others, regardless of the year of their qualification. We thus hold that the impugned modification in the rules are applicable to the petitioners.
As regards Rule 12 (2) of the NWFP Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, the contention is devoid of force. The rule only provides that district cadre posts are to be filed up from the residents of the district, thereby excluding residents of other districts. It does not exclude further division for the purpose of recruitment within the district. As there is no prohibition on recruitment at Union Council level within the district the same is permissible.
For what has been discussed above, we do not consider that any legal right of the petitioners has been infringed by the impugned modification in the rules. The writ petition is, therefore, dismissed in limine.
(M.R.Q.) Petition dismissed
PLJ 2008 Peshawar 155
Present: Syed Musadiq Hussain Gilani, J.
ZAKARIA & others--Petitioners
versus
AMANULLAH & others--Respondents
C.R. No. 230 of 2006, decided on 16.5.2008.
Limitation Act, 1908 (IX of 1908)--
----Art. 120--Suit for declaration on the basis of inheritance--Question of time bar--Held: No limitation runs against co-sharer to enforce his rights under the inheritance. [P. 158] C
PLD 1974 SC 207 distinguished.
Inheritance--
----Daughter was also entitled to inherit her due sharee share in the legacy of her mother and father. [P. 158] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Revision petition against concurrent findings of facts & law not interfered with in exercise of revisional jurisdiction in the absence of any jurisdictional error. [P. 158] D
Adverse Possession--
----Contest was between brother & sister--Held: Brother was not entitled to claim adverse possession. [P. 158] A
2005 SCMR 1217; PLD 2006 SC 322; PLD 1988 SC 1512; PLD 1990 SC 1; 1998 SCMR 996 & 2006 SCMR 884.
Sheikh Wazir Muhammad, Advocate for Petitioners.
Mr. Abdul Sattar Khan, Advocate for Respondents.
Date of hearing: 16.5.2008.
Judgment
Mst. Najma Bibi, the predecessor of respondents, instituted a suit against the petitioners for claiming declaration to the effect that being daughter of Abdul Rehman, she was owner in possession to the extent of her Sharee share in the suit land measuring 62 Kanals, 15 Marlas, fully described in the heading of the plaint, situate in Village Pishtakhara, Tehsil and District Peshawar, and entries in the review record qua the suit land in favour of the petitioners were wrong, illegal, collusive, and based on fraud, as such in effective upon her rights. She also claimed permanent injunction, restraining the petitioners from claiming exclusive ownership of the suit land, and in the alternative for possession.
According to Mst. Najma Bibi, Abdul Rehman, predecessor of the parties, was owner in possession of the suit land who died in the year 1920, and was survived by Mst. Maryam Bibi, widow, Mst. Najma, daughter, and Dost Muhammad Khan son. Mst. Maryam Bibi died in 1964, and her legacy devolved on her daughter Mst. Najma Bibi, and Dost Muhammad Khan son, to the extent of 1/3rd share and 2/3rd share, respectively. The petitioners being legal heirs of Dost Muhammad Khan, with the collusion of revenue staff, got the suit land transferred in their names. Mst. Najma Bibi, being Parda Nasheen lady, had no knowledge of the attestation of the mutation because Dost Muhammad Khan used to give her the share of the produce. On his death, the petitioners also kept on giving her the said share of produce but later on the same was stopped. Hence, the suit.
The suit was contested by the petitioners on various legal as well as factual grounds, and the following issues were framed from the pleadings of the parties by the learned Civil Judge, Peshawar.
Whether the plaintiff has got a cause of action?
Whether the plaintiff is estopped to sue?
Whether the suit is time barred?
Whether the suit is dismissed U/O 7 Rule 11 of the CPC?
Whether defendants are entitled to special cost U/S 35-A CPC?
Whether plaintiff herself filed the instant suit?
Whether the suit is incompetent in its present form?
Whether the suit is bad for non-joinder of necessary parties?
Whether after the death of Abdul Rehman, Predecessor of defendants Dost Muhammad devolved the legacy of Abdul Rehman, and plaintiffs or mother of the plaintiffs have got no share in the property left by Abdul Rehman ?
Whether predecessor of defendant Dost Muhammad with the connivance of revenue officials attested the mutation in his favour?
Whether pltff: is entitled to the decree as prayed for?
Relief?
The evidence of the parties, which they wished to adduce, was duly recorded, and it was held that Mst. Najma Bibi, the predecessor of respondents, being daughter of Abdul Rehman was entitled to inherit her share in the legacy of her father, and Dost Muhammad Khan and his successors, could not claim adverse possession against her. Accordingly, the suit was decreed on 31-1-2005.
Dis-satisfied with the said judgment and decree, petitioners filed an appeal. The learned Additional District Judge-IX, Peshawar, finding no merits in the appeal, dismissed the same on 17-12-2005, by maintaining the judgment and decree of the trial Court.
Having felt aggrieved, the petitioners filed the instant revision petition to this Court.
I have heard the learned counsel for the parties, and perused, the record. The learned counsel for the petitioners very briefly argued on one point, and stated that Abdul Rehman had died in 1920, and his son Dost Muhammad, predecessor of the petitioners, according to the customs, had succeeded to his legacy to the exclusion of Mst. Najma Daughter of Abdul Rehman and his rights were protected under Muslim Personal Law (Shariat) Application Act, 1962. He further stated that right from the death of Abdul Rehman, Dost Muhammad Khan, remained in exclusive possession of the suit land, and thereafter the petitioners are in possession, being owners on the basis of long standing entries in the revenue record in their favour. The suit was, therefore, time barred. He placed reliance on PLD 1974 Supreme Court-207 (B).
On the other hand, learned counsel for the respondents supported the impugned findings of the Courts below, and stated that Mst. Najma Bibi, predecessor of respondents, was unlawfully deprived of her share in the legacy of her father. She was not shown in existence, and as such she was not the customary co-sharer. He stated that the contest was between the brother and sister, and brother was not entitled to claim adverse possession. In support of arguments, he relied upon 2005 SCMR 1217, PLD 2006 SC 322, PLD 1998 SC 1512, PLD 1990 SC 1, 1998 SCMR 996 and 2006 SCMR 884.
Admittedly, Abdul Rehman, the predecessor of the parties, was owner of the suit land, who was survived by a widow, son and daughter. The son got the legacy of his father transferred in his name to the exclusion of his mother and sister. The latter two were not shown in existence, meaning thereby, that he inherited the suit land under Shariat and not under the customs. Mst. Najma Bibi being daughter was also entitled to inherit her due sharee share in the legacy of her mother and father. She was deprived of her due share. It is settled that no limitation runs against co-sharer to enforce his rights under the inheritance. Mst. Najma Bibi was, therefore, not required to institute the suit within six years under Article 120 of the Limitation Act, 1960. The case law referred to by the learned counsel for the petitioners is not applicable to the facts and circumstances of this case. The concurrent findings on facts and law, in the absence of any jurisdictional error, cannot be interfered with in the exercise of revisional jurisdiction. Accordingly, the instant revision petition is dismissed, leaving the parties to bear their own costs.
(M.R.Q.) Petition dismissed
PLJ 2008 Peshawar 159 (DB)
Present: Raj Muhammad Khan and Zia-ud-Din Khattak, JJ.
HAMAYUN KHAN--Petitioner
versus
GOVERNMENT OF NWFP through Secretary Home Department, Peshawar and 4 others--Respondents
W.P. No. 567 of 2008, decided on 9.5.2008.
Constitution of Pakistan, 1973--
----Arts. 10 & 199--Miantenance of Public Order Ordinance, 1960, S. 3--Habeas Corpus--Detention order for period of 30 days--Legality of--Question in writ jurisdiction without availing alternate remedy--Held: It discloses no material warranting invocation of the provisions of Section 3, MPO--When a detention order is made the authority making order is required to communicate to person grounds on which the order has been made--Order was passed 21 days back but so far the grounds of detention have not been communicated to detenue in terms of S. 3(6) of MPO, 1960--Petition was allowed.
[P. 160] A
S.M. Kausar, Advocate for Petitioner.
Sardar Ali Raza, DAG for Respondents.
Date of hearing: 7.5.2008.
Judgment
Zia-ud-Din Khattak, J.--This writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan calls in question the order dated 17.4.2008 whereby the District Coordination Officer (DCO) Kohat directed to arrest Qayyum son of Karim of Jungle Khel Kohat and detain him in custody in District Jail Kohat/Central Jail D.I.Khan for a period of thirty (30) days.
"Whereas, the information placed before me by the District Police Officer, Kohat and whereas, I have also satisfied myself from the other reliable sources that Qayyum son of Karim Mohallah Purdil Khan Jangle Khel Kohat has indulged himself in anti-social activities and a habitual criminal.
And whereas, there are sufficient grounds to proceed against the said Qayyum to prevent him from acts prejudicial to the public safety and maintenance of public order in Kohat District.
Now, therefore, I, Kamran Zeb Khan, District Coordination Officer, Kohat by virtue of powers vested in me under sub-section (1) of Section 3 of the Maintenance of Public Order Ordinance, I960, do hereby order to arrest the Qayyum and detain him in custody in District Jail, Kohat/Central Jail D.I.Khan for a period of thirty (30) days unless withdrawn earlier. The period of 30 days shall be counted with effect from his date of arrest".
Barrister Syed Masood Kausar, representing the petitioner referred to Section 3 (1) of Maintenance of Public Order Ordinance, I960 and on the strength of authority of the Apex Court reported in 1994 SCMR 1532 contended that there was nothing on record for the satisfaction of the respondent/DCO Kohat that the detenue had acted in any manner prejudicial to public safety or to the Maintenance of Public Order, that the reasons mentioned in the order are vague and do not furnish any material and, therefore, these could not form basis for a valid order under the Ordinance. Conversely, Mr. Ali Raza, learned DAG appearing for the respondent/State submitted copies of seven daily diaries and ten FIRs and urged that the detenue had a criminal history who was rightly detained under the Ordinance. He submitted that remedy of filing representation against the order of detention under Article 10 of the Constitution read with Section 3(6) of the MPO which was efficacious/alternate statutory remedy was not availed by the detenue, therefore, the writ petition was not maintainable.
We have heard the learned counsel for the petitioner, DAG for the State and perused the record.
A bare reading of the impugned order at para-2/ante would show that it discloses no material warranting invocation of the provisions of Section 3 MPO. Under Article 10, Clause (5) of the Constitution as well as Section 3(6) of the MPO, 1960 when a detention order is made, the authority making the order is required to communicate to the person "the grounds on which the order has been made". It is noted with regret that the impugned order was passed 21 days back but so far the grounds of detention have not been communicated to the detenue in terms of Section 3(6) of the MPO, 1960 to enable him to make an effective statutory representation to the Government. This being so, without expressing any opinion on the merits of the case, the impugned order is liable to be set aside on this score alone.
In the result, the writ petition is allowed, the impugned order dated 17.4.2008 of the DCO, Kohat is set aside and the detenue Qayyum is directed to be released forthwith, if not required in custody in any other case.
(M.R.Q.) Petition allowed
PLJ 2008 Peshawar 161
[Dera Ismail Khan Bench]
Present: Muhammad Alam Khan, J.
AZIZ-UR-REHMAN--Petitioner
versus
MUALANA MUHAMMAD ZAHIR SHAH & 11 others--Respondents
C.R.P. No. 299 of 2005, decided on 10.6.2008.
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 92 & 115--O. VII, R. 11--Civil revision--Suit was filed with respect to public trust, public charity as envisaged u/S. 92 of CPC--Suit was barred by law--Plaint was rejected and confirmed by First Appellate Court--Assailed--Property of litigation was either a public trust or public charity, prior permission of Advocate General must be obtained for institution of the suit--Question of--When plaint was filed and written statement was submitted, it was bounden duty of trial Court to have framed proper issues and afforded opportunity to parties to lead pro and contra evidence--Held: Property of litigation is either public trust or any charitable institution, then the bar u/S. 92, CPC will be attracted and the suit would be liable to be dismissed but if from the evidence on record it is discernable that it is a private trust, then the provisions of S. 92, CPC would not be applicable because when a person claims a property in his private capacity and nowhere the public trust or charity is alleged in the plaint, then the bar contained under S. 92, CPC would not be applicable--Revision was accepted. [P. 163] A
2003 SCMR 121, rel.
Mr. Muhammad Waheed Anjum, Advocate for Petitioner.
Mr. Gauhar Zaman Kundi, Advocate for Respondents.
Date of hearing: 26.5.2008.
Judgment
Impugned herein is the judgment and decree dated 12.5.2005 of the learned Additional District Judge-V, D.I.Khan vide which the learned Court upheld the judgment and decree of the trial Court in Suit No. 133/1 of 2001 decided on 30.10.2001.
Briefly narrated, the facts of the case are that Aziz-ur-Rehman and others filed a suit against Mualana Muhammad Zahir Shah and others Defendants-Respondents No. 1 to 6 for declaration to the effect that the plaintiff-petitioner is attached to Devbandi school of thought and he is the Mutawali of mosque known as "Arayanwali" situated in Mohallah Jattanwala, Paharpur city while the Plaintiff No.2 Hafiz Abdul Hameed is the Pesh Imam of the said mosque and defendants-Respondents No. 1 to 6 herein, who profess Brelvi school of thought, have got no concern with the said mosque. The order of Sub Divisional Magistrate dated 13.10.1997 attaching the property under the provisions of Section 146 Cr.P.C was also challenged.
The Defendants-Respondents No. 1 to 6 submitted a detailed written statement wherein the allegations contained in the plaint were hotly contested. Alongwith the written statement, Barkat Ali Defendant No. 5 self and as attorney for Defendants No. 4 to 6 submitted an application for rejection of the plaint under the provisions of Order VII Rule 11 Code of Civil Procedure. The learned trial Court, after hearing the learned counsel for the parties and perusing the record, came to the conclusion that as the plaintiffs have filed the suit with respect to a public trust/public charity, the sanction of the Advocate General, NWFP, as envisaged under Section 92 C.P.C, having not been sought, the suit is barred by law and thus invoking the provisions of Order VII Rule 11 C.P.C rejected the plaint vide the impugned order dated 30.10.2001. This order, on appeal, was confirmed by the learned Additional District Judge-V, D.I.Khan and hence the present revision petition.
Muhammad Wahid Anjum, learned counsel for the petitioner submitted that the provisions of Section 92 C.P.C were not applicable to the facts and circumstances of the case and the sanction of the Advocate General was not necessary to be obtained because it was not proved on the record that the suit mosque was a public trust or charity. It was also argued that the Defendants-Respondents No. 1 to 6 had filed a detailed written statement and the learned trial Court was duty bound to have framed issues and afforded the parties an opportunity to lead pro and contra evidence and only after recording of the evidence, the learned Court could determine that it was a public or private trust.
On the other hand, Mr. Gauhar Zaman Kundi, learned counsel for the respondents submitted that there was a dispute between the parties which was likely to create a breach of peace between the parties, thus, proceedings under Section 145 Cr.P.C were initiated against the parties by the local police and ultimately the suit mosque was attached under the provisions of Section 146 Cr.P.C. Then, an agreement was executed between the parties that every school of thought would have the right to offer prayers individually but no congregational prayers would be held in the mosque, so, admittedly it was a trust for which, prior to the institution of the suit, the sanction of the Advocate General, as envisaged under Section 92 C.P.C, was essential. The learned trial Court has rightly rejected the plaint of the petitioners under the provisions ibid which order has rightly been upheld by the learned Additional District Judge in appeal. It was also argued that there are concurrent findings of facts against the petitioner which cannot be set-aside in the limited revisional jurisdiction of this Court. Reliance in this respect was placed on Kathiawar Cooperative Housing Society Limited through General Secretary. Vs. Macca Masjid Trust through Secretary and 9 others (2000 CLC 1182 Karachi).
I have given anxious consideration to the facts and circumstances of the case.
There is no cavil to the proposition that once it is proved on the record that the property, subject-matter of litigation, is either a public trust or public charity, prior permission of the Advocate General must be obtained for institution of the suit but the question here is that when the plaint was filed and written statement was submitted by the defendants-respondents, it was the bounden duty of the learned trial Court to have framed proper issues and afforded opportunity to the parties to lead pro and contra evidence and pursuant to that, if it is proved on the record that the property, subject-matter of the litigation, is either public trust or any charitable institution, then the bar under Section 92 C.P.C will be attracted and the suit would be liable to be dismissed but if from the evidence on the record it is discernable that it is a private trust, then the provisions of Section 92 C.P.C would not be applicable because when a person claims a property in his private capacity and nowhere the public trust or charity is alleged in the plaint, then the bar contained under Section 92 C.P.C would not be applicable as held in the case of Miskeen Vs. Additional District Judge, Mansehra and 32 others (2003 SCMR 121).
The case law cited by learned counsel for the petitioner has got no nexus with the facts and circumstances of the present case as in the cited judgments the suit property was admittedly a waqf property but in the present case, the status of the property itself is in dispute.
The orders of the two Courts below are contrary to law, justice and are liable to be set-aside.
In view of the facts and circumstances of the case, this civil revision is accepted, impugned judgments and decrees of the learned appellate Court as well as of the learned trial Court are set-aside and the matter is remanded back to the learned trial Court with the direction to frame proper issues in the case and give the parties an opportunity to lead evidence and thereafter decide the case on merits. No order as to costs. The parties are directed to appear before the trial Court on 18.6.2008.
(R.A.) Revision accepted.
PLJ 2008 Peshawar 164
Present: Muhammad Alam Khan, J.
FARID--Petitioner
versus
MUHAMMAD KHURSHID and 14 others--Respondents
C.R. No. 1273 of 2007, decided on 31-01-2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. IX, R. 13--O. V, Rr. 16, 18 & 19--Ex-parte decree--Application for setting aside ex-parte decree was dismissed--Appeal was accepted--Assailed--Non service of summons--Untraced address--Order of proclamation--Duty of the Court--Summons were issued against the defendant/respondents and over leaf the summons was a note of the bailiff that they could not be traced on the given address--Validity--It was bounded duty of civil judge to have asked for filing of fresh addresses of the defendant/respondents but instead he ordered the proclamation in newspaper which procedure was bad in law--Held: When the process server has not reported either avoidance or refusal of service by the defendants/respondents, the order for proclamation of service in newspaper was not warranted under the law. [P. 166] A
1991 CLC Note 296 P. 226, PLD 1979 Lah. 793, PLD 1994 Lah. 274 and 2002 CLC 932, ref.
Civil Procedure Code, 1908 (V of 1908)--
----O. IX, R. 13--Limitation Act, (IX of 1908), Art. 164--Ex-parte decree--Application for setting aside ex-parte decree---Limitation--Held: Art. 164 provides 30 days of limitation from the date of the decree but if summons were not duly served, then erminus-A-quo i.e. starting point of limitation will start from the date of knowledge. [P. 166] B
Petitioner in Person.
Mashal, Clerk of Mr. Lal Jan Khatak, Advocate for Petitioner.
Date of hearing: 31.1.2008.
Order
The petitioner is aggrieved from the order of Additional District Judge-III Swabi dated 22.5.2007, through which while accepting the appeal of the respondents, the order of Mian Zahidullah Khan, Civil Judge/Judicial Magistrate, Swabi in Petition No. 13/6 of 2001, decided on 9.6.2006 refusing to set aside ex parte decree against Taj Muhammad defendant-respondents, was accepted and Ex-parte decree dated 23.10.1991 passed against the respondents was set aside.
Brief facts of the case are that Ali Haider etc: including Farid plaintiff-petitioners filed a suit for declaration to the effect that they are owners of land measuring 47 kanals 16 marlas 4.4/17 Sarsaees, fully detailed in the heading of the plaint dated 8.4.1989 on account or time barred mortgage and due to afflux of time. The learned trial Court issued summons against the defendant-respondents and finally made a proclamation in the newspaper and after recording the ex parte evidence granted the plaintiff-petitioners an ex parte decree on 23.10.1991. Taj Muhammad etc: defendant-respondents on 10.4.2001 submitted an application for setting aside the ex parte decree. The learned trial Court after calling for replication from the plaintiff-petitioner and hearing the counsel for the parties, dismissed the said application.
Muhammad Khurshid and others defendant-respondents filed an appeal against the dismissal of their application for setting aside the ex parte decree, which came for hearing before Ahmad Sultan Tarin, Additional District Judge-III, Swabi and he after hearing the counsels for the parties and perusing the record vide Misc: Civil Appeal No. 45/14 of 2006 decided on 22.5.2007 accepted the appeal and set aside the ex parte decree in Suit No. 119/1 of 1991, thus the original suit was restored and was remitted to a Civil Judge for decision on merits. Farid son of Aziz Khan plaintiff-petitioner has assailed the last mentioned order of the Additional District Judge, Swabi through the instant revision petition.
Farid Khan petitioner assisted by Mashal, Clerk of Mr. Lal Jan Khattak, Advocate, who submitted written arguments and thrashed out the facts of the case. It was argued that the application submitted by the defendant-respondents for setting aside the ex parte decree was time barred, as envisaged under Article 164 of the Limitation Act and thus the learned Additional District Judge, Swabi erred in setting aside the ex parte decree.
I have given deep consideration to the facts and legal position involved in this revision petition. Perusal of the record reveals that summons were issued against the defendant-respondents and over leaf the summon was a note of the bailiff that they could not be traced on the given address. It was the bounded duty of the learned Civil Judge to have asked for filing of fresh addresses of the defendant-respondents but instead he ordered the proclamation in the newspaper which procedure was bad in law when the Process Server has not reported either the avoidance or refusal of service by the defendant-respondents, the order for proclamation of service in the newspaper was not warranted under law as held in Pervez Muhammad Khan Vs. Mrs. A.N. Kishwar and others (1991 CLC head notes of cases Note No. 296 page 226).
The law, as contained in Order 5 Rules 16, 18 and 19 of the Civil Procedure Code prescribe a complete machinery for service of summons which had been violated by the learned trial Court. It was also argued by the petitioner that the respondent had otherwise, the knowledge of the ex parte decree but he could not submit the application within 30 days from the date of the decree as envisaged by Article 164 of the Limitation Act. The said Article provides 30 days of limitation from the date of the decree but if the summons are not duly served, then the erminus-A-quo i.e. starting point of limitation will start from the date of knowledge. It is on the record and as stated earlier, the summons in this case were not duly served, there is no cavil with this proposition that when knowledge is proved, due service or otherwise loses its importance as held in the case of Zafrul Haq Vs. Waris Khan and others (PLD 1979 Lahore 793), so the knowledge of the ex-parte decree on behalf of the defendant-respondents is lacking in this case.
Admittedly, the defendant-respondents have not been properly served. Neither the bailiff reported the refusal of service on behalf of defendants nor there was any avoidance of service. It has also not been proved on the record that the defendant-respondents have been served through proclamation in the newspaper so the procedure adopted by the learned Civil Judge was absolutely unwarranted and bad in law, as held in the case of Ghulam Rasool etc:. Vs. Mst. Noondan etc: (PLD 1994 Lahore 274) and Zulfiqar Vs. Muhammad Jan (2002 CLC 932).
The order of the learned Additional District Judge-III, Swabi dated 22.5.2007 is perfectly sound, just, equitable and in consonance with the established principles of administration of justice, which calls for no interference, hence the same is maintained but with a little modification that a cost of Rs. 3,000/- is imposed on the defendant-respondents, payable to the plaintiff-petitioner Farid Khan before Civil Judge Swabi.
In view of the facts and circumstances of the case narrated above, except the above modification, there is no force in the present revision petition, which is dismissed in limine. Copy of this judgment be sent to the learned District Judge, Swabi for placing the same on the record of Civil Suit No. 119/1, pending in the Court of Mr. Alamgir Shah, Civil Judge, Swabi. The learned Civil Judge is directed to taken-up this case on day to day hearing basis, as the matter has lingered on for sufficiently long time and it will be highly appreciated if it is dispose of within three months from the date when the learned Civil Judge receive the copy of this order. The petitioner is directed to appear before Mr. Alamgir Shah, Civil Judge, Swabi on 11.2.2008.
(W.I.B.) Petition dismissed.
PLJ 2008 Peshawar 167
[Dera Ismail Khan Bench]
Present: Muhammad Alam Khan, J.
Mst. JAMILA BEGUM (WIDOW) and 4 others--Petitioners
versus
DEPUTY SETTLEMENT COMMISSIONER DEPARTMENT REHABILITATION, D.I. KHAN and 5 others--Respondents
C.R. No. 271 of 2007, decided on 16.5.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Evacuee Property and Displaced Persons Laws Repeal Act, (XIV of 1975), Ss. 2(a) & 3--Revisional jurisdiction--Concurrent findings of facts--Contradictions material between the testimony of plaintiffs witnesses and documentary evidence--Predecessors in interest after issuance of parcha khatooni and making of entries in column of Kiffiyat of jamabandi, revenue departments were bound to correct the revenue record--Question of--Whether unsatisfied claim of predecessor-in-interest was pending proceedings for which protection was given and will be dealt with in accordance with repealed laws--Determination--By virtue of S. 3 of Evacuee Property and Displaced Persons Laws Repeal Act, 1975 all properties available at time of repeal stood transferred to Provincial Government except the properties whether Urban or Rural attached to charitable, religious or educational trust or institution, a valuable for disposal--Predecessors-in-interest kept mum for sufficiently long time and filed the declaratory suit without first approaching the functionaries created under Repeal Act--Held: Courts below have recorded concurrent findings of fact against the petitioners resorting to well established principles of appreciation of evidence which cannot be disturbed by High Court in its revisional jurisdiction under S. 115 of CPC--Petition was dismissed. [Pp. 170 & 171] A, B & C
Mr. Muhammad Ayaz Khan Qasuria, Counsel for Petitioners.
Date of hearing: 16.5.2008.
Order
This revision petition is directed against the concurrent findings of facts recorded by the learned two Courts below vide their judgments and decrees dated 10/5/2007 and 11/12/2006 respectively, whereby declaratory suit of the plaintiffs/petitioners against the defendants/respondents was dismissed.
Short facts of the case giving rise to this petition in revision are that the plaintiffs/petitioners, Mst. Jamila Begum and four others, in their capacity as the legal representatives of deceased Umer Din son of Jewana and Muhammad Din son of Umer Din, had instituted a suit for declaration to the effect that they are owners-in-possession of property measuring 119 kanals 3 marlas, detailed in the heading of the plaint, and that the Defendant/Respondent No. 2, i.e. Central Government, had no concern with it, as the suit property was allotted to them vide Claim No. 14293 through Shumara-RL-II No. 46 after the issuance of parcha khatooni and making of entries in the column of `Kiffiyat' of jamabandi for the year 1965-66, and thus the defendants/respondents were bound to correct the revenue record accordingly. In the plaint, decree for the grant of permanent injunction for restraining the Defendant No. 2, i.e. the Central Government, to claim ownership of the suit property and to interfere in their possession was also sought. In the alternative, decree for possession was also prayed for.
The suit was hotly contested by Defendants No. 1 and 2 who submitted written statement by raising legal and factual objections which gave rise to the framing of as many as eleven issues including the relief. The learned trial Judge after recording evidence pro and contra and hearing the parties in the light thereof dismissed suit of the plaintiffs and appeal filed thereagainst also met the same fate as mentioned above. Hence this revision petition.
Learned counsel for the petitioners vociferously argued that, the impugned judgments and decrees of both the learned lower Courts are the result of mis-reading and non-reading of evidence brought on record, as the petitioners have successfully proved through documentary evidence the factum of proper allotment in favour of their predecessors through a valid and verified Claim No. 14293. He urged that the learned trial Judge had not discussed the issues framed in the case separately and the joint discussion thereon is in violation of the provisions contained under Order 20 Rule 5 CPC. His stance was that the subsequent cutting of record was duly established through evidence, but both the Courts below have failed to properly appreciate the evidence on record in this regard and passed the impugned judgments and decrees in a haphazard manner.
I have considered the valuable arguments of the learned counsel for the petitioners and thoroughly examined the available record.
Perusal of the record makes it crystal clear that there are material contradictions between the testimony of plaintiffs witnesses and documentary evidence brought on record. Since the Issues No. 2, 3 and 5 to 8 were interconnected and interlinked, thus the collective discussion thereon by the learned trial Court was not illegal as objected to by the learned counsel for the petitioners. When issues are interlinked and the same are discussed separately or jointly will make no difference unless and until prejudice is caused to the parties as held in Mst. Sardar Khatoon and others Vs. Dost Muhammad and another (1988 SCMR 806). Therefore, on facts, both the learned lower Courts have rightly dismissed suit of the plaintiffs and no exception could be taken thereto.
On legal premises, the suit of the plaintiffs has also rightly been dismissed by both the Courts below, because the Claim No. 14293 in favour of the predecessors of the plaintiffs/petitioners was unsatisfied and had not been confirmed and no proper allotment had been made in favour of the predecessors-in-interest of the petitioners.
Perusal of the revenue record annexed with the petition, i.e. Jamabandi for the year 1965/1966 of Mouza Baki, Tehsil Kulachi, District D.I.Khan, would show that in the column of ownership, Central Government is entered as owner, while Tayyab son of Dudu is entered as tenant-at-will in the column of cultivation. Similarly, in the jamabandi for the year 1997/1998 of the same revenue estate, Respondent No. 2, Central Government, is recorded as owner in the column of ownership, while in the column of cultivation, possession is recorded with Sher Zaman, Rabnawaz, Muhammad Jan and Gulistan, sons of Tayyab. So the predecessors-in-interest of the petitioners never remained in possession of the suit land. Mere reference in the column of remarks of jamabandi for the year 1965/1966 in the name of Umer Din son of Juna will not confer ownership rights on him, unless there is a proper allotment order duly supported by RL-II. So the claim was only an unsatisfied claim.
There is yet another aspect of the case also that the Evacuee laws were repealed by the Evacuee Property and Displaced Persons Laws Repeal Act 1975 (Act No. XIV OF 1975), and by virtue of Section 3 of the Act ibid, all the properties available at the time of repeal stood transferred to the Provincial Government, except the properties whether Urban or Rural attached to charitable, religious or Educational Trust or Institution, available for disposal. The question involved is whether unsatisfied claim of predecessor-in-interest was pending proceedings for which protection was given under Section 2(a) of the Act ibid and will be dealt with in accordance with the repealed laws, the answer to this question is in negative as held in the case of Member (S&R/Chief Settlement Commissioner, Board of Revenue Punjab Lahore and another Vs. Syed Ashfaque Ali and others (PLD 2003 Supreme Court 132). The petitioners and their predecessors-in-interest kept mum for sufficiently long time and filed the declaratory suit in the year 1997, that too without first approaching the functionaries created under the Repeal Act and the Rules made there under.
The two Courts below have recorded concurrent findings of fact against the petitioners resorting to the well-established principles of appreciation of evidence which cannot be disturbed by this Court in its revisional jurisdiction under Section 115 of the Code of Civil Procedure.
Consequently, finding no merit in this revision petition, the same is dismissed in limine alongwith its CM No. 120/2007, leaving the parties to bear their own costs.
However, before parting with this judgment, it is observed that if the petitioners do feel aggrieved from the non-allotment of the land in favour of their predecessors-in-interest, will be well within their rights to approach the Settlement Authorities if so advised in the matter.
(R.A.) Petition dismissed.
PLJ 2008 Peshawar 171
[Dera Ismail Khan Bench]
Present: Muhammad Alam Khan, J.
FARID ULLAH KHAN--Petitioner
versus
JAMSHED AHMAD--Respondent
C.R. No. 203 of 2007, decided on 9.6.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Question of fact--Bounden duty of Court--Without affording an opportunity of hearing--Suit for recovery--List of witnesses was filed on behalf of plaintiff while defendant requested for time to submit list of witness which had allowed--Case was posted for recording of evidence--On the posted date counsel for plaintiff moved an application for withdrawal of his Vakalatnama--Vakalatnama was cancelled and notice was issued to plaintiff--Suit was dismissed in default of appearance--Petitioner submitted an application for setting aside order of dismissal of suit--Counsel had withdrawn the power of attorney without the knowledge of the petitioner--Restoration proceedings lingered on due to reason and application was dismissed for non-prosecution--Second application was also dismissed--Trial Court has rejected the application summarily without affording an opportunity of hearing to the parties--Validity--Held: When disputed questions of facts are involved, then, it is the bounden duty of the Court to afford an opportunity to parties to lead pro and contra evidence in shape of proof and disproof--Case was remanded. [P. 174] A & C
1992 CLC 33 Lah. rel.
Audi Alteram Partem--
----Non-affording an opportunity to the parties to lead evidence is violative of the maxim, "audi alteram partem" and the parties have a vested right to prove the allegations and disprove the counter allegations by leading evidence. [P. 174] B
Mr. Ghulam Hur Khan Baloch, Advocate for Petitioner.
Mr. Abdul Qayyum Qureshi, Advocate for Respondent on pre-admission notice.
Date of hearing: 9.6.2008.
Order
Faridullah Khan petitioner has filed this civil revision under Section 115 Code of Civil Procedure against the order dated 29.3.2007 passed by learned Additional District Judge-VI, D.I.Khan through which, the learned appellate Court, while maintaining the order of Civil Judge-I, D.I.Khan dated 20.6.2006, dismissed the appeal filed by the petitioner with cost of Rs.3000/-.
Briefly narrated, the facts of the case are that Faridullah Khan plaintiff brought a suit for the recovery of Rs. 63,000/- alongwith profit at the bank rate in the Court of Senior Civil Judge, D.I.Khan which was marked to Civil Judge-I, D.I.Khan and was registered as Suit No. 26/1. Defendant Jamshed Ahmad was summoned who submitted a detailed written statement and on 23.6.2001 the case was posted for submission of list of witnesses. On that date, only the learned counsel for the parties were present and list of witnesses was filed on behalf of the plaintiff while the counsel for the defendant requested for time to submit list of witnesses and consequently he was allowed by the learned Civil Judge to do the needful within three days and the case was posted for recording of evidence of the plaintiff on 15.9.2001.
On the said date, Syed Gohar Ali Zaidi, learned counsel for the plaintiff appeared before the Court and moved an application for withdrawal of his Vakalatnama which was consequently allowed and Vakalatnama cancelled by the learned trial Court, and notice was issued to the plaintiff for 20.10.2001. On 20.10.2001 the learned trial Court dismissed the suit of the plaintiff in default of appearance.
On 23.4.2002 the petitioner submitted an application for setting aside the order of dismissal and the grounds agitated therein were that he had gone to Afghanistan and had instructed his counsel to pursue the case. In Afghanistan the petitioner became prisoner of war and thus, the learned counsel for the petitioner, without the knowledge of the petitioner, had withdrawn the power of attorney. On this the learned trial Court called for the replication from the defendant who hotly contested the allegations contained in the application of the petitioner. The restoration proceedings lingered on due to one reason or the other as on 21.7.2005 the counsel for the parties requested for adjournment which was adjourned to 12.9.2005 and subsequently on three dates either the Presiding Officer was absent or due to the paucity of time arguments could not be heard and finally on 10.11.2005 the learned Civil Judge Uzma Khurshid dismissed the application for non-prosecution.
On 01.12.2005 the petitioner again submitted an application for restoration of the same. The learned trial Court called for the replication and after hearing the learned counsel for the parties, dismissed the application vide order dated 20.6.2006 against which the petitioner filed an appeal and the learned Additional District Judge-VI, D.I.Khan maintained the order of the Civil Judge and dismissed the appeal with special cost of Rs. 3000/-. Hence, the present revision petition.
It was argued by the learned counsel for the petitioner that the subsequent application filed by the petitioner was for the restoration of the application earlier dismissed in default and the learned trial Court ought to have restored that earlier application because for the application for restoration of the earlier application dismissed in default the period of limitation is three years under Article 181 of the Limitation Act.
On the other hand, Mr. Abdul Qayyum Qureshi, learned counsel for the respondent submitted that the absence of the petitioner was intentional and no sufficient cause was shown for the restoration of the suit dismissed in default.
I have gone through the revision file and the documents annexed with it.
Without going into the detailed controversy, suffice it to say that the learned trial Court has rejected both the applications summarily without affording an opportunity of hearing to the parties. The law is crystal clear on the point that when disputed questions of facts are involved, then, it is the bounden duty of the Court to afford an opportunity to the parties to lead pro and contra evidence in the shape of proof and disproof as held in the case of Hassan Din and another. Vs. Jalal Din and 2 others (1992 CLC 33 Lahore).
Non-affording an opportunity to the parties to lead evidence is violative of the maxim, "audi alteram partem" and the parties have a vested right to prove the allegations and disprove the counter allegations by leading evidence.
Resultantly, this revision petition is accepted, the impugned orders of the Courts below are set-aside and the case is remanded back to the learned Civil Judge-I, D.I.Khan with the direction to afford an opportunity to the parties to lead evidence in the shape of proof and disproof, on the application for restoration of the suit dated 23.4.2002 which shall be deemed to be pending and pass appropriate orders on this application as well as the subsequent application dated 01.12.2005. No order as to costs. The parties are directed to appear, before the trial Court on 21.6.2008.
(R.A.) Case remanded.
PLJ 2008 Peshawar 174
[Dera Ismail Khan Bench]
Present: Muhammad Alam Khan, J.
ABIDA KALSOOM--Appellant
versus
CHAIRMAN WAPDA, LAHORE and 6 others--Respondents
R.F.A. No. 4 of 2006, decided on 25.4.2008.
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 4 & 18--Appellant filed a reference under Section 18 of Land Acquisition Act, 1894 before the Collector for sending the same to District Judge for re-determination of compensation of her land which was dismissed on the ground of limitation by invoking the provisions of Order VII, Rule 11 of CPC--Regular First Appeal--Held: Once a matter is referred to the Civil Court by Collector, then Referee Court is bereft of jurisdiction to determine the question of limitation--Appeal accepted. [P. 176] A
PLD 1981 SC 416; PLD 1983 SC 109; PLD 2004 Pesh. 109 & PLD 1972 Pesh. 197, ref.
Mr. Abdul Hakeem Khan Kundi, Advocate for Appellant.
Mr. Minhaj-ud-Din Alvi, Advocate for Respondents.
Date of hearing: 25.4.2008.
Judgment
Mrs. Abida Kalsoom, appellant herein, has filed this Regular First Appeal against the judgment and decree dated 14.12.2005 passed by the learned Senior Civil Judge/ Judge Land Acquisition D.I.Khan, whereby her reference petition was dismissed on the ground of limitation by invoking the provisions of Order VII, Rule 11 CPC.
Facts of the case giving rise to this appeal are that the appellant had filed a Reference under Section 18 of the. Land Acquisition Act 1894 before the Land Acquisition Collector D.I.Khan for sending the same to the Court of learned District Judge/Senior, Civil Judge D.I.Khan for re-determination of compensation of her land acquired for the construction of Drains No. 10 and 11, CRBC Stage-II WAPDA D.I.Khan. The respondents after service filed replication to the Reference where besides other objections, the ground of limitation was also raised. Another application on the same ground was also filed by the respondents under Order 7 Rule 11 CPC for rejection of the Reference to be hopelessly time barred. After hearing arguments thereon pro and contra, the learned Senior Civil Judge in his capacity as Judge Land Acquisition D.I.Khan accepted the application and rejected the reference petition. Hence this appeal.
Learned counsel for the appellant vehemently criticized the impugned judgment of the learned Judge Land Acquisition D.I.Khan on the ground that the question of limitation is a mixed question of fact and law and the reference petition of the appellant could not be dismissed on the sole ground of limitation. Reliance in this respect was placed on the judgments reported as Mumrez Khan and 16 others Vs. Federal Government through Collector and 4 others (PLD 2004 Peshawar 106).
It was also argued that the learned Referee Court could not dismiss the reference petition without framing issues and affording the parties an opportunity to lead evidence as, even if the ground of limitation is raised, that has to be threshed out and determined by the learned Referee Court through evidence and scanning of the record.
Learned counsel for the respondent submitted that the reference petition was time barred, in view of the provisions contained in Section 18 of the Land Acquisition Act 1894, which prescribes the period of limitation of six weeks from the date of award if the Ex-propriated land owners have participated in the land acquisition proceedings before the Land Acquisition Collector and in other cases six months from the date of award. It was also argued that the reference having not been filed within the period of limitation, the learned Referee Court has rightly rejected the reference petition under Order VII Rule 11 CPC.
I have gone through the record of the case and considered the argument of the learned counsel for the parties.
The land of the appellant was acquired by the Government of N.W.F.P. for construction of drain and in this respect, the Land Acquisition Collector announced the impugned Award, which was not accepted by the appellant and submitted a Reference under Section 18 of the Land Acquisition Act, 1894. The Land Acquisition Collector after scrutinizing the Reference sent the same to the Referee Court for determination of the quantum of compensation.
This is about half a Century old proposition that once a matter is referred to the Civil Court by the Collector, then the learned Referee Court is bereft of jurisdiction to determine the question of limitation as held in the cases reported as Government of West Pakistan (Now Government of N.W.F.P. Through Collector Peshawar Vs. Arbab Haji Ahmad Ali Jan and others (PLD 1981 Supreme Court 516 `E'), Government of West Pakistan (Now Government of N.W.F.P. and two others Vs. Mst. Asmatun Nisa and 6 others (PLD 1983 Supreme Court 109), Shah Wazir Khan and others Vs. Abdur Razaq and others (PLD 2004 Peshawar 109) and the Collector Mardan and two others Vs. Mst. Taj Bibi and 14 others (PLD 1972 Peshawar 197).
Consequently, this appeal is accepted, the impugned judgment and decree of the learned trial Court dated 14/12/2005 is set aside and the Reference is sent back to the learned District Judge D.I.Khan either to decide the same himself or to entrust it to an Additional District Judge at D.I.Khan for disposal. The parties are directed to appear before the learned District Judge D.I.Khan on 12.5.2008.
(R.A.) Appeal accepted.
PLJ 2008 Peshawar 177
[Abbottabad Bench]
Present: Syed Yahya Zahid Gillani, J.
MUKHTIAR KHAN--Petitioner
versus
KHUSHAL--Respondent
C.R.P. No. 21 of 2004, decided on 12.06.2008.
N.W.F.P. Pre-emption Act, 1987--
----Ss. 13 & 14--Civil Procedure Code, (V of 1908) O. XXXII, R. 4(1)(2)--Suit for pre-emption instituted by next friend in presence of minor's father and maternal uncle--Maintainability--Validity Held: Right of pre-emption is a property based right, so the legal guardian of the property of minor can be the only person who can decide to exercise such right and not the "next friend" identified in Order XXXII of CPC, because it is not an ordinary decision to acquire property by exercising right of pre-emption--Held: No one else in instant case could act as "next friend" of the minor for the institution of pre-emption suit, except is father as guardian under Section 14 of Pre-emption Act. [Pp. 181 & 182] B & C
N.W.F.P. Premption Act, 1987--
----Ss. 13 & 14--Talbs by incompetent person on behalf of minor--Essentials--Held: Talb-i-muwathibat, talb-i-ishhad and talb-i-khushamat were performed for the minor pre-emptor by an incompetent person, who was not guardian in terms of S. 14 of Pre-emption Act, the right of pre-emption got extinguished as ordained in Section 13 of the Act. [P. 182] D
Civil Procedures Code, 1908 (V of 1908)--
----S. 115 & O. XXXII, R. 4(1)(2)--Qualifications of next friend--Next friend & guardian-ad-litem--Distinction, Order XXXII, CPC speaks of next friend when the matter is institution of suit on behalf of a minor, and its speaks of guardian for the suit when a minor has been sued some one and he is in panel of defendants. [P. 179] A
Mr. Abdul Latif Khan, Advocate for Petitioner.
Mr. Muhammad Younas Khan Tanoli, Advocate for Respondent.
Date of hearing: 9.6.2008.
Judgment
This revision petition arises from a pre-emption suit wherein the pre-emptor was non-suited because Issues Nos.4 and 5 were decided against him which are reproduced below for ready reference :--
(4) Whether the suit is filed by competent person?
(5) Whether the plaintiff has made any talbs, if so, its effect?
On Issue No. 4 learned trial Court held that, this pre-emption suit instituted by Muhammad Shafi, as "next friend" of the minor pre-emptor, in existence of the minor's real father and maternal uncles, is incompetent, as Muhammad Shafi could not act as "next friend" of the minor pre-emptor. For this reason Issue No. 4 was decide against the pre-emptor, holding the suit incompetent.
Issue No. 5 pertains to performance of Talb-e-Muwathibat and Talb-e-Ishhad which were also performed by the aforesaid "next friend", Muhammad Shafi and the trial Court again held that he was not competent to perform Talb-e-Muwathibat and Talb-e-Ishhad on behalf of minor pre-emptor and consequently Issue No. 5 was decided against the pre-emptor.
Learned Court of appeal affirmed the findings of trial Court and hence this revision petition.
I have heard Mr. Abdul Latif Khan Advocate for the petitioner and Mr. Muhammad Younas Khan Tanoli, Advocate for respondents in detail, on the law points involved herein.
Touching Issue No. 4, learned counsel for the petitioner agitated that Order XXXII CPC elaborately provides a scheme to represent a minor in civil litigation, both as a plaintiff or defendant. He, discussing the relevant rules of Order XXXII CPC concluded that when the plaintiff is minor, anybody major, and having sound mind, can be his next friend, when he has no clash of interest with the minor. This legal position was not properly appreciated by the learned trial Court. Rules have specifically dealt with "next friend" and "guardian-ad-litem" relating to "minor plaintiff and "minor defendant", respectively. The trial Court amalgamated the effects of these segregated situations. Learned Appellate Court also did not give clear findings on this point and ultimately Issue No. 4 was wrongly decided against the pre-emptor petitioner.
Arguing on Issue No. 5, he contended that according to Section 14 of the N.W.F.P. Pre-emption Act. 1987. (hereinafter referred as "the Act") Talb-e-Muwathibat and Talb-e-Ishhad can be performed by the "guardian" or "agent" of the pre-emptor when the pre-emptor is unable to make demands. He submitted that since the pre-emptor of the present case was minor, legally he was to perform Talabs/demands, and further, he could also not appoint an agent too. Here, learned counsel for the petitioner agitated that the word "guardian" used in Section 14 of "the Act" shall be understood in consonance with the terminology of "next friend" used in Order XXXII CPC, because, ultimately, the pre-emption suit is also to be filed in Civil Court under Order XXXII CPC wherein a minor is authorized by law to institute a suit through "next friend". He concluded that this legal position could also not be properly understood and applied by both the Courts below and Issue No. 5 was wrongly decided against the pre-emptor petitioner.
Conversely, learned counsel for the respondent-vendee replied that the case pertains to right of pre-emption, having roots in Islamic Law. The right of pre-emption has been codified in the N.W.F.P. Pre-emption Act, 1987 and its governing Section 3 makes it incumbent to interpret and apply the provisions of "the Act" by seeking guidance from the Holy Quran, Sunnah and Fiqh. He added that for this reason the word "guardian" used in Section 14 of "the Act" shall not be given meaning in conflict with the Injunctions of Islam where-under the "father" or "grandfather" are the natural guardian of a minor and no one else can act as guardian when the father, and in his absence the grandfather are alive. So in this case neither the Talb-e-Muwathibat nor Talb-e-Ishhad nor Talb-e-Khusumat could be performed by Muhammad Shafi, as "next friend". Therefore, both the issues have been rightly decided against the pre-emptor petitioner.
I have given my anxious though to the legal intricacies placed before me. First of all I shall resolve the contentions of the counsel for the parties pertaining to institution of a civil suit by the next friend, in general.
Perusal of the judgment of trial Court reveals that Civil Judge-V, Mansehra misunderstood representation of a minor in civil suit, for amalgamating the effects of different rules of Order XXXII CPC and not drawing distinction line between "next friend" and "guardian-ad-litem". Actually Order XXXII C.P.C. speaks of "next friend" when the matter is institution of suit on behalf of a minor, and it speaks of "guardian for the suit" when a minor has been sued by some one and he is in the panel of defendants. Qualifications of the next friend have been specifically mentioned in sub-rules (1) and (2) of Rule 4 of Order XXXII CPC which is reproduced below for ready reference:--
"4. Who may act as next friend or be appointed guardian for the suit.--
(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:
Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.
(2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers for reasons to be recorded that it is for the minor welfare that another person be permitted to act or to be appointed, as the case may be.
(3) ..........................................................
(4) .........................................................."
When we test the credentials of Muhammad Shafi, "next friend" of Mukhtiar Khan, minor plaintiff of this case, he is a major person of sound mind and there is nothing on record that he has any clash of interest with the minor. But, in the special back ground of pre-emption right involved herein, his competency to act as next friend shall have to be assessed in the light of Injunctions of Islam, because of the condition imposed by Section 3 of the N.W.F.P. Pre-emption Act, 1987 which is reproduced below f for ready reference :--
"3. Interpretation.--In the interpretation and the application of the provisions of this Act, the Court shall seek guidance from the Holy Qur'an, Sunnah and Fiqh".
"14. Demands by the guardian or agent.--Where a person is unable to make demands under Section 13, his guardian or agent may make the required demands on his behalf."
It is correct, that in the instant case the pre-emptor Mukhtiar Khan was minor and he was legally unable to make demands under Section 13 of the Act or appoint an agent. So demands under Section 13 could only be made on his behalf by his guardian. Here the question arises that who would be the guardian of minor pre-emptor according to the Holy Qur'an, Sunnah and Fiqh.
"359. Legal guardian of property.--The following persons are entitled in the order mentioned below to be guardian of the property of a minor (e).--
(1) the father;
(2) the executor appointed by the father's will;
(3) the father's father;
(4) the executor appointed by the will of the father's father."
Here it should be kept in mind that in case of default of legal guardian or their executors, in terms of Section 359, clause (2) and (3), quoted above, guardian of property of minor is appointed by Court, as indicated in next Section 360 (ibid).
I am of the considered opinion that right of pre-emption is a property based right. So, the legal guardian of the property of the minor can be the only person who can decide to exercise this right and not the "next friend" identified in Order XXXII of C.P.C., because it is not an ordinary decision to acquire property by exercising right of pre-emption. We know that in our society this decision some time creates or invites serious animosities. It is the father or grandfather or the other guardian indicated in Islamic Law who can best look after the interest of minor in exercising his right of pre-emption qua the future eventualities in their surrounding circumstances, which might be some time not properly appreciated by the remotely concerned "next friend" indicated in Order XXXII C.P.C.
As a sequel to above discussion, I hold that in a case where a minor's right of pre-emption is to be exercised, the above indicated legal guardian of the property of the minor shall proceed to exercise that right, and not the "next friend" as defined in Order XXXII C.P.C.
In the present case it is an admitted fact that the father of minor pre-emptor is alive who is also the legal guardian of the property of minor pre-emptor, as referred in Section 14 of "the Act", for all relevant purposes.
This being the legal position it was the father of minor pre-emptor who being legal guardian was obliged by law to perform all the Talabs under Section 13 of the Act, i.e., to say Talb-e-Muwathibat, Talb-e-Ishhad and Talb-e-Khusumat. Since Talb-e-Khusumat was also to be performed by the guardian of minor pre-emptor in accordance with Section 14 of "the Act", therefore, the father shall be deemed to be the "guardian appointed or declared by the competent authority", for the Sunnah is the "competent authority", that appointed and declared him as such. Resultantly, no one else in this case could act as "next friend" of the minor for institution of pre-emption suit, except his father, as guardian under Section 14 of "the Act".
This being the legal position I hold that since all the three talabs i.e. Talb-i-muwathibat, Talb-i-Ishhad and Talb-i-Khusumat were performed for the minor pre-emptor by an incompetent person, who was not his guardian in terms of Section 14 of the Act, the right of pre-emption of minor pre-emptor got extinguished, as ordained in Section 13 of the Act. Consequently, findings of learned trial as well as Appellate Court being not in conflict with the related law, the impugned judgments and decree are not interfereable.
The revision petition is found without merits and dismissed.
(W.I.B.) Revision dismissed
PLJ 2008 Peshawar 182
Present: Muhammad Alam Khan, J.
Haji FARID ULLAH KHAN and another--Petitioners
versus
SARDAR INAYAT ULLAH KHAN and 13 others--Respondents
C.R. No. 346 of 2007 with C.M. No. 163 of 2007, decided on 12.2.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, Rr. 1 & 2 r.w. S. 151--Temporary injunction--Issuance of--Essentials--Held: For the issuance of temporary injunction, existence of a prima facie case was not the only critarion unless & until the other ingredients co-exist--Question of private partition through the elders of locality would be thrashed out by the Court after recording evidence--Filing of affidavits by respondents in the shape of undertaking had sufficiently protected the rights of petitioners--In case their ownership was proved respondents would not be entitled to the costs of improvements and would hand over the peaceful possession to petitioners--Impugned order of Appellate Court upheld, injunction refused. [Pp. 184 & 185] A, B, C & D
Legal Practitioners & Bar Councils Act, 1973 (XXXV of 1973)--
----Preamble--Duty of counsel--Held: After being engaged in a lis, it is the duty of the counsel to appear and conduct the case and assist the Court on behalf of his client in order to secure justice for him--Violation to the Rules and cannons of conduct prescribed under the Act, 1973 would amount to profession misconduct. [P. 185] E
1995 SCMR 753 & PLD 1995 SC 462, ref.
Petitioner in person.
Malik Muhammad Bashir, Advocate for Petitioners absent in spite of service.
Date of hearing: 12.2.2008.
Order
Briefly narrated the facts of the case are that Haji Faridullah Khan and others brought a suit against Sardar Inayatullah Khan and others for declaration to the effect that they are owners in possession of one Serai known as "Mir Faujdar Khan" situated in Khasra No. 1402 measuring 03 kanals 04 marlas or whatever correct area is proved, which has been admitted by Defendants No. 1 and 8 to 11 in partition dated 10.6.1994, pursuant to which a site-plan was also prepared.
It was alleged in the plaint that Defendants No. 1 and 8 to 11 are the heirs of Mir Faujdar Khan. A dispute arose regarding the distribution of legacy of Mir Faujdar Khan which was solved by the elders of Bannu, namely, Alhaj Abbas Ali Khan son of Taj Muhammad Khan and Nawab Khan son of Malik Mumtaz Khan and they partitioned the Serai in dispute comprising Khasra No. 1402 situated in village Fatirna Khel Kalan, Bannu. The plaintiffs were allotted the maximum area while the frontage belonging to Defendant No. 1 was purchased by the plaintiffs comprising a path and a vacant place vide Mutation No. 125 dated 26.2.1994.
It is also averred that Defendant No. 1 has sold some shops out of the suit land in favour of Defendants No. 2 to 7. Defendants No. 2 to 7 are trying to grab the path and the vacant site and are going to interfere in the peaceful possession of the plaintiffs. Alongwith the plaint, an application dated 29.10.2006 was also submitted for issuance of temporary injunction.
The learned trial Court summoned the defendants, out of whom, Defendants No. 2 to 7 submitted a detailed written statement in which the allegations and averments contained in the plaint were hotly contested. Similarly, Defendant No. 1 submitted a separate written statement. After calling for the replication and hearing arguments on the question of temporary injunction till the disposal of the suit, and considering the material available on the record, the learned Civil Judge-cum-Judge Family Court-VII Bannu Ms. Zeba Rashid, vide order dated 18.01.2007, granted a temporary injunction prohibiting the defendants from raising construction on the suit premises or changing its nature.
Ali Rehman etc. defendants, aggrieved from the aforesaid order, filed appeal before the learned District Judge, Bannu which was entrusted to Malik Miandad Khan Additional District Judge-I Bannu who, after perusing the record and hearing the learned counsel for the parties in Misc. Appeal No. 4/14 of 2007 decided on 25.4.2007, accepted the appeal and vacated the order passed by the learned trial Court. Hence, Haji Faridullah Khan and others have filed the instant revision petition.
Haji Faridullah Khan Petitioner No. 1 present in person. He was heard in detail in support of his contention. He submitted that the plaintiffs had a prima-facie case and the two other ingredients i.e. the balance of convenience and irreparable loss were also leaning towards the grant of temporary injunction and the learned trial Court had rightly passed an ad-interim prohibitory order. It was further submitted that the interference by the learned Additional District Judge in appeal was on wrong premises of interpretation of law as in the pending suit, when the parties are co-sharers,, neither the interference is allowed by the defendants-respondents nor they could change the nature of the suit property.
I have given my anxious consideration to the facts and circumstances of this case and have gone through the record of the case.
For the issuance of temporary injunction, the existence of a prima-facie case is not the only criterion unless and until the other two ingredients co-exist. The question of private partition through the elders of the locality will be thrashed out by the trial Court after recording of evidence.
Further more, as is evident from the order of the learned Appellate Court that the respondents had filed affidavits in the shape of an undertaking that they are raising construction on their own risk and cost and in case the land is found to be owned by the plaintiffs-petitioners, they will claim no improvement for the same as held in the case of Zakiya Khatoon. Vs. Roomi Enterprises (1995 SCMR 753) and Haji Shah Jehan Khan. Vs. Aurangzeb Khan and another (PLD 1995 SC 462).
The filing of affidavits in the shape of undertaking has sufficiently protected the rights of the plaintiffs-petitioners and in case the suit premises was found to be the ownership of the plaintiffs-petitioners, the respondents-defendants will not be entitled to the cost of improvement and they will hand over the peaceful possession alongwith constructed Abadi to the plaintiffs.
The order of the First Appellate Court is perfectly sound, judicious and strictly in accordance with law which calls for no interference.
Resultantly this revision petition fails which is dismissed in limine alongwith C.M. No. 163/2007 with no order as to costs. Copy of this judgment be sent to the learned District Judge, Bannu for placing the same on the record of Civil Suit No. 415/1 instituted on 30.1.2006 titled Haji Faridullah Khan and others. Vs. Sardar Inayatullah Khan and others.
Before parting with this judgment, with regret I note that Malik Muhammad Bashir Advocate, D.I.Khan, counsel for the petitioners has been personally served in this revision petition. His Clerk Muhammad Rafique is present. Haji Faridullah Khan petitioner informed the Court that he has paid the professional fee to the counsel but in spite of that he refused to appear before this Curt when the case was called for hearing and on a second call when he contacted the Clerk of the said counsel, the petitioner was informed that he has gone to Islamabad.
When a counsel is engaged in a lis, it is his duty to appear and conduct the case and assist the Court on behalf of his client in order to secure justice for him. Under the provisions of Legal Practitioners and Bar Council Act, 1973 and the rules framed thereunder, canons of conduct have been prescribed for Advocates and any violation of these canons amounts to professional misconduct. Thus, the copy of the Judgment in this C.R. be placed before my Lord the Chief Justice of this Court for onward entrustment to the competent forum for initiating disciplinary proceedings against Malik Muhammad Bashir, Advocate. D.I.Khan.
(J.R.) Petition dismissed
PLJ 2008 Peshawar 185
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
ABDUR REHMAN KHAN--Appellant
versus
YAQOOB--Respondent
R.F.A. No. 15 of 2005, decided on 3.6.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXVII, R. 2 & S. 96--Suit for recovery on the basis of promissory note--Dismissal of the suit--Appreciation of evidence--Appellant had successfully proved his claim through cogent and reliable evidence--Trial Court non-suited him for the sole ground that payment before marginal witnesses was not proved--Held: If it was proved on record that the consideration was admitted to have been passed on to the debtor before the marginal witnesses and the scribe of document, that would be sufficient proof of payment--Appeal was accepted.
[Pp. 188 & 189] A, B, C & D
1973 SCMR 332; 1979 SCMR 465; 1990 CLC 1018 & PLD 2004 Lah. 95, ref.
Mr. S. Abid Hussain Bukhari, Advocate for Appellant.
Mr. Muhammad Waheed Anjum, Advocate for Respondent.
Date of hearing: 20.5.2008.
Judgment
This regular first appeal is directed against the judgment and decree dated 20/4/2005 passed by the learned Additional District Judge-I D.I.Khan, whereby suit of the plaintiff/appellant, Abdur Reham Khan against the defendant/respondent Yaqoob Khan was dismissed.
Brief facts of the case are that the appellant brought a suit against the respondent for the recovery of Rs. 29,000/- on the basis of pronote dated 22/1/2001 under Order XXXVII, Rule 2 of the Code of Civil Procedure. According to the averments made in the plaint, it was alleged that due to cordial relations between the parties, the appellant, Abdur Rehman Khan, had advanced a loan of Rs. 29,000/- to the respondent Yaqoob Khan and to this effect a pronote was executed between them on 22/1/2001 by Qayyum Nawaz Khan, Petition Writer, duly signed by the marginal witnesses, namely, Atta Muhammad Shah and Saqlain Abbas appearing as PWs 2 and 3 before the trial Court. Subsequently, when the plaintiff demanded the return of the said amount, the defendant refused to pay the same, hence the suit.
By leave of the Court granted on 16/3/2004, the defendant/respondent, while submitting written statement, resisted the plaint on the grounds, inter alia, that the plaintiff had no cause of action, the pronote was based on fraud and was without consideration and that the suit was not competent. The divergent pleadings of the parties gave rise to the framing of seven issues including the relief whereupon the parties produced their respective evidence.
The learned trial Court after hearing the parties and evaluating the materials brought on record dismissed the suit through the impugned judgment which is now impugned in this appeal.
Syed Abid Hussain Bukhari, learned counsel for the appellant, has vehemently argued that the impugned judgment and decree are the result of misreading and non-reading of evidence brought on record. He urged that the appellant had duly proved the payment of suit money to the defendant in presence of Atta Muhammad Shah and Saqlain Abbas the marginal witnesses in whose presence the defendant had admitted the receipt of suit amount from the appellant. His contention was that Qayyum Nawaz, Petition Writer, while appearing as PW. 1 has admitted the scribing of the pronote Ex.PW.1/1 and its contents duly entered in the relevant register at Serial No. 443, photo copy of which is Ex.PW.1/2 on the file. He submitted that presumption of truth is attached to the pronote and receipt of suit money having been admitted by the defendant in presence of the marginal witnesses, therefore, the impugned judgment and decree are not sustainable under the law. Lastly, he argued that the findings of the learned trial Court on Issues No. 2 and 3 are against the law and facts on record, as the plaintiff/appellant has successfully proved through cogent and reliable evidence the payment of the suit amount to the defendant/respondent and in this regard a pronote was validly executed between the parties, the scribe whereof has also admitted its contents to be correct.
In reply, Mr. Muhammad Waheed Anjum, learned counsel for the respondent, has defended the impugned judgment and decree on the grounds that the plaintiff/appellant had miserably failed to substantiate his claim about the payment of the suit money to the defendant/respondent through the pronote Ex.PW. 1/1. He urged that the suit was incompetent and had rightly been dismissed by the learned trial Court, as the plaintiff/appellant had no cause of action to institute the same. His submission was that the alleged pronote was without consideration, as its marginal witnesses and the scribe, i.e. Petition Writer, have clearly negated the payment of the suit money to the defendant by the plaintiff in their presence. He submitted that since no receipt about the payment of the suit amount was annexed with the pronote and the plaintiff was contradicted on this score by the Petition Writer, therefore, the claim of the appellant was not proved and the impugned judgment and decree being based on correct appreciation of evidence need no interference.
6A. It was also argued that when the consideration is not proved, then no presumption of correctness of the instrument can be drawn under Section 118 of the Negotiable Instruments Act 1881 as held in the case of Salar Abdur Rauf Vs. Mst. Barkht Bibi (1973 SCMR 332).
I have anxiously considered the valuable arguments of the learned counsel for the parties and thoroughly examined the entire record of the case.
Perusal of the record, however, indicates that the learned trial Judge has not properly appreciated the evidence on record and the impugned judgment and decree need to be set aside. The observations of the Court below that the plaintiff has not proved his cordial relations with the defendant/respondent and thus there was no basis for him to advance the suit money to the defendant and the dispute between the parties appeared to be one for rendition of accounts and not for recovery on the basis of pronote, are not tenable being flimsy based on surmises and conjecturers, rather it favours the appellant when the trial Court came to the conclusion that there was a dispute between the parties but the remedy was in the shape of rendition of accounts.
From the evidence produced by the appellant, he has successfully proved his claim through cogent and reliable evidence by producing Qayyum Nawaz, Petition Writer as PW. 1 i.e; scribe of the pronote Ex.PW.1/1 who has verified the contents of the pronote duly entered in the relevant register. He has stated that Yaqoob, Abdul Rehman and two witnesses namely Saqlain Abbas and Atta Muhammad Shah had signed the pronote and affixed their signatures on the register maintained for the purpose at Serial No. 443. Claim of the appellant was further proved by the testimony of Atta Muhammad (PW. 1) who has stated that he was sitting in the office of Miss Shahida Advocate when Abdul Rehman came there and asked him to become a witness of a pronote who accompanied him and met Yaqoob respondent who was asked about advancement of the amount of Rs. 29,000/- which he admitted and then he put his signature in the relevant register. Likewise, Saqlain Abbas appearing as PW.2 while supporting the claim of the appellant had stated that he knows both the parties being living in the same vicinity where he lives. Abdul Rehman asked him to become a witness of the pronote and after satisfying himself about the correctness of the pronote and admission of Yaqoob Khan about receipt of the amount in question had signed the pronote and the relevant register. The learned trial Court has not adverted to this important fact of proving the execution of pronote and has non-suited the plaintiff/appellant on the sole ground that payment before the marginal witnesses at the time of execution of pronote was not proved.) So once the execution of the pronote is proved, then the burden shifts to the defendant/respondent to prove that the pronote is without consideration as held in the case of Muhammad Boota Vs. Faiz Ahmad (1979 SCMR 465).
The contention of the learned counsel for the respondent that the payment of consideration should be contemporaneous with the execution of pronote is also without any substance. If on the record it is proved that the consideration was admitted to have been passed on to the debtor before the marginal witnesses and scribe of the document, that will be sufficient proof of payment of consideration as held in the case of Mst. Sajida Abbas Zaidi Vs. Syed Arshad Ali Jaffri (1990 CLC 1018) and Muhammad Ashiq and others Vs. Niaz Muhammad and others (PLD 2004 Lahore page 95).
In this state of affairs, when the claim of the appellant was duly proved by the evidence of the PWs in support of the pronote with regard to the suit money, the learned trial Court was required to have taken into consideration the same and should not have drawn the impugned conclusion. Thus the adverse findings recorded by the learned trial Court on various issues in the judgment impugned in this appeal are set aside.
In view of the facts and circumstances of the case narrated above, the appeal in hand is accepted, impugned judgment and decree of the learned trial Court is set aside and a decree for recovery of Rs. 29,000/- (Rupees twenty-nine thousands) is passed in favour of the appellant-plaintiff against the defendant-respondent with simple interest at the rate of four percent per annum from the date of institution of the suit till payment of the decretal amount with no order as to costs.
Above are the reasons for my short order of even date.
(J.R.) Appeal allowed
PLJ 2008 Peshawar 189 (DB)
Present: Raj Muhammad Khan and Zia-ud-Din Khattak, JJ.
NASEER MUHAMMAD KHAN--Petitioner
versus
HAMAYUN SAIFULLAH KHAN and 4 others--Respondents
W.P. No. 45 of 2008, decided on 13.2.2008.
Representative of the People Act, 1976 (LXXXV of 1976)--
----S. 99(1-A)--Local Government Ordinance, 2001, Ss. 21, 114 & 164--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Eligibility to contest election--Respondent resigned from office of Zila Nazim--He filed his nomination papers which were accepted by the returning officer--Maintainability--Held: Zila Nazim would relinquish his office merely by tendering his resignation under S. 21 of local Government Ordinance, 2001 and acceptance of resignation is not a sine qua non for it--Seat of Zila Nazim had become vacant as was notified by Election Commission--Petition was dismissed.
[P. 192] A
Constitution of Pakistan, 1973--
----Art. 199--Representation of the People Act, 1976, S. 52--Constitutional petition--Dispute of qualification and disqualification for election--Jurisdiction--Dispute relating to pre-election qualifications or disqualifications of members could only be determined in accordance with Election Law in force and High Court in its jurisdiction under Art. 199 of Constitution was not competent to determine such disputes. [P. 192] B
Election Petition--
----All steps in conduct of election could be challenged by way of election petition by way a rival candidate. [P. 192] C
PLD 1989 SC 396 + PLD 2005 SC 52 rel.
Petitioner in person.
M/s Abdul Latif Yousafzai and Muhammad Arif Khan, Advocates for Respondents.
Dates of hearing: 13.2.2008 and 14.2.2008.
Judgment
Zia-ud-Din Khattak, J.--The eligibility of Hamayun Saifullah Khan, Respondent No. 1 herein, to contest Election for National Assembly from Constituency No. NA-27, is subject-matter of the other petition vide W.P. No. 44/2008 (Noor Saleem Khan Vs. Hamayun Saifullah Khan and others), also and therefore, these are disposed of per this single judgment.
Briefly, facts of the case are that Respondent No. 1 was Zilla Nazim, Lakki Marwat who intended to contest Election from NA-27 which was to be held on 08.01.2008, subsequently postponed to 18.02.2008. In this connection, he resigned from his office on 24.11.2007 by tendering resignation to the Chief Executive/Chief Minister N.W.F.P. on 25.11.2007 through Fax as well as at his residence. Thereafter, he filed nomination papers on 26.11.2007 which after scrutiny were accepted by the Returning Officer on 29.11.2007. After expiry of the prescribed period for filing appeals before the Election Appellate Tribunal, N.W.F.P. and decision thereof, the Returning Officer concerned issued list of contesting candidates on 16.12.2007. The name of Respondent No. 1 appeared at S.No. 13 of the said list as one of the eligible candidates for concerned constituency. Subsequently on 11.01.2008, Naseer Muhammad Khan petitioner herein filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan that since the resignation of Respondent No. 1 dated 24.11.2007 had been accepted by the Chief Minister on 28.11.2007, the Respondent No. 1 was still enjoying his office of Zilla Nazim till 26.11.2007, the date of filing nomination papers and for that reason, he was disqualified from contesting the election.
Mr. Naveed Maqsood Seth, Advocate learned counsel for the petitioner on the strength of authority of August Supreme Court of Pakistan reported in (P.L.D. 2007 Supreme Court 52) contended that the acceptance of resignation tendered by Respondent No. 1, by competent authority was an essential requirement for its effectiveness and till such time that it was accepted, the Respondent No. 1 was deemed to have had continued to be Zilla Nazim. That is to say, the resignation having been accepted on 28.11.2007 i.e., after the last date of filing the nomination papers, he was Zilla Nazim at the time of filing nomination papers and so was disqualified from contesting the election. He submitted that since Respondent No. 1 had held office of profit as Zilla Nazim, he was disqualified under Section 99 (i-A)(O) of the Representation of People Act, 1976.
Conversely, Mr. Abdul Latif Yousafzai, Advocate appearing for Respondent No. 1 assailed the maintainability of the writ petitions under Article 199 of the Constitution on two grounds; firstly, that the petitioners had no locus standi to file their constitutional petitions and secondly, that the subject-matter of the petitions related to an election dispute which could be assailed by way of an Election Petition as required under Article 225 of the Constitution read with Section 52 of the Representation of People Act, 1976. He relied on the judgments of August Supreme Court of Pakistan reported in (PLD-1989 Supreme Court 396) and (PLD 2005 Supreme Court 52).
We have heard Petitioner Naseer Muhammad Khan in person as well as learned counsel for the parties and have gone through the available record.
The first point which requires determination is whether tender of a resignation by a Zilla Nazim would require acceptance of the competent authority for its effectiveness or otherwise. The subject of resignation of Zilla Nazim is dealt with independently under Section 21 of the Local Government Ordinance, 2001 according to which the Zilla Nazim may resign from the office by tendering resignation in writing to the Chief Executive/Chief Minister of the Province. This tendering of the resignation is not qualified by some other conditions for its acceptance. It was observed that the act of relinquishment of office or its acceptance or otherwise is dependent on the nature of the office/post held by an incumbent. The act of relinquishment may take different forms or assume a unilateral or bilateral character depending upon the nature of the office and the conditions governing it. In case, the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated or conveyed to the competent authority. In such case, the competent authority is not required to take any further action and the relinquishment is effected from the date of such communication. Conversely, if the act of relinquishment is of bilateral character, the communication of the intention to relinquish, by itself would not be sufficient to result in relinquishment of the office and some further action is required to be taken on the communication of intention to relinquish e.g. acceptance of the said request to relinquish the office and in such a case the relinquishment would not become effective or operative till such action is taken.
The holder of office of Zilla Nazim under the Local Government Ordinance, 2001 would relinquish his office merely by tendering his resignation under Section 21 of the Local Government Ordinance, 2001 and acceptance of the resignation is not a sine qua non for it. Admittedly, the Respondent No. 1 had tendered resignation on 24.11.2007 which was accepted by the competent authority, as such, his seat had become vacant with effect from the said date as was notified by the Election Commission of Pakistan under Section 164 of the Local Government Ordinance, 2001 vide Notification No. F-5 (7)/2006-Elec: (II) dated 7.12.2007.
As regards the contention of Respondent No. 1 that the issue in these petitions pertained to an election dispute and this Court has no jurisdiction to entertain the same for it would be decided only by way of an election petition under Section 52 of the Representation of People Act, 1976 in view of the provisions of Article 225 of the Constitution, the matter was initially examined by the August Supreme Court of Pakistan in the case of "Election Commission of Pakistan v. Javed Hashmi and others" (PLD 1989 Supreme Court 396) and subsequently in a case of "Ayatullah Dr. Imran Liaqat Hussain v. Election of Pakistan, Islamabad and another" (PLD 2005 Supreme Court 52), it was held that the dispute relating to pre-election qualifications or disqualifications of members could only be determined in accordance with the Election Law in force and the High Court in its jurisdiction under Article 199 of the Constitution was not competent to determine such disputes. It hardly needs any emphasis that "all steps in conduct of election could be challenged only by way of election petition by a rival candidate. As filing of nomination forms is a step in the conduct of election and could only be assailed through an election petition, a statutory remedy is provided under the law with mandate under Article 225 of the Constitution".
In the light of the above, we are of the view that Respondent No. 1 after tendering resignation from the office of Zilla Nazim on 24.11.2007 was not hit by any clause of disqualification. The nomination papers filed by him had already been scrutinized and accepted which remained unquestioned either before a Returning Officer or before the Election Appellate Tribunal. The said acceptance has also been culminated in the issuance of final list of candidates showing their respective election symbols.
We, however, observe that our findings shall not prejudice any proceedings to be taken by either of the parties before the Election Authorities at post election stage.
Resultantly, we find no merit in these writ petitions which have been dismissed accordingly vide our short order dated 14.2.2008. The above are the reasons therefor.
(W.I.B.) Petitions dismissed
PLJ 2008 Peshawar 193
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
MUHAMMAD MUSHTAQ--Petitioner
versus
Mst. ABDA NASREEN--Respondent
Civil Revision No. 178 of 2007, decided on 20.5.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Specific Relief Act, (I of 1877), S. 42--Declaratory suit on the basis of gift--Rejection of plaint--Issues had already been framed which had to be decided after recording of pro & contra evidence--Disputed questions of facts were involved and a similar prayer had already been turned down--Order of rejection of plaint was not sustainable--Revision accepted. [P. 196] A
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of plaint--Critaria for--Held: Once issues are framed and Court enters upon recording of evidence, then the matter has to be taken to its logical end and resort should not be made to the summary provisions of law. [P. 196] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 11 & O. VII, R. 11--Rejection of plaint--Res-judicata--Court had already, after applying its mind, turned down the request for rejection of plaint--Held: As the matter was between same parties, with respect to the same gift deed and parties were litigating under the same title, so subsequent order to reject the plaint would serve as res judicata. [P. 196] C
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of plaint--Scope--Held: If the defendant agitates that even after the trial, plaintiff is going to be unsuccessful, such fact cannot be considered as a ground for rejection of plaint specially when issues have already been framed and the parties are put to produce their evidence. [P. 196] D
1993 MLD 2464 & 1993 MLD 1005, ref.
M/s. Rustam Khan Kundi and Fazl-ur-Rehman Baloch, Advocates for Petitioner.
Mr. S. Mastan Ali Zaidi, Advocate for Respondent.
Date of hearing: 20.5.2008.
Order
Muhammad Mushtaq petitioner has brought the instant revision petition against Mst. Abida Nasreen through which he has challenged the order dated 27.2.2007 of the learned District Judge, D.I.Khan vide which, by concurring with the order of learned Civil Judge-I, D.I.Khan regarding rejection of plaint, Appeal No. 12 of 2006 filed by the petitioner has been dismissed.
Briefly narrated the facts of the case are that Mushtaq son of Allah Bakhsh filed a suit against Mst. Abida Nasreen and others for declaration to the effect that he alongwith proforma Defendant No. 2 Muhammad Shahid is owner of the suit house fully detailed in the head notes of the plaint. In the alternative relief for possession by way of partition was also sought. The learned Senior Civil Judge summoned the defendants-respondents, out of whom, Defendant No. 1 Mst. Abida Nasreen appeared and submitted her detailed written statement on 18.5.1999. On the same date, alongwith the written statement an application was also submitted for rejection of the plaint under the provisions of Order VII, Rule 11 CPC. The learned trial Court, after calling for the replication from Muhammad Mushtaq plaintiff-petitioner herein, and hearing the learned counsel for the parties, vide order dated 14.2.2000 dismissed the application and the case was posted for filing of list of witnesses and evidence. From that date onward, the case was being posted for recording of evidence. It is pertinent to note that against that order, no appeal or revision has been filed which has attained finality.
During the course of trial, it so happened that Mst. Abida Nasreen again submitted an application on 29.11.2005 praying therein that as the statement of Ehsan-ul-Haq Petition Writer has been recorded wherein this witness admitted that the gift-deed impugned in the civil suit does not find mention in his register, thus, again it was prayed that the gift-deed being unregistered and the plaintiff has filed the suit after five years of execution of deed, requested for rejection of plaint under the provisions of Order VII, Rule 11 C.P.C. The learned trial Court again, after calling for replication from the plaintiff-petitioner and hearing their learned counsel and considering the data available on the record, vide impugned order dated 18.1.2006 rejected the plaint of the plaintiff-petitioner under Order VII, Rule 11 C.P.C. Feeling aggrieved the petitioner filed an appeal before the learned District Judge, D.I.Khan and the learned Appellate Court while concurring with the learned lower forum, vide Appeal No. 12/2006 dismissed the same on 27.2.2007. Mushtaq petitioner has filed the instant revision petition to impugn the orders of the two Courts below.
Pre-admission notice was issued to the respondent pursuant to which S. Mastan Ali Zaidi Advocate appeared on behalf of Respondent No. 1.
It was submitted by the learned counsel for the petitioner that the trial Court could not reject the plaint without framing of issues and giving opportunity to the parties to lead pro and contra evidence with respect to their contentions. It was also argued that disputed questions of law and facts were involved and the learned trial Court could not summarily reject the plaint especially in the circumstances when a similar prayer of Respondent No. 1 for rejection of the plaint had been turned down by the learned trial Court on 14.2.2000, against which, the remedies of appeal and revision have not been exhausted by the respondent which had attained finality and would definitely serve as res-judicata and the learned trial Court as well as the learned Appellate Court have fallen into an error in non-suiting the plaintiff-petitioner.
S. Mastan Ali Zaidi, learned counsel for the respondent submitted that once it is proved on record that the plaint does not disclose a cause of action and on the evidence so far recorded if no prima-facie case was in existence in favour of the plaintiff-petitioner, the learned trial Court has rightly rejected the plaint in spite of the fact that a similar prayer of Respondent No. 1 had already been turned down by the learned trial Court.
I have given my anxious consideration to the facts and circumstances of the case.
The learned trial Court had called for the written statement out of which contentious issues had been framed which had to be decided by the learned trial Court after recording of pro and contra evidence. As the disputed questions of facts were involved, so, the learned trial Court was not justified to summarily non-suit the plaintiff-petitioner by way of rejection of the plaint especially in the circumstances, when once, a similar prayer had been turned down by the learned trial Court and thus, the Appellate Court too, has fallen into an error in maintaining the same order.
It is an established principle of law that once issues are framed and the Court inters upon recording of evidence, then, the matter has to be taken to its logical end and resort should not be made to the summary provisions of law as contained in the Code of Civil Procedure.
In the case-in-hand, annexed with the written statement was an application for rejection of the plaint and the learned trial Court, after applying its mind, had earlier turned down the request for rejection of the plaint vide order dated 14.2.2000 and the subsequent order will definitely serve as res judicata as the matter was between the same parties with respect to the same gift-deed and the parties were litigating under the same title.
The learned trial Court, after framing of the issues, ought to have recorded the evidence and decided the matter on merits as held in the case of M/s. Hoechst Pakistan Ltd: Vs. M/s. Cooperative Insurance Societies and others (1993 MLD 2464 Lahore).
Furthermore, the law is clear and crystal on the point that for the rejection of plaint the same must be shown to be barred under some provisions of law. The Court must at that stage has only to see the averments made in the plaint and the same has to be accepted, on its face value, to be correct. If the defendant agitates that even after the trial the plaintiff is going to be unsuccessful, this fact too, cannot be taken into consideration because the same is not a ground for rejection of the plaint especially when issues are framed and the parties are put to produce their respective evidence pro and contra as held in the case of Ghulam Dastagir and others. Vs. Mst. Marian and others (1993 MLD 1005 Karachi).
In view of the facts and circumstances of the case narrated above, the revision petition is accepted, the impugned orders of the Courts below are set-aside and the case is sent back to the learned Civil Judge-I, D.I.Khan for decision of the same on merits after affording the parties an opportunity to lead evidence in support of their respective contentions. The parties are directed to appear before the trial Court on 07.6.2008.
(J.R.) Petition Accepted
PLJ 2008 Peshawar 197
[Dera Ismail Khan Bench]
Present: Muhammad Alam Khan, J.
AURANGZEB KHAN--Petitioner
versus
HAQ NAWAZ and another--Respondents
C.R. No. 181 of 2007, decided on 3.6.2008.
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--N.W.F.P. Pre-emption Act, 1987, S. 5--Suit for pre-emption--Rejection of plaint--Disputed sale was admitted but the allegation of its cancellation was a matter which could be thrased out after recording evidence--Held: Appellate Court had rightly set aside the rejection order passed by trial Court--Petition dismissed in limine. [P. 198] A, B & C
1993 MLD 1005 & 1993 MLD 2464, ref.
Mr. Abdul Qayyum Qureshi, Advocate for Petitioner.
Date of hearing: 3.6.2008.
Order
Impugned herein is the order of the learned Additional District Judge-III, D.I.Khan vide which the appeal filed by Plaintiff-Respondent No. 1 against the order of Civil Judge Paharpur at D.I.Khan dated 26.10.2005 rejecting the plaint of the plaintiff-respondent, was set-aside and the case was remanded back to the learned trial Court for decision on merits in accordance with law.
Briefly narrated, the facts of the case are that Haqnawaz Plaintiff-Respondent No. 1 brought a suit for pre-emption on the basis of an oral sale dated 25.10.2003. The learned trial Court summoned the defendant-petitioner Aurangzeb Khan and another who, instead of submitting the written statement, filed an application under the provisions of Order VII, Rule 11 C.P.C praying for rejection of the plaint on the main ground that the suit land had been purchased by Aurangzeb Khan defendant-petitioner but later on that was cancelled and the vendor then alienated the suit land to the other vendees. It was averred in the application that as there is no sale in existence, thus, the plaint was liable to be rejected. The learned trial Court, after calling for replication, hearing the learned counsel for the parties and perusing the data available on the record, rejected the plaint vide Suit No. 285/1 Nim decided on 25.6.2005.
Feeling aggrieved, Haqnawaz Plaintiff-Respondent No. 1 filed RCA No. 42/2005 which came for hearing before the learned Additional District Judge-III, D.I.Khan Aurangzeb Khan Khattak who, while accepting the appeal vide order dated 17.4.2007, set-aside the impugned order of the Civil Judge and remanded the case back to the Civil Judge for decision on merits.
It was submitted by learned counsel for the petitioner that as the sale was not in existence, therefore, no suit for pre-emption was competent and the learned Civil Judge has rightly dismissed the suit of the Plaintiff-Respondent No. 1 and the learned Additional District Judge has fallen into an error while accepting the appeal of the Plaintiff-Respondent No. 1.
I have given my anxious consideration to the facts and circumstances of the case and have perused the data annexed with the civil revision.
Perusal of the record shows that the alleged cancellation of the sale-deed, which has been admitted by Aurangzeb Khan defendant-petitioner in his application dated 27.9.2004, was a matter which could be thrashed out by the learned trial Court after recording of pro and contra evidence and the shortcut and summary procedure adopted by the learned trial Court was not warranted under the law.
Once averments are made in the plaint, those averments only had to be taken into consideration while rejecting the plaint especially in the circumstances when in the instant case the defendant-petitioner had admitted the factum of sale in his application for rejection of the plaint who had alleged its cancellation. In such situation serious disputed questions were involved which could only be thrashed out after recording of pro and contra evidence after submitting the written statement and framing of issues as held in Ghulam Dastagir and others. Vs. Mst. Mariam and others (1993 MLD 1005 Karachi) and M/s. Hoechst Pakistan Ltd. Vs. M/s. Cooperative Insurance Societies and others (1993 MLD 2464 Lahore).
The order of the learned Appellate Court is strictly just, legal and in accordance with the established principle of law which calls for no interference and the same is maintained.
In view of the facts and circumstances of the case narrated above, there is no force in the instant revision petition which is hereby dismissed in limine.
(J.R.) Petition dismissed in limine.
PLJ 2008 Peshawar 199
[Dera Ismail Khan Bench]
Present: Muhammad Alam Khan, J.
DERA CABLE NETWORK LTD. through Chief Executive and 3 others--Appellants
versus
PAKISTAN ELECTRONIC MEDIA REGULATORY AUTHORITY through Chairman and 5 others--Respondents
R.F.A. No. 48 of 2007, decided on 19.5.2008.
Pakistan Electronic Media Regulatory Authority (PEMRA) Ordinance, 2002--
----S. 30-A--(Amendment) Act of 2007)--Application for issuance of licence to install new cable network--Dismissed without hearing--Assailed--Held: Appellants had a right of hearing which could not be denied to them specially when no notice of hearing was issued to them--Impugned order was cursory, non-speaking and violative of law--Case remanded for decision afresh in accordance with law.
[Pp. 200 & 201] A, D & E
Administration of Justice--
----Natural justice--Principle of--Held: Not only in judicial proceeding but also in administrative actions, a party is always entitled to a notice or a chance of hearing--Even in a lis pending in administrative tribunals or Quasi Judicial Tribunals the right of hearing is must, under the principle of natural justice. [Pp. 200 & 201] B & C
1959 AC 663 & PLD 1987 SC 447, ref.
Mr. Abdul Qayyum Qureshi, Advocate for Appellant.
Mr. Irfan Khan Taju Khel, Advocate for Respondents.
Date of hearing: 19.5.2008.
Judgment
Dera Cable Network, D.I.Khan through Abdur Rashid Khan and others have filed this appeal against Pakistan Electronic Media Regulatory Authority through Chairman, Headquarters, Green Trust Tower, 6th Floor, Jinnah Avenue Blue Area, Islamabad and 5 others under Section 30-A of the Pakistan Electronic Media Regulatory Authority Ordinance, 2002 read with Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2007.
Briefly narrated the facts of the case are that on 29.10.2007 petitioner Abdur Rashid Khan, being the Managing Director of Dera Cable Network according to the partnership deed dated 27.10.2007, submitted an application to the respondents seeking permission to install a cable Network and prayed for the issuance of licence. The application was also supported by two demand drafts dated 20.10.2007 for Rs. 1,50,000/- and Rs. 85,000/- respectively as fee for the licence. The respondents, by a short order dated 22.11.2007 through a letter communicated to the appellants, informed them that, as there are already functioning four cable Networks in D.I.Khan Division, no scope exists for the issuance of further licence.
At the outset, Mr. Abdul Qayyum Qureshi, learned counsel for the appellants submitted that the impugned order has been passed at the back of the appellants and no notice of hearing has been given to the appellants and thus, they have been deprived of their right. It was also argued that in this way the well known maxim of law, "that nobody should be condemned unheard", which is so well entrenched in our judicial system, has been violated.
On the other hand, Mr. Irfan Khan Tajukhel, learned counsel appearing for the respondents submitted that there was no need to issue a notice to the appellants and to afford them an opportunity of hearing and the concerned authorities i.e. the respondents have decided the matter on the existing record on merits, the result whereof has duly been communicated to the appellants.
I have gone through the appeal file and the documents existing on the record.
It is an established principle of law that while passing an order, the appellant or the petitioner, as the case may be, has a right of hearing which cannot be denied to him especially in the circumstances when in this case even no notice of hearing has been issued to the appellants. By now it is a settled principle of law that not only in judicial proceedings, but, also in administrative actions, the petitioner or the appellant, as the case may be, is always entitled to a notice or a chance of hearing.
Furthermore, even in a lis pending in Administrative Tribunals or Quasi-judicial Tribunals, the right of hearing of a party is a must which is derived from natural justice as nobody could be condemned unheard as held in the case of Baldvin and Francis Ltd:. Vs. Patents Appeals Tribunal (1959 AC 663), that the legislature while conferring jurisdiction on a particular Tribunal is with the condition that the Tribunal shall strictly decide the case in accordance with law. It has been repeatedly held by the apex Court that when the Tribunal makes an error of law and decides the matter pending before it, the Tribunal over-skips its jurisdiction and the same has been quashed in view of the dictum laid down in the case of Utility Stores Corporation of Pakistan Ltd: Vs. Punjab Labour Appellate Tribunal and others (PLD 1987 SC 447).
Perusal of the impugned order dated 22.11.2007 reveals that the same is cursory, non-speaking and violative of the law and is liable to be struck down.
In view of the facts and circumstances of the case, this appeal is accepted, the impugned order is set-aside and the matter is remitted back to the learned Tribunal constituted under Pakistan Electronic Media Regulatory Authority Ordinance, 2002 duly amended by Pakistan Electronic Media Regulatory Authority (Amendment) Act, 2007 to re-decide the same afresh strictly in accordance with law, after giving an opportunity of hearing to the appellants. The appellants are directed to appear before the Regional General Manager PEMRA, N.W.F.P., Lane-I, Muslim Road, Peshawar Cantt: on 02.6.2008 for re-decision of the matter on merits.
(J.R.) Appeal accepted
PLJ 2008 Peshawar 201
[Dera Ismail Khan Bench]
Present: Muhammad Alam Khan, J.
AKBAR NAWAZ SHAH--Petitioner
versus
MUHAMMAD SALEH SHAH and 5 others--Respondents
C.R. No. 138 of 2007, decided on 12.2.2008.
Specific Relief Act, 1877 (IX of 1877)--
----S. 42--Civil Procedure Code, (V of 1908), S. 115--Suit for declaration was decreed by trial Court but dismissed by First Appellate Court--Assailed--Petitioner challenged mutation which had been entered and attested on behalf of predecessor of respondents, who had never challenged it nor appeared before Court to record his statement to own that mutation--Judgment of Appellate Court did not have any misreading or non-reading of evidence--Revision dismissed in limine.
[P. 204] A, B & C
Petitioner in person.
Date of hearing: 12.2.2008.
Order
Akbar Nawaz Shah s/o Janan Shah has filed this revision petition challenging the judgment and decree of the District Judge, Bannu in Civil Appeal No. 36/2006 decided on 19.03.2007 through which, while accepting the appeal of Respondents No. 1 and 2 set-aside the judgment and decree of Nisar Muhammad Khan, Civil Judge No. IV, Bannu in Civil Suit No. 10/1 decided on 12.06.2006 and dismissed the suit filed by the plaintiff/petitioner.
Briefly narrated the facts of the case are that petitioner Akbar Nawaz Shah brought a suit for declaration to the effect that he and defendants/Respondents No. 5 and 6 are the owners in possession of land measuring 12 kanals 01 marla situated in Khata No. 1266 Khasra Nos. 5693, 5699, 5944, 5955, 5700, 5697 as per Jamabandi 1996/97, situated in the revenue estate of Mumniq Khail Now-Ghari, Tehsil and District Bannu and the wrong entries in the name of Muhammad Zahir Shah deceased, predecessor of defendant-Respondents No. 1 and 2 are wrong, illegal and ineffective on the rights of the plaintiff-petitioner and proforma defendants-Respondents No. 5 and 6.
It was further alleged that the said Muhammad Zahir Shah had sold his entitlement in favour of Zahir Khan s/o Mazullah Khan Defendant-Respondent No. 6 vide Mutation No. 15972 attested on 03.12.1966 and now Defendant No. 6 is the owner and the wrong entries incorporated in the Jamabandi for the year 2001-02 are incorrect and not binding on the Plaintiff and Defendants No. 5 and 6.
Defendants were summoned out of whom Defendants No. 1 and 2 contested the suit and filed written statements, out of the pleadings of the parties the following issues were framed:--
Whether the plaintiff has got a cause of action? (OPP)
Whether plaintiff has come to the Court with clean hands? (OPD)
Whether suit of the plaintiff is time barred? (OPD)
Whether plaintiff is estopped to sue by his own conduct? (OPD)
Whether suit of the plaintiff is bad for misjoinder and non-joinder of the necessary party? (OPD)
Whether defendants are entitled to compensatory cost under Section 35-A CPC? (OPD)
Whether suit of the plaintiff is not maintainable in its present form? (OPD)
Whether suit property is the ownership and in possession of plaintiffs and proforma defendants? (OPP)
Whether the ancestor of the Defendants No. 1 and 2 namely Muhammad Zaher Shah sold his share in the suit property to the proforma Defendant No. 6 Zaher Khan, through Mutation No. 15972 dated 03.12.1966, and the same was incorporated in the Fard Jamabandi for the year 1981-82? (OPP)
Whether the name of Muhammad Zaher Shah the ancestor of the Defendants No. 1 and 2 is wrongly incorporated in the Fard Jamabandi for the year 1996-97 and onward? (OPP)
Whether the plaintiff is entitled to the decree as prayed for in the heading of the plaint? (OPP)
Relief.
The parties produced their respective evidence as they wished to adduce and the learned Civil Judge after hearing the arguments of the counsels for the parties and considering the data available on the record decreed the suit of the plaintiff/petitioner vide judgment and decree in Suit No. 10/1 dated 12.06.2006. Feeling aggrieved Defendant-Respondents No. 1 and 2 filed appeal in the Court of District Judge, Bannu and the learned District Judge, Bannu Mr. Aman Zia accepted the appeal vide judgment and decree in Civil Appeal No. 36/2006 decided on 19.03.2007 and dismissed the suit of the plaintiff-petitioner hence, Akbar Nawaz Shah has filed the instant revision petition.
Mr. Akbar Nawaz Shah present in person. However, his counsel namely Umar Khan Advocate Bannu is absent in spite of service and the petitioner stated that he was duly asked to argue the case but he refused to appear before the Court to attend the proceedings and argue the case.
Mr. Akbar Nawaz Shah petitioner submitted that he had challenged the wrong entries in the name of Muhammad Zahir Shah predecessor of Defendant-Respondents No. 1 and 2 and had proved on record that vide Mutation No. 15972 attested on 03.12.1966 he had sold his share in the suit land in favour of Zahir Khan Defendant-Respondent No. 6 and due to wrong entries in the subsequent Jamabandi his name was entered in the revenue record which was liable to be corrected. The learned trial Court has rightly decreed the suit of plaintiff/petitioner, while the learned District Judge, Bannu has without taking into considering evidence available on the record wrongly and without any justification accepted the appeal and dismissed the suit of the petitioner. It was also argued, that the adverse entries would not affect the right of Defendant-Respondent No. 6 as he is in possession of his entitlement.
I have given my anxious consideration to the facts and circumstances of the case and has perused the record minutely. Perusal of the record would reveal that as far as the share of the plaintiff is concerned that is intact. The petitioner challenges a mutation which has been entered and attested on behalf of Muhammad Zahir Shah predecessor of Respondents No. 1 and 2 in favour of Defendant/ Respondent No. 6. It is very strange that Zahir Khan Defendant/Respondent No. 6 has never brought any suit on the basis of this Mutation nor he had appeared before the Court to record his statement to own the said mutation. Furthermore. Zahir Khan Defendant/Respondent No. 6 has never opted to be transposed to the panel of the plaintiffs in order to base his claim on the said Mutation. ADK Haqdar Khan has appeared as DW-2 and he has produced Mutation No. 5324 attested on 26.01.1965 copy Ex.DW-3/DX-1 vide which Janan Shah had gifted some land in favour of Muhammad Zahir Shah defendant/respondents predecessor and Akbar Nawaz Shah plaintiff/ petitioner and Zahir Khan s/o Mazullah Khan Defendant/ Respondent No. 6 which Mutation has remained unchallenged on the record and the learned District Judge, Bannu has rightly held that the said Mutation Bearing No. 15972 dated 03.12.1966 allegedly attested on behalf of Muhammad Zahir Shah predecessor of Defendants/ Respondents No. 1 and 2 in favour of Muhammad Zahir Khan Defendant-Respondent No. 6 was never made the basis of the claim by Zahir Khan and thus, regarding this Mutation, the petitioner had neither any locus standi nor a cause of action to challenge. The share of petitioner is intact and the aggrieved person was Zahir Khan to have come forward and had based his claim on the mutation and had sought for declaration of his title. The learned Appellate Court has rightly scanned the evidence on record and no mis-reading or non-reading of evidence has been pointed out on the record of the case.
So in view of the facts and circumstanced of the case narrated above there is no force in this revision petition which is dismissed in limine with no order as to costs.
However, if Muhammad Zahir Khan Defendant/Respondent No. 6 is aggrieved from any wrong entry in the revenue record pursuant to the impugned Mutation adversely affecting his rights would be at liberty to challenge the same if so advised in the matter. Copy of this judgment be sent to District Judge, Bannu for making it a part of the record of Civil Suit No. 10/1 decided on 12.2.2006 titled Akbar Nawaz Shah vs. Muhammad Zahir Shah and others.
(J.R.) Petition dismissed
PLJ 2008 Peshawar 205 (DB)
Present: Syed Yahya Zahid Gillani & Shah Jee Rehman Khan, JJ.
HASEEB AHMAD--Petitioner
versus
Mst. SHAISTA and another--Respondents
W.P. No. 456 of 2008, decided on 25.6.2008.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 10(4)--Constitution of Pakistan, 1973, Art. 199--Pre-trial reconciliation proceedings--Word "shall"--Import of--The word "shall" used in the proviso of S. 10(4) is directory in nature and not mandatory at all--Family Court can dissolve marriage after failure of pre-trial reconciliation proceedings if circumstances for khula under the Principles of Quran and Sunnah, so permit--Held: Family Court can skip over such stage and frame issues to record evidence on other grounds of dissolution of marriage if Court considers it more convenient--Petition dismissed. [P. 207] A
Mr. Fazal Mola Chattan, Advocate for Petitioner.
Date of hearing: 25.6.2008.
Order
Syed Yahya Zahid Gillani, J.--Since no appeal or revision lies against an interim order passed by a Family Court due to the bar contained in Section 14(3) of the West Pakistan Family Court Act, 1964, the petitioner, alleging that no other adequate remedy being available to him, has, in this constitutional petition under Article-199 of the Constitution of Islamic Republic of Pakistan, 1973, called in question the interim order of Judge Family Court, Nowshera, dated 13.3.2008, whereby the petitioner (husband) has been directed under Section-17(A) of the Act (ibid) to pay the respondent Mst. Shaista (wife) Rs. 5000/- per month, as interim maintenance allowance, till the decision of the suit.
Mr. Fazal Mola Chattan, Advocate, for the petitioner, contended that the impugned order is without lawful authority and of no legal effect, as the jurisdiction under Section-17(A) of the Act (ibid) could not be exercised by the Family Court after failure of Pre-trial reconciliation proceedings between the spouses, and the Family Court had no other choice but to dissolve the marriage under the mandatory provision contained in the proviso added to sub-section-(4) of Section-10 of the Act (ibib), instead of directing the petitioner to pay interim maintenance allowance.
We have carefully adverted over the proviso added to sub-section-(4) of Section-10 of the West Pakistan Family Court Act, 1964. It is reproduced below for ready reference:
"Section-10 Pre-trial proceeding.
(1) ....................
(2) ....................
(3) ....................
(4) If no compromise or reconciliation is possible the Court shall frame the issues in the case and fix a date for [the recording of the] evidence.
[Provided that notwithstanding any decision or judgment of any Court or Tribunal, the Family Court in a suit for dissolution of marriage, if reconciliation fails, shall pass decree for dissolution of marriage forthwith and also restore the husband the Haq Mehr received by the wife in consideration of marriage at the time of marriage.]
Indeed, the word "shall" used in the above quoted proviso superficially creates the impression that the provision is mandatory but its deep analysis depicts quite a different version.
It can not be ignored that the same proviso further speaks of restoration to husband the "Haq Mehr" received by the wife at the time of marriage. This segment of the proviso discerns that the dissolution of marriage to which this proviso refers, can be nothing else but on the basis of Khula. We are mindful of the fact that a Family Court some times may also be confronted with a situation wherein the wife does not accept dissolution of marriage on the basis of Khula and emphasizes her entitlement to dissolution of marriage on the basis of cruelty or any other legal admissible ground, alongwith the recovery of or retention of received dower (Haq Mehr). In that eventuality, should a Family Court, after failure of pre-trial reconciliation proceedings, be left with no other option but to dissolve the marriage in terms of Khula only?. We are of the opinion that the proviso does not tie the hands of Family Court to such an extreme extent. If we go to accept the interpretation of learned counsel for the petitioner, the dissolution of marriage under the said proviso would be left nothing but a mechanical process. Additionally, it will deprive a wife to all admissible legal grounds of dissolution of marriage, other than Khula and we can not imagine that the proviso has been legislated to indirectly deprive women, of their all legally recognized grounds of dissolution of marriage, excepting Khula. Such an interpretation would not be in consonance with the Scheme of prevailing Family Laws. Therefore, we hold that the word "shall" used in the above quoted proviso is directory in nature and not at all mandatory. The Family Court can dissolve the marriage under the aforesaid proviso, after failure of pre-trial reconciliation proceedings, if the fact and circumstances of the case justly demand such an order, keeping in view the principles of Khula, enunciated by Quran and Sunnah. However, if the Family Court concludes that evidence should be recorded to determine the right of wife to get the marriage dissolved on any other legally admissible ground, the Family Court can skip over the stage and frame issues to record evidence and decide the case according to law.
With the above considered opinion and decision we further hold that learned family Court had lawful authority under Section 17(a) to determine the interim maintenance allowance, which was duly exercised.
Learned counsel for the petitioner also contended that the impugned order tentatively determining the maintenance allowance at a rate of Rs. 5000/- per month is harsh and without considering the financial position of petitioner, and as such, it is illegal and of no legal effect. We do not find ourselves in agreement with learned counsel for the petitioner on this point too, because the interim maintenance allowance has not been determined in vacuum. In fact it is based on the commitment of petitioner in Nikah Nama that he shall pay that much amount to respondent in such like situation.
With the conclusion that the impugned order is neither without lawful authority nor has any jurisdiction error nor it is harsh, we dismiss this writ petition in motion.
(J.R.) Petition dismissed
PLJ 2008 Peshawar 208
Present: Muhammad Raza Khan, C.J.
Haji MUHAMMAD HUSSAIN and another--Petitioners
versus
D.C.O., DIR UPPER and another--Respondents
Civil Revision No. 1075 of 2007, decided on 5.5.2008.
Pakistan Environment Protection Act, 1997--
----Preamble--Scope of--Purpose of the Pakistan Environment Protection Act, 1997 is to protect, conserve, rehabilitate and improve the environment for the prevention and control of pollution and promotion of sustainable development--Not only noise but air pollution and other factors disturbing the ecology, bio diversity or the health of the citizens, is the major aim of the Environment Law.
[P. 211] A & B
Pakistan Environment Protection Act, 1997--
----Preamble & S. 21(9)--Bar of jurisdiction--Held: The scheme of the statute gives a look of an impressive and protective instrument which eliminates the possibility of exercise of jurisdiction by any other forum including Civil Court--However the law does not satisfy the protection of all rights of the citizens which may be adversely affected by an irresponsible entrepreneur whereby nuisance may be caused to them and in addition to the potential damage to the health, inconvenience faced by such citizen would go unchecked. [P. 212] C
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11 & OXXXIX, Rr. 1 & 2--Pakistan Environment Protection Act, 1997, S. 21(9)--Suit for permanent injunction--Rejection of plaint--Bar of jurisdiction--Petitioner was aggrieved mainly of the noise produced by stone crushing process, but the local inspectors were merely satisfied that at the time of inspection, the dust was still, due to the use of sprinkler on the conveyor belt but they had not been able to confirm that the use of the sprinkler would be automatic with the running of crushing plant--There was also no indication that the dust should not be emitted in the case when sprinkler was out of order--Allegation of unbearable noise, late at night by the unloading and reloading of bolders had not been noticed--The prayers of prohibitory & mandatory injunctions, cancellation of licence for installation of stone crushing plant and the recovery of damages were certainly the exclusive jurisdiction of Civil Court--Case remanded to the trial Court for adjudication on merits. [Pp. 212 & 213] D, E & F
Mr. Abdul Latif Afridi, Advocate for Petitioners.
Mr. Asghar Khan, Advocate for Respondents.
Date of hearing: 5.5.2008.
Judgment
A civil suit was instituted by the present petitioner Haji Muhammad Hussain seeking a perpetual injunction against Defendant/Respondent No. 2 with a purpose to restrain him from operating the Stone Crushing Plant near the residential area of the plaintiff. There is also a prayer for mandatory injunction to direct the said respondent/defendant to remove the plant and there is also a request for cancellation of the license dated 1.12.2006.
The facts stated in the plaint are that Defendant No. 2 has installed a Stone Crushing Plant in the year 2006 near the village where the plaintiffs reside. Allegedly the plaintiffs moved several applications to the concerned authorities but they could not get a relief. Even the application under the Local Government Ordinance failed to achieve a positive result. Hence there was a request for the removal of the said plant as it was creating hardship to the residents of the area by dust and noise pollution and since Respondent/Defendant No. 1 had issued a license without the actual verification of the damage done to the residents of the area by the concerned quarter, therefore, the prayer for cancellation of such license dated 1.12.2006 was also added to the suit.
The defendants contested the suit on legal and technical grounds specifically raising the issue of jurisdiction of the Civil Court in view of the Environmental Protection Law. Another independent application for the rejection of the plaint under Order VII Rule 11 CPC was also submitted by the defendant-respondent. After getting a reply from the plaintiff, the case was fixed for arguments. In the meanwhile, the plaintiff submitted an application for the amendment of the plaint on 30.3.2007. The learned trial Court heard arguments on the application for temporary injunction, as well as the application for the rejection of plaint and the prayer for amendment of the plaint. On the adjourned date, the learned trial Court came to the conclusion that the Civil Court has no jurisdiction in view of Section 21(9) of the Environmental Protection Act, 1997 and therefore the plaint was returned for submission to the appropriate forum and consequently the application for temporary injunction was also returned. The application for amendment of the plaint was declined with the observation that the plaintiff can institute an independent suit for damages if he so desires. The plaintiffs challenged the said order in appeal but the learned Additional District Judge-II, Lower Dir at Timargara vide the impugned judgment dated 27.4.2007 dismissed the appeal as well. Hence this revision petition.
I have listened to the arguments of the learned counsel for the parties and scrutinized the available material.
Both the Courts have held that in view of the provision contained in the Environmental Protection Act, the Civil Court did not have the jurisdiction to hear and decide the suit relating to pollution and therefore, the plaint was returned for presentation to the appropriate forum. The learned counsel for the petitioner argued that the Civil Court was the Court of ultimate jurisdiction and the environmental laws do not exclude the jurisdiction of a Civil Court in the matters covered by the Environmental Protection Act as well as by the normal law relating to the civil rights of the parties. The respondents however argued that with the promulgation of the Environmental Protection Act the jurisdiction relating to pollution etc. fall within the exclusive jurisdiction of Environmental Protection Tribunal and therefore, the Civil Court was left with no authority to determine the controversy between the parties as the same could only be resolved by the Tribunal. Sub-section (9) of Section 21 of the Environmental Protection Act, 1997 lays down:
"(9) No Court other than an Environmental Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of an Environmental Tribunal extends under this Act or the rules and regulations made thereunder."
By referring to the investigation conducted under the Environmental Protection Act, both the Courts have held that since the local investigation has confirmed that the dust was not creating any hardship to the people residing in the nearby area particularly when the defendant-respondent has installed the Dust Protection Mechanism in the form of a room and a sprinkler and therefore the requirement of the law has been satisfied and no action under the said law was possible against the defendant/respondent.
The observation of the Courts, refusing to exercise jurisdiction indicates the lack of appreciation of the nuisance created by a Stone Crushing Plant. The perusal of the comments submitted by the respondent department to the Environmental Protection Tribunal indicates that the location of the said plant near the residential area at the road side was confirmed. However, it was explained that under the instructions of the concerned authorities, the defendant-respondent had taken various steps to comply with the legal provision for minimizing the fact of pollution. Allegedly the defendant/respondent had developed Water Sprinkling Filter System on the conveyor built whereby the dust settles down and does not mix with the surrounding air and so the environment has been protected from the air pollution due to dust emission. Moreover, it was reported that with the construction of a dust control room over the crushing machine has controlled the dust generated through the process of crushing of stone. The entire effort of the local authorities for the prevention of pollution have focused their attention to the dust which normally emits during the process of stone crushing and allegedly, a room over the plant and sprinkling of water over the crushed material on the conveyor built is considered to be sufficient to provide a healthy atmosphere to the local residents. However, the fact of noise pollution has not been properly evaluated. The noise created by unloading the stone/bolders at the crushing site, the up-loading thereof in the jaw crusher and the process of crushing as well as grading thereof certainly creates noise, in addition to dust, which may be unbearable for the nearby residents.
The purpose of the Environmental Protection Act, 1997 is to protect, conserve, rehabilitate and improve the environment for the prevention and control of pollution and promotion of sustainable development. The term "pollution" has been defined in clause XXXIII of Section 2 of the Act in these words;
"(xxxiii) "pollution" means the contamination of air, land or water by the discharge or emission of effluents or wastes or air pollutants or noise or other matter which either directly or indirectly or in combination with other discharges or substances alters unfavorably the chemical, physical, biological, radiational, thermal or radiological or aesthetic properties or the air, land or water or which may, or is likely to make the air, land or water unclean, noxious or impure or injurious, disagreeable or detrimental to the health, safety, welfare or property of persons or harmful to biodiversity."
Similarly, the term noise has been defined in clause 30 thereof.
"(xxx) "noise" means the intensity, duration and character of sounds from all sources, and includes vibration."
The term environment and environmental assessment has been defined in Clauses 10 and 11 thereof. Thus, not only noise but air pollution and other factor disturbing the ecology bio diversity or the health of the citizen is the major aim of the said law. Section 11 of the Act prohibits certain discharge and emission whereas Section 12 provides for the environmental impact assessment. By Section 16, a procedure has been laid down for regulating the environmental protection and Section 17 provides for the penalty for the contravention of the legal provision under the said Act which also includes the sentence of fine, imprisonment, closure of the factory, confiscation of machinery and equipment and Section 21 thereof provides for the exercise of jurisdiction and powers of the Environmental Protection Tribunal which includes sub-section (9), reproduced hereinabove.
The scheme of the statute gives a look of an impressive and protective instrument which eliminates the possibility of exercise of jurisdiction by any other forum including the Civil Court. However, the deeper appreciation would lead to the conclusion that the said law does not satisfy the protection of all the civil rights of the citizen which may be adversely affected by an irresponsible entrepreneur whereby nuisance may be caused to the citizen and in addition to the potential damage to the health inconvenience faced by such citizen would go unchecked. The present case is a typical example of the mis-use of authority by the officers responsible for the proper protection of environment. The plaintiff/petitioner is aggrieved mainly of the noise but the local Inspectors are merely satisfied that at the time of their inspection of the functioning of the plant, the dust was still due to the use of sprinkler on the conveyor belt but they have not been able to confirm that the use of a sprinkler shall be automatic with the running of the crushing plant. There is also no indication that the dust shall not be emitted in the case when the sprinkler is out of order. No report has been made with regard to the mechanism for protection of noise pollution. The allegation of unbearable noise at late at night by the unloading and reloading of bolders has not been noticed. The judicial notice of such a noise can be taken that with the existence of such plant, at a distance of more than a kilometer, the peace and convenience of the residents of the area is disturbed whereas the alleged plant was installed merely at a distance of a furlong from the residential area.
The exclusion of jurisdiction under Section 21 relates to the exercise of an authority to which the jurisdiction and power of the Environmental Protection Tribunal extends which has to act as an appellate authority under Section 22 of the Act against the orders of a Federal or Provincial Agency under the provision of the Act or the rules and regulations. There is no information as to whether the said rules and regulations have been framed and approved as per Sections 31 and 33 of the Act. But sub-section (9) of Section 21 shall at the most exclude the powers falling within the jurisdiction of the Tribunal. The provisions relating to the regulation procedure for protecting the environment and for the imposition of penally is the exclusive jurisdiction of the Federal and Provincial Agencies and the exercise of such power has not been excluded from the operation of the jurisdiction of other Courts. The penalty under Section 17 can be imposed by the Environmental Magistrate under Section 24 of the Act. Thus it can be held that the prayers contained in the suit instituted by the plaintiff petitioner were not directly the matters falling within the exclusive jurisdiction of the Environmental Tribunal and therefore the jurisdiction of the Civil Court was not ousted by the said provision of law. At the most it can be observed that a decision by E.P.A or the Magistrate can be challenged exclusively with a Tribunal and the jurisdiction of the Civil Court shall be barred to that extent. The plaintiff had asked for the prohibitory and mandatory injunction which was the exclusive jurisdiction of the Civil Court. He had also prayed for the cancellation of license dated 1.12.2004 for the installation of Stone Crashing Plant issued by the District Coordination Officer. This part of the prayer did not fall within the competence of any of the authorities, Magistrate or Tribunal under the said Act. The Additional prayer which was sought to be included in the plaint related to the recovery of damages, was certainly the exclusive jurisdiction of the Civil Court. Even otherwise, the determination of question whether an act or omission by the defendant whereby the civil right of the petitioner or the environment of an area was being adversely affected was a pure question of fact which could be determined after recording evidence and therefore the return of the plaint through the impugned order was not in conformity with the established practices.
In view of the above, this petition is allowed, the impugned judgments of both the Courts are set aside and the matter is remanded to the learned trial Court for the adjudication of the suit on merits after recording evidence. No order as to costs.
(J.R.) Petition allowed
PLJ 2008 Peshawar 213 (DB)
Present: Muhammad Raza Khan, C.J. and Syed Yahya Zahid Gillani, J.
FARHAD SAJID, RANGE OFFICER, SHERGARH FOREST RANGE FOREST DIVISION TEHSIL AND DISTT. MANSEHRA--Petitioner
versus
NAB ISLAMABAD through Chairman and 2 others--Respondents
W.P. No. 64 of 2008, decided on 13.3.2008.
Constitution of Pakistan, 1973--
----Art. 199--National Accountability Ordinance, (XVIII of 1999), Ss. 9 & 10--Constitutional petition--Prayer for--Release of the petitioner--There were 9 persons liable for the Govt. loss--If charge was proved against accused, his ultimate sentence would have to commensurate proportionally with the quantum of actual loss, yet to be established against him--Case needed further inquiry--Bail allowed.
[P. 217] A, B, C & D
PLD 2001 SC 607, PLD 2003 SC 668, PLD 1972 SC 81, PLD 1968 SC 349, 2005 SCMR 1291 & 2003 P.Cr.L.J. 473, 2000 MLD 1911 & 2003 MLD 1637, ref.
Mr. Riaz Ahmad Khan, Advocate for Petitioner.
Mian Fasih-ul-Mulk, D.P.G. for Respondents.
Date of hearing: 13.3.2008.
Judgment
Syed Yahya Zahid Gillani, J.--In substance and essence, this Constitutional petition under Article-199 of Islamic Republic of Pakistan, 1973, is for release of petitioner Farhad Sajid, Forest Range Officer, on bail, who has been booked for trial under Sections 9-10 of National Accountability Ordinance, 1999 (hereinafter referred as NAO) in Reference No. 6 of 2007, pending in Accountability Court, Peshawar, with the title "State vs. Farhad Sajjad & five others".
The reference is based on the facts that there was alleged ruthless illegal cutting in the Government Reserve Green Forest, within the controlling jurisdiction of accused/petitioner. On reports, D.G NAB (F) authorized Mr. Muhammad Tayeeb Anwar I.O. for inquiry/investigation. His final investigation report highlighted massive illegal cutting of trees, lofty misappropriation and soaring irregularities, due to active connivance in between the Controlling Government Officers (including the petitioner/accused and five others) and four local timber smugglers. Rs. 6.328 millions loss to public exchequer was detected. Consequently, the accused/petitioner and five other forest officials were arrested. The three arraigned civilians entered in "plea bargain" and they made good the public exchequer losses attributed to them. One of them is still absconder.
Mr. Riaz Ahmed Khan, learned counsel for the accused/petitioner Farhad Sajid pleaded that the investigation officer did not conduct independent inquiry. He simply relied on the departmental inquiry report, but that inquiry too was not done by the concerned inquiry officer himself and he allegedly got done the physical checking of the effected forest through his subordinates and did not personally confirm that their report was right or wrong. He contended that, as such, the I.O has not personally fixed the liability against the accused/petitioner and submitted final investigation report on the basis of presumptions. He concluded that it is an inherent flaw in the prosecution case rendering the accused/petitioner entitled to bail on the ground of further enquiry into his guilt.
Touching the legal aspect, he referred to the cases reported in PLD 2003 Supreme Court page-668(b) and 2005 SCMR page-1291 (a) and argued that this Court has ample power to release the accused/petitioner on bail on the ground of further inquiry.
Mian Fasihul Mulk, learned DPG for NAB (F), raised no objection on the powers of this Court in granting bail to accused/petitioner but took the indurate stance that scams and white colour crimes in Governmental sectors are always detected on the basis of initial departmental enquiries and it would be a wrong presumption that every departmental report would be baseless. Rather, mostly, these reports operate as search engine and dig out roots of hidden crimes. The I.O. of NAB (F) carried out his own necessary inquiry/investigation during which the record was taken in possession and the statements of PWs were recorded u/S. 161 Cr.PC to accumulate the documentary data for his satisfaction and finalize list of prosecution witnesses. When he got fully satisfied about the commission of crime, he submitted final investigation report to which DG NAB agreed and consequently the reference was instituted. It contains a prima facie case and the collected evidence provides reasonable grounds to believe that the accused/petitioner has committed the offence. Hence, he is not entitled to release on bail.
We have carefully gone through the record to ascertain the facts, and also contemplated over relevant law.
We are of the view that the objections raised by the learned counsel for the accused/petitioner against the mode and manner of inquiry/investigation would since involve us to discuss deep merits of the case, we would refrain to do it because it is not permissible under recognized principles governing grant of bail in criminal cases. However, we would examine the case of accused/petitioner for his entitlement to bail on the other grounds, but before that a precised survey of the relevant law and judicial precedents would make us convenient to draw apt conclusions, on the available record.
It is pertinent to note here that Section 9(b) of NAO declares all offences falling there under, to be non-bailable offences, not withstanding anything contained in Sections 426, 491, 497, 498 and 561-A or any other provision of the Code of Criminal Procedure, or any other law for the time being enforce. It has further been laid down in this provision that no Court shall have the jurisdiction to grant bail to any person accused of any offence under the NAO.
This provision, as a first impression, appeared to be very harsh, but its justification was also visible in Section-16(a) of the NAB Ordinance, which contains a direction that the cases in the Accountability Court shall be heard day to day and disposed of within 30 days. If it could be practicable then there would have been no need and desire for bail in these cases, because the accused could have preferred to face expeditious trial, instead of consuming time in bail petitions. However, the ground reality proved altogether different.
In famous case "Khan Asfandyar Wali vs. Federation of Pakistan" reported in PLD 2001 Supreme Court page-607(r) Hon'ble Apex Court declared existence of powers of superior Courts to grant bail to the accused arrested under the NAO, in exercise of the constitutional jurisdiction under Article-199 of the Constitution.
Petitions for bail rapidly increased because the under trial accused could not get cases decided in Accountability Courts within the stipulated period of 30 days, on the basis of day to day hearing, for multiple reasons, the major being long list of PWs and heaps of record for proof. Technical nature of the offences and their careful analysis also yielded reasonable grounds for delay in accomplishment of trials.
Resultantly, the law of bail in NAB cases flourished and the judicial pronouncement of superior Courts further enlarged the scope of bail in NAB cases. The case titled "Abdul Aziz Khan Niazi vs. The State" reported in PLD 2003 SC page-668, and "National Accountability Bureau vs. Khalid Masood and others" reported in 2005 SCMR at page-1291 propounded the rule that not only the High Court has jurisdiction under Article-199 of the Constitution to grant bail to any person accused of an offence under the NAO, notwithstanding the bar contained in Section 9 (b) of the said Ordinance, but all those grounds which are relevant for grant of bail under the Ordinary Law, can equally be considered for grant of bail in the constitutional jurisdiction. Under this enlarged scope, bail was granted by the Karachi High Court on the ground of "further inquiry" in the case "Akhtar Hussain Ansari vs. The State" reported in 2003 P.Cr.LJ at page-473.
According to the judgment reported in 2000 MLD 1911 (b) severity of punishment and according to the case reported in 2003-MLD-1637 (c) the sentence likely to be awarded are the factors which can be considered in allowing or refusing bail. In the cases reported in PLD-1972-SC-81 and PLD 1968 SC 349, it has been held that bail cannot be refused as punishment.
In this case we have found that the whole Government loss calculated in the reference is Rs. 7.114 millions and liability has been fixed against as many as nine persons, out of which three have made good the losses attributed to them through plea bargain. Although the petitioner has been individually attributed the loss calculated as Rs. 6.728 millions, but this calculation appears overlapping, when liability of each accused is taken in account, in juxtaposition. In this state of affair, if the charge is proved against the accused/petitioner, his ultimate sentence shall have to commensurate proportionately with the quantum of actual loss yet to be established against the accused/petitioner. For this purpose the trial Court shall have to meticulously calculate and weigh his liability on judicious scale. All this discussion means that at least on the point of actual losses attributed to accused/petitioner, his case needs further inquiry. Keeping in view the total loss and large number of accused, imposition of maximum sentence of imprisonment is not visible. This is a tentative assessment only for the purpose of bail and shall never affect the merits and mind of the Court at the time of final pronouncement.
In these facts and circumstances, we deem it appropriate to enlarge the accused/petitioner on bail, in the peculiar facts and circumstances of this case mainly on the ground of expected prolonged trial period, vis-a-vis the expectation of short period of sentence of imprisonment, besides the connected factors, that due to limited liability fixed against the accused/petitioner, there appears to be no likelihood of his going into hiding and that the bail can not be withheld as punishment. In support of this context, the cases reported in PLD-1968-SC-349, PLD-1972-SC-81, 2000-MLD-1911 (b), and 2003-MLD-1637 (c) can be referred.
Consequently, we accept this writ petition and allow the accused/petitioner to be released on bail, if he is able to furnish bail bond in the sum of Rs. 10,00,000/- (ten lacs) with two sureties each in the like amount to the satisfaction of Accountability Court, Peshawar. The sureties must be local and men of means.
(J.R.) Bail allowed
PLJ 2008 Peshawar 218
[D.I. Khan, Bench]
Present: Muhammad Alam Khan, J.
Haji MUHAMMAD IQBAL and 3 others--Petitioners
versus
GUL BADSHAH--Respondent
C.R No. 255 of 2007, decided on 16.06.2008.
N.W.F.P Pre-emption Act, 1987 (X of 1987)--
----S. 20--Civil Procedure Code (V of 1908), S. 115--Superior right of pre-emption--Trial Court decreed the suit giving « share each to preemptor and vendees--Assailed--Appeal of the vendee was accepted partially and decree modified to the extent of distribution of the property as per capita basis whereas the appeal filed by the preemptor was dismissed--Challenged through civil revision--Non-raising of such plea in written statement or absence of written statement--Effect--Apportionment of the pre-empted land on per capita basis--Held: If the preemptor and vendee were equally entitled then the land be share equally amongst them, provided they fall in the same clause of preemptors and had equal right of preemption--Pre-emptor as well as the vendees defendants both were co-sharer the time of sale Courts below had rightly reached with respect to the equal right of both the parties as co-sharers--Applicable rules of interpretation embodied in provincial as well as Federal General Clauses Act, term singular includes plural and vice versa and thus, the distribution of property among the pre-emptor and vendees will on per capita basis and appellate Court has rightly modified the judgment and decree of the trial Court. [Pp. 221 & 222] A, B & C
1980 SCMR 284, PLD 1970 SC 299; 2003 SCMR 1501;
PLJ 2007 Lah. 177, 2002 MLD 938 & PLJ 2006 Pesh. 132.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--No misreading or non reading of evidence has been pointed out by counsel for the parties in the impugned judgments and decrees of the Courts below which are based on established principles of appreciation of evidence. [P. 222] D
Sheikh Iftikhar-ul-Haq, Advocate for Petitioners.
Mr. Faridullah Khan Kundi, Advocate for Respondent (& for Petitioner in C.R. No. 256/2007).
Date of hearing: 16.6.2008.
Order
This order will dispose of C.R. No. 255/2007 titled Haji Muhammad Iqbal and three others. Vs. Gul Badshah and C.R. No. 256/2007 titled Gul Badshah. Vs. Haji Muhammad Iqbal and three others as both of them arise out of one and the same judgment and decree of Muhammad Bashir Khan, Additional District Judge, Tank and involve common question of law and facts.
Briefly narrated, the facts of the case are that Gul Badshah plaintiff-respondent, hereinafter to be called as pre-emptor, filed a suit for pre-emption regarding the land measuring 14 kanals 09 marlas entered in Khata No. 230, Khasra No. 524 and Khata No. 231 Khasra No. 523 against Haji Muhammad Iqbal and others defendants-respondents, hereinafter to be called as vendees-defendants.
It was averred in the plaint that the vendees-defendants had purchased the suit land ostensibly for a sale consideration of Rs. 7,250/- and in order to ward off the pre-emptive right of the pre-emptor, had inserted an inflated amount of Rs. 1,00,000/- in the registered sale-deed No. 104, Bhai No. 1, Volume No. 140 dated 01.7.2004 which inflated amount has neither been fixed in good faith nor actually paid to the vendors.
The vendees-defendants submitted detailed written statement controverting the allegations of the pre-emptor and out of the pleadings of the parties, the following issues were framed:--
Whether the plaintiff has got superior rights of pre-emption?
Whether the plaintiff has fulfilled the requirements of Section 13 of NWFP Pre-emption Act of 1987?
Whether suit is within time?
Whether Rs. 7250/- were fixed at the time of execution of sale?
In case Issue No. 4 is not proved what can be market value of the property?
Whether plaintiff is entitled to the decree as prayed for?
Relief.
The parties produced their respective evidence as they wished to adduce and the learned trial Court, after hearing the counsel for the parties and considering the data available on the record, came to the conclusion that both the parties i.e. the pre-emptor and vendees-defendants have got equal rights of pre-emption being co-sharers and thus, while fixing the market value of the suit land to be Rs. 1,00,000/- as mentioned in the registered deed, passed a decree in favour of the pre-emptor and vendees-defendants in equal shares vide judgment and decree in Suit No. 145/1 decided on 23.12.2006 giving 1/2 share to the pre-emptor and 1/2 share to the vendees-defendants.
Both the parties, feeling aggrieved, file two appeals, one by Gul Badshah pre-emptor and the other by Haji Muhammad Iqbal and others vendees-defendants which were registered by the learned Additional District Judge, Tank as RCA No. 5/2007 and RCA No. 6/2007 and by a consolidated judgment announced on 24.4.2007, came to the conclusion that the market value as determined by the learned trial Court to be Rs. 1,00,000/- is correct and findings with respect to the issue of market value were maintained. Thus, the appeal filed by Gul Badshah pre-emptor was dismissed. However, the appeal filed by the vendees-defendants Haji Muhammad Iqbal etc was partially accepted and it was held that the parties being co-sharers falling in the same category are equally entitled and thus, the distribution of property will be as per capita basis. Pre-emptor being one will get 1/5 share while vendees-defendants are four and they will get 4/5 share equally on proportionate sale consideration of rupees one hundred thousand.
Gul Badshah pre-emptor (petitioner in C.R. No. 256/2007) has assailed the findings of the learned appellate Court with respect to per capita distribution of property while Haji Muhammad Iqbal etc vendees-defendants (petitioners in C.R. No. 255/2007) have challenged the findings of learned appellate Court with respect to the superior right of pre-emption of the pre-emptor as well as the non-performance of Islamic demands according to law, lack of cause of action and estoppel on the part of pre-emptor was also challenged.
Sheikh Iftikhar-ul-Haq, learned counsel appearing on behalf of vendees-defendants has assailed the findings of the learned trial Court with respect to superior right of pre-emption of the pre-emptor. It was argued that the superior right of pre-emption of the pre-emptor was not proved on the record and thus, he was not entitled to the decree as granted by the learned appellate Court. On the question of distribution of property, however, he maintained that the learned appellate Court has rightly distributed the pre-empted land per capita amongst the pre-emptor and vendees-defendants.
Regarding the non-performance of the Islamic demands by the pre-emptor, it was submitted that the performance of Talb-e-Muwathibat' andTalb-e-Ishhad' was not proved on record in accordance with law and established principles of proving the same.
It was also argued that no cogent evidence was led to prove the performance of
Islamic demands.
On the other hand, Mr. Faridullah Khan Kundi, learned counsel appearing in motion in C.R. No. 256/2007 for pre-emptor submitted that the sale consideration of Rs. 1,00,000/- as entered in the impugned registered deed was neither fixed in good faith nor actually paid to the vendor and that an inflated amount has been entered in the registered sale-deed just to ward off the superior right of the pre-emptor. On the question of distribution of property, it was submitted that it is true that under Section 20 of the NWFP Pre-emption Act, 1987, if the pre-emptor and vendee are equally entitled, then the land shall be shared equally amongst them, provided they fall in the same clause of pre-emptors and have equal right of pre-emption. Elaborating his arguments, it was submitted that the words, "vendee and pre-emptor" have been used in a singular manner and no plurality can be inserted into it, when the legislature has not included the same in Section 20 of the Act ibid. Reliance in this respect was placed on the case of Abdul Hakeem and others. Vs. Khalid Wazir (2004 SCMR 1770) and it was prayed that pre-emptor was entitled to 1/2 share of the pre-empted land.
I have gone through the documents annexed with the petitions and have considered the valuable arguments of learned counsel for the parties.
Perusal of the record reveals that the pre-emptor as well as the vendees-defendants both are co-sharers. Statement of Akbar Muhammad Khan Patwari Halqa, who appeared as PW-3 would show that the vendees-defendants have also become co-sharers vide mutation No. 744 attested on 23.01.2004 and Mutation No. 750 attested on 23.2.2004. The impugned sale has been effected vide registered sale-deed No. 104 dated 01.3.2004, so, at the time of sale, both the parties were
co-sharers and learned two Courts below have rightly reached at findings with respect to the equal rights of both the parties as co-sharers.
Pre-emptor Gul
Badshah has proved on record by producing overwhelming evidence the performance of Islamic demands of Talb-e-Muwathibat' and sending noticeTalb-e-Ishhad' in time. The particulars of date, time and place regarding acquiring knowledge of the impugned sale have duly been proved on record and the statements of P.Ws with respect to the performance of Islamic demands have not been shattered in cross-examination. The statements of the witnesses were consistent and coherent with regard to date, time and place when the pre-emptor acquired the knowledge of the impugned sale.
It is established on the record that the sale was through registered sale-deed and the sale consideration has been paid to the vendor before the Sub-Registrar which was fixed in good faith and actually paid to the vendor. The registered sale-deed as well as the endorsement on the registered sale-deed with respect to the payment of sale consideration has duly been proved on the record by the statements of Humayun and Said Alam DW-2 and DW-3 respectively. Thus, the sale consideration fixed by the trial Court and upheld by the learned appellate Court is in accord with the dictum rendered in the cases of Muntazim and another. Vs. Haji Aslam Khan (1980 SCMR 284) and Malik Hussain and others. Vs. Lala Ram Chand and others (PLD 1970 SC 299).
The contention of learned counsel for the pre-emptor that the vendees-defendants and pre-emptor being co-sharers are entitled to 1/2 share each and the distribution of the suit land per capita between one pre-emptor and four vendees-defendants by the learned trial Court is also without substance. The judgments cited by the learned counsel for the pre-emptor in case of Hakeem etc supra is not applicable to the facts of the present case as in that case the learned Judge of the High Court had held that the vendee-defendant had not specifically asserted the plea of co-sharership in the written statement and the vendee was not held entitled to the property in spite of the fact that he was co-sharer at the time of sale and thus, the apex Court by reviewing the judgment reported in Abdul Hakeem and others. Vs. Khalid Wazir (2003 SCMR 1501) held the vendee-defendant equally entitled to the pre-empted land under Section 20 of the NWFP Pre-emption Act, 1987.
In the instant case, there is one pre-emptor Gul Badshah and the vendees-defendants Haji Muhammad Iqbal etc are four in number and the question of apportionment amongst the parties is in dispute. So, I deem it appropriate to reproduce Section 20 of the NWFP Pre-emption Act, 1987:
"20. Where the pre-emptor and vendee equally entitled. Where the pre-emptor and the vendee fall within the same class of pre-emptors and have equal right of pre-emption, the property shall be shared by them equally."
It is apparent that the pre-emptor and vendee have been used in singular. The applicable rules of interpretation embodied in provincial as well as federal general clauses Act, term singular includes plural and vice versa and thus the distribution of property among the pre-emptor and vendees-defendants will be on per capita basis as held in the case of Haqnawaz and another. Vs. Bashir Ahmad and two others (PLJ 2007 Lahore-177), Muhammad Hayat. Vs. Faiz Ali and another (2002 MLD 938 Lahore) and Abdul Latif. Vs. Shoukat Ali and 2 others (PLJ 2006 Peshawar 132) and thus the learned appellate Court has rightly modified the judgment and decree of the trial Court with respect to the apportionment of the pre-empted land as on per capita basis. Gul Badshah pre-emptor 1/5 share and Haji Muhammad Iqbal etc. vendees-defendants 4/5 shares on proportionate sale consideration of rupees one hundred thousand.
No misreading or non-reading of evidence has been pointed out by the learned counsel for the parties in the impugned judgments and decrees of the Courts below, which are based on established principles of appreciation of evidence.
In view of the facts and circumstances of the case narrated above, these revisions fail which are dismissed in limine.
(W.I.B) Revision dismissed
PLJ 2008 Peshawar 223 (DB)
Present: Ijaz-ul-Hassan and Ejaz Afzal Khan, JJ.
FARIDULLAH KHAN, TEHSIL NAZIM LAKKI MARWAT--Petitioner
versus
PROVINCE OF N.W.F.P. through Chief Secretary Govt. N.W.F.P., Peshawar and 5 others --Respondents
W.P. No. 664 of 2006 with C.Ms. No. 39 and 390 of 2006, heard on 25.10.2007.
Constitution of Pakistan, 1973--
----Art. 199--Punjab Local Government Ordinance 2001, S. 2(xxa)--Inauguration of Sports Complex--Allegation of misconduct--Suspension of the petitioner--Challenged to--Report of commission--Evidentiary value & effect--Validity--Finding of the commission, which is based on no evidence, cannot be maintained--Held: Condition for the conferment of jurisdiction on a tribunal or any other forum exercising judicial or quasi judicial authority is that it should decide a lis before it according to law and it is essential requirement of law that its finding be based on proper appraisal of evidence--It would not deserve any other fate but quashment, when it is based on misreading or non reading of evidence, erroneous assumptions of law and facts or no evidence. [P. 227] A
M/s. Qazi Mohammad Anwar and Muhammad Arif Khan, Advocate for Petitioner.
Mr. Muhammad Usman, AAG for Govt. of NWFP.
Dates of hearing: 14.11.2006, 24.1.2007 and 25.10.2007.
Judgment
Ejaz Afzal Khan, J.--Inauguration of Sports Complex at Lakki Marwat by Mr. Anwar Kamal Khan, MPA, weighed heavy on the mind of the former Chief Minister. He perhaps wanted to inaugurate it himself. On being informed about the said inauguration, he directed the D.C.O. to remove the plaque bearing the name of the said MPA. It was accordingly removed. People of the area protested against the said removal. They allegedly under the leadership of the petitioner not only took out a procession but also made an effort to reaffix it. This culminated in an action against the petitioner. A Commission of two members was constituted by the Chief Minister to submit a detailed report within three days. The Chief Minister on receipt of the report suspended the petitioner. The petitioner filed the instant writ petition. He also asked for the issuance of an interim order restraining the respondents from taking any adverse action against him. It was accordingly passed on 8.6.2006 and extended on 13.6.2006. On 26.6.2006 the petition was admitted for regular hearing. Though in response to the request of the learned counsel for the petitioner for extension of the interim order, the Court responded in the affirmative, but did not mention anything of the sort in the order sheet. The respondents by making use of the omission passed the notification removing the petitioner. C.M. No. 39 of 2006 was filed for initiating contempt proceeding against the respondents therein. While C.M. No. 390 of 2006 was filed with an additional prayer catering to the situation emerging in the wake of the order for removal. C.M. No. 391 of 2006 was also moved for seeking annulment of the notification removing the petitioner. After hearing the arguments on that C.M. the notification removing the petitioner was set at naught. This case was heard on many occasions but it could not witness conclusion either due to the strike of the lawyers or due to the non-availability of his lordship Mr. Justice Ijaz-ul-Hussan on account of summer vacation. Today, some how or the other, the case was reheard.
Learned counsel appearing on behalf of the petitioner by referring to Section 2 (xxa) of the Local Government Ordinance, 2001 contended that when misconduct means transgression of prescribed Code of Conduct, violation of law or lawful directions or orders, gross negligence or an act involving wrongful gain, petitioner could not be held guilty of misconduct without proving any one of them. The learned counsel by referring to the evidence on the record contended that where none of the witnesses examined before the Commission has stated that the Chief Minister ever desired to inaugurate the Sports Complex himself or communicated any directive in this behalf to the petitioner, inauguration of the Complex by the MPA would not constitute a misconduct. He next contended that where there is no evidence on the record to show that it was the petitioner who re-affixed the plaque, nothing could be said to have been proved against him. Even if it be otherwise, the learned counsel urged in the alternative, he could not be held guilty when it is not established on the record that directive of the Chief Minister restraining him from re-affixing it was communicated to him.
As against that, the learned AAG, appearing on behalf of the respondents, contended that correspondence on the record and finding of the commission leave no doubt that the petitioner manoeuvered inauguration of the Sports Complex by Mr. Anwar Kamal Khan, MPA against the directive of the Chief Minister. It is taken for granted, the learned AAG added, that the Sports Complex was to be inaugurated by the Chief Minister, as the project was partially funded by the Provincial Government and partially by the Central Government. The petitioner, the learned AAG further submitted, created law and order situation by exciting the people and leading procession in protest against the removal of the plaque bearing the name of the MPA. The petitioner, the learned AAG concluded, was rightly found guilty of misconduct by the commission, when it is writ large on the face of the record that he defied the directive of the Chief Minister by reaffixing the plaque.
We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
The charges levelled against the petitioner found expression in the following issues:--
"Whether the Tehsil Nazim, TMA Lakki Marwat.
While dealing with Issue No. 1 we noticed that inauguration of the Sports Complex by Mr. Anwar Kamal Khan, MPA, was not in issue before the Commission notwithstanding it was the basic cause of the entire episode. Even removal of the plaque of his name was not in issue before the Commission. It was its re-affixation against the directive of the Chief Minister, which created a storm in the teacup. But how could the petitioner be held guilty of misconduct, when the directive of the Chief Minister restraining him from reaffixing the plaque removed was never communicated to him. Though the D.C.O. stated in his statement that he communicated the directive to the petitioner through Police Officers but none of them while being examined before the Commission stated anything about it. Violation of the directive of the Chief Minister cannot be said to have been proved against the petitioner where its communication to the latter has not been established on the record.
Granted that the people including the petitioner felt excited and even enraged at the removal of the plaque in the name of their MPA and took out a procession to register their protest against it, but it being an integral part of political process is quite natural and spontaneous. Expression of such reaction cannot be brought at par with creation of law and order situation. Especially when it ended peacefully without causing any casualty or carnage. It was a healthy and wholesome activity. It being cathartic tended to give vent to the grievance of the people caused by the uncalled for removal of the plaque. It cannot be termed as unlawful interference with the business of the Provincial Government by any stretch of imagination, that too, when it was stirred by an act unbecoming of the person who is on the top of its pyramid. We do not agree with the learned AAG that it is taken for granted that the Sports Complex was to be inaugurated by the Chief Minister, as the project was partially funded by the Provincial Government. For, the fact that the project was partially or wholly funded by the Provincial Government would not entitle the Chief Minister, to inaugurate it as of right; order the removal of the plaque if and when it is inaugurated by a lesser being or take action against an inmate or office holder of the area, if and when he registers his protest or takes out a procession to voice his grievance against the act of its removal. The Chief Minister or any other incumbent should not forget that he is at the helm of affairs in the Government of the Province because of democracy--a system advocating equality, tolerance, mutual accommodation and maximum participation of maximum people in running the Government. Therefore, there was hardly an occasion for the Chief Minister to be enraged on the inauguration of the Complex by a person other than him and create a dust storm on such a peripheral thing, which is non-issue on the face of it from every angle of vision.
When seen in this background, the finding of the Commission, which is based on no evidence, cannot be maintained. It is, too, settled to be reiterated that the very condition for the conferment of jurisdiction on a Tribunal or any other forum exercising judicial or quasi juridical authority is that it should decide a lis before it according to law. And it is an essential requirement of law that its finding be based on proper appraisal of evidence. It would not deserve any other fate but quashment, when it is based on mis-reading or non-reading of evidence, erroneous assumptions of law and facts or no evidence as in this case. In the case of Anisminic Ltd. Vs. Foreign Compensation Commission Lord Denning who was the pioneer of this principle held as under:--
"I would suggest that this distinction should now be discarded. The High Court has, and should have, jurisdiction to control the proceedings of inferior Courts and tribunals by way of judicial review. When they go wrong in law, the High Court should have power to put them right. Not only in the instant case to do justice to the complainant. But also so as to secure that all Courts and tribunals, when faced with the same point of law, should decide it in the same way. It is intolerable that a citizen's rights in point of law should depend on which judge tries his case, or in what Court it is heard. The way to get things right is to hold thus: No Court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it."
"It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction."
"There is no cavil with the proposition that ordinarily the High Court in its Constitutional jurisdiction would not undertake to reappraise the evidence in rent matters to disturb the finding of facts but it would certainly interfere if such findings are found to be based on non-reading or misreading of evidence, erroneous assumptions of facts, misapplication of law, excess or abuse of jurisdiction and arbitrary exercise of powers. In appropriate cases of special jurisdiction, where the District Court is the final Appellate Court, if it reverse the finding of the trial Court on the grounds not supported by material on record, the High Court can interfere with it by issuing writ of certiorari to correct the wrong committed by the Appellate Authority.
"The scope of interference in the High Court is, therefore, limited to the inquiry whether the Tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings recorded by the Tribunal. Cases of no evidence, bad faith, misdirection or failure to follow judicial Procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the Tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior Tribunal in support of some point material to the conviction or order, certiorari will be granted."
"In our view, it was not proper on the part of the learned Judges of the Division Bench of the High Court to have decided the above technical questions without getting first the decision of the Central Board of Revenue on the basis of the material which the parties might have produced before it in support of their claims. The High Court generally does not investigate disputed questions of fact in exercise of its Constitutional jurisdiction. However, it can interfere with a finding of fact, if it is founded on no evidence or is contrary to the evidence on record or the inferences drawn therefrom are not in accordance with law."
"Now we are to see whether the learned Additional District Judge has based his finding on an evidence as could be looked into under the law. A perusal of the impugned judgment would reveal that the learned Judge while deciding this case was influenced by the prescriptions of psychiatrist and drew inferences therefrom without realizing that the prescriptions were neither produced in original nor their author was examined to prove them in accordance with the provisions of the law of evidence. He could not have taken into account any of those prescriptions without proper proof. Now the question is whether it is an error of law? We have no doubt in our mind that it is and it is an error of law which will entitle this Court to interfere in the exercise of its constitutional jurisdiction if a finding of fact is based on no evidence or is contrary to evidence on record, or the inferences drawn there from are not in accordance with law."
(W.I.B.) Petition allowed
PLJ 2008 Peshawar 229
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
GOVT. OF NWFP through Secretary Works and Services Department, Peshawar and 5 others--Petitioners
versus
HUMAYUN TAJ and 3 others--Respondents
C.R. No. 367 of 2005, decided on 14.4.2008.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Limitation Act (IX of 1908), S. 12(2)--Civil revision--Limitation--Legal position involved is that initially there was no period of limitation for filing a revision petition which was subsequently added through an amendment in Section 115 CPC and the limitation was fixed as ninety days--Provisions of Section 12(2) of the Limitation Act, with respect to the exclusion of time is not applicable to the revision petitions. [P. 231] A
Compensation of Work--
----Entitlement of--Even if there is a contract in writing with the estimated cost and issuance of work order to the contractor but if during the execution of work he is orally directed to do additional work, he will be entitled to the compensation even if there is nothing in writing. [P. 232] B
Mr. Tariq Aziz Baloch, DAG for Petitioners.
Respondent No. 1 in person.
Date of hearing: 14.4.2008.
Judgment
This revision petition is directed against the concurrent judgments and decrees dated 19.2.2004 and 15.1.2005 passed by the learned Senior Civil Judge D.I.Khan and learned Additional District Judge D.I.Khan respectively, vide which suit of the plaintiffs/respondents for the recovery of Rs.1,20,940/- was decreed against the defendants/petitioners.
Facts of the case giving rise to the filing of the instant civil revision petition are that the plaintiffs Humayun Taj, Ashfaque Taj, Ishtiaque Taj and their mother Safia Begum, legal heirs of Sheikh Taj Mohammad, had instituted suit in the Court of Senior Civil Judge D.I.Khan for the recovery of Rs. 1,20,940/- for the work carried out as Topographic Survey of villages Potah, Kotka Habib and Naivellah D.I.Khan. According to the averments made in the plaint, Sheikh Taj Mohammad, the progenitor of the plaintiffs, had established a Company under the name of North Engineering Consultants which used to carry out topographic survey of the Public Health Engineering Department in the N.W.F.P. Under the oral orders of the XEN/SDO of the same department in D.I.Khan, the said Company in June 1998 carried out topographic survey for the villages Potah, Kotka Habib and Naivellah D.I.Khan and submitted its drawing to the concerned authorities. The department prepared estimated cost, PC-I for Rs. 29.614 million vide Annual Development Program No. 209/990079/1999-2000 and sub cost estimate was approved vide Secretary to Govt: of N.W.F.P. Public Health Engineering Department No. OCT, P.H.E.D/1-33/99, dated 16.12.1998 which included the topographic survey in question amounting to Rs. 1,20,940/-. Sheikh Taj Mohammad, ancestor of the plaintiffs and Managing Director of North Engineering Consultants submitted claim of Rs. 1,20,940/- for the topographic survey carried out of the aforesaid three villages to the petitioners/defendants but could not succeed which compelled him to complain to the Military Monitoring Cell D.I.Khan where in reply Petitioner/Defendant No. 5 admitted the claim of the Company. Due to the death of progenitor of the plaintiffs on June 15, 2001, his legal heirs approached the Defendants/Petitioners No. 4 to 6 for payment of the work done but in vain and hence the suit.
The defendants hotly contested the suit by filing written statement which gave rise to the framing of eight issues including the relief. The learned trial Court after recording evidence pro and contra and hearing the parties thereon decreed the suit in favour of the plaintiffs as prayed for in the plaint and the appeal filed thereagainst by the defendants also met the same fate as mentioned above and hence this revision petition.
I have heard learned Deputy Advocate General on behalf of the petitioners and perused the written arguments submitted on behalf of Respondents No. 1 to 4. Record of the case has also been thoroughly examined.
A preliminary objection was raised on behalf of the respondents that the revision filed by the petitioners is time barred, as the impugned judgment of Additional District Judge was announced on 13/1/2005 and the petitioners were obliged to file the revision petition within ninety days in view of the amended provisions of Section 115 CPC which period expired on 13.4.2005 and the petition having been filed on 10.10.2005 was not within time.
The learned Deputy Advocate General submitted that the time required for obtaining the certified copies if excluded u/S. 12(2) of the Limitation Act, then the revision petition is within time and in the alternative he insisted on arguing the case on merits and consequently he was heard on merits also.
The legal position involved is that initially there was no period of limitation for filing a revision petition which was subsequently added through an amendment in Section 115 CPC and the limitation was fixed as ninety days. It is now a settled principal of law that the provisions of Section 12(2) of the Limitation Act with respect to the exclusion of time is not applicable to the revision petitions as held in the cases reported as Taj Muhammad and others Vs. Pirzada Khalid Mansoor and others (2007 CLC 213 Peshawar), Government of Balochistan through Secretary Revenue, Board of Revenue Balochistan, Quetta and Settlement Office Kalat Vs. Abdul Rashid Langove (NLR 2007 Revenue 71), Government of N.W.F.P. and others vs. Ahmad Shah and others (2007 YLR 1781 Peshawar), and Abdul Waheed Khan Vs. Mst. Ruqia and others (2007 CLJ 81). Thus, the revision petition is
A
hopelessly time barred, but as the Deputy Advocate General has insisted in disposal of the revision petition on merits, hence the following are the finings on merits.
Mr. Ishtiaq Taj, son of Sheikh Taj Muhammad himself and as attorney on behalf of the remaining legal representatives of his deceased father had appeared in the witness-box and affirmed the averments made in the plaint. The plea of the plaintiffs is that in June 1998, the Executive Engineer, Public Health Engineering Department D.I. Khan had orally requested them to carry out the topographic survey for the villages Pota, Kotka Habib and Naiwela subject to payment of requisite charges which was completed and the defendants agreed to pay the requisite charges on availability of funds. The Department had prepared its PC-I with estimated cost and the sub-cost estimate was approved by the Secretary to Government of N.W.F.P Public Health Engineering Department Letter No. PHED/1-33/99 dated 16.12.1998 which also included the claim of the plaintiffs for the work of topographic survey of the aforesaid villages conducted by their Company. Muhammad Salim, S.D.O Public Health Engineering Department D.I.Khan was examined as PW.1 who brought on record Letters No. 47-48 dated 20.1.2008 as Ex.PW. 1/1, Letter No. 329/31 dated 18/1/2001 as Ex.PW. 1/2, legal notice issued by the progenitor of the plaintiffs to the defendants/petitioners as Ex.PW.1/3, Letter No. 343/49 dated 19/1/2001 as Ex.PW. 1/4 and Letter No. 1668-69 dated 13/3/2001 as Ex.PW. 1/5. He had also produced the topographic survey of the aforesaid three villages as Ex. P.W.1/6 to Ex.PW.1/8 respectively. The oral offer and acceptance of contract between the parties had admittedly taken place in the year 1998 and in consequence thereof, the plaintiffs had completed the topographic survey of the three villages mentioned above which was accepted and their claim for the same was duly admitted by the defendants/petitioners. On receipt of the topographic survey maps for the villages in question, the defendants have accepted the same and, therefore, the principle of estoppal is attracted in the case in hand, because neither the department nor any of its representative could be allowed to deny and resist the claim of the plaintiffs in these circumstances. Since the mode of contract and the terms and conditions of the contract agreed to be acted upon between the parties were oral, any legal right or liability dependent on the existence of fact asserted by any party shall be proved by that party. In the instant case, the burden of proof, with regard to the rules, regulations, terms and conditions of the oral contract lied on the shoulders of the defendants which they had miserably failed to discharge and rebut in the evidence.
The law is now established on the point that even if there is a contract in waiting with the estimated cost and issuance of a Work Order to the Contractor but if during the execution of work he is orally directed to do additional work, he will be entitled to the compensation even if there is nothing in writing as held in M/S Sagaria Brothers Vs. Messers Azim Markaz and 2 others (PLD 1994 Karachi 149) and Federation of Pakistan (Pakistan Railways) through the General Manager, Railways Headquarters Office Lahore Vs. Javaid Nasim, Sole Proprietor, M/S Javaid Nasim & Company (PLD 1994 Lahore 303).
Consequently, the impugned judgments and decrees of the learned two Courts below are based on correct appreciation of evidence brought on record and I do not find any substance in the revision petition in hand to interfere therewith. The same are, therefore, upheld and the revision petition is dismissed with no order as to costs.
However, as the plaintiffs/respondents have been unnecessarily dragged into litigation and they are traversing the Court premises for sufficiently long time and in the meantime there was a severe devaluation in the currency, hence they are held entitled to simple interest at the rate of six percent from the date of institution of the suit with effect from 8/1/2002 till the payment of decretal amount.
(W.I.B.) Petition dismissed
PLJ 2008 Peshawar 233 (DB)
Present: Jahanzaib Rahim and Shahji Rahman Khan, JJ.
MUHAMMAD NOOR--Petitioner
versus
Mst. FIRASAT BIBI--Respondent
W.P. No. 2036 of 2007, decided on 6.2.2008.
Constitution of Pakistan, 1973--
----Art. 199--Contitutional jurisdiction--Divergent pleadings--Respondent filed suit for dissolution of marriage, maintenance and dower against husband, was accepted--Appellate Court partially accepted the appeal to extent of dissolution of marriage and half share of house mentioned in Nikah Nama--Assailed--Validity--Held: High Court could not interfere in the judgment and decree passed by Court of competent jurisdiction that it is within exclusive jurisdiction of Family Court to believe or disbelieve the evidence--No interference is warranted in impugned judgment of appellate Court in exercise of constitutional jurisdiction of High Court--Petition was dismissed.
[P. 235] A & B
Appellant in Person.
Respondent in Person.
Date of hearing: 6.2.2008.
Judgment
Shahji Rahman Khan, J.--This writ petition is directed against the judgment dated 07.11.2007 passed by Additional District Judge-VII, Peshawar whereby appeal of Mst. Firasat Bibi against the judgment dated 28.07.2007 passed by the learned Judge Family Court-XI, Peshawar, for dissolution of marriage, maintenance and dower against petitioner/husband namely Muhammad Noor, was accepted.
Brief facts of the case are that Respondent No. 1 (wife) had filed a suit in the Family Court, Peshawar for dissolution of marriage, maintenance and dower against the petitioner/husband. The suit was resisted by filing written statement and, from their pleadings, the learned Judge Family Court put the parties to trial on the various issued. The learned Judge Family Court, after recording, pro and contra evidence, dismissed the suit of Respondent No. 1. Thereafter, the Respondent No. 1 preferred an appeal before appellate Court against the judgment of the trial Court and after hearing both the parties, the appellate Court partially accepted the appeal of Respondent No. 1 to the extent of dissolution of marriage and half share of house mentioned in the `Nikah Nama' against the petitioner.
We have heard the representative of the petitioner at length in motion and have carefully gone through the record appended with the petition.
It is evident from the perusal of the record, that on 19.5.2007, Respondent No. 1 had filed a family suit in the Family Court for dissolution of marriage, dower and other maintenance against the petitioner/husband. The suit was resisted by petitioner by filing written statement. From their divergent pleadings, the learned trial Court, put both the parties to trial on various issues. After recording pro and contra evidence, the learned trial Court, vide detailed judgment dated 28.7.2007, non-suited the Respondent No. 1/wife. Feeling aggrieved, Respondent No. 1, filed an appeal before the learned appellate Court. After hearing both the parties, the learned appellate Court partially accepted the appeal and judgment of the learned trial Court was reversed and decree for dissolution of marriage was granted in favour of Respondent No. 1 against the petitioner with dower in the shape of the half portion of the house referred in the Nikah Nama Deed Ex. PW-1/1 and Ex. DW-4/2. Rest of the claims of the Respondent No. 1/wife were turned down with no order as to costs.
Being dissatisfied with the judgment of the appellate Court, the petitioner/husband has come to this Court in the instant writ petition.
In the constitutional jurisdiction, the High Court could not interfere in the judgment and decree passed by the Court of competent jurisdiction for the reason that it is within the exclusive jurisdiction of Judge, Family Court to believe or disbelieve the evidence. In this case, the learned appellate Court has properly scrutinized in great detail the evidence of both the parties and have given proper justification in partially accepting the appeal of the Respondent No. 1 and we have also scanned the evidence of both the parties and found no misreading, illegality or any irregularity or jurisdictional defect in the impugned judgment of the appellate Court. Therefore, no interference is warranted in the impugned judgment of the learned appellate Court in exercise of the constitutional jurisdiction of this Court.
Thus finding no merit and substance in the instant writ petition, the same is hereby dismissed in limine.
(R.A.) Petition dismissed
PLJ 2008 Peshawar 235
[D.I. Khan, Bench]
Present: Zia-ud-Din Khattak, J.
MALIK MIRZA--Petitioner
versus
MATLOOB AHMAD and 3 others--Respondents
C.R.P. No. 104 of 2008, decided on 4.7.2008.
NWFP Pre-emption Act, 1987 (X of 1987)--
----Ss. 13(3), 31, 32--Civil Procedure Code, (V of 1908)--S. 115--Public notice--Limitation--A comparative study of Section 31 and 32 of the Pre-emption Act, would make it manifest that the provisions with regard to public notice by the Registrar contained in Sections 32 has no nexus with the period of limitation prescribed by Section 31 for filing a pre-emption suit in respect of a sale transaction effected through registered sale-deed is meant to provide an extra source of knowledge for making talab-e-muwathibat and an alternate time frame for making talb-e-ishhad in accordance with S. 13(3) of the Act, 1987--Civil revision against concurrent findings of Court below rejected in limine. [P. 237] B
NWFP Pre-emption Act, 1987 (X of 1987)--
----S. 32--Issuance of public notice--Period of limitation--Scope of--To issuance of public notice by Registrar contained in S. 32 of NWFP Preemption Act, has no nexus with the period of limitation prescribed by S. 31 of Pre-emption Act, for filing a pre-emption suit arising from a registered sale-deed. [P. 237] A
Mr. Muhammad Waheed Anjum, Advocate for Petitioner.
Date of hearing: 4.7.2008.
Order
Khuda Bakhsh, Respondent No. 2 herein sold certain land vide Registered Sale-Deed No. 285 dated 7.2.2006 to Matloob Ahmad, Respondent No. 1 herein for an ostensible price of Rs.400,000/- (rupees four hundred thousand). A suit for possession of the property through pre-emption was filed by Malik Mirza, petitioner herein on 5.9.2006 with the allegation that the vendor had sold the same secretly and had not spelt out of his intention to sell through a notice, he was possessed of a superior right of pre-emption, that the sale price mentioned in the sale-deed was fancy and had been inserted therein to ward off pre-emption and the requisite talabs were made by him in accordance with law.
The vendee instead of filing a written statement submitted an application for rejection of the plaint under Order VII Rule 11 CPC on the ground that the suit was barred by limitation having been filed beyond the prescribed period of 120 days. The application was allowed by the learned trial Court vide order dated 19.9.2007 and the plaint was rejected under Order VII Rule 11 (d) C.P.C. The order was upheld by the learned Additional District Judge-VI, D.I.Khan vide judgment dated 2.4.2008. Hence this revision.
The learned counsel for the petitioner contended that when a sale-deed is registered but the Registrar concerned does not give public notice in respect of such registration as envisaged by Section 32 of the NWFP Pre-emption Act, 1987, (which is not redundant), then the period is to be computed from the date of knowledge of the pre-emptor and not from the date of registration of the sale-deed as provided by Section 31 ibid. That the petitioner had got knowledge of the impugned sale on 27.8.2006 and filed the suit on 5.9.2006 after making the requisite talabs. The suit having been filed within 120 days of knowledge of the petitioner was well within time.
I have heard learned counsel for the petitioner and perused the record appended with the petition.
The only question falling for determination in this case is a legal question namely whether the provision with regard to issuance of public notice by the Registrar contained in Section 32 of the NWFP Pre-emption Act, 1987 has nexus with the period of limitation prescribed by Section 31 of the said Act for filing a pre-emption suit or otherwise.
The same question came up for consideration before the Apex Court in case of Maulana Noor-ul-Haq Vs. Ibrahim Khalil (2000 SCMR 1305) where it was held that provision with regard to issuance of public notice by the Registrar contained in Section 32 of the NWFP Pre-emption Act, 1987 has no nexus with the period of limitation prescribed by Section 31 of the said Act for filing a pre-emption suit arising from a registered sale-deed. The explicit and mandatory provisions of Section 31 of the NWFP Pre-emption Act, 1987 leave no room for doubt that in case of a sale effected through a registered sale-deed the period of 120 days shall be computed from the date of registration of the sale-deed. The contention that if the Registrar fails to issue public notice envisaged by the mandatory provision of Section 32 of the Act, the period of limitation is to be computed from the date of knowledge by the pre-emptor is misconceived. Such a provision is neither contained in Section 31 of the Act nor can read into it in view of settled law that Courts cannot supply "casus omissus". A comparative study of Sections 31 and 32 of the Act would make it manifest that the provision with regard to public notice by the Registrar contained in Section 32 has no nexus with the period of limitation prescribed by Section 31 for filing a pre-emption suit in respect of a sale transaction effected through a registered sale-deed and is meant to provide an extra source of knowledge for making "Talb-e-Muwathibat" and an alternative time frame for making "Talb-e-Ishhad" in accordance with sub-section (3) of Section 13 of the Act.
In the result, the impugned judgment dated 2.4.2008 of the learned Additional District Judge-VI, D.I. Khan is upheld and this Civil Revision stands dismissed in limine alongwith C.M. No. 91/2008.
(M.A.K.Z.) Revision dismissed.
PLJ 2008 Peshawar 237 (DB)
[D.I. Khan, Bench]
Present: Muhammad Alam Khan, J.
SIFAT AIZDI--Petitioner
versus
Dr. SAIMA BASHIR and 2 others--Respondents
W.P. No. 94 of 2008, decided on 28.5.2008.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 5--Schedule--Muslim Family Law Order, (VIII of 1961), S. 10--Constitutional of Pakistan, 1973--Art. 199--Constitutional petition--Dower--Jurisdiction of Court--Father in law of respondent had given half share of the house to in lieu of dower--Suit for claiming of daughter-in-law--Possession of house--Objection raised by the husband about jurisdiction of Family Court--Held: Once a property whether movable or immovable, is given in dower by husband to the wife, then under Section 5 of the Family Court Act the exclusive jurisdiction lies with Family Court. [P. 241] A
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 5 & Scope of--Constitution of Pakistan, 1973--Art. 199--Jurisdiction--Suit for recovery of personal belongings of wife--Amended Ordinance of 2002 have widened the scope of schedule attached to the Family Act and even the suit for recovery of the personal belongings of a wife can be agitated and relief sought from the Family Court. [P. 241] B
PLJ 2008 Lah. 147; 1994 CLC 1388, PLD 1980 Pesh. 37, 1996 SCJ 431, PLD 1996 Pesh. 64 & PLD 2006 Pesh. 189, ref.
Malik Muhammad Bashir, Advocate for Petitioner.
Date of hearing: 28.5.2008.
Order
Muhammad Alam Khan, J.--Sifat Aizdi daughter of Haji Ahmad Bakhsh has filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, against Dr. Saima Bashir and others challenging the judgment and decree of the Judge Family Court in Suit No. 370/3 decided on 20.12.2006 and that of the learned Additional District Judge-II, D.I.Khan in Appeal No. 4/2007 vide which the learned Additional District Judge-II, D.I.Khan concurred with the Judge Family Court and maintained the judgment and decree of the trial Court for possession of a house in favour of Dr. Saima Bashir, Respondent No. 1, to be without jurisdiction and coram-non-judice.
Briefly narrated the facts of the case are that the marriage of Dr. Saima Bashir Respondent No. 1 took place with Hafiz Muhammad Ali Waqar son of Haji Munir Ahmad and vide Kabin Nama dated 14.7.2005 cash dower of Rs. 60,000/- was fixed out of which Rs.50,000/- was a prompt dower and in lieu of Rs. 10,000/-, the father of Muhammad Ali Waqar had transferred half share of a house towards western side vide registered Deed No. 1799, Bahi No. 1, Volume No. 805 registered on 08.7.2005. After the Rukhsati of Dr. Saima Bashir she lived in the house of her husband and was performing the marital obligations. However, after few days of the marriage the attitude of the husband became cruel and he used to subject her to physical as well as mental torture and finally she was turned out of the house and consequently the wife started living in a private hostel. In these circumstances she brought a suit in the Court of Civil Judge/Judge Family Court, D.I.Khan claiming the possession of the house towards western side duly described by boundaries measuring ten marlas which was bounded as North-thoroughfare, South-house of Dr. Hasnain, East-house of Dr. Baqir and West- a public road situated in Gillani Town near Wensam College, Tehsil and District D.I.Khan. In the alternative she also prayed for the partition of the suit house in accordance with the site-plan attached with the plaint. She also prayed for the recovery of Rs. 50,000/- as prompt dower outstanding against her husband and claimed maintenance at the rate of Rs.5000/- per month from 22.4.2006 till the date of decree.
The defendants were summoned who submitted their written statement raising factual and legal pleas and the suit proceeded to trial. During pendency of the suit, Muhammad Ali Waqar, the husband, divorced Respondent No. 1 and paid her cash dower vide divorce deed dated 27.9.2006. So, to that extent the grievance of Dr. Saima Bashir was redressed and now the suit proceeded with respect to the possession of the house and recovery of maintenance allowance. It is also pertinent to mention that during the pendency of the suit, the respondent-wife submitted an application for deletion of her prayer in the alternative through which she had prayed for the partition of the said house as, according to her, the specific portion of the house described through boundaries with a separate gate on the western side had been given to her in the registered deed and consequently, this prayer was withdrawn by Respondent No. 1. The learned trial Court, after consulting the record, came to the conclusion that the factum of transfer of the house by way of registered deed has been admitted by the defendants. It was specifically admitted in the joint written statement filed by Muhammad Ali Waqar and others that the house, fully described in the registered deed, had been given in lieu of dower of Rs. 10,000/- by the father of Muhammad Ali Waqar to the wife. In view of this admission in the written statement, the Respondent No. 1, on 30.10.2006, submitted that as the defendants have admitted her right to the suit house, thus, she will relinquish her right to the maintenance and she will not claim the same. The suit was pending when in the mean time Muhammad Ali Waqar etc defendants submitted an application dated 17.7.2006 to the learned Judge Family Court praying therein, that the Judge Family Court lacks jurisdiction to order the partition of the suit house, thus, it was prayed that the plaint be returned to Respondent No. 1 for presenting the same before the Civil Court of competent jurisdiction. The learned trial Court, after hearing the arguments of learned counsel for the parties, rejected the application and found that as the defendants have admitted the claim of Respondent No. 1 with respect to the suit house and she has relinquished her right to the past maintenance, vide judgment and decree dated 20.12.2006, granted a decree for possession of the house and maintenance only to the extent of Iddat period. Mst. Sifat Aizdi, one of the defendants, filed an appeal against this judgment and decree before the learned District Judge, D.I.Khan which came up for hearing before Muhammad Naseem, Additional District Judge-II, D.I.Khan and who, vide order dated 20.3.2008, while concurring with the learned Judge Family Court, dismissed the appeal of the petitioner Mst. Sifat Aizdi. It is pertinent to note that the contesting defendant in the family suit has neither challenged the findings of learned Judge Family Court in appeal nor through this constitutional petition, rather he has not been even arrayed as a party to the present writ petition.
Malik Muhammad Bashir, learned counsel appearing for the petitioner submitted that the Family Court had no jurisdiction as the matrimonial relations between Respondent No. 1 and her husband Hafiz Muhammad Ali Waqar had come to an end, after he pronounced divorce in favour of Respondent No. 1 and the outstanding cash dower of Rs.50,000/- was paid to her. Thus, it was submitted that the petitioner has rightly raised the objection with respect to the jurisdiction of the Family Court. In this respect, reference was made to Section 5 of the West Pakistan Family Court Act, 1964. It was argued that the Family Court has the plenary jurisdiction to entertain all matrimonial disputes enumerated in the schedule attached to the Act ibid which does not contain the suit for partition of the property given to the wife in lieu of dower by her husband. Reliance in this respect was placed on the case of Muhammad Akram. Vs. Mst. Hajra Bibi and two others (PLJ 2008 Lahore 147) and also on the unreported judgment of this Court in the case of Naghmana Nosheen Vs. Allah Nawaz Khan and another (W.P. No. 281/2006) decided on 27.11.2006) attached with the writ petition at Page-36.
We have gone through the record of the case and have considered the arguments of learned counsel for the petitioner.
Perusal of the record reveals that admittedly the amount of cash dower as fixed at the time of marriage was Rs.60,000/- out of which Rs. 50,000/- was payable on demand and in lieu of the remaining dower of Rs. 10,000/-, the suit house was transferred in favour of Respondent No. 1 through a deed duly registered in the office of the Sub-Registrar and this deed has been admitted by all the defendants. The suit house mentioned in the deed was duly specified by boundaries and a site-plan had been annexed with the plaint. The law is very much clear on the subject that in Nikah Nama not only cash amount as dower can be fixed but also the gold ornaments as well as the immovable property. There is clear cut admission on the part of the husband regarding the fixation of dower and so much so that he has never challenged the same either before the Family Court or before the learned Appellate Court and even, the petitioner has not arrayed him as party to the instant litigation. It has been repeatedly held that once a property, whether movable or immovable, is given in dower by the husband to the wife, then under Section 5 of the Act ibid the exclusive jurisdiction lies with the Family Court as held categorically in the dictums of the superior Courts in the cases of Asia. Vs. Abdur Rehman and another (1994 CLC 1388 Lahore), Abdur Rashid and another. Vs. Mst. Shaheen Bibi and 2 others (PLD 1980 Peshawar 37), Liaqat Ali. Vs. Additional District Judge Narowal etc (1996 SCJ 431) and Ahmad Hussain and another. Vs. Mst. Shagufta and two others (PLD 1996 Peshawar 64).
The contention of the learned counsel for the petitioner that the Family Court lacked the jurisdiction passed a decree for partition of the suit house is also without any substance as the Respondent No. 1 had sued for the possession of the house specifically mentioned by boundaries and duly specified in the site-plan attached with the plaint. These boundaries have duly been incorporated in the registered deed in her favour and even the western side of the house has been shown. Moreso, when she submitted an application for withdrawal of her prayer regarding the relief of partition, so, the learned trial Court has rightly passed a decree in favour of Respondent No. 1.
The radical changes, brought through amendment in the Family Court Act by the Amending Ordinance of 2002 have widened the scope of schedule attached to the Family Act and even the suit for recovery of the personal belongings of a wife can be agitated and relief sought from the Family Court as held in the case of Muhammad Tariq Vs. Mst. Shaheen Bibi (PLD 2006 Peshawar 189).
The case law relied upon by the learned counsel for the petitioner has got no nexus with the facts and circumstances of the present case.
In view of the facts and circumstances of the case narrated above, we find no force in the present writ petition which is dismissed in limine.
(W.I.B.) Petition dismissed
PLJ 2008 Peshawar 242 (DB)
Present: Hamid Farooq Durrani and Syed Yahya Zahid Gilani, JJ.
MUHAMMAD RIAZ KHATTAK, Ex-ADDL. DISTT & SESSIONS JUDGE, PESHAWAR--Appellant
versus
CHIEF JUSTICE PESHAWAR, HIGH COURT PESHAWAR
and another--Respondents
Service Appeal No. 22 of 2005, decided on 28.4.2008.
NWFP Government's Servants (Efficiency and Discipline) Rules, 1973--
----Rr. 3(d)(i)(c)(iii), 4(1)(b)(ii)--Service Tribunal Act, (IXX of 1973) Ss. 4 & 5--Compulsory retirement--Imposition of major penalty--Allegations of illegal gratification--Enquiry Proceedings--Reports at variance--Deficient material to prove charges--Personal hearing to civil servant opportunity of--Scope--Held: it would have been certainly in the interest of justice and most appropriate for the "Authority" to extend Chance of personal hearing to accused officer/applicant before imposing the major penalty. [P. 245] A
1992 SCMR 1864 and 2006 SCMR 1641, ref.
Appellant in person
Mr. Alamzeb, DAG for Respondents.
Date of hearing: 28.4.2008.
Judgment
Syed Yahya Zahid Gilani, J.--The appellant was posted as Additional District and Sessions Judge at D.I. Khan when he was charge sheeted on 19.8.2004 under N.W.F.P. Government's Servants (Efficiency and Discipline) Rules 1973 by the authorized officer to convey him the following accusations:--
"charge against you is that one Muhammad Riaz son of Khan Said resident of Sard Cheena District Swabi had complained against you addressed to Hon'ble Chief Justice Peshawar High Court, Peshawar with allegations that you while posted as Additional Sessions Judge at Swabi and when seized of case FIR No. 303 dated 12.04.2000 of Police Station Swabi, demanded illegal gratification/bribe from the complainant for showing him favour. The complaint was marked to Syed Afsar Shah, District and Sessions Judge, Mardan who conducted preliminary enquiry and has recorded statements of the complainant and others which record was placed before Hon'ble the Chief Justice, Peshawar High Court Peshawar who is Competent Authority under the Rules ibid and the authority was satisfied on the basis of statements recorded during preliminary enquiry coupled with your reply/comments filed to the complaint that a prima facie case exists against you, therefore, action taken against you under the Rules ibid."
"The crux of the foregoing discussion is that the allegations leveled by the petitioner could not be established/proved in the given background and therefore, it can be said that no case of mis-conduct under the NWFP, Government's Servants (Efficiency & Discipline) Rules 1973 has been made out against the Presiding Officer."
The authorized officer, disagreeing with the enquiry officer, served the appellant with final show cause notice, with an offer of personal hearing, that why major penalty of dismissal from service should not be imposed on him. The appellant contested the notice by submitting written reply and also availed opportunity of personal hearing.
Ultimately the authorized officer recommended to authority "Compulsory Retirement" of the appellant with the following conclusion:-
"I have therefore reached the conclusion that accused officer has persistent reputation of being corrupt. He is therefore, held liable under Rule 3 (d) of NWFP Civil Servants (Efficiency & Disciplines) Rules, 1973. I, therefore, recommend that to impose major penalty under Rule 3(i)(b). However, keeping in view length of service of the accused-officer, I refrain to order his dismissal from service or removal from service but that he shall be compulsorily retired from service because he is not a fit person to hold the prestigious office of a judicial officer."
All this process culminated in compulsory retirement of the appellant, by the order of "Authority", dated 4.1.2005.
The appellant impugned this order in the instant appeal, after submitting representation, that was not responded.
We have heard the arguments of appellant in person. Mr. Alamzeb Khan, DAG, has been heard for respondents. Record has been perused.
The appellant submitted that the allegations in the charge sheet were not proved as per report of the enquiry officer. The authorized officer although admitted this reality, but utilized extraneous considerations to declare him guilty. He argued that authorized officer has conceded in para-15 of his report that undoubtedly there is no direct evidence of demand of bribe by the accused officer (the appellant). The authorized officer has held, in Para 16 and 17 of his report that if from such evidence charge of demand of bribe is not proved, the corrupt reputation of accused officer has definitely been proved through crucial admissions made by him.
The appellant contended that the aforesaid admissions noted in Para 18 of the report of authorized officer is a pick and choose of isolated fragments of his written replies, considered without reference to actual context, for conjectural findings. He emphasized that statement of an accused can not be appreciated in this manner and it has to be considered as a whole. The admissions, if any, are qualified by reasonable explanations and the explanations have not been considered. His conclusion was that an upright Judge (the appellant) has been thrown out from service for convicting a few bullies, who were bent upon taking revenge from him, although, the judgment of their conviction was upheld. He prayed that he may be reinstated or in alternate his compulsory retirement may be altered to retirement, with usual service benefits.
Mr. Alamzeb Khan, DAG, argued that the report of authorized officer is self-speaking and it is based on case law. He submitted that admissions of the appellant are integral part of the record and the recommendations of authorized officer are sound because the appellant admittedly used to maintain relations with litigation related people which is a circumstantial evidence to prove his guilt.
After contemplating over the points, argued before us and the cited case law, we deem it pertinent to mention that in this case enquiry officer has exonerated the accused officer/appellant with the clear words that the charge against him could not be proved. Likewise, the authorized officer also fairly noted in his report that there is no direct evidence and from the available evidence charge of demand of bribe is not proved. However, the authorized officer has held that the crucial admissions of the accused officer definitely proved his widely known reputation of being corrupt. The admissions have been listed in para-18 of the report of authorized officer and these are extracts from written replies of the appellant. The conclusion drawn from these admissions was agreed by the authority for imposing the proposed major penalty of compulsory retirement. Under Rule 4(1)(b)(ii), read with Rule 3(c)(iii) of NWFP Government Servants (Efficiency and Discipline) Rules, 1973.
Under Rule 5(4) of the aforesaid rules, the authorized officer shall determine that whether the charge has been proved, and if so, shall also tentatively decide the imposition of major, or minor penalty. The rule does not denote any inbuilt mechanism to make authorized officer absolutely bound by the conclusion of enquiry officer because in such eventuality, the sphere of empowerment of the authorized officer would reduce to nullity. But, at this juncture the case Mukhtiar Ahmad Bhatti vs. Director Food Punjab Lahore and others 1992 SCMR 1864 (d) would also be relevant wherein August Apex Court has laid down that competent authority would not be justified to ignore facts and findings of enquiry and shall not substitute the same by general subjective order not relatable to the facts of the case.
The gravamen of the grievance of appellant is that not the evidence recorded by the enquiry officer, but extraneous factors were taken in account to hold him guilty, and that these extraneous factors, gathered from his written replies, were given weight after detaching them from their actual context.
In this background, when the reports of enquiry officer and authorized officer were at variance, evidence recorded by enquiry officer was agreed by the authorized officer to be deficient to prove charge, and statements of accused officer in written replies were taken in account to hold him guilty, it would have been certainly in the interest of justice and most appropriate for the "Authority" to extend chance of personal hearing to accused officer/appellant, before imposing the major penalty, so that the accused officer/appellant could have explained the implication of his admissions before the authority, and the authority would also have availed the opportunity to understand admissions as per the outlook of the maker, to appreciate them aptly, in true perspective.
Although, rules do not provide for extending chance of personal hearing by the authority, prior to imposition of penalty, but we are fortified in our view by the dictum of August Apex Court, in Federation of Pakistan vs. Ghulam Shabbir reported in 2006 SCMR- Page-1641 (c). We further believe that such a personal hearing was highly essential in the peculiar facts and circumstances of this case because of the reasons discussed in para-14 of this judgment.
As a sequel to above reasons and conclusion, we accept this appeal, set aside the impugned order of the "Authority" dated 4.1.2005 and remand the case to "Authority" for a fresh decision, after affording a fair chance of personal hearing to the appellant, within next two months, because the appellants has already suffered delay in disposal of his case.
(W.I.B.) Appeal accepted
PLJ 2008 Peshawar 245
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
TEHSIL MUNICIPAL ADMINISTRATOR, DISTRICT MARDAN and another--Appellants
versus
YAQOOB SHAH and 14 others--Respondents
R.F.A. No. 89 of 2006, decided on 20.3.2008.
Land Acquisition Act, 1894 (I of 1894)
----Ss. 18 & 23--Compensation award--Enhancement of--Appeal against--Held: Owners of acquired land should be paid compensation and not the price, and for such purpose to one year average is not the sole criterion--Location, potential value & fitness for abadi of the acquired tract of land should also to be taken in consideration--Moreover the price of a willing purchaser and willing seller should be paid to the expropriated land owners--Judgment of Referee Court enhancing the compensation award maintained--Appeal dismissed.
[Pp. 248 & 249] A & B
1999 SCMR 1647, 2000 SCMR 870, PLD 2004 SC 512, PLD 1997 Pesh. 19 & NLR 2003 Rev. 130, ref.
Mr. Faizur Rehman, Prosecutor for Appellant.
Mr. Fazalur Rehman, General Attorney for Respondents.
Date of hearing: 20.3.2008.
Judgment
Tehsil Municipal Administrator, District Mardan, has filed the instant Regular First Appeal against the judgment and decree dated 30.11.2005 of the learned Senior Civil Judge/Judge Land Acquisition Mardan, through which while accepting the Reference filed by the respondents, the awarded compensation for the land/property acquired was enhanced from Rs. 3,799/- per marla to Rs. 25,000/- per marla, alongwith simple interest at the rate of six percent from the date of taking over the possession till the payment of compensation and also fifteen percent as compulsory acquisition charges.
Briefly narrated the facts of the case are that the Government of N.W.F.P. was in need of land measuring 2 kanals, 9 marlas and 3 sarsies comprising Khasra Nos. 188/1 189/1, 190/1 and 96/1, situated in the revenue estate of Moza Bagh-e-Ram, Tehsil and District Mardan, for acquiring department, i.e. Tehsil Municipal Administration Mardan, for a public purpose, namely, for construction of a path from Nissata Road to Gharib Abad Killey near Fazal Haq College Mardan, and in this respect a Notification under Section 4 of the Land Acquisition Act was issued on 5/5/1999. Subsequently, notice under Section 9 of the Act ibid was issued and the Ex-propriated land owners were directed to submit their objections to the acquisition of their lands to which the respondents duly replied.
After completion of the proceedings, the Land Acquisition Collector passed his Award Bearing No. 1/4 dated 1/12/1999 and awarded the compensation to the respondents/land owners at the rate of Rs. 3,799/- per marla alongwith fifteen percent compulsory acquisition charges and six percent simple interest under the provisions of Land Acquisition Act, 1894.
The respondents/land owners were aggrieved from the Award of the Land Acquisition Collector and. so they filed a Reference under Section 18 of the Land Acquisition Act in which the quantum of compensation awarded by the Land Acquisition Collector was challenged. The Reference was entrusted to the learned Senior Civil Judge/Land Acquisition Judge Mardan who summoned the respondents. The respondents filed detailed written statement and out of the pleading of the parties, the following issues were framed:--
(i) Whether the petitioners have got the cause of action? OPP
(ii) Whether the petitioners are estopped to sue by their own conduct? OPD.
(iii) Whether the petition is incompetent in its present form? OPD
(iv) Whether the Award has been rightly been announced? OPD
(v) What is the market value of the acquired land? OPP
(vi) Whether the petitioners are entitled to the decree for enhancement of compensation as prayed for? OPP
(vii) Relief.
The parties produced their respective evidence as they wished to adduce and the learned Referee Court, after hearing the learned counsel for the parties and taking into consideration the data available on record, answered the Reference in positive and awarded compensation for the acquired land at the rate of Rs. 25,000/- per-marla alongwith fifteen percent compulsory acquisition charges and six percent simple interest from the date of taking over the possession till the payment of entire awarded compensation to the respondents. The Tehsil Municipal Administrator of the erstwhile District Council Mardan being aggrieved has filed this regular first appeal.
Counsel for the appellants submitted written arguments, while attorney, namely, Israr Bacha for respondents, argued the case himself.
It was submitted by the appellants that the judgment and decree of the learned trial Court is not in accordance with law in so far as the learned trial Court has taken into consideration only two mutations and two other Awards adjacent to the acquired land. Further submitted that the trial Court has ignored the main factors and potential value of the acquired land and thus has wrongly enhanced the compensation. It was also argued that the acquisition for a public purpose, i.e. construction of a path and the land acquired was `Shah Nehri' as recorded in the revenue record, thus the enhancement of the compensation was not warranted under the circumstances of the case.
In rebuttal to that, Israr Bacha, attorney for the respondents submitted that the acquired piece of land was highly potential in value. It was amidst the Abadi and was lying on the main Mardan-Nissata road. It was also argued that the acquired piece of land was commercial and in fact was building site and the learned trial Court has rightly enhanced the compensation of the acquired land.
I have gone through the record of the case and the data available on the file was perused.
Perusal of the record reveals that Ex.PW.2/2 is the site plan of the acquired piece of land which shows its location. On Northern side is the main Mardan Nissata road. On Southern side is the self-owned property of Muhammad son of Shahzad and towards East is the property of Darwaish while towards, West is situated Fazl-e-Haq College, a renowned Educational Institution and also Gharib Abad road which shows the best location of the acquired tract of land. The learned Land Acquisition Collector has taken into consideration the one year average of `Shah Nehri' type of land. In para-6 of the Award, he has admitted that he personally visited the site which is situated on Nissata road near Fazl-e-Haq College Mardan. So the best location and potential value has been admitted by the learned Land Acquisition Collector himself in the impugned award. On the file there is a registered sale deed Bearing No. 505 dated 25.8.1998 on behalf of Doctor Mushtaq in favour of Hazratullah son of Hayatullah, vide which land measuring 2 kanals was sold for a total sale consideration of Rs. twenty-five lacs. Further more, Mutation No. 1861 attested on 21.3.1998 was also brought on record whereby land measuring three marlas was sold by Mst. Mutahira in favour of Mohib Shah for a total sale consideration of Rs. one hundred thousands. The mutation and registered deed are nearer to the time of notification under Section 4 of the Land Acquisition Act.
In rebuttal to this evidence, the appellant has not produced any cogent and convincing evidence to dislodge the presumption attached to these important documents. The appellant has only produced Faiz-ur-Rahman, Prosecutor of TMA Mardan and he has only placed on record the impugned award of the learned Land Acquisition Collector and has requested for the dismissal of the reference petition.
The law as enunciated by the Superior Court on the subject is very clear that the owners of the acquired land should be paid compensation and not the price because there is difference between compensation and price and while assessing the awarded compensation, the one year average is not the sole criterion. The location, potential value and witness for Abadi of the acquired tract of land should also be taken into consideration. Furthermore, the principles enunciated by the Superior Courts is that the price of a willing purchaser and willing seller should be paid to the Ex-propriated land owners as held in the cases reported as Murad Khan through his widow and 13 others Vs. Land Acquisition Collector Peshawar and another (1999 SCMR 1647), Province of Punjab through Collector Attock Vs. Engr. Jamil Ahmad Malik and others (2000 SCMR 870), Province of Sindh through Collector of District Dadu and others Vs. Ramzan and others (PLD 2004 Supreme Court 512), Government of N.W.F.P. and others Vs. Mst. Jamshed Bibi and another (PLD 1997 Peshawar 19) and Ghulam Ahmad Vs. Govt. ETC. (NLR 2003 Revenue 130).
The judgment and decree of the learned referee Court is strictly in accordance with law and in consonance with the evidence available on the record which calls for no interference.
In view of the facts and circumstances narrated above, there is no force in the instant appeal which is hereby dismissed with no order as to costs.
Above are the reasons for my short order of even date.
(J.R.) Appeal dismissed
PLJ 2008 Peshawar 249 (DB)
Present: Hamid Farooq Durrani and Syed Musadiq Hussain Gillani, JJ.
Miss KOMAL NAZIR QAZI--Petitioner
versus
KHYBER MEDICAL UNIVERSITY JOINT ADMISSION COMMITTEE, PESHAWAR through its Chairman and 8 others--Respondents
W.P. No. 1948 of 2007, decided on 28.2.2008.
Educational Institution--
----Eligibility for admission against seats reserved for backward areas as given in the prospectus--Candidate for one of the reserved seats of backward areas, having obtained education from a place outside the district/Agency of respective backward area, cannot be considered at par with those who received education from within the backward area--Amendment brought through corrigendum subsequent to issuance of prospectus for the relevant year whereby eligibility criterion of candidates was modified--Delition/abolition of seats initially provided for backward areas of NWFP through the prospectus in without lawful authority--Framers of the admission policy should have been concerned with principle rather that the consequences--Writ Petitions allowed. [Pp. 255 & 258] A & B
1999 SCMR 965, followed.
Mr. Rashid-ul-Haq Qazi, Advocate for Petitioners.
Mr. Ubaidullah Anwar, AAG for Respondent No. 3.
Syed Zafar Ali, Advocate for Respondent 8.
Respondent No. 9 in person.
Date of hearing: 6.2.2008.
Judgment
Hamid Farooq Durrani, J.--This petition alongwith connected W.Ps. 336/07, 1960/07 and 1965/07 is taken up together for decision as petitioners in all the petitions claim their admission in Medical/Dental Colleges against quota reserved for NWFP backward areas, reflected through Prospectus for the year, 2007-08 pertaining to said admissions.
Before recapitulating individual facts involved in the matters in hand, it would be useful to reproduce herein below, the allocation of quota comprising seats in different Medical and Dental Colleges in NWFP and outside NWFP:--
Category of Seats MBBS MBBS MBBS MBBS MBBS BDS BDS MBBS Total
KMC AMC SMC GMC KGMC KCD ADS BMC
NWFP Backward
Areas 0 0 0 0 0 0 0 0 0
Kohistan 2 2 0 0 0 0 1 0 5
Chitral 3 2 0 0 0 1 0 0 6
Dir Upper 1 1 0 0 0 0 0 0 2
Dir Lower 1 1 0 0 0 0 0 0 2
Gadoon 1 1 0 0 0 0 0 0 2
Amazai 0 1 0 0 0 0 0 0 1
Gadoon/
Amazai 0 0 0 0 0 1 0 0 1
Tribal Area
Adjoining
Mansehra
including
Kala Dhaka and
upper
Tanawal 1 0 0 0 0 0 1 0 2
Kala Dhaka 0 1 0 0 0 0 0 0 1
Batagram 1 0 0 0 0 0 0 0 1
Allai 0 1 0 0 0 0 0 0 1
Shangla 0 1 0 0 0 1 0 0 2
Buner 0 1 1 0 0 0 0 0 2
Kalam 0 0 1 0 0 0 0 0 1
NWFP
backward
areas MBBS MBBS MBBS MBBS MBBS BDS BDS MBBS MBBS Total
KMC AMC SMC GMC KGMC KCD ADS KIMS BMC
Chitral 2 2 0 0 0 1 1 0 0 6
Kohistan 2 2 0 0 0 1 0 0 0 5
Dir Upper 1 1 0 1 1 0 0 0 0 4
Dir Lower 1 1 0 0 0 0 0 0 0 2
Gadoon/
Amazai 0 0 0 0 0 1 0 0 0 1
Tribal
Area
Adjoin
-ing
Mansehra 1 0 0 0 0 0 1 0 0 2
including
Kala
Dhaka
and
upper
Tanawal
Bala Kot 0 1 0 0 0 0 0 0 0 1
Kala
Dhaka 0 1 0 0 0 0 0 0 0 1
Batagram 1 1 0 0 0 0 0 0 0 2
Allai 0 1 0 0 0 0 0 0 0 1
Shangla 0 1 1 0 0 1 0 0 0 3
Buner 0 1 1 0 0 0 0 0 0 2
Kalam 0 0 1 0 0 0 0 0 0 1
Tank 0 0 0 2 0 0 1 0 0 3
Hangu 2 0 0 0 0 0 0 1 0 3
Total 10 12 3 3 1 4 3 1 0 3
The petitioner submits that she hails from Village Bajna, Tehsil Ogi, District Mansehra, which area has been declared as backward by the Government of NWFP; that no Secondary or Higher education facilities with Science subjects are available for females in the Village/backward area, from which the petitioner hails, therefore, she had to take education in Army Burn Hall School and College for Girls, Abbottabad. She secured 852 marks out of 1100 in F.Sc examination and was placed in Grade-A. She applied for admission in Ist Professional M.B.B.S. in Ayub Medical College for the Session 2007-08, appeared in the Entry Test and qualified the same by securing 505 marks out of 800. In the said manner, she was able to achieve a target of 72.56% for the purposes of admission. Resultantly, she was shown at Sr.No.2 of the merit list while one Miss Aniqa Habib stood at Sr. No. 1, however, the petitioner was treated as an OUT candidate which denoted that she was a candidate for the respective reserved quota but had received education from outside the backward area and thus did not qualify for the reserved seats.
We would like to reproduce here the criteria of eligibility for seats reserved for backward areas of NWFP as provided through the Prospectus:--
(i) The candidates must be having a valid domicile certificate.
(ii) The candidates must have obtained their Secondary School Certificate (Matric with Science and F.Sc. Pre-Medical, Part-I and Part-II) from the district/Agency of their domicile, provided such facilities exist in the area. The candidate will have to provide a solid proof of non existence of such educational opportunities in the district of domicile through a certificate duly verified by the EDO (Education) and countersigned by the DCO/Political Agent) of the concerned district/agency.
(iii) The candidates must have qualified the prescribed Entrance Test for admission to Medical & Dental Colleges in NWFP.
It is the case of petitioner that her name, in the revised merit list, appeared at Sr. No. 4 against reserved seats of Upper Tanawal/Kala Dhaka combined while Respondent No. 7 M. Irshad was indicated at Sr. No. 9 in the said list having scored 65.53% marks. In spite, the Respondent No. 7 was granted admission against the reserved seat in Khyber Medical College. The facility for imparting education in Science/Pre-Medical subjects to the female students in the Village Bajna was lacking, therefore, for all intents and purposes, the obtaining of requisite educational qualification from an institution in District Abbottabad could not operate as a bar to entertain the application form of the petitioner for the respective reserved seat. The petitioner has also appended certificate from District Officer (Female) School and Literacy, Mansehra certifying the fact that there was no Girls Science School in Bajna nor there was any Female Girls College inside Upper Tanawal backward area. It was, however, conceded by special attorney of the petitioner that requisite education facility for female students, imparting Science and Pre-Medical subjects, was available in Tehsil Ogi besides other places in District Mansehra. It was also not denied that Respondent No. 7 had done his SSC education from Government Girls High School, Kolika, Tehsil Ogi, District Mansehra and HSSC from Government Degree College, Ogi, Tehsil and District Mansehra.
The special attorney for petitioner, while arguing on her behalf, laid much emphasis on the fact that the petitioner having a Domicile of the backward area, was constrained to take her education from an area outside the District due to the reason that requisite education facilities were not available in the District of Domicile of the petitioner. In the circumstances, the petitioner was not obliged to have passed her SSC and F.Sc examinations from the District or Tehsil to which the backward area belonged. In his view, the petitioner was, for the said reason, placed in position similar to other candidates who obtained education within the backward areas where the facility of requisite education was available. It was also contended that the criteria of eligibility and the condition of having passed the requisite examinations from within the District/Agency wherein the respective backward area fell, was without lawful authority and of no legal effect. In support of his cause, the petitioner relied on consolidated judgment passed by the Hon'ble Supreme Court on 27.11.2006 in CAs. 1422 and 861 of 2006.
On the other hand, the official respondents contended through their written statement as well as Legal Officer appearing before the Court at the time of hearing that the petitioner was not qualified for admission against any of the seats reserved for backward areas of NWFP as she did not obtain requisite education from her respective backward area. It was further contended that the spirit of policy regarding the reserved seats for backward areas was to accommodate the socially and economically disadvantaged Sections of people. The students belonging to the backward areas were handicapped in competing with their rival candidates from developed areas, having obtained education from institutions providing better facilities in all respect. Reliance was placed on judgments of Apex Court delivered in C.A. 1596/05 (Manzoor Ahmad Qureshi Vs. Chairman Joint Admission Committee and others), C.A. 1597/05 (Arif Shah Vs. Secretary to Government of NWFP) decided on 7.3.2005, 2001 SCMR 1161 and also the judgments delivered by this Court in W.Ps 1640/04, 1682/04, 1697/04, 1726/04, 1733/04, 1757/04, 1758/04, 1763/04, 109/05, 198/05, 1786/05, 1848/05, 1862/05, 2046/05. 1/06 and 356/06.
It was further contended that the eligibility criteria for seats reserved against the backward areas of NWFP was already laid down through the said judgments, which was duly incorporated in the Prospectus of relevant year, therefore, the petitioner was not entitled to admission against the reserved seat. It was, however, conceded by the respondents that one seat in BDS at Dental Section of Ayub Medical College was still vacant against which there was no other eligible candidate from the requisite backward areas.
"The result of aforegoing discussion is that the admissions on the seats reserved for backward areas of Gadoon, Dir Upper and Shangla shall be governed by the principles laid down in Atiya Bibi Khan's case, namely, that only such students who have passed this SSC and F.Sc (Part-I and Part-II) from their respective backward areas would be eligible for admission on the reserved seats".--------------------------------------------------------------------------------------------------------------------------------.
"It may be noted that the condition for obtaining the Domicile Certificate from less developed areas, in view of the observation made by this Court, seems to be mandatory but at the same time there is another condition which has been imposed i.e. passing of Matriculation/SSC and Intermediate education from the less developed areas. This expression can be applied fully in those less developed areas where the facilities of Matriculation/SSC and Intermediate education are available, but in the cases where there is provision only for education upto Matriculation/SSC and no arrangement exists for providing education of F.Sc/Pre-Medical, the students of such less developed areas are bound to move to the areas which are not less developed areas but provides Intermediate and F.Sc/Pre-Medical education. In instant case, as well it is an admitted position that applicant firstly obtained Domicile Certificate from the less developed area Gadoon Amazai and secondly he passed his Matriculation/SSC Examination from Gadoon Amazai but as there was no Intermediate Science College for acquiring F.Sc/Pre-Medical Certificate he moved to District Swabi outside the Gadoon Amazai but he remained within the District which encompasses Gadoon Amazai which has been declared as less developed area. Therefore, under the circumstances we are of the opinion that the Joint Selection Committee while non-suiting the appellant should have taken into consideration this aspect of the case as well and should not have sealed the fate of the appellant for not acquiring education of F.Sc/Pre-Medical from Gadoon Amazai where no such college was situated. " (underlining is provided).
The above observations, in all fairness, drove the respondents to bring in the condition of obtaining education by a candidate from the District of backward area in cases where there was no facility for imparting Science/Pre-Medical subjects to the level of SSC and F.Sc within the backward area itself. In another judgment delivered in C.A. 1597/05, the Apex Court held that the doing away of condition for a candidate competing for the reserved seat of backward area in terms of requirement to have studied in that very backward area, was rightly struck down by the High Court.
In the light of above referred judgments, we are of the firm view that a candidate for one of the reserved seats of backward areas, having obtained education from a place outside the District/Agency of respective backward area, cannot be considered at par with those who receive education from within the backward area or concerned District in case of non-availability of requisite educational facility in the backward area. We are also of the view that the criteria of eligibility for admission against seats reserved for backward areas of NWFP as given in the Prospectus for the year, 2007-08, issued by the respondents, is in accordance with accumulative effect of judgments referred to herein above.
Resultantly, the petitioner is declared disentitled to preference over the other candidates, including Respondent No. 7, who have studied from within the backward area or Tehsil/District within which the respective backward area is situated. This observation shall also regulate the admission to the two seats in Fatima Jinnah Medical College, Lahore reserved for female candidates of entire backward areas of NWFP.
In the wake of the above, Miss Hina Gul and Shazia Bibi, newly impleaded respondents 8 and 9 shall be considered entitled to the admission in Fatima Jinnah Medical College, Lahore against the reserved seats subject to recommendations by the respondents in view of their respective eligibility.
We would also like to note that in the peculiar circumstances of the case when one seat in BDS at Dental College, Abbottabad is lying vacant due to non-availability of other eligible candidate from backward tribal area adjoining Mansehra including Kala Dhaka and Upper Tanawal, the petitioner shall be considered for admission against the said seat as admittedly she is a domicile holder of one of the said backward areas.
This writ petition merit disposal in the above terms.
In W.P. 336/07, petitioner Miss Amina Rafique has questioned the amended allocation of seats reserved for NWFP backward areas and has also claimed her entitlement to admission against one of the deleted seat originally provided in the prospectus against the area of Amazai. Similarly, in W.P. 1960/07, the petitioner Muhammad Waqar Farooqi, has impugned the slashing of two seats initially allocated in the Prospectus for backward area of Gadoon. This petitioner also claims eligibility for admission against one of the said abolished seats. In W.P. 1965/07, the petitioner Miss Sania Akhtar has brought under challenge the deletion/abolition of seat reserved for the backward area of Amazai as primarily reflected in the allocation of quota through the Prospectus.
The brief facts relevant in these three petitions are that all the petitioners applied for admission to various Medical/Dental Colleges in NWFP and submitted their applications to participate in the Entry Test to be conducted by the respondents for the purpose. The last date for submission of Forms was 20.8.2007 while the Entry Test was conducted on 9.9.2007. The result of Entry Test was declared on 10.9.2007. It was subsequent to the declaration of results that a Corrigendum was issued on 15.9.2007 wherein certain changes were brought about in the quota of seats reserved for backward areas of NWFP. The said changes have been reflected through the extract reproduced herein before. As a consequence to the change in policy, one seat for M.B.B.S in Ayub Medical College pertaining to the backward area of Amazai was abolished while one seat each in M.B.B.S at Khyber Medical College and Ayub Medical College, pertaining to the area of Gadoon, were also done away with.
It is noted that the process of admissions for the seats in Medical/Dental Colleges was started by receiving the initial applications Forms latest by 20.8.2007. The result of the candidates who appeared in the Entry Test was declared before the issuance of Corrigendum on 15.9.2007. Admittedly, the applying candidates were given to know the number of seats reserved for impugned quotas and also the terms of their respective eligibility to the said seats through the Prospectus. The Corrigendum was thereafter issued without any notice to the candidates applying against the deleted seats at a stage when the admission process was nearing completion.
In the said context it would be useful here to refer to the admission policy as provided in the Prospectus itself which in its very first paragraph declares that the Khyber Medical University reserved the right to issue Corrigendum, correction/rectification on account of typographical mistakes, however, no amendments in policy and procedure was to be made during admission process.
"18. We have in Shamsul Alam's case set aside a corrigendum made in the prospectus by holding that no change in the rules for admission in Medical Colleges be made after the admission process had commenced. In that case reliance was placed on the observations made by the Hon'ble Supreme Court in the case of Chairman Joint Admission Committee, Khyber Medical College Vs. Raza Hassan and others (1999 SCMR 965). The Hon'ble Supreme Court had declared "even if the petitioners have power to amend or alter any rule embodied in the prospectus, such action appears to be completely ill-advised after the process of admissions had already commenced". For the admission in the session of 2004-05 entry test was held in August 2004 and results also declared in the same month. The prospectus however was issued on 25.10.2004 and admissions opened from 4.11.2004 to 8.11.2004. The corrigendum impugned in the said two petitions was published on 7.11.2004. The process of admission thus had started, to say the least, from 4.11.2004 and thus no changes should have been brought about in the admission policy after the said date. We may however observe that it would be fair that the prospectus be issued by the Health Department before the holding of entry test. Additionally the reason given by the learned counsel for the Joint Admission Committee for bringing about the impugned change, namely, that the requirement of local education enshrined in the prospectus would have resulted only in the admission of one candidate from Gadoon on the 3 reserved seats, is untenable. The framers of the admission policy should have been concerned with principle rather than the consequences. This change had been made to the detriment of the interest of students who had fulfilled the requirement in accordance with provision in the un-amended prospectus. The private respondents who had obtained their education from institutions in the developed areas were even otherwise entitled to compete on open merit seats. For these reasons the impugned corrigendum of 4.11.2004, published on 7.11.2004 is likely to be struck down on this score alone.
In the light of the above, we are left with no alternative but to hold that the impugned deletion/abolition of seats initially provided for backward areas of NWFP through the Prospectus, is without lawful authority and of no legal effect. We, however, would refrain from making any observation regarding the seats additionally allocated or created for the areas not originally found in the relevant portion of Prospectus for the purpose.
Resultantly, we order that the seats deleted/abolished through Corrigendum dated 15.9.2007 pertaining to the areas of Amazai and Gadoon shall be restored to their status and number as provided in the Prospectus for the year 2007-08. The merit list of candidates applying against the reserved quota shall accordingly be resettled/modified.
Admittedly, Miss Amina Rafique, petitioner in W.P. 336/07 has cleared her SSC and F.Sc examinations from District Abbottabad while Muhammad Waqar Farooqi petitioner in W.P. 1960/07 has obtained the requisite Intermediate Pre-Medical education from Peshawar. Miss Sania Akhtar, petitioner in W.P. 1965/07, had been studying at Turbela, District Haripur. The cases of these petitioners, at the time of resettling the merit list as ordered above, shall be dealt with in the light of contents of Para 10 ibid in respect of eligibility for seats allocated to NWFP backward areas.
Resultantly, these three writ petitions are allowed in the above terms.
(M.S.A.) Petitions allowed
PLJ 2008 Peshawar 259 (DB)
[Abbottabad Bench]
Present: Hamid Farooq Durrani & Zia-ud-Din Khattak, JJ.
LT. GENERAL (R) SALAHUDDIN TIRMIZI--Petitioner
versus
ELECTION COMMISSION OF PAKISTAN, ISLAMABAD through its Secretary and 3 others--Respondents
Writ Petition No. 42 of 2008, decided on 13.3.2008.
Representation of the Peoples Act, 1976 (LXXXV of 1976)--
----S. 103(AA)--Election petition--Returned candidate--Supervisory jurisdiction--Comeptency of--Violation of provision--Illegalities--Commission was within its competence to exercise supervisory jurisdiction u/S. 103-AA of the Act in passing the impugned order as grave illegalities and violation of provision of Act were assimilable from the record--Through the consent remand order field was thrown open for the commission to redecide the matter pertaining to both the disputed polling stations--We are in disagreement with counsel regarding his arguments emphasizing non-availability of jurisdiction to--Commission for ordering partial polls u/S 103-AA--Petition dismissed. [P. 266] A, B & C
2004 SCMR 672, PLD 1990 SC 352 & PLD 1991 K. 396, followed.
Syed Iftikhar Hussain Gillani, Senior Advocate for Petitioner.
Sher Afgan Khan, Advocate for Respondents No. 1 to 3.
Hafiz S.A. Rehman, Senior Advocate for Respondent No. 4.
Date of hearing: 12.3.2008.
Judgment
Hamid Farooq Durrani, J.--"With the consent of learned counsel for the petitioner, the learned Deputy Attorney General of Pakistan and learned counsel for Respondent No. 6, we remand the case to the Election Commission of Pakistan. The Election Commission of Pakistan will examine the case and decide as to whether the case is made out under Section 103-AA of the Act before issuance of the notification of the returned candidate taking into the consideration the reports of the Presiding Officer of the Polling Station Nos. 219 and 244. The writ petition is disposed of in the above terms. It is expected that the Election Commission of Pakistan would decide the matter within a week."
Reproduced above is the operative part of order passed by the Honourable Islamabad High Court, Islamabad in Writ Petition No. 31 of 2008 with consent of the parties thereto. Ex-consequentie, the matter was retaken for decision by the learned Election Commission of Pakistan on 4.3.2008 in presence of contesting parties and their respective learned counsel. It was concluded that the polls held on 18.2.2008 at Polling Station No. 244 (Sathan Gali) were void while the District Returning Officer concerned was directed to hold the re-poll at the said polling station on 13.3.2008. It was further ordered that polling of female votes at Polling Station No. 219 (Changari) be held on the same date.
Initially, the petitioner and Respondent No. 4 contested general elections held on 18.2.2008 for the constituency of NA-20 Mansehra-I. After the official recount the petitioner was declared to have bagged 72522 votes while Respondent No. 4 secured 72469 votes to his credit. In the said manner, the petitioner took lead by a margin of 53 votes. On 21.2.2008, an application was received by the learned Election Commission of Pakistan, filed by Respondent No. 4, wherein it was alleged that on the day of polling an incident occurred at polling station Sathan Gali (No. 244) at 12.30 p.m. which claimed one human life while some others received injuries. Due to the said incident out of 2310 total registered voters only a small number could exercise their right of franchise while due to firing the voters in waiting left the polling station. Some of the polling staff also disappeared from the spot which resulted in stoppage of further polling. Till closing hours of the polls the polling at the said station remained, suspended. It was further stated that a similar application was submitted at the concerned polling station on 19.2.2008. A prayer for re-polling was made through the application while suspension of underway consolidation proceedings was also sought.
The order dated 23.2.2008 passed by the learned Election Commission of Pakistan upon fore-noted application suggests that the contents of application were transmitted to District Returning Officer in addition to the Returning Officer concerned for their respective comments/reports. The said comments/reports were received by the learned Commission and it was held that as the record did not support the assertions of Applicant/Respondent No. 4 herein, no case for grant of prayer was made out. The application was rejected as a consequence. It is to be noted here that at the time of decision none of the parties were represented before the learned Commission.
Aggrieved from the above order of learned Commission, Respondent No. 4 herein, filed a writ petition before the Honourable Islamabad High Court, Islamabad wherein he impugned the findings of learned Commission through various grounds. Besides, it was also alleged for the first time that Polling Station No. 219 was a combined polling spot for both male and female voters but as the female polling staff failed to reach the polling station, the female listed voters could not cast their votes at the polling station. In the said manner, hundreds of female voters could not exercise their right of franchise. In the said regard the statement of count issued by the concerned Presiding Officer was also relied upon. Learned Islamabad High Court, on 27.2.2008, was pleased to direct official respondents to file written comments to the writ petition while Respondent No. 6/petitioner herein was also put on notice for 28.2.2008. On the date fixed the petitioner and respondents, including Respondent No. 4, were represented through their respective learned counsel while on behalf of official respondents learned Deputy Attorney General appeared. All consented to the passing of a remand order, operative part whereof has been reproduced hereinabove. Consequently, the findings were returned by the learned Election Commission of Pakistan on 4.3.2008 which are impugned before us through constitution petition in hand.
Syed Iftikhar Hussain Gillani Advocate, learned counsel for petitioner, while appearing before this Court contended that the impugned findings of learned Commission were in clear disregard of provisions contained in Section 103-AA of Representation of Peoples Act, 1976. The learned Commission could not, under the law, review its previous order and reverse the findings as there was no provision for the same in the relevant law. He added that the learned Commission lost sight of the fact that initially the allegations of Respondent No. 4 in terms of stoppage of polling at Polling Station No. 244 (Sathan Gali) were not complemented with the complaint regarding non-availability of female Polling Station at Polling Station 219 (Changari). The said fact was for the first time introduced through writ petition filed before the Honourable Islamabad High Court, Islamabad by Respondent No. 4 after remaining unsuccessful in obtaining a favourable decision from the learned Commission. For the said reason too, the complaint to the extent of Polling Station 219 was not to be entertained by the learned Commission at a belated stage. The learned counsel further contended that there was no sufficient material before the learned Commission for passing of an order under Section 103-AA of Act ibid which could apparently satisfy the Commission regarding grave illegalities or violation of the provisions of the Act warranting re-poll in some Polling Stations of the Constituency. He was of the view that learned Commission, in the first round, had categorically held that the application of Respondent No. 4 could not be entertained due to lack of sufficient support evident from the record. While referring to the reports submitted by Returning Officer and District Returning Officer, respectively, the learned counsel attempted to argue that polling at Polling Station No. 244 (Sathan Gali) was though suspended for a short interval but was resumed and continued till prescribed closing hours.
It was also emphasized by the learned counsel that the learned Commission, while exercising jurisdiction under Section 103-AA of the Act ibid, could not legally order for partial re-polling but was obliged, upon its satisfaction, to order re-poll in the entire constituency that too in the manner provided by Section 108 of the Act. Learned counsel maintained that Representation of the Peoples Act, 1976 was a special statute, therefore, the provisions contained therein were to be strictly complied with and any deviation there-from could render the decisions of the Authority, mentioned in the law, as invalid. In the said regard learned counsel also referred to the provisions of Section 27 of the Act and stated that the said provisions catered for circumstances justifying re-poll in some of the Polling Stations of a Constituency. In his view, the case of Respondent No. 4 did not fall in the ambit of either of the two sections, therefore, it was not justified for the learned Commission to have ordered for partial re-poll. In support of his exhaustive arguments the learned counsel relied on judgments report as PLD 1996 S.C. 108, PLD 1979 S.C. 741, PLD 2000 S.C. 77, PLD 2003 Karachi 209, 2005 CLC 123, PLD 1976 S.C. 6, 1989 CLC 1833 and PLD 1990 S.C. 352.
The learned counsel, however, conceded that in the light of Section 103-AA (3) the learned Commission could take evidence and prescribe its own procedure for regulation of proceedings but the said exercise was not undertaken.
Hafiz S.A. Rehman, learned counsel appearing on behalf of Respondent No. 4, before responding to the assertions made from the opposite side, stated that the matter could not be taken up for decision by this Court in constitutional jurisdiction as the Election Tribunals were already constituted for the purpose and any person aggrieved under the law could resort to the said remedy. He referred to Article 225 of the Constitution and also Section 52 of the Act ibid in the said reference. The learned counsel was also of the view that the petitioner had agitated factual controversy which could not be looked into by this Court while exercising extra ordinary constitutional jurisdiction. In support of his arguments the learned counsel relied on 2007 C.L.J. 141, 2006 SCMR 265, PLD 2006 Lahore 198, 2006 SCMR 219 and PLD 2006 Karachi 314.
It was further contended by the learned counsel that the Respondent No. 4 filed a writ petition before the Honourable Islamabad High Court, Islamabad against the order of learned Commission as passed on 23.2.2008, mainly for the fact that the same was returned without hearing the parties. The said writ petition entailed a consent order wherein it was specifically mentioned that the learned Commission shall look into the matters regarding both Polling Station No. 244 (Sathan Gali) as well as 219 (Changari). The petitioner very much consented to the said order, therefore, could not question the inclusion of complaint regarding Polling Station 219 in writ petition for the first time. He further stated that due to consent on the part of petitioner it did not lie in his mouth to question the validity and propriety of impugned order by the learned Commission on the ground of non-availability of review jurisdiction with the Commission. The learned counsel was of the view that the learned Commission was obliged to re-decide the matter keeping into consideration the parameters prescribed by the Honourable Islamabad High Court, Islamabad and its such decision could conveniently vary its previous findings in case the learned Commission was satisfied to do so.
Learned counsel for Respondent No. 4 once again took us through the provisions of Section 103-A A of the Act and argued that in cases of violation of the provisions of the Act or the Rules the Commission was fully competent to order re-poll. In reference to the same the learned counsel took us through the provisions of Sections 7 (4), 9 (1) (2) (3), 26 and 70 of Act ibid and stated that it was apparent on the face of record, available with the learned Commission, that the provisions of said sections of law stood violated during the course of initial polls. The learned counsel was of the view that the powers to declare the election of a constituency as a whole void rested with the Election Tribunal under the provisions of Section 70 of the Act while on the other hand the provisions contained in Section 103-AA ibid provided supervisory jurisdiction to the Commission through exercise whereof the Commission could order partial re-poll. In the case in hand, the record was clearly suggestive of the fact that polling at Polling Station 244 was stopped half-way while the female voters could not cast their votes at Polling Station 219 due to nonavailability of polling staff, the learned counsel maintained. To substantiate his arguments he relied on 2004 SCMR 672, PLD 1989 S.C. 396, PLD 2002 S.C. 184, 2004 YLR 1459, PLD 1976 S.C. 6, PLD. 1991 Karachi, PLD 2006 Karachi 314, 1995 SCMR 684, 1994 CLC 296, 1993 SCMR 511, 1994 CLC 1530 and 2006 SCMR 1713.
We have extended careful thought to the valuable arguments by learned counsel for the parties and have also examined copies of documents appended with the writ petition. It is noticed that the petitioner has held back certain documents which were considered by the learned Commission and were made basis of its impugned findings. The said documents include the applications submitted by the voters to the learned Commission whereby the information regarding stoppage of poll at Polling Station No. 244 and leaving of polling agents from the Polling Station, was conveyed. The affidavit dated 23.2.2008 sworn by Mr. Muhammad Shaukat Presiding Officer of Polling Station No. 244, through which the incident of murder and stampede at the said Polling Station was affirmed, was also not appended though a copy thereof was provided at the time of arguments. Similarly, the report of Mr. Muhammad Shabbir Presiding Officer of Polling Station No. 219 (Changari), regarding the fact of absence of female polling staff at the said Polling Station and deprivation of female voters communicated through reverse of Forms XIV, was also kept away from the record. It was, however, attempted by the petitioner to bring before this Court the subsequent statement of Presiding Officer of Polling Station 244 wherein the uninterrupted polling was shown to have taken place. It is also noticeable that the Presiding Officer of Polling Station 219, though claimed to have submitted an application on 19.2.2008 communicating that polling at the female Polling Station started in time while the votes were not polled by the female voters out of their own will, was in fact received by the Returning Officer on 25.2.2008, i.e., one week after the conduct of elections. In these circumstances, we have no choice but to fall back upon the observations of learned Commission regarding appreciation of contents of the said documents. We, therefore, are handicapped to compare the text of documents not placed before us.
Notwithstanding the above fact, it is observed that the affidavit supplied by Mr. Muhammad Shaukat Presiding Officer of Polling Station 244 on 23.2.2008, states inter alia that at about 1:00 p.m. firing started within the premises of Polling Station which resulted in death of one person and injuries to others. Further that the event was communicated to concerned Returning Officers through mobile phone immediately after murderous assault and stampede occurred in the Polling Station and the persons present on the spot including male and female voters, besides the polling agents, left the site out of fear. The polling stopped and did not resume thereafter (copy not appended with the writ petition). In his statement supplied to the Returning Officer on 3.3.2008, the occurring of criminal assault at 1:00 p.m. is affirmed while rest of the contents of previous affidavit are negated in terms that he informed the Returning Officer regarding the incident and after some time the polling was resumed. That the polling thereafter remained in progress till 5 p.m. It is, however, stated in the statement that after close of polls the counting of votes was conducted in presence of noteables of the area and the police. The presence of polling agents of different candidates was though not indicated in the statement.
Seen in juxta-position to the contents of affidavit and the statement by Mr. Muhammad Shaukat, the report of Returning Officer reveals that he was informed by the Presiding Officer of Polling Station 244 through telephone at 1500 hours regarding the incident and also that the polling was stopped for some time. At least one fact stands prima facie established through the report of Returning Officer and the statement/affidavit of Presiding Officer that the polling process was suspended for at least two hours i.e. between 1:00 p.m and 1500 hours. Similarly, the mentioning of availability of female polling staff at Polling Station 219 on the relevant day and time seems to be negated through report on the over-left of Forms XIV prepared by the Presiding Officer of concerned Polling Station (copy not provided).
Section 7(4). "It shall be the duty of a Returning Officer to do all such acts and things as may be necessary for effectively conducting an election in accordance with the provisions of this Act and the rules."
Section 9(3). "A Presiding Officer shall conduct the poll in accordance with the provisions of this Act and the rules, shall be responsible for maintaining order at the Polling Station and shall report to the Returning Officer any fact or incident which may, in his opinion, affect the fairness of the poll:
Provided that, during the course of the poll, the Presiding Officer may entrust such of his functions as may be specified by him to any Assistant Presiding Officer and it shall be the duty of such Assistant Presiding Officer to perform the functions so entrusted."
Section 26. "Hours of the poll.--The Commission shall fix the hours, which shall not be less than eight, during which the poll shall be held and the Returning Officer shall give public notice of the hours so fixed and hold the poll accordingly."
What follows is that the learned Commission was within its competence to exercise supervisory jurisdiction under Section 103-AA of the Act ibid in passing the impugned order as grave illegalities and violation of provisions of the Act were assimilable from the record.
The argument of the learned counsel for the petitioner in terms that the Commission could not pass a distinct order and reach diverse finding after remand by the Honourable Islamabad High Court, would not have much force for the fact that through the consent remand order field was thrown open for the learned Commission to re-decide the matter pertaining to both the disputed Polling Stations. The learned Commission after hearing the parties re-considered the available record and reached the conclusion based on the contents of record furnished by the concerned polling staff/Returning Officer/voters but in the first instance.
We are also in disagreement with the learned counsel for the petitioner regarding his argument emphasizing non-availability of jurisdiction to the learned Commission for ordering partial polls under Section 103-AA. In the said regard we seek guidance from the case of Malik Manzoor Hussain (2004 SCMR 672). In this case the learned Election Commission of Pakistan ordered re-polling in only one of the Polling Stations of Constituency PF-46 Abbottabad-III. The matter was brought to this Court through a constitution petition which did not prevail and the Apex Court also refused leave to appeal filed therefrom. We are also guided by the judgment of Haji Behram Khan's case (PLD 1990 S.C. 352) wherein the judgment of Honourable High Court of Baluchistan was affirmed. The apex Court, while agreeing with the High Court held that to declare the election of the whole constituency as void on account of the misdoings or the hooliganism perpetrated by the supporters of the other candidates would be to encourage the candidates who felt that they are loosing getting the whole election annulled and frustrating the wishes of the electorates. In this case the learned Commission had ordered re-polling in the entire constituency though mishap occurred in two Polling Stations. We are also persuaded by judgment in the case of Agha Ghulam Ali (PLD 1991 Karachi 396) wherein a learned Division Bench of the Sindh High Court was pleased to hold that in the circumstances of the case an order for re-polling in 3 Polling Stations of the constituency was justified under Section 103-AA.
In conclusion to the foregoing, we are clear in our minds that the learned Election Commission of Pakistan did not exceed its lawful authority while passing the impugned order of re-poll at Polling Station No. 244 (Sathan Gali) and holding of polls at female polling booth in Polling Station 219 (Changari) in the Constituency of NA-20 Mansehra-I.
We have dismissed the writ petition alongwith civil miscellaneous application for interim relief through short order dated 12.3.2008 and above are the reasons for the same.
(M.S.A.) Petition dismissed
PLJ 2008 Peshawar 267 (DB)
[D.I. Khan Bench]
Present: Muhammad Alam Khan and Syed Yahya Zahid Gillani, JJ.
NISAR AHMAD--Petitioner
versus
CHIEF ELECTION COMMISSIONER OF PAKISTAN, ISLAMABAD and 4 others--Respondents
W.P. No. 17 of 2008, decided on 14.2.2008.
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Entries of bogus votes--Challenge to--Constitutional jurisdiction--Factual controversy--Effect of--Grievance agitated by the petitioner pertains to factual controversy which would require recording of evidence and secondly those persons who have been allegedly entered as voters have not been arrayed in the panel of the respondents--Furthermore, it is impossible for High Court to determine in its extraordinary constitutional jurisdiction under Article 199 of the constitution to probe into the matter and to scan the individual case of each and every voter in the disputed constituency as well as in their native constitutency--Petition dismsised. [P. 268] A
Petitioner in person.
Date of hearing: 14.2.2008.
Order
Muhammad Alam Khan, J.--Nisar Ahmed Midad Khel Advocate High Court, District Bar Lakki Marwat, has filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 challenging the entries of bogus votes in his constituency of Dera Pezu District Lakki Marwat.
It was submitted that there is a factory known by the name of Lucky Cement Factory wherein the respondents have got entered the names of those persons who are employees in the said cement factory and their votes have already been registered in their native villages so the entries of double votes are not warranted according to law and so the said entries of the employees of Lucky Cement Factory in the electoral roll of the constituency above mentioned is not only illegal but would attract the doctrine of double voting so it was prayed that after scrutinizing voter list the names of the voters so entered be deleted from the electoral list.
We have gone through the record of the case and the data available on the file.
The grievance agitated by the petitioner pertains to factual controversy which would require the recording of evidence and secondly those persons who have been allegedly entered as voters have not been arrayed in the panel of the respondents. Furthermore, it is impossible for this Court to determine in its extra ordinary constitutional jurisdiction under Article 199 of the Constitution to probe into the matter and to scan the individual case of each and every voter in the disputed constituency as well as in their native constituency.
It is also important to note that according to the law applicable to the subject the Chief Election Commissioner prepared the electoral rolls which were then displayed for circulation in the relevant constituencies and objections are called and the learned returning officer concerned, scrutinized the objections and then to decide the matter. The petitioners have never raised any objection at the proper time announced by the Chief Election Commissioner and have come to this Court at a very belated stage when the election is going to be held on 18.02.2008 and when the election schedule is announced and date for election is fixed no interference is warranted in the process of election or with respect to de-limitation of the constituency or the preparation of the electoral rolls as held in the case reported as "Election Commission of Pakistan through its Secretary Vs. Javaid Hashmi and others" PLD 1989 SC 396.
This being the position there is no force in the present writ petition which is dismissed in limine.
(M.A.K.Z.) Petition dismissed
PLJ 2008 Peshawar 268 (DB)
[D.I. Khan Bench]
Present: Muhammad Alam Khan and Shah Ji Rehman, JJ.
Mst. NAGINA BIBI--Petitioner
versus
MUKHTAR HUSSAIN and 2 others--Respondents
W.P. No. 302 of 2005, decided on 21.5.2008.
West Pakistan Family Courts Act, 1964 (XXV of 1964)--
----S. 5--Constitution of Pakistan, 1973, Art. 199--Dissolution of marriage--Relief of dower and maintenance granted but dissolution of marriage refused--Concurrent finding--Constitutional petition--There was a difference in the temperaments of the parties--Relation inter-se the parties have become so strained to have a happy union and to live within the limits prescribed by Allah Almighty and the petitioner was entitled to the decree for dissolution of marriage on the ground of Khulla--Writ Petition accepted--Decreed of the two Courts below modified and only decree for dissolution of marriage granted on basis of Khulla subject to the condition that petitioner will not claim the house decreed in her favour as she has claimed Khulla in lieu of the house--Petition accepted. [P. 270] A
Muhammad Wahid Anjum, Advocate alongwith Petitioner.
Nemo for Respondent having been placed ex-parte.
Date of hearing: 21.5.2008.
Order
Muhammad Alam Khan, J.--Mst. Nageena Bibi daughter of Zulfiqar, Caste Sahoo, resident of Paharpur, District D.I. Khan has filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to set-aside the judgments and decrees passed by respondents No. 2 and 3 dated 06.10.2005 and 16.5.2005 respectively, vide which the relief of dower and maintenance was granted to the petitioner by the learned two Courts below but her prayer for dissolution of marriage was refused.
Pre-admission notice was issued to Respondent No. 1 and in spite of service he did not appear and thus, he was placed exparte vide order of this Court dated 13.3.2008.
Briefly, narrated the facts of the case are that the petitioner filed a suit for the recovery of cash dower amounting to Rs. 1000/-, golden ornaments weighing three tolas and a house fully detailed in the head notes of the plaint. The defendant submitted detailed written statement vide which the allegations in the plaint were hotly contested. After recording of pro and contra evidence and hearing the learned counsel for the parties and consulting the data available on record, the learned Judge Family Court (Respondent No. 3), vide judgment and decree in Suit No. 10/FC of the year 2005 decided on 16.5.2005 decreed the suit of the petitioner with respect to the recovery of three tolas golden ornaments, Rs. 1000/- as dower amount, recovery of the suit house detailed in the heading of the plaint and maintenance at the rate of Rs. 1000/- per month from 25.4.2004 till 16.5.2005. However, her prayer for dissolution of marriage was dismissed. The petitioner then filed an appeal before the learned District Judge, D.I.Khan who, while concurring with the learned Judge Family Court, dismissed the appeal of the petitioner Mst. Nageena Bibi vide FCA No. 5/2005 decided on 06.10.2005.
Now Mst. Nageena Bibi has assailed the judgments and decrees of the two Courts below only to the extent of refusing her prayer for dissolution of marriage.
It was argued by learned counsel for the petitioner that the attitude of Respondent No. 1 towards the petitioner was cruel and he used to subject her to physical beating and. even refused to maintain her and in wearing apparels she was forced to leave the house of her husband and thus, she took shelter in the house of her parents. It was prayed that on these grounds the petitioner was entitled to dissolution of marriage.
After partly hearing the learned counsel for the petitioner, the petitioner came forward and recorded her statement on Oath that it is not possible for her to live with the respondent within the limits prescribed by Allah Almighty and thus, opted for dissolution of marriage on the ground of Khula in lieu of the suit house decreed in her favour by the learned Judge Family Court, Respondent No. 3.
We have gone through the record of he case as well as material available on the file, the submissions of learned counsel for the petitioner and the statement of the petitioner recorded on Oath.
Perusal of the record reveals that there is difference in the temperaments of the parties. The relations inter-se the parties have become so strained to have a happy union and to live within the limits prescribed by Allah Almighty and the petitioner is entitled to the decree for dissolution of marriage on the ground of Khula.
Resultantly, we accept this writ petition and modify the judgments and decrees of the two Courts below only to the extent that decree for dissolution of marriage is granted to the petitioner against Respondent No. 1 on the basis of Khula subject to the condition that the petitioner will not claim the house decreed in her favour as she has claimed the Khula in lieu of the house. No order as to costs.
(M.A.K.Z.) Petition accepted
PLJ 2008 Peshawar 270 (DB)
[D.I. Khan Bench]
Present: Muhammad Alam Khan and Shah Ji Rehman, JJ.
ZAHEER-UD-DIN and another--Petitioners
versus
MIAN SAQIB and 3 others--Respondents
W.P. No. 273 of 2007, decided on 21.5.2008.
West Pakistan Urban Rent Restriction Ordinance, 1959 (VII of 1959)--
----S. 13--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Eviction--Application for impleading as party--Rejection of--Concurrent finding--Aggrieved person--Maintainability--Application for impleadment of Respondent No. 2 had been dismissed and appeal also failed--She was the aggrieved person to have impugned the two order in writ petition--She has never challenged the impugned orders and the petitioners are not aggrieved persons--The grievance of the petitioners, that while dictating the facts of the case the learned lower fora by passing on remarks have held that with the mutual consent of counsel for the parties that the rent controller will frame a preliminary issue and after affording an opportunity to the parties of reading evidence will decide the said issue--Order will still intact and sent controller would decide the matter in due course of time--Petition dismissed. [P. 272] A
Mr. Khawaja Nawaz Khan, Advocate for Petitioners.
Date of hearing: 21.5.2008.
Order
Muhammad Alam Khan, J.--Zaheeruddin and Raeesuddin have filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, through which they have challenged the interim order of the Rent Controller/Civil Judge-V, D.I. Khan dated 24.10.2005 vide which the application filed by Mst. Zaitoon Bibi Respondent No. 2 in a pending eviction petition between Mian Saqib and Zaheeruddin was dismissed. The petitioners have also impugned the order of the learned Additional District Judge-III, D.I. Khan-Respondent No. 4 as he, while acting as appellate authority under the West Pakistan Urban Rent Restriction Ordinance, 1959, dismissed the appeal of Mst. Zaitoon Bibi aforesaid vide order dated 2.10.2007.
Briefly narrated the facts of the cast are that Mian Saqib Respondent No. 1 brought an eviction application against the petitioners in the Court of Rent Controller which is pending disposal. During the pendency of the application a dispute arose between the parties regarding the existence of relationship of landlord and tenant and finally the matter came to this Court in Writ Petition No. 287/2005 decided on 15.01.2007 wherein, by the mutual consent of the parties, it was held that the learned Rent Controller will frame a preliminary issue with respect to existence of relationship of landlord and tenant between the parties and after recording of evidence will decide the matter.
The matter was pending adjudication between the parties when in the meanwhile Mst. Zaitoon Bibi Respondent No. 2 submitted an application on 24.9.2005 praying therein that she has a share in the suit property and thus, being a necessary party, she be impleaded as such in the eviction proceedings pending between Mian Saqib and Zaheeruddin. The learned Civil Judge-V, D.I.Khan as Rent Controller, vide order dated 24.10.2005 after hearing the learned counsel for the parties and perusing the data available on the record, dismissed the application.
Mst. Zaitoon Bibi, being aggrieved, filed Misc. Civil Appeal No. 9/2005 which came up for hearing before the learned Appellate Court namely Aurangzeb Khattak, Additional District Judge-III, D.I.Khan and the learned Appellate Court, after hearing the counsel for the parties and perusing the record, concurred with the learned Rent Controller and dismissed the appeal of Mst. Zaitoon Bibi Respondent No. 2 vide order dated 02.10.2007. Now the petitioners have impugned the above said orders through the instant writ petition.
The learned counsel for the petitioners submitted that the Rent Controller was seized of the matter and certain passing on remarks have been made in the impugned orders that Mian Saqib Respondent No. 1 is the landlord, in spite of the fact, that the question of existence of relationship of landlord and tenant was subjudice between the parties.
We have gone through the record of the case and are of the considered view that this writ petition is not maintainable. The application for impleadment of Mst. Zaitoon Bibi Respondent No. 1 had been dismissed by the learned Rent Controller and her appeal before the appellate authority also failed. Thus, she was the aggrieved person to have impugned the two orders in writ petition. She has never challenged the impugned orders and the petitioners are not aggrieved persons within the meanings of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The grievance of the petitioners, that while dictating the facts of the case the learned lower fora by passing on remarks have held that Mian Saqib was landlord, is without any substance as earlier stated that vide order dated 15.01.2007 in W.P. No. 287/2005 this Court has specifically held with the mutual consent of learned counsel for the parties that the learned Rent Controller will frame a preliminary issue and after affording an opportunity to the parties of leading evidence will decide the said issue. That order is still intact and the learned Rent Controller would decide the matter in due course of time.
In view of the facts and circumstances narrated above, there is no force in the instant writ petition which is dismissed in limine.
(M.A.K.Z.) Petition dismissed
PLJ 2008 Quetta 1
Present: Akhtar Zaman Malghani, J.
SULTAN MUHAMMAD--Petitioner
versus
Haji KHAIR MUHAMMAD and 2 others--Respondents
Civil Revision No. 139 of 2003, decided on 31.8.2007.
Civil Procedure Code, 1908 (V of 1908)--
----S. 105--Original or appellate jurisdiction--Report of hand writing expert--Validity--Question of--Proof of signature of document--Rejecting objections had attained finality--Hand writing expert report is not admissible--If they wanted to take any benefit of expert's report then they should have examined him in Court by summoning him--Appellate also erred in law by rejecting objections with regard to admissibility of expert's report on the ground that the order passed by civil judge rejecting objections had attained finality have not been challenged further because petitioner could competently challenge such order in appeal--Report of hand writing expert is not admissible in evidence in view of such legal infirmities, as such same is kept out of consideration. [P. 5] B
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Arts. 79 & 17(2)(a)--Civil Procedure Code, (V of 1908), S. 115--Question of--Proof of execution of document required by law to be attested--Onus was upon plaintiff/respondent--Not fulfill the requirement of two attested witnesses--After denial by petitioner about execution of sale agreement onus was upon plaintiffs/respondents to have produced two attesting witnesses, but only one attested witness was produced, as such could not fulfill the requirement of such Arts--Held: Onus was upon the plaintiffs/ respondents to have proved execution of agreement, on the basis whereof they were seeking performance but they failed to prove its execution in accordance with law--Judgments and decrees passed by Courts below on the basis of such inadmissible evidence could not be maintained. [P. 6] C
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 59--Opinion of an expert--Validity--Report prepared by expert would be admissible without examination of the report. [P. 5] A
Concurrent findings--
----Jurisdiction of High Court--Jurisdiction of High Court to disturb concurrent findings of fact in revisions--Validity--Concurrent findings are based on gross misreading non-reading or misconception of evidence available on record, then High Court is competent to reverse such findings--Revision dismissed. [P. 6] D
2004 SCMR 595.
Mr. Basharatullah, Advocate for Petitioner.
Mr. W.N. Kohli, Advocate for Respondents.
Date of hearing: 3.8.2007.
Judgment
This revision petition is directed against the judgment and decree dated 10.03.2003 passed by District Judge, Pishin in Civil Appeal No. 44/2002 whereby appeal filed by petitioners against the Judgment and Decree dated 29.06.2002 rendered by Civil Judge, Chaman was dismissed.
Briefly stated, facts of the case are that the respondents instituted a suit for specific performance against the petitioner on the averments that the petitioner on 15.05.1999 entered into sale agreement with the plaintiffs in respect of his share in the land bearing Khasra Nos. 312, 350, 358/1, 359, 360 and 361 situated in Mohal Khushkaba Segi, Mouza and Tappa Segi measuring 239 rods, 26 poles in consideration of Rs. 150,000/- out of which Rs. 100,000/- were paid while balance amount was agreed to be paid at the time of mutation in plaintiffs' favour. It is further averred that possession of the land was also handed over to the plaintiffs, however; he delayed the transfer of land on one pretext or the other despite offer of Rs. 50,000/- and lastly flatly refused. The suit was contested by the petitioner. Execution of agreement was specifically denied and it was stated that the agreement dated 15.05.1999 was a forged and fabricated document. The learned Civil Judge, Chaman in the light of pleadings of parties struck following issues:--
Whether the suit of the plaintiffs is liable to be dismissed in view of the preliminary legal objections "B", "C" and "D"?
Whether the plaintiffs have purchased the suit land through `Iqrarnama' dated 15.5.99 from defendant in consideration of Rs. 150,000/- out of which defendant has received Rs. 100,000/-?
Whether the plaintiffs are entitled to the relief claimed for?
Relief?
The plaintiffs produced three witnesses apart from statement of their attorney Haji Khair Muhammad; whereas petitioner produced four witnesses and also got recorded his own statement. The learned Civil Judge, Chaman vide judgment and decree dated 29.06.2002 decreed the suit. Appeal filed by petitioner against said judgment and decree was also dismissed by District Judge, Pishin vide impugned judgment and decree.
I have heard the learned counsel for petitioner as well as learned counsel for respondents. Learned counsel for petitioner vehemently contended that onus to prove execution of the agreement in view of specific denial by the petitioner was upon respondents but they failed to prove its execution in accordance with law. He further contended that it was essential for the respondents to have produced both the marginal witnesses in view of provisions of Article-79 of Qanun-e-Shahadat Order, 1984 but they failed to produce both the witnesses, as such; both the Courts below erred in law by decreeing the suit based on such un-proved sale agreement. The learned counsel next argued that reliance of learned trial Court upon the so-called report of hand writing expert without examining said expert was illegal. Similarly the appellate Court over ruled objection raised by the petitioner's counsel in respect of admissibility of sale agreement on the ground that refusal by the trial Court to summon expert was not challenged further and it had attained finality which conclusion was based on misconception of law as in appeal against the final judgment and decree the appellant could competently challenge non-appealable interlocutory order passed during the trial. He further contended that concurrent findings could be disturbed in revisional jurisdiction, if same were based on misreading of evidence on record or inadmissible evidence. In support of his contentions learned counsel referred to the judgments reported in 1974 SCMR 411, 1983 CLC 657, 2001 SCMR 1700 and 2004 SCMR 595.
On the other hand learned counsel for respondents vehemently argued that concurrent findings of fact arrived at by the Courts below could not be disturbed in revisional jurisdiction. He further contended that the respondents proved their possession over the property in dispute and had also produced one marginal witness whose evidence coupled with expert's report was sufficient to prove execution of agreement. He further contended that opportunity was given to the petitioner to produce expert in evidence on his own expenses but he refused to bear the expenses, as such; the report of expert could not become in-admissible due to non-examination of expert. The learned counsel in support of his arguments placed reliance on the judgments reported in PLD 1994 S.C. 291 and PLD 1995 S.C. 381.
"The evidence of this witness is not very impressive. He has hardly been able to give good reasons to support his opinion that on comparison of the various specimen signatures he was of opinion that the signatures of the export application forms and the I.R.P. forms, dated 23rd and 24th of December 1956, were in the handwriting of the appellant. His evidence is of very little value to us".
A
"Mr. A.S. Pirzada, learned counsel for the appellants has submitted that this evidence is of no use because the Expert has not been examined in Court. This objection of the learned counsel appears to be well founded. I would, therefore, not take into consideration the report of the Handwriting Expert".
B
"We have considered the submissions made by learned counsel for the petitioners and perused the record. It is admitted fact that the petitioners had produced only one witness P.W.1 Sher Bahadar to prove the execution of agreement Exh.P.I. as evident from para. 9 of the judgment of the Additional District Judge. According to Articles 17 and 79 of Qanun-e-Shahadat Order, 1984 petitioners had to produce two attesting witnesses of the agreement in question. As mentioned above, petitioners had produced only one witness to prove the agreement to sell, therefore, all the Courts below were justified to non-suit the petitioners as law laid down by this Court in various pronouncements".
After denial by the petitioner about execution of sale agreement onus was upon the respondents to have produced two attesting witnesses i.e. Abdul Ali and Salah-ud-Din but only one attesting witness namely Abdul Ali was produced. The second witness namely Abdul Wadood produced by the respondents was not attesting witness, as such could not fulfill requirement of the above referred Articles. Furthermore; perusal of Ex. P/1-A reveals that the said stamp paper was issued by Vendor on 30.06.1994, that too; in favour of un-known, person whereas agreement was executed on 15.05.1999 which fact also created doubts in genuineness of said agreement.
The onus, as already observed, was upon the respondents to have proved execution of the agreement, on the basis whereof they were seeking performance but they failed to prove its execution in accordance with law, as such; both the Courts below erred in law by considering inadmissible document, therefore; judgments and decrees passed by both the Courts below on the basis of such inadmissible evidence could not be maintained. As regards arguments of the learned counsel for the respondents about jurisdiction of this Court to disturb concurrent findings of fact in revision, suffice to observe that said rule is not an absolute rule and where it is found that concurrent findings are based on gross mis-reading, non-reading or misconception of evidence available on record then this Court is competent to reverse such findings. The Hon'ble Supreme Court in the judgment reported in 2004 SCMR 595 held as under:
Qta. Transways Enterprises v. M.V. Aldona PLJ (Amanullah Khan Yasinzai, C.J.)
2008 Transways Enterprises v. M.V. Aldona Qta. (Amanullah Khan Yasinzai, C.J.)
"Having examined all aspects of the matter, we find that no exception could be taken to the conclusions reached by the Honourable High Court which had persuaded the learned Judge in Chamber to set aside the concurrent judgments of the two subordinate Courts. Needless to mention here that there was no absolute rule that the concurrent judgments of the subordinate Court could never be interfered with by the High Court even if the said judgments were found to be based on gross mis-reading non-reading or misconception of the evidence available on record. Laying down such a law would have the effect of setting the provisions of Section 100 and Section 115 of the C.P.C at naught".
In view of what has been discussed above, I am inclined to set aside the judgments/decrees dated 29.06.2002 and 10.3.2003 passed by Civil Judge, Chaman and District Judge, Pishin respectively. Consequently the suit filed by the respondents is dismissed with no order as to cost. Decree sheet be drawn accordingly.
(N.F.) Suit was dismissed.
PLJ 2008 Quetta 7
Present: Amanullah Khan Yasinzai, C.J.
TRANSWAYS ENTERPRISES, S.A. 80 BOARD STREET MONROVIA LIBERIA--Plaintiff
versus
M.V. ALDONA (FORMERLY LILAC ISLANDS) through the Master/Chief Officer and 4 others--Defendants
Admiralty Suit No. 1 of 2006, decided on 5.1.2007.
Admiralty Jurisdiction of the High Courts Ordinance, 1980--
----Ss. 4(4), 4(1), (2), (3) & 5--Suit for recovery--Admiralty Jurisdiction of High Court--Invoked--Seeking implementation of foreign judgment by appellant--Action in rem and personam--Maritime lien on ship--Owner of vessel--Held: Admiralty Jurisdiction of the High Court be invoked by an action in personam--If a suit u/S. 4(4) of the Ordinance is brought for an action in personam, when cause of action in Personam accrued, person liable, at the time was the owner of the res i.e. the vessel--Cause of action accrued to the plaintiff, the vessel was not owned by the present owner i.e. commercial metals--Ship was purchased from its previous owner--Ship was registered in Panama--Vessel was purchased through a valid agreement and a non-encumbrance certificate was also issued--Purchaser had no knowledge about the proceeding against the res. [Pp. 18 & 19] A
Words and Phrases--
----Navigable--Ship and vessel--Vessel had been beached at Gaddani and it was argued at length that Admiralty Court can only issue arrest warrants of Vessel, if it is navigable. [P. 20] C
Admiralty Jurisdiction--
----Suit had been found not entertainable in the hierarchy of admiralty jurisdiction, for the enforcement of foreign judgments passed by the ordinary Courts and further the ship is not more, vessel therefore, it is not necessary to go into question of limitation--Suit dismissed, for grant of jurisdiction. [P. 21] D
Words and Phrases--
----Vessel--To determine--Contention--Ship has not been as such being not navigable cannot be termed a "Vessel" To determine, it would be advantageous to refer to definition of berth, which means place allocated to Trading Vessel which comes and leaves for loading and unloading goods. [P. 20] B
Mr. Agha Faqir Muhammad, Advocate for Plaintiff.
M/s. Muhammad Naeem Ishrat Alvi and Mr. H. Shakil Ahmed, Advocates for Defendants.
Date of hearing: 28.11.2006.
Judgment
By invoking the admiralty jurisdiction of this Court, instant suit has been filed by plaintiff, for recovery of US$:9,759,415.54 and enforcement of foreign judgment against Defendant No. 1 in rem and against Defendants 2 to 5 in personam.
Succinctly the facts as disclosed in the plaint are that, plaintiff is a Liberian Company engaged in various activities in different fields of International trade and commerce, including shipping and maritime industry in general. For carrying out the obligations of transportation, the
Defendant No. 1--Vessel was being used for carrying the goods from one port to another, on the basis of which, she was earning the freight. According to the plaintiff, the Defendant No. 2, is the current owner of the Vessel whereas
Defendant No. 3 is the former owner at the relevant time when cause of action accrued in the year, 2003. The Defendant No. 4 is the current Manager of the
Vessel while the Defendant No. 5 was the former Manager. It was averred that, in the year, 1993, the plaintiff was approached by another company i.e.
Navigational Satellites Chartering Limited (in short "NSC") for representing the plaintiff in the maritime activities. In lieu of such request, the NSC was appointed as plaintiffs Agent for carrying out maritime operations.
During association with NSC the two long term partners of plaintiffs namely
Empressa Cubana Importedfora de Productus Quimicos (Quininport') and Empressa
Cubana de Alinentos (Alimimport') to co-operate with Defendant No. 5, a Cuban
State Company in the name and style of `Naviera Poseidon. It is the case of plaintiff that since 1993 and until termination of relationship between the plaintiff and NSC in 2003, the plaintiff undertook various projects of maritime when NSC requested him to co-operate with Defendant No. 5, which resulted in giving various projects to Defendant No. 5, but during course of transportation it transpired that, due to various acts of omissions of Defendant No. 5, the plaintiff encountered significant problems and losses and secondly its reputation as a charterer was seriously damaged ensuing to extensive legal costs, incurred by plaintiff, which have not been recovered till to date and due to negligent act of Defendant No. 5, the excellent relation of the plaintiff with the Cuban State Companies was destroyed, leading to serious financial losses and also forced it to incur huge legal expenses. It has been further averred in the plaint, that in the year, 2000, NSC proposed to the plaintiff regarding transportation of two cargoes from Tunisia to Cuba i.e. the first involved the charter being Quimimport for 6000 tons of cargo and second involved the charterer being Alimimport for 4000 tons of cargo and for the said voyages, the Defendant No. 5, was meant to provide a vessel i.e. "M.V.
Shannon" to carry the said two cargoes. However, the plaintiff performed his part of obligation despite encountering the threats of Defendant No. 5, for reducing the rates, and at the end of voyage. The Defendant No. 5, owed an amount of US $:114,835.70 and despite several promises for settlement, the
Defendant No. 5 never paid the same. Thereafter the Defendant No. 5, after the initiation of NSC entered into an agreement with the plaintiff, which was finally concluded, wherein it was agreed that that Defendant No. 5, would provide the Vessel controlled by it to NSC on a voyage basis according to fixtures set by the plaintiff, and the outstanding amount would be paid in installments of US$:50,000 per voyage until the debt is fully paid. In lieu of this Agreement, the Vessel M.V. Lilac Island (now renamed as M.V. Aldona) was chartered pursuant to charterparty dated 7.2.2002. It is the case of plaintiff that, right from the beginning of this charterparty, the Defendant No. 1 was not in a position to pay disbursements (port dues agency fees etc.) in Tunisia being the last port of discharge, nor was in a position to pay for spare parts, bunkers and supplies needed to enable the Vessel's performance and seaworthiness. These problems continued when charterparty dated 10.5.02, was arrived, on the basis of which second Vessel M.V.Lotus chartered. The Vessel
M.V. Lilac Island proceeded for the agreed voyages and arrived at the post of
Conakry, however the said vessel was arrested with cargo on board by Adecon
Shipping Inc. (is short "Adecon') of Ontario Canada, on the basis of
Judgment dated 10.12.2003, as the vessel had to deliver one more cargo, pursuant to new agreement, which commenced while the Vessel was discharging at the port of Conakry. The plaintiff in the meanwhile approached the Cuban
Ministry of Transport,, but no reply was received from Cuba and during this time, the plaintiff leant that the Court of Conakry had ordered auction of
Vessel M.V. Lilac Island in relation to the claim of Adecon. Thus realizing that the Res i.e. Vessel was incapable of performing its contractual obligation and having no option but to secure its claim, the plaintiff initiated legal action in Guinea originally against Panamaianian companies being owners of two
Vessels i.e. Battersea Maritim e Company (Defendant No. 3) and Wadena Shipping
Co. as well as Defendant No. 5.
Thus the Court of Conakgry after carefully examining the case, issued Orders No. 15 of 26.3.03 and 17 of 2.4.03, in favour of plaintiff, awarding total sum of US $:2,446,976.56 which were served upon all concerned parties. Thereafter realizing that the Defendant No. 5 was not serious in paying the amount, the plaintiff by abundant caution presented a further petition in the First Court of Conakry, with a claim against the other relevant companies. In the first instance the Court of Conakry confirmed the award of US $:2,446,976.56 against the relevant Companies jointly and severally. The appeals were filed in the matter against the order dated 14.4.03, which were dismissed in term of Judgment No. 56 of 26.6.03. In the meanwhile the Defendant No. 3, fraudulently succeeded in releasing the Vessel by taking the document of M.V. Lilac Island and allowed the vessel to sail from Conakry. In such circumstances, the plaintiff filed another petition before the First Court of Conakry, which resulted in issuance of Orders No. 80 of 4.6.03 and 123 of 5.6.03, thereby ordering the Defendant No. 5 and Adecon to bring back the Vessel failing which they would be liable to a penalty of 5,000,000 Guinea Francs per day until the Vessel returned. Due to pressure of the Court orders, the Vessel returned to Conakry port.
It is the case of plaintiff that despite various orders passed by the Court of Conakry, the claim of plaintiff was not satisfied and fictitiously the name of M.V. Lilac Island was altered to M.V. Aldona and was somehow brought and beached at Gadani Port. With these averments and for the satisfaction of total claim of US $:9,759,415.54 instant suit has been brought under the Admiralty jurisdiction of this Court, bestowed by Admiralty Jurisdiction of High Courts Ordinance 1980 (hereinafter referred as "the Ordinance of 1980"). The prayer clause of the suit reads as under:--
"The plaintiff therefore prays that this Hon'ble Court may be pleased--
(1) to pass Judgment and decree against the Defendants 1,3 and 3 jointly and severally for US $:9,759,425.54;
(2) to grant mark up/interest at the rate of 30 percent per annum from the date of the Suit till realization'
(3) to issue a Warrant of Arrest and/or orders for attachment of the Defendant No. 1 which is presently berthed at Gadani for the purpose of scrapping/breaking, which exercise may be restrained till such time as the defendants furnish security either through cash payment or through a bank draft or guarantee in US Dollars of an International Bank doing the business of banking in Pakistan to the extent of the amount claimed in the Suit alongwith amount of costs/mark-up and if the security is not furnished, the Defendant No. 1, may be ordered to be sold and the claimed amount paid out of the sale proceeds and the balance if any, to be paid by the Defendant No. 3 and 5 jointly and severally;
(4) to grant costs of the suit; and
(5) to grant such further and other reliefs or any other relief which this Hon'ble Court may deem fit, necessary and proper in the circumstances of the case."
On 01.11.06, the suit came-up for hearing when on an application (being CMA No. 945/2006), filed by plaintiff showing apprehension that the Vessel might be scrapped and the Judgments of the Conakry Court will be frustrated; status-quo order was passed directing the defendants not to scrap the Vessel.
After passing of the order, Mideast Shipping & Trading Ltd. who is the Vendor of the ship, requested for impleading them as party and filed reply to CMA No. 945/2006. They were allowed to plead their case vide order dated 14.11.06. In response to the notices, the Defendant No. 1, also filed Counter affidavit/reply to application for arrest of Vessel.
Both Defendant No. 1 and the Vendor contested the suit on legal and factual plane.
I have heard Mr. Agha Faqir Muhammad, learned Counsel for the plaintiff, Mr. Muhammad Naeem, learned Counsel for Intervener/Vendor and Mr. Ishrat Alvi, learned Counsel for Defendant No. 1.
Learned Counsel Mr. Muhammad Naeem, argued that plaintiff in the aid of admiralty jurisdiction of this Court, is seeking implementation of Foreign Judgments, passed by the Courts, acting in the hierarchy of civil and commercial Jurisdiction, against the defendant No. 1, in rem and against
Defendant No. 2 to 5 in personam. Learned Counsel while elaborating his contention argued that, suit in itself does not disclose that it is for enforcement of Foreign Judgments and the prayer clause indicates that claim of plaintiff is solely for the recovery of US $:9,759,425.54, which proves that the suit is simplicator for recovery of money and if the plaintiff is seeking relief against the Vessel in rem, then he has no right to seek any relief against Defendants 2 to 5 in personam. Learned Counsel strenuously re-iterated that enforcement of judgments which is being sought, infact had not been passed by the Admiralty Court of Conakry and on the basis of Judgments passed a Court of Conakry functioning in the hierarchy of Civil & Commercial jurisdiction, the plaintiff is trying to bring his case within the admiralty jurisdiction of this Court, thus this Court had no jurisdiction to entertain the suit. Learned
Counsel emphatically argued that, this Court under the Admiralty jurisdiction cannot enforce the Judgments in personam as the Judgments in rem purported to be enforced is against the Res. i.e. Vessel and above all the ship is no more
navigable', as it has not beenberthed' but it has been `beached' at Gaddani and process of scrap has already started and now it cannot be said to be a
'Vessel' in terms of the Ordinance of 1980.
Agha Faqir Muhammad, learned Counsel in reply stated that, he only seeks relief against the Vessel in rem and does not press the relief against the defendants 2 to 5 in persoman.
Adverting to the argument of learned Counsel that, prayer clause of suit does not disclose that, suit is for enforcement of Foreign Judgments; in this behalf, reference may be made to the prayer clause, reproduced herein-above. It may be seen that plaintiff is not pressing relief claimed in prayer clauses (1) & (2), and is only pressing prayer clause (3), wherein relief has been sought for issuance of warrant of Arrest and attachment of the Vessel (Defendant No. 1), but there is nothing to suggest that said relief is being sought, pursuant to enforcement of Judgments passed by the Admiralty Court of Conakry. In this behalf, reference may be made to para-32 of the plaint, which reads as follows:
"That the suit is maintainable in rem against Defendant No. 1 and the plaintiff is entitled in law to arrest/attach the Defendant No. 1, under the Admiralty Jurisdiction of High Courts Ordinance, 1980 ("1980 Ordinance") since, inter alia, the plaintiff has a `charge' over the Vessel. That if the amount due is not paid then the Defendant No. 1, is to be sold and the outstanding amount is to be paid out of the same proceeds of Defendant No. 1 and this Hon'ble Court has jurisdiction in the matter as the Vessel is presently berthed within the jurisdiction of this Hon'ble Court."
The contention of Mr. Muhammad Naeem, learned Counsel has substance that, plaintiff only wants to bring his case under the Admiralty Jurisdiction of this Court, on the basis of Judgments passed by the First Instance Court of Conakry and the Appeal Court of Conakry, under the hierarchy of civil and commercial jurisdiction. I have minutely gone through the Judgments passed by the First Instance Court of Conakry and the Appeal Court of Conakry. A bare perusal of the same transpires that, said Courts have not passed Judgment as Admiralty Courts, but it appears that the Judgments were passed by ordinary Civil Courts, against the Companies and not the Vessel, by taking into account the provisions of United Act of 10th April, 1998 and various articles of Financial and Administrative Civil Procedure Code. In such circumstances, the case of plaintiff thus, would not fall within the admiralty jurisdiction of this Court, as laid down in Section 3 of the Ordinance of 1980, which reads as under :--
3.-(1) The Sindh High Court and the High Courts of Balochistan shall have and exercise, within their respective territorial jurisdiction, Admiralty jurisdiction as is in this Ordinance provided and the Lahore High Court and the Peshawar High Court shall, within their respective territorial jurisdiction, have and exercise the said jurisdiction in cases in which any question or claim relating to aircraft is to be determined.
(2) The Admiralty jurisdiction of the High Court shall be as follows, that is to say, jurisdiction to hear and determine any of the following causes, questions or claims--
(a) any claim to the possession or ownership of a ship or to the ownership of any share therein or for recovery of documents of title and ownership of a ship, including registration certificate, log book and such certificates as may be necessary for the operation or navigation of the ship;
(b) any question arising between the co-owners of a ship as to possession, employment or earnings of that ship;
(c) any claim in respect of a mortgage of or charge on a ship or any share therein;
(d) any claim for damage receive by a ship;
(e) any claim for damage receive by a ship;
(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or of the wrongful act, neglect or default of the owners, charters or persons in possession or control of a ship or of the master or crew thereof or of any other person for whose wrongful acts, neglects or defaults, the owners, charterers or persons in possession or control of a ship are responsible being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge or goods on, in or from the ship or in the embarkation, carriage or disembarkation of persons on, in or from the ship;
(g) any claim for loss of or damage to goods carried in a ship.
(h) Any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or shire of a ship;
(i) Any action or claim in the nature of salvage of life from a ship or cargo or any property on board a ship or the ship itself or its apparel, whether services rendered on the high sea or within territorial waters or internal waters or in a port, including any claim arising by virtue of the application by or under Section 12 of the Civil Aviation Ordinance, 1960, of the law relating to salvage to air-craft and their apparel and cargo;
(j) Any claim in the nature of to wage in respect of a ship or an aircraft whether services were rendered on the high sea or within territorial waters or internal waters or in port;
(k) Any claim in the nature of pilotage in respect of a ship or an aircraft;
(l) Any claim in respect of necessaries supplied to a ship;
(m) Any claim in respect of the construction, repair or equipment of a ship or dock charges or dues;
(n) Any claim by a master or members of the crew of a ship for wages and any claim by or in respect of a master or members of the crew of a ship for any money or property which, under any of the provisions of Merchant Shipping Acts or the Merchant Shipping Act, 1923, is recoverable as wages or in the Court and in the manner in which wages may be recovered;
(o) Any claim by a master, shipper, charterer or agent in respect of disbursement made on account of a ship;
(p) Any claim arising out of an act which is or is claimed to be a general average act;
(q) Any claim arising out of bottomry or respondentia;
(r) Any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, in a ship as a Naval Prize or in violation of customary law of the sea or otherwise or for the restoration of a ship or any such goods after seizure or for droits of Admiralty, together with any other jurisdiction for the grant of such reliefs as are provided, under the Merchant Shipping Acts or the Merchant Shipping Act, 1923 any other jurisdiction which was vested in the High Court as a Court of Admiralty immediately before the commencement of this Ordinance or is conferred by or under any other law and any other jurisdiction connected with ships or aircraft in respect of things done at sea which has by tradition or custom of the sea been exercised by a Court of Admiralty apart from this section.
(3) The jurisdiction of the High Courts under clause (b) of sub-section (2) includes power to settle any account outstanding and unsettled between the parties in relation to the ship, and to direct that he ship, or any share thereof, shall be sold, and to make such other order as the Court thinks fit.
(4) The reference in clause (i) of sub-section (2) to claims in the nature of salvage includes a reference to such claims for services rendered in saving life from a ship or an aircraft or in preserving cargo apparel or wreck as, under any law for the time being in force, are authorized to be made in connection with a ship or an aircraft.
(5) The preceeding provisions of this section apply--
(a) in relation to all ships, or aircraft, whether Pakistani or not and whether registered or not and wherever the residence or domicile of their owners may be;
(b) in relation to all claims, wheresoever arising including in the case of cargo or wreck salvage, claims in respect of cargo or wreck found on land; and
(c) so far as they relate to mortgages and charges, to all mortgages or charges, whether registered or not and whether legal or equitable, including mortgages and charge secreted under foreign law:
Provided that nothing in this sub-section shall be construed as extending the cases in which money or property is recoverable under any provisions of the Merchant Shipping Act or the Merchant Shipping Act, 1923".
The plaintiff has utterly failed to show that the Judgments were passed by Admiralty Courts. Reference may be made to the Judgment of Probate Division "The City of Mecca (1879 C.275), wherein while setting aside the Judgment/decree of Sir Phillimore of the Admiralty Court, Jessel, M.R. of Appellate Court held as under :--
"It appears to us clear that this judgment is a personal judgment in a personal action. Then it may be said what is there to argue ? The argument presented to us by the respondents is this First of all it is alleged that the action in Portugal was an action for enforcing a maritime lien; secondly, that whatever the terms of the judgment might be, it was a Judgment for enforcing a maritime lien and a judgment in rem, and that being so, it was a judgment binding the vessel in the Courts of every civilized country under the International Law. But if find the simple answer is that it is not an action or proceeding to enforce a maritime lien nothing of the kind appears on the proceedings. There is no suggestion from beginning to end that the ship is liable; there is no declaration that the ship is liable, and it does not appear on the proceedings that the ship was even within the jurisdiction at the time the action was commenced against the owners. An action for enforcing a maritime lien may no doubt be commenced without an actual arrest of ship, but there is no suggestion that they intended anything of the kind, and, in fact, the law does not allow it. An action against a ship, as it is called, is not allowed by the law of Portugal. You may in England and in most countries proceed against the ship. The writ may be issued against the owner of such a ship, and the owner may never appear, and you your judgment against the ship without a single person being named from beginning to end. That is an action in rem, and it is perfectly well understood that the judgment is against the ship. In the present case the judgment does not affeect the ship at all, unless the ship should afterwards come within the jurisdiction of the Portuguese Court, and then it can be made a proceeding by which you can afterwards arrest the ship and get it condemned.
In the same Judgment, while concurring with the view, Mr. Baggallay, L.J. held as under :--
For reasons that have been assigned by the Master of the Rolls, which it is unnecessary for me to repeat, it appears to me that there is no question but that the proceedings in the Tribunal of Commerce in Portugal were entirely personal proceedings proceedings in personam. No doubt proceedings of a different character were commenced in the Civil Tribunal of Portugal those proceedings preceded the Judgment of the Tribunal of Commerce. In this first instance in the Civil Tribunal an embargo was obtained by the plaintiffs in the present action to arrest the ship, and the ship was only released by giving security. But those proceedings were made the subject of an appeal in the Supreme Court of Lisbon, and ultimately the decision of the Court of first instance was reversed, and on the two grounds to which reference has already been made, the one that it was not within the ordinary jurisdiction of the Tribunal of Commerce to grant an embargo, unless it were established that the ship was to blame, so far differing from proceedings in the English Court of Admiralty, in which, where the matter is in doubt, the ship may be arrested and security given if it is allowed to go, but in Portugal it is not the law while there is a doubt. That was one ground. The second ground for discharging the embargo, I must confess, appears to be one more difficult to understand. Whatever might be the effect of that particular reason which can be only well understood by an examination of the particular article of the Code to which reference has been made; on thing is clear, that there was proceedings that could have been taken in the Civil Tribunal in Lisbon, by which the arrest of the ship could be obtained, and this would be a proceeding in rem according to my view."
Thus on this plane the suit merits dismissal.
Agha Faqir Muhammad, learned Advocate, argued that Maritime lien being a right in rem would be enforceable in rem against the rem, the said lien being a charge on the res and travels with it even in the hands of a bonafide purchaser with notice.
Conversely Mr. Muhammad Naeem, Advocate strenuously argued that, aforesaid principle is not applicable to the instant case. The learned Counsel contended that, under the Admiralty law the Crew Members and Master of the ship have a maritime lien over the res i.e. the vessel but in this case, undisputedly the plaintiff is neither the owner of the vessel nor a Crew member. Besides at time, when the orders were passed, the owner did not own the vessel and the same was purchased later on free from any encumbrance.
It may be observed here that the Crew and the Master of the vessel have a maritime lien over the vessel which right can be enforced against the res the Vessel in admiralty jurisdiction. It is a right in rem and can be enforced by action in rem against the res. In this regard reference may be made to PLD 1991 SC 120 "Hong Leong Fiunance Limited vs. M.V Asian Queen through Nazir High Court". In the case in hand admittedly the plaintiff is neither a Member of the Crew nor the Master of the ship, thus the aforestated principle does not apply to his case.
Coming to the argument of Mr. Muhammad Naeem learned Counsel for the Vender that when the initial cause of action accrued to the plaintiff the Defendant No. 1 was owned by the present Vender.
It may be mentioned here that if a suit under Section 4(4) of the Ordinance is brought for an action in personam, the plaintiff has to show that, when cause of action in personam accrued, person liable, at the time was the owner of the res i.e. the vessel. In the case in hand, admittedly when initially the cause of action accrued to the plaintiff, the Vessel was not owned by the present owner i.e. Commercial Metals. The ship was purchased from its previous owner i.e. the Vendor M/s. Mid East and Trading limited of Navis. It may be mentioned here that the ship admittedly was registered in Panama and though the Judgment of first Court Coankry was passed in the year, 2003, but there is nothing on
record to suggest that the Registration Office at Panama was informed about the Attachment and Judgment against the Vessel. Moreover, the Vessel was purchased through a valid agreement and a non-encumbrance Certificate was also issued. Thus it can be safely concluded that, Purchaser had no knowledge about the proceedings against the res. As such, the Judgment could not be enforced against the purchaser. Reference may be made to 1991 MLD 148 (Himayat Ahmad v. Khalid Khan) and PLD 1993 SC 88 (Atlantic Steamer's Supply Co. vs. m.s. Titisee), In the former, it has been observed as under :--
"In admiralty, suit in rem is competent for recovery of claim for necessities and other disbursement made by the agents only so long as ownership of the vessel has not been changed. Since the ownership of this vessel had changed before the filing of the suit, it became property of new purchaser i.e. Defendant No. 3, free from all encumbrances and proceedings in rem for recovery of the dues, if any, against the previous owners were no longer competent, except where there was a maritime lien available which was not the case in this suit. Plaintiff's counsel has himself admitted that no claim for supply of necessaries which is not a Maritime lien can be enforced again a vessel if its ownership changes before the filing of the suit. Reliance was placed by the Defendant's counsel on the case of Oriental Shipping Company Ltd. v. M.V, Monto-Crisdo (1984 CLC 2265)."
Whereas in the later case-law it has been held as under :--
"It may be observed that Section 4 deals with the mode of exercise of Admiralty jurisdiction. Sub-section (1) thereof provides that subject to the provisions of Section 5, the Admiralty jurisdiction of the High Court may in all cases be invoked by an action in personam, whereas sub-section (2) of it lays down that the Admiralty jurisdiction of the High Court may in the cases mentioned in clauses (a) to (d) (i) and (r) of sub-section (2) of Section 3 be invoked in rem against the ship or property ill question. It may further be stated that sub-section (3) of above Section 4 provides that, in any case, in which there is maritime lien or other charge on any ship, aircraft or other property of the amount claimed, the Admiralty jurisdiction of the High Court can be pressed into service by action in rem against the ship, aircraft or property.
"It may also be noted that sub-section (4) of Section 4 lays down that in case of the claim covered by clauses (e) to (h) and (j) to (q) of sub-section (2) of Section 3 being a claim arising in connection with a ship where the person who would be liable on the claim in action in personam was, when the cause of action arose, the owner of charterer of, or in possession or control of the Admiralty jurisdiction of the High Court may, where the claim gives rise to a maritime lien on the ship or not, be invoked by an action in rem against--
(a) that ship if at the time when the action is brought, it is beneficially owned as respects majority shares therein by that person; or
(b) any other ship which at the time when the action is brought, is beneficially owned as aforesaid."
Coming to the next contention of learned Counsel that the ship has not been berthed, as such, being not navigable' cannot be termed aVessel'. To determine, the said point, it would be advantageous to refer to the definition of berth', which means, the place allocated to the Trading
Vessel which comes and leaves for loading and unloading goods. In the case in hand, the Vessel has been beached at Gaddani and it was argued at length that
Admiralty Court can only issue arrest warrants of Vessel, if it is navigable.
For reference, the meaning of wordsnavigable' ship' andVessel' as defined in Blacks Law Dictionary, are reproduced herein-below :--
"NAVIGABLE. Capable of being navigated: that may be nagivated or passed over in ships or vessels. Natcher v. City of Bowling Green, 264 Ky 584, 95 S.W.2d 355, 259. But the term is often particularly at common law, understood in a more restricted sense viz., subject to the ebb and flow of the tide. Lusher vs. Reynolds, 153 Or. 625, 56, P.2d 1158, 1162.
SHIP. A vessel of any kind employed in navigation. In a more restrained and more technical sense, a thre-masted vessel navigated with sails. U.S. v. Kelly, 4 Wash.C.C. 528, F.Cas.No. 15,516."
VESSEL. A ship, brig, sloop, or others craft used in navigation. The word in its broadcost sence is more comprehensive than `ship'
Any structure which is made to float upon the water, for purpose of commerce or war, whether impelled by wind, steam, or oars. Chaffe vs. Ludeling 27 La.Ann. 607. Any structure, especially a hollow one, made to float upon the water for purpose of navigation; a craft or navigation of the water, often, specifically, one larger than a common raw boat; as, a war vessel; a passenger vessel. City of Tampa v. Tampa Shipbuilding and Engineering Co. 136 Fla. 216, 186 So. 411, 412; Massman Const. Co. vs. Bassett, D.C. Mo., 30F.Supp.813.815"
Learned Counsel argued that the ship is no more Vessel' as it has been beached at Gaddani for scrap. Reference was made to the report of Bailiff, who served the notices of the Court, wherein it was stated on solemn affirmation that, pursuant to the order dated 4.11.06, notices were taken in order to get them served upon the representative of Defendant No. 1, Mr. Saeed Mian and ship on Plot No. 45 Gaddani was beached and there ship M.V.
Aldona was shown to him and it was found that already 25% of the ship was dismantled and scrapped. Thus taking into consideration the above definitions, in the light of this Report, the ship could not be said to be aVessel', as it is no more navigable. In this regard reference may be made to AIR 1999 Bombay 193, wherein following observations have been made:--
"11. From all these discussions regarding res and action in rem it is clear that when the plaintiff files for an action in rem and arrest of vessel, he must prima facie prove that res was in existence on the date of its arrest. If the defence denies the existence of res and contends that res was demolished, the burden is still on the plaintiff to prove that on the date of arrest the res was infact in existence and no demolished to such an extent so as to get converted into goods."
Mr. Muhammad Naeem learned Counsel also raised the question of limitation, by contending that, since the Judgments were passed in the year, 2003 therefore, in view of Section 6 of the Ordinance of 1980, the plaintiff was to file suit within a period of two years, whereas admittedly the same has been filed after a period of two years.
Since the suit has been found not entertainable in the hierarchy of admiralty jurisdiction, for the enforcement of foreign Judgments passed by the ordinary Courts and further the ship is not more `vessel' therefore, it is not necessary to go into the question of limitation.
B
In view of the over-all discussion, the suit is dismissed, for want of jurisdiction, with no order as to costs.
Office to draw the decree sheet and thereafter the filed be consigned to record.
(A.S.) Suit dismissed.
PLJ 2008 Quetta 22 (QB)
Present: Mehta Kailash Nath Kohli and
Muhammad Nadir Khan, JJ.
SALEH MUHAMMAD and 2 others--Appellants
versus
M/s. UNITED BANK LIMITED--Respondent
RFA No. 14 of 2004, decided on 15.11.2007.
Financial Institutions (Recovery of Finances) Ordinance, 2002 (XLVI of 2001)--
----Ss. 2(c), 2(d) & 9--Civil Procedure Code, (V of 1908), S. 96--Suit for recovery specific amount as net amount with damages compensation amount filed against bank which was dismissed--Assailed--Plaintiffs were maintaining savings account with bank--Disappearance of manager of bank--Misappropriation of rupees was alleged against Manager of bank--Plaintiff approached to check his account and found missing of amount--Bank asked to file his claim alongwith documentary evidence--Plaintiff filed claim alongwith available documents--Claim was rejected by bank on false and baseless reason--Committee was constituted and enquiry was made--Validity--Plaintiff had produced an application without record and stated that the receipts have been lost and thereafter forwarded with other application that he has now found the receipts and deposited photostat of the receipts--Receipts were checked from the available record and gave statement to allege fraud of bank--Held: Trial Court has properly appreciated the evidence on record that claim was not based on genuine assertions and the receipts had been made afterward--Manager of bank, who had committed fraud was neighbour of the plaintiff--Enquiry committee had come to finding that record does not talley with their available record--Witness produced by plaintiff, have not corroborated figures of amount claimed--No mis-appreciation or misreading of record--Further held: Question of damages--Claim of appellants/plaintiff is based on receipts which are not genuine having not been proved and are not tallying with record of the bank--Appellants/plaintiff are not entitled to any damages--Appeal dismissed. [Pp. 29 & 30] C, D & E
Financial Institutions (Recovery of Finances) Ordinance, 2001 (XLVI of 2001)--
----Ss. 2 (c), 2(d) & 9--Procedure of Banking
Courts--Jurisdiction--Claims of advancement of loan--Claim of damages--All the claims relating to advancement of loan, furnishing of bank guarantee, mark-up extending in favour of the bank, are triable by Banking Court constituted under the Financial Institutions (Recovery of Finances) Ordinance, 2001--However liability claimed by any person who is not figured or contemplated by word
customer' andfinance' cannot institute a suit--Held: Claim and subject matter of the suit is triable by civil Court and does not fall within ambit of
S. 9 of Financial Institutions (Recovery of Finances) Ordinance, 2001. [P. 28] A & B
Mr. Muhammad Qahir Shah, Advocate for Appellants.
Mr. Muhammad Ayaz Sawati, Advocate for Respondent.
Date of hearing: 24.10.2007.
Judgment
Mehta Kailash Nath Kohli, J.--This appeal under Section 96 of Civil Procedure Code has been filed against judgment and decree dated 15th March, 2004, passed by Civil Judge-V, Quetta, in civil suit No. 08 of 2002, whereby; suit of appellants-plaintiffs for recovery of Rs. 2,07,086/- as net amount with damages/compensation amounting to Rs. 5,00,000/-, filed against respondent-bank has been dismissed.
Facts of the case, in brief, are that appellants-plaintiffs were maintaining savings account number 1895 with United Bank Limited, Shahra-e-Iqbal Branch, Quetta (respondent-defendant) since 23rd December, 1993; there were good relations between the appellants-plaintiffs and staff of respondent-defendant bank. It has been stated in the suit that in the month of August, 1996 an amount of Rs. 2,07,086/- was lying in the account of appellants-plaintiffs, in this regard entry in pass-book was already made by the respondent-bank, in the meanwhile; on 27th August, 1996, publication was made in daily newspapers, with regard to disappearance of Manager of respondent-bank namely Dost Muhammad Nasir, and misappropriation of crores of rupees of different accounts was alleged against said Manager of respondent-bank. It has been stated that Appellant-Plaintiff No. 1, who was mostly maintaining the alleged account while residing in Punjab, and on his return back to Quetta, he approached the respondent-bank to check his account position, when it transpired that an amount of Rs. 3,052/- are lying in his account instead of Rs. 2,07,086/-, in such circumstances, the then Manager and high officials of respondent-bank asked the Appellant-Plaintiff No. 1 to file his claim alongwith documentary evidence, consequently; appellant-plaintiff filed his claim on 10th September, 1996 alongwith certain available documents i.e. pass-book and one pay-in slip. On 6th January, 1997 the respondent-bank asked the appellant-plaintiff to provide complete record of the account, which was duly provided to the respondent-bank through application dated 24th September, 1998, but; the claim of appellants-plaintiffs was rejected by Regional Headquarters of respondent-bank on false and baseless reasons vide letter dated 31st July, 2000. It has been stated in the suit that from the year 1996 to 2000, the appellants-plaintiffs addressed several applications/claims to different authorities, including Hon'ble Federal Ombudsman, but the claim of appellants-plaintiffs being genuine was not accepted by the respondent-bank, moreover; the outstanding amount of appellants-plaintiffs lying in the alleged account was also withheld by the respondent-bank without any justifiable reason. It has been further stated that appellants-plaintiffs are renowned businessmen of Quetta besides dealing in sale and purchase of properties, and on account of withholding of amount of plaintiffs, they could not operate the alleged account, and; by withholding the amount of appellants-plaintiffs, the respondent-bank has deprived them to invest the alleged amount and to earn the amount therefrom to the minimum tune of Rs. 5,00,000/-, hence; causing financial loss to appellants-plaintiffs, respondent-bank is also liable to pay damages/compensation to the appellants-plaintiffs. It is the case of appellants-plaintiffs that amount of the appellants worth
Rs. 2,04,034/50 was illegally and un-authorizedly withdrawn by the above named Manager of respondent-bank being misappropriated by him, and the respondent-bank has either failed to account for or to pay back the same to them, lastly; the respondent-bank refused to pay the said amount. It has been stated that the claim of appellants-plaintiffs was kept pending for more than five years, which act of respondent-bank has caused great miscarriage of justice to the appellants-plaintiffs, hence; present suit was filed seeking following relief:--
"In the circumstances, it is, therefore, respectfully prayed that a decree for recovery of the suit amount may be passed in favour of plaintiffs against the defendant, in the following terms:--
(a) directing defendant to pay Rs. 2,07,086/- as principal outstanding amount;
(b) directing to pay Rs. 5,00,000 by way of damages/ compensation for illegal retention of the amount lying in the account of plaintiffs;
(c) awarding any other relief in addition to the above to which plaintiffs may also be found entitled;
(d) Awarding cost of the proceedings to plaintiffs against defendant-bank, in the interest of justice, equity and fairplay."
Written statement was filed by respondent-bank raising objections that; (a) the suit is barred by time; (b) plaintiffs have no locus standi to file the present suit, therefore, the same is barred under Section 42 of the Specific Relief Act and the same is liable to be dismissed; (c) no cause of action has accrued to the plaintiffs against the defendant, therefore the suit is liable to be rejected under Order 7 Rule 11(d), CPC; (d) plaintiffs have not filed claim in respect of the suit amount alongwith documentary evidence, therefore, the plaintiffs cannot claim any amount on the basis of evidence, which they have obtained from the Ex-Manager of the bank namely Dost Muhammad Nasir, who has committed fraud with the bank; (e) no notice before filing of the present suit was served upon the defendant-bank; (f) no details of so called damages/compensation have been mentioned in the plaintiff. On merits, case of appellants-plaintiff was also contested.
Out of pleadings of parties, learned trial Court i.e. Civil Judge-V, Quetta framed following issues:--
"ISSUES:--
Whether the plaintiffs were holding an Account No. 1895 with defendant?
Whether an amount of Rs. 2,07,086/- lying in the account which was illegally and unauthorizedly withdrawn from the plaintiffs' account by the then Manager namely Dost Muhammad Nasar?
Whether the defendant illegally with-held the amount of the plaintiff, due to which Rs. 5,00,000/- loss was caused to the plaintiff?
Whether the plaintiffs are entitled to the relief claimed for?
Relief?"
The learned trial Court after framing issues, directed the parties to produce their respective evidence.
In support of their claim, appellants-plaintiffs produced PW-1 Haji Ahmedzai; PW-2 Ghulam Farooq son of Haji Muhammad; PW-3 Mushtaq Ahmed Awan (Petition Writer) having produced agreement (Ex: P/l) executed between appellant-plaintiff Saleh Muhammad and one Ahmedzai with regard to purchase of bus; PW-4 Khalid Mahmood, Manager U.B.L having produced documents (Ex: P/3 to P/6), as well as bank record (Ex: P/7 to P/16), and statement of appellant-plaintiff was also recorded. Record reflects that during trial, the learned trial Court without affording opportunity to lead evidence, closed the plaintiffs' side by means of order dated 19th December, 2002. Against aforementioned order, revision petition was filed by appellants-plaintiffs. The learned Revisional Court i.e. District Judge, Quetta vide order dated 24th February, 2003, set aside the order of trial Court, and remanded the case for providing proper opportunity of leading evidence to the appellants-plaintiffs to prove their case. However, again statement of appellant-plaintiff Salah Muhammad was recorded for himself and as attorney for remaining appellants-plaintiffs, who had produced deposit slips (Mark-P/1 & Mark-P/2). On close of appellants-plaintiffs evidence, statement of representative of respondent-Bank i.e. Khalid Mahmood (Manager) was recorded, who has produced record of the respondent-bank.
After conclusion of trial, learned Civil Judge-V, Quetta by means of judgment and decree dated 15th March, 2004, dismissed the suit of appellants-plaintiffs. Against aforementioned judgment and decree, present appeal has been filed before this Court.
Mr. Muhammad Qahir Shah, Advocate appeared on behalf of appellants-plaintiffs, while Mr. Muhammad Ayaz Sawati, Advocate appeared for respondent-defendant bank.
Learned counsel for appellants-plaintiffs stated that the learned trial Court has mis-appreciated the evidence on record, and thus; the order of dismissal of suit is not warranted by law. It was specifically argued that the documents have been filed on record, which show that the amount claimed was deposited was misappropriated, and thus; the order of dismissal of suit is not legal.
On the other-hand, learned counsel appearing for respondent-defendant bank at the very out set stated that the Court below had no jurisdiction under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance XLVI of 2001), and thus; the Court could not have proceeded with the matter despite the fact that the matter had already been determined in their favour on merits. It was further stated that the documents, which have been filed, show that those were prepared afterwards in order to encash the amount, which never stood deposited.
We have considered the arguments advanced by learned counsel for the parties and perused the record. The appellants-plaintiffs have claimed a sum of Rs. 2,07,086/- towards the amount, which alleged to have been deposited by the appellants, while a sum of Rs. 5, 00,000/- has been claimed as damages, as having failed to perform the duties. It is an admitted feature of the case that the respondent-bank in its written statement has admitted that the savings account was opened. Customer has been defined by Section 2(c) of the Financial Institutions (Recovery of Finances) Ordinance, 2001; while
finance' has been defined under Section 2 (d) of the Ordinance XLVI of 2001.
Definition ofcustomer' is provided in Section 2(c) of Financial Institutions
(Recovery of Finances) Ordinance, XLVI of 2001, is reproduced herein-below:--
"2 (c) "customer" means a person to whom finance has been extended by a financial institution and includes a person on whose behalf a guarantee or letter of credit has been issued by a financial institution as well as a surety or an indemnifier".
The above definition contemplates to mean a person to whom a finance has been extended by the financial institutions and includes a person on whose behalf a guarantee or letter of assurance is issued by the financial institution, as well as, the surety and indemnifying the first part of this definition, refers to a person to whom a finance has been extended and does not include the claim relating to amount, if any payable by the bank to customer. At this juncture, it would become relevant to examine the word `finance', as defined by Section 2 (d) of the Ordinance XLVI of 2001, which is reproduced herein-below:
"2 (d) "finance" includes--
(i) an accommodation or facility provided on the basis of participation in profit and loss, mark-up or mark-down in price, hire-purchase, equity support, lease, rent-sharing, licensing charge or fee of any kind, purchase and sale of any property including commodities, patents, designs, trade marks and copyrights, bills of exchange, promissory notes or other instruments with or without buy-back arrangement by a seller, participation term certificate, musharika, morabaha, musawama, istisnah or modaraba certificate, term finance certificate;
(ii) facility or credit or charge cards;
(iii) facility of guarantees, indemnities, letters of credit or any other financial engagement which a financial institution may give, issue, or undertake on behalf of a customer with a corresponding obligation by the customer to the financial institution;
(iv) a loan, advance, cash credit, overdraft, packing credit, a bill discounted and purchased or any other financial accommodation provided by a financial institution to a customer;
(v) a Benami loan or facility that is, a loan or facility the real beneficiary or recipient whereof is a person other than the person in whose name the loan or facility is advanced or granted;
(vi) any amount due from a customer to a financial institution under a decree passed by a Civil Court or an award given by an arbitrator; any amount due from a customer to a financial institution which is the subject-matter of any pending suit, appeal or revision before any Court; any other facility, availed by a customer from a financial institution."
From the reading of above provision, the facilities extended by the banking company to the customer have been included as a whole and even the decree passed by the Civil Court or the award given by an Arbitrator in favour of the bank, is part of this definition, while; claim of any person towards bank either in the form of amount deposited or damages claimed is not included in the above definitions. Section 9 of the Financial Institutions (Recovery of Finances) Ordinance XLVI of 2001, gives jurisdiction to a Court; Section 9(1), is relevant and is reproduced herein-below:--
"9. Procedure of Banking Courts. (1) Where a customer or a financial institution commits a default in fulfillment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a financial institution by the Branch Manager or such other officer of the financial institution as may be duly authorized in this behalf by power of attorney or otherwise."
From the reading and interpretation of all the three definitions, if read conjointly, it is abundantly clear that all the claims relating to advancement of loan, furnishing of bank guarantee, mark-up extending in favour of the bank, are triable by the Banking Court constituted under the said Ordinance. However, any liability claimed by any person, who is not figured or contemplated by word customer' andfinance' cannot institute a suit. Though it has been admitted in the written statement that the account was opened by the appellant, however, the amount claimed was not accepted to be due. Thus, in the circumstances of the case, we are of the considered opinion that the claim and the subject-matter of the suit is triable by the Civil Court and does not fall within the ambit of Section 9 of the Financial Institutions
(Recovery of Finances) Ordinance, 2001.
Coming to the merits of the case, the Issue No. 1 as stated above has been admitted by the respondent-bank with regard to maintaining of account and has rightly been decided by the trial Court in affirmative. So far as the Issue No. 2 is concerned, PW-1 has appeared and stated that the plaintiffs are doing business of transport on partnership basis with one Haji Jao Muhammad. They had purchased a bus from appellant-plaintiff Saleh Muhammad for a consideration of Rs.8,50,000/-. It was stated that an amount of Rs. 2, 50, 000/- was given to plaintiff, which was deposited by him in the, bank. He stated about execution of some agreement for the purposes of above account. PW-1 has also stated about causing of loss on account of non-payment of said amount. In cross-examination, he admitted that he is resident of Nawan Killi. He has stated that at the time of opening of account he was present alongwith plaintiff and was sitting near the counter. He was suggested that he had not given deposit receipt. PW-2 Ghulam Farooq appeared and stated that the plaintiff had the business with UBL, Branch Meezan chowk. It was stated that Haji Ahmedzai and Haji Jao Muhammad had entered into bargain with plaintiff relating to local bus. It was further stated that Haji Ahmedzai and Haji Jao Muhammad had paid Rs. 2,50,000/-, which were deposited by plaintiff in UBL Branch, while Rs. 1,50,000/- was also paid by Haji Ahmedzai, which was also deposited in the account of plaintiff. It was stated that in 1996, he alongwith plaintiff went to bank, who had drawn Rs. 30,000/-, while there remained more than Rs. 2,00,000/- in the account, and thereafter; plaintiff went to Peshawar, and on his return, it transpired that the amount of account was misappropriated. Several question were put, in cross-examination, and it was suggested that no fraud was committed with the plaintiff. He admitted that Dost Muhammad, Ex-Manager of UBL was their neighbourer. He admitted that he alongwith plaintiffs are residing in one and the same house. PW3 Mushtaq Ahmed, petition writer appeared and produced an agreement, which was executed between plaintiff Saleh Muhammad, Jao Muhammad and Ahmedzai on 27th December, 1993. PW-4 Khalid Mahmood Tareen, Manager UBL had produced record Ex:P/2 to P/16 and stated to had produced photostat copy of Ex: P/2, which is a receipt. He had also produced Ex: P/3 to P/6 with regard to deposit of the amount. He further stated that the said receipts were not in his record and the amount of counter foils number 79906436 and 79906437 are not part of his record; the cheque book was also not issued by the bank. He had produced documents i.e. Ex: P/7 to P/15 and the report (Ex: P/16), which contemplates that at some later stage, these receipts were produced and an enquiry report was made, which shows that the said documents had been fabricated and the claim was not genuine. It has been further proved on record that the said documents were forged having been fabricated at a later stage by obtaining signature of Manager of the bank. Plaintiff Saleh Muhammad appeared and reiterated the claim set up in the plaint. He had produced counter foils of alleged cheques (Mark-P/1 & P/2) and stated about execution of the document. He stated about fraud, which was committed in the bank and allegedly stated to have deposited a sum of Rs.2,60,000/-. He stated that he used to keep joint account deposit receipts, but the same were misplaced. He showed his ignorance that after rejection of the claim of plaintiff, other claims were also rejected, as the same were forged. Several suggestions were put and were denied. In rebuttal, Khalid Mahmood, Manager of respondent-bank stated that fraud was committed by the then Manager, and the said fraud was unearthed in 1996. All the customers were sought correction of their record and deposit of their claims alongwith cheques and documentary proof. A committee was constituted and enquiry was made; the plaintiff also had produced an application without record and stated that those receipts have been lost and thereafter he came forward with other application that he has now found the said receipts and deposited photostat of the said receipts. Said receipts were checked from the available record and were not in consonance with the record and gave detailed statement with regard to alleged fraud of bank. In cross-examination, suggestions were put, were also denied. On the basis of evidence, available on record, the learned trial Court dismissed the suit.
From the perusal of record, we are of the considered opinion that the learned trial Court has properly appreciated the evidence on record and has drawn conclusions that the claim put forth was not based on genuine assertions and the receipts had been made afterward. It has also come on record that Dost Muhammad, the then Manager of the respondent-bank, who had committed fraud was neighbour of the plaintiffs. An enquiry committee had come to the finding that the said record does not tally with their available record; the witness produced by the plaintiff, have not corroborated the figures of amount claimed, and thus; the issues on merits have been rightly decided in favour of the bank, and; there is no mis-appreciation or misreading of record.
So far as, the question of damages, since we have already held that the claim of appellants is based on receipts, which are not genuine having not been proved and are not tallying with the record of the bank, thus; the appellants are not entitled to any damages in this behalf. The appeal filed having no merit, is accordingly dismissed with costs.
(R.A.) Appeal dismissed.
PLJ 2008 Quetta 30
Present: Ahmed Khan Lashari, J.
Syed AZIZULLAH--Petitioner
versus
Haji MUHAMMAD AKBAR & 9 others--Respondents
Crl. Misc. Quashment No. 43 of 2006, decided on 15.6.2007.
Constitution of Pakistan, 1973--
----Art. 199--Pakistan Penal Code, (XLV of 1860), S. 302--Criminal quashment--Territorial jurisdiction--Determination--Challan of abduction case was filed in the Court of judicial magistrate for trial of the accused--Complainant filed an application seeking after insertion of S. 302, PPC in the challan case be sent to Sessions for trial, which was rejected--Assailed--Complainant party after murder of the lady and accused did not join or associate with investigation to disclose the facts and after submission of challan of abduction case by an application for insertion of relevant section of murder in the challan and referring the matter to the Court of Sessions--Two acts do not amount to one offence, but are two distinct offences--Held: Murder is not in consequence of first offence, but is re-action of abduction, thus the offences are to be tried separately by Courts having territorial jurisdiction--Further held: Determination of jurisdiction should be made at first and not left to be determined after the Court has made up its mind whether to acquit or convict the accused--Trial Court, after proper appraisal and interpretation of the law rightly rejected the application. [Pp. 33 & 34] B & D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 182--Pakistan Penal Code, (XLV of 1860)--S. 302--Proclaimed offenders--Nominated accused of the complainant party have been declared as proclaimed offenders--Held: No case has been made out falling within the ambit of S. 182 of Cr.P.C. [P. 33] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 185(2)--Constitution of Pakistan, 1973--Art. 199--Appellate Criminal jurisdiction--Proceedings were first commenced--Validity--Where two or more Courts not subordinate to the same High Court have taken cognizance of the same offence--High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced may direct the trial of such offender to be held in Court subordinate to it, and if it is so decides all other proceedings against such person in respect of such offence shall be discontinued.
[P. 33] A
Mr. Kamran Murtaza, Advocate for Petitioner.
M/s. Ayaz Zahoor & Muhammad Qahir Shah, Advocates for Respondents.
Date of hearing: 5.6.2007.
Judgment
By this Criminal Quashment Petition, order dated 28-11-2006, passed by Judicial Magistrate-I, Quetta, has been challenged, with the following prayer:
"It is accordingly respectfully prayed that the order dated 28.11.2006 passed by learned Judicial Magistrate-I, Quetta be quashed and direction be issued to send the matter to the Sessions Judge, Quetta for trial of the case u/S. 302 PPC also as alleged by the petitioner beside passing of an order within the meaning of Section 185(2) Cr.P.C. with any other relief in the interest of justice."
The stated facts of the prosecution case are that on 21-10-2005, complainant Syed Abdul Haleem in his report registered vide Crime No. 38/2005 of Police Station Cantt. Quetta, offence under Sections 365, 147, 148, 149 PPC alleged that after his refusal to give the hand of his daughter, namely, Aisha Bibi to accused Jaffar, the accused alongwith co-accused Muhammad Tahir, Muhammad Zafar, Niamatullah, Syed Muzaffar, Usman, Junaid and others abducted his daughter in a vehicle from his house situated at Shahrah-e-Chiltan, Quetta Cantt. The abductee and accused Jaffar were, subsequently, murdered at Peshawar and case vice Crime No. 186 of 2005, offence under Sections 302/34 PPC was registered at Police Station Gul Bahar, Peshawar against the complainant party. On completion of investigation in murder case, the nominated accused of the complainant party were absconded, thus, they were declared as proclaimed offenders. When challan of the abduction case was filed in the Court of Judicial Magistrate-I, Quetta for trial of the accused, the complainant filed an application, seeking, after insertion of Section 302 PPC in the challan, the case be sent to the Sessions Court for trial, which was rejected vide impugned order, hence this petition.
Mr. Kamran Murtaza, learned counsel for petitioner, argued that the FIR in respect of abduction of Mst. Aisha was registered at Quetta, therefore, the subsequent act in continuation of the first offence is to be tried together at Quetta, thus, the Judicial Magistrate has erred in law in refusing to insert Section 302 PPC in the challan of abduction case and sending the case to the Court of Sessions for trial of the accused. He in support of his arguments referred the judgement-reported in A.I.R. 1931 Allahabad 55.
M/s. Syed Ayaz Zahoor and Muhammad Qahir Shah, learned counsel for respondents, opposed the arguments of petitioner's counsel by contending that the complainant party, after declaring proclaimed offenders in order to pressurize the opposite-party and to frustrate the proceedings of the murder case, filed instant application. It was next argued that both the cases are separate in nature and are not continuation of the one offence, thus, the Court below rightly declined the prayer of petitioner. They in support of their arguments referred case laws-reported in PLD 1962 W.P (Karachi) 499+PLD 1962 W.P. (Karachi) 748 + PLD 1967 Peshawar 314.
I have considered the arguments of learned parties, counsel and have gone through the record including the impugned order as well as cited case laws. The petitioner's counsel contended that after abduction of Mst. Aisha from Quetta, the accused persons committed her murder at Peshawar, thus, challan of the subsequent case was to be filed alongwith abduction case at Quetta. Section 182 Cr.P.C. provides that where an offence is a continuing one, and continues to be committed in more local areas than, one, or where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas, while Sections 177 and 183 Cr.P.C. lays down that when offences are committed in the course of same transaction, but in different territorial limits, they should not be tried jointly in disregard of the provisions relating to territorial jurisdiction, because the provisions of Section 239(d) Cr.P.C. with regard to joinder of persons does not override the provisions of Chapter XV of the Code of Criminal Procedure as held in the case of Muhammad Aslam and others vs. The State reported in PLD 1982 W.P. (Karachi) 499.
Sub-section (2) of Section 185 Cr.P.C. provides that where two or more Courts not subordinate to the same High Court have taken cognizance of the same offence, the High Court within the local limits of whose appellate criminal jurisdiction the proceedings were first commenced may direct the trial of such offender to be held in any Court subordinate to it, and if it is so decides all other proceedings against such person in respect of such offence shall be discontinued. But the facts and circumstances of the instant case are quite different. The abduction of the deceased lady was stated to have committed on 06-10-2005, while report was lodged on 21-10-2005. The complainant party after murder of the lady and accused Jaffar did not join or associate with the investigation to disclose the facts and after submission of challan of the abduction case, by an application, prayed for insertion of the relevant section of murder case in the challan and referring the matter to the Court of Sessions. The two acts do not amount to one offence, but are two distinct offences. The murder is not in consequence of the first offence, but is the re-action of the abduction, thus, both the offences are to be tried separately by the Courts having territorial jurisdiction. It may be noted that the determination of jurisdiction should be made at first and not left to be determined after the Court has made up its mind whether to acquit or convict the accused. As stated, hereinabove the challan of the murder case has already been filed in the Sessions Court at Peshawar, wherein the nominated accused of the complainant party have been declared as proclaimed offenders, thus, no case has been made out falling within the ambit of Section 182 Cr.P.C. The case law referred by the petitioner's counsel for want of identical facts and circumstances does not attract to the facts and circumstances of the case in hand, thus, is repelled.
What has been discussed hereinabove, the trial Court, after proper appraisal and interpretation of the law, rightly rejected the application, thus, order dated 28-11-2006 passed by the. trial Court is upheld and petition, being devoid of any merit, is dismissed in limine.
(A.S.) Petition dismissed.
PLJ 2008 Quetta 34
Present: Akhtar Zaman Malghani and Amanullah Khan Yasinzai, JJ.
MIR MUHAMMAD JUMMA KHAN KUBDANI and 6 others--Petitioners
versus
GOVERNMENT OF BALOCHISTAN, REVENUE DEPARTMENT, CIVIL SECRETARIAT CARGHOON ROAD QUETTA through
its Secretary and another--Respondent
C.P. No. 332 of 2007, decided on 20.11.2007.
Constitution of Pakistan, 1973--
----Art. 199--Local Government Ordinance, 2001, Ss. 7, 11(2), 197 & 186--Land Revenue Act, 1967, S. 6--Constitutional petition--Notification--Removal of elected representatives--Jurisdiction--New tehsil--Alteration of local areas of unions and tehsils--Held: Petitioners were elected as Nazim and Naib Nazim respectively of Tehsil, vide notification--Under Section 6 of Land Revenue Act, 1967, new Tehsil and Sub-Tehsil were created in District, which notification was followed by another notification issued u/S. 7 of Local Government Ordinance, 2001--Antoher notification was issued, declared the petitioners to be Nazim and Naib-Nazim of newly created Tehsil, whereas seats of Nazim and Naib-Nazim and seats reserved for women, peasant/worker and minority of tehsil were declared as vacant--Section 7 does empower Government to declare tehsils and districts notified under Land Revenue Act, 1967, to be tehsils and districts under the Ordinance, 2001, but it does not empower it to remove the elected Nazim and Naib-Nazim--Section 11(2) of Ordinance, 2001 empowers the Government to notify change in the boundaries of the Unions, Tehsils or Towns but subject to previous publication and such change in the boundaries would come into force on the announcement of next Local Government elections and not before that--For removal of Nazim and Naib-Nazim a special procedure has been provided in the Local Government Ordinance, 2001, therefore the Government has no authority to dislodge the petitioners from their officer under the garb of S. 197, which has nothing to do with removal of Nazim, Naib-Nazim or elected members on the reserved seats--Held: Petition partly allowed and declare notifications to be void, illegal and without lawful authority--Petitioners would continue to hold their respective offices till the next Local Government Elections--Petition disposed of. [P. ] A, B, C & E
Principle--
----It is well settled that any action should be taken as provided for, else it should not be taken at all. [P. ] D
Mr. Kamran Murtaza, Advocate for Petitioners.
Mr. Salahuddin Mengal, A.G., Mr. Abdullah Baloch, Advocate and Mr. M. Riaz Ahmed, Advocate for Respondents.
Date of hearing: 3.10.2007.
Judgment
Akthar Zaman Malghani, J.--Following relief, has been claimed in the instant Constitution petition:-
It is accordingly respectfully prayed that this Hon'ble Court may be pleased to declare that the notifications/letters/orders dated 7-7-2001, 2-4-2007, 11-4-2007, 15-6-2007 & 22-8-2007 issued by respondents in disregard to Balochistan Local Government Ordinance and other prevailing laws available on the subject, are illegal/issued in excess of jurisdiction, consequently the same may be set-aside and the respondents may permanently be restrained not to disturb the territorial limits of Tehsil Council Kharan in violation of law with any other relief and cost of proceedings throughout with any other relief, in the interest of justice."
Briefly stated, facts of the case are that the Petitioner No. 1 and Petitioner No. 2 were elected as Nazim and Naib Nazim of Tehsil Council Kharan in the Local Government Election held in the year 2005. The Government of Balochistan (Revenue Department) in exercise of power conferred under Section-6 of the Land Revenue Act, 1967 created Tehsil Sar-e Kharan and Sub Tehsil Tohumulk vide Notification dated 02.04.2007. In pursuance to creation of new tehsil and sub tehsil, Government of Balochistan in exercise of power conferred under .Section-7 of the Local Government Ordinance, 2001 declared Tehsil Sar-e-Kharan as Local Government Tehsil/TMA in District Kharan consisting of Union Council Jamak and Union Council Joda Kalat. The said Notifications were followed by another Notification dated 22.08.2007 purported to have been issued in exercise of powers conferred under Section 197 of the Balochistan Local Government Ordinance, 2001 declaring Petitioner Nos. 1 & 2 respectively Nazim and Tehsil Naib Nazim of newly created Tehsil Sar-e-Kharan instead of Nazim and Naib Nazim. of Tehsil Kharan for which they were originally elected. In the same Notification office of Nazim and Naib Nazim of Tehsil Kharan and seats reserved for women, peasant, workers and minority of Tehsil Council Sar-e-Kharan were declared to be vacant. Another Notification was also issued on 25.08.2007 whereby District Coordination Officer, Kharan District appointed Akhtar Muhammad Baloch, Tehsil Municipal Officer/Principal Account Officer Tehsil Municipal Administration, Kharan as caretaker for post of Nazim Tehsil Council, Tehsil Municipal Administrator, Kharan with immediate effect. The petitioners being aggrieved by the above said Notifications have instituted instant petition.
We have heard the learned counsel for petitioners as well as learned counsel for respondents. Learned Counsel for petitioners vehemently contended that Government of Balochistan or for that matter the official respondents have no legal authority to remove Petitioners No. 1 & 2 from the Office of Nazim and Naib Nazim of Kharan for which they were duly elected, after creation of new Tehsil and Sub Tehsil. He further contended that proposal of creation of new Tehsil and Sub Tehsil were rejected in the meeting of Tehsil Council held on 17.02.2007 but despite such rejection the Government illegally created new Tehsils which are ¦ liable to be set aside. According to him Section 197 of Local Government Ordinance, 2001 did not confer any power upon the Government to remove elected members of Local Government or to declare their seats vacant and all exercise carried out by the official respondents in the garb of said section was illegal and without jurisdiction. In support of his contentions learned counsel placed reliance on the judgment reported in PLD 2005 S.C. 797.
On the other hand learned Counsel for District Nazim who was impleaded in the case as Respondent No. 4 vehemently contended that appointment of pare taker was made through Notification dated 25.08.2007 which powers were available under Section 12 of the Ordinance. He further contended that neither Section-11 was applicable to the present case nor any mala fide had been shown on the part of Government which has every power to create new tehsils. According to him judgment reported in PLD 2005 S.C. 797 was not applicable to the facts and circumstances of present case.
The learned A.G adopted arguments of learned counsel for Respondent No. 4.
We have carefully considered the contentions put forth by the learned counsel t for parties. So far notification issued by the government under Section 6 of Land Revenue Act, 1967 is concerned the same could not be called in question by invoking jurisdiction unless mala fide is shown on the part of government but the learned counsel failed to show any mala fide in this regard except agitating that the new Tehsils were created to deprive the petitioners from the seats of Nazim and Naib-Nazim of Tehsil, Kharan, to which they were legally elected, which arguments are not tenable in view of dictum laid down in the judgment reported in PLD 2002 S.C.. 797 holding that removal of elected representative after issuance of notification under Section 6 of Land Revenue Act, was a mere presumption not supported either by West Pakistan Land Revenue Act, 1967 or by provisions of Local Government Ordinance, 2001.
It may be noted that in the above referred case, Government of Sindh through a notification issued under Section 6 of the Land Revenue Act, 1967 carved out four new districts out of two existing districts, which notification was followed by four separate notifications issued by government of Sindh in exercise of powers conferred under Section 186 of the said Local Government Ordinance, 2001, whereby; Nazims and Naib Nazims of the existing districts were removed. In the instant case, the petitioners were elected as Nazim and Naib respectively of Tehsil, Kharan, however, vide notification dated 2nd April, 2007 issued under Section 6 of the Land Revenue Act, 1967 new Tehsil, SAR-Kharan and Sub-Tehsil Tohumulk were created in District Kharan, which notification was followed by another notification dated 15th June, 2007 issued under Section 7 of the Local Ordinance, 2001, which reads as under:-
"In partial modification of Local Government Department's Notification No. 4-DEL(CR)/LG/2000/1358-1449 dated 07.07.2001 and No. 1-83/2000(Delt:)/BLCEA/1007-25 dated 8th March, 2001, the Government of Balochistan in exercise of powers conferred under Section 7 of the Balochistan Local Government Ordinance, 2001, is pleased to declare Tehsil Sar-Kharan as a Local Government Tehsil/TMA in district Kharan with the following areas:-
1) Union Council Jamak
2) Union Council Joda Kalat".
Subsequently; another notification was issued on 22nd August, 2007 declaring the petitioners to be Nazim and Naib Nazim of newly created Tehsil SAR-KHARAN, whereas; seats of Nazim and Naib Nazim Tehsil, Kharan and seats reserved for women, peasant/worker and minority of Tehsil Sar-Kharan were declared as vacant. Section 7 does empower government to declare tehsils and districts notified under the Land Revenue Act, 1967 to be tehsils and districts under the Ordinance, 2001, but it does not empower it to remove the elected Nazim and Naib Nazim in consequence thereof. In our considered view powers conferred on Government by virtue of Section 7 are subject to provisions of Section II, which relates to alteration of local areas of unions and 1 tehsils. Sub-Section (2) of the Section 11 empowers the government to notify change in the boundaries of the unions, Tehsils or towns but subject to previous publication and such change in the boundaries would come into force on the announcement of next local government elections and not before that. Similarly; for removal of Nazim and Naib Nazim a special procedure has been provided in the Local Government Ordinance, 2001, therefore; the government has no authority-to dislodge the petitioners from their offices under the garb of Section 197, which has nothing to do with removal of Nazim, Naib Nazim or elected members on the reserved seats. It is well settled that any action should be taken as provided for; else it should not be taken at all. The Hon'ble Apex Court in the judgment reported in PLD 2005 S.C 797 while dealing with the power of government to remove Nazim or Naib Nazim held as under:-
"The Nazims and Naib Nazims are elected under the provisions of Sindh Local Government Ordinance, 2001. The procedure for their removal is also provided in the same Ordinance under Sections 23 and 24. Only two procedures are available, known as external recall and internal recall. Under external recall a District Nazim can be removed by the Chief Executive of a Province who shall move a motion in the Provincial Assembly stating grounds for the recall. Such grounds are already mentioned to the effect, firstly, that the continuing in office of a Zila Nazim is against the public policy; secondly, it is against the interest of the people and thirdly, he is guilty of misconduct. Such motion is to be approved through a resolution passed by a simple majority in the Provincial Assembly. The second procedure is of internal recall described under Section 24 of the Ordinance to the effect that if the conditions given therein are fulfilled any member of District Council secondly by another member may give notice to move a motion through the Naib Zila Nazim for recall of Zila Nazim. In other words, it is no-confidence motion the detailed procedure whereof is provided in the section itself. There is no other way of removing an elected representative".
For the foregoing reasons, we are inclined to partly allow this petition and declare notifications dated 22nd August, 2007 and 25th August, 2007; to be void, illegal and without lawful authority. Further declaring that the petitioners would continue to hold their respective offices till the next local government elections and notifications issued under the Local Government Ordinance, 2001 altering/changing the boundaries of local government Tehsil, Kharan would come into force on announcement of next local government elections and not before that.
The petition is disposed of accordingly.
PLJ 2008 Quetta 36
Present: Akhtar Zaman Malghani, J.
IFTIKHAR MUHAMMAD--Petitioner
versus
Haji ABDULLAH JAN and 3 others--Respondents
C.R. No. 39 of 2002, decided on 14.9.2007.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 145--Civil Court cannot question finding u/S. 145 Cr.P.C. as to possession but it can decide that person found in possession had no right or title and can put any person in possession, if his title is established. [P. ] A
AIR 1947 Lah. 173 rel.
Mutation--
----Incorporated in jamabandi carries a presumption of truth--Could not be lightly ignored, untill and unless strong evidence is produced by the party challenging such mutation entries. [P. ] B
PLJ 1979 SC 890 fol.
----In the instant case property in dispute was recorded in the name of predecessors of respondents in 1940--Entries carried out in Jamabandi prepared periodically--Said entries not challenged by predecessor of petitioners--Respondents to prove sale transaction--Taken place between predecessor of petitioners and respondents--When they are found in possession of the property--Revision dismissed. [P. ] D
Ch. Muhammad Arshad, Advocate for Petitioner.
Mr. Shakil Ahmed Mirza, Advocate for Respondents No. 1, 4 and 7.
Mr. Gohar Yaqoob Khan Yousafzai, Advocate for Respondents No. 5 and 6.
Date of hearing: 24.8.2007.
Judgment
Akhtar Zaman Malghani, J.--This revision petition is directed against the judgment and decree dated 20.11.2001 passed by District Judge, Pishin, whereby; judgment and decree dated 30.06.2000 rendered by Senior Civil Judge, Pishin decreeing the suit filed by the petitioners, was set aside.
Briefly stated, facts of the case are that the petitioners instituted suit for declaration, cancellation of mutation entries and permanent injunction against the respondents, wherein; it was averred that great grandfather of plaintiffs namely Gharzai by cost Lumar Salarzai of Kakar tribe was owner of water equal to 9 share out of 118 shares in the Mohal Pashai and the land on the basis of share in the water which was succeeded by the plaintiffs after the death of their father and grandfather. It was also stated that the plaintiffs were in peaceful possession of the said land without objection from any person, which they cultivated as and when water was available. According to the petitioners, Respondents No. 1 to 7 having no concern whatsoever or interest in the lands in dispute started unlawful interference in their lawful possession and ownership. It was further stated that the plaintiffs or their predecessor had never sold away the property in dispute to the respondents or to their predecessors nor possession was handed over to them, however; they succeeded in getting revenue entries incorporated in their names in revenue record through fraud, misrepresentation and with connivance of concerned revenue staff behind back of the petitioners.
Out of pleadings of the parties, following issues were framed:-
"1. Whether the suit is not maintainable in view of preliminary objections A to F?
Whether the predecessor-in-interest of the defendants namely Nabo, and Samandar Khan had purchased 4 Shabanaroz from Salarzai and 2 Shabanaroz from Bandarzai in 1936?
Whether the disputed land and water has been in the possession of defendants and their predecessor-in-interest since 1936?
Whether the plaintiffs are legal heirs of Gharzai and have shares out of 118 of water in Mohal Pashai?
Whether the defendants are lawful owner of disputed land?
Relief?
The plaintiffs/petitioners produced 4 witnesses besides statement of their attorney Haji Iftikhar Muhammad, whereas; defendants produced 3 witnesses and Dr. Shah Muhammad got recorded his statement as attorney for the respondents.
The learned Senior Civil Judge, Pishin vide judgment and decree dated 16.05.2000 decreed the suit. The respondents being dissatisfied preferred an appeal before the District Judge, Pishin, which was allowed vide impugned judgment and decree dated 20.11.2001.
I have heard learned counsel for the petitioners as well as learned counsel for the respondents. Learned counsel for the petitioners vehemently contended that the findings on limitation arrived at by the appellate Court were absolutely wrong because possession was with the petitioners and they could institute a suit as and when there was any threat to their title or possession. He further contended that the witnesses produced by the petitioners consistently deposed that they were in possession, whereas; the witnesses produced by the defendants were shaken during cross-examination, as such; conclusion of appellate Court with regard to possession of the defendants over the property in dispute was contrary to record and liable to be set aside. He next argued that the defendants had admitted that the property in dispute was originally owned by the predecessor of plaintiffs/petitioners and according to their claim was purchased by their predecessors from them but they failed to prove purchase by producing any document. Learned counsel was of the view that findings of the possession recorded by Magistrate in proceedings under Section 145 Cr.P.C could be reversed by civil Court, as such; findings were subject to decision of the civil Court. In support of his contentions learned counsel referred to the judgments reported in 1995 SCMR 284, PLJ 1997 Quetta 233, PLD 2007 SC 287, 1992 SCMR 1832, 1994 SCMR 1454, 2003 YLR 67 and 1999 MLD 763.
On the other hand, learned counsel for the respondents vehemently contended that there was no misreading on the part of learned appellate Court, as such; findings of fact arrived at by it were not liable to be interfered in exercise of revisional jurisdiction. He further contended that in proceedings initiated under Section 145 Cr.P.C. the Magistrate after due inquiry came to the conclusion that the petitioners interfered in possession of the respondents, as such; they were restrained, which findings were not further challenged by the petitioners in the same hierarchy, as such; it was proved that the petitioners were out of possession and the suit was barred by time as they have challenged the entries recorded in favour of respondents in the year 1940. He next argued that after recording of mutation entries in the year 1940 those were carried out in periodical Jamabandi prepared by the revenue staff, as such; strong presumption of truth was attached to such mutation entries.
"The foundation of jurisdiction fox a Court to pass an order under S. 145 is only laid when a party is actually found to be in actual possession of the property on the date on which his possession was likely to be disturbed and to cause a breach of the peace. Unless these are found, the Court would have no jurisdiction to declare that a party was in possession of the property either on the date on which a breach of peace was likely to occur or within two months of that date and to order that his possession was not to be interfered with unless he was evicted in due course of law. It is not open to a civil Court to go behind or to question that finding, although it is open to a civil Court to decide that a person found or deemed to be in possession of the property had no right or title whatsoever to be or to remain in possession and to put any other person in possession if his right or title to get into possession are found for him. At all events the legal effect of the order under S. 145 would be to place the party found to be in possession, in possession which will be protected if any attempt is made to contravene the order".
Assistant Commissioner/Sub-Divisional Magistrate, Barshore in his order dated 26.09.1995 passed in proceedings initiated under Section 145 Cr.P.C on the complaint of respondent came to the conclusion that the petitioners illegally interfered in possession of the respondents and directed the petitioners to submit sureties in the sum of Rs. 2, 00,000/- for not interfering in the land in dispute, which order was not further challenged by the petitioners and it has attained finality, therefore; evidence produced by the respondents supported by above decision conclude that the respondents were in possession of the property in dispute and not the petitioners and rightly held so by the learned District Judge. After having found the respondents in possession of the property in dispute the suit filed by the petitioners challenging mutation entries recorded in the name of respondents and their predecessors since 1940 after a period of about 56 years was clearly barred by time.
Furthermore; mutation incorporated in Jamabandi carries a presumption of truth and could not be lightly ignored until and unless strong evidence is produced by the party challenging such mutation entries. The Hon'ble Supreme Court in the judgment reported in PLD 1979 SC 890 observed as under:-
"When a mutation gets incorporated in Jamahandi (i.e. annual record) then as held in Bhagwan Das v. Mangal Said (AIR 1929 Lah. 93), jamahandi carries a presumption of truth and the learned District Judge in the circumstances was not justified to ignore the said jamahandl and its corresponding supporting mutation".
In view of above discussions, in my view the learned District Judge rightly held the respondents in possession of the property in dispute, as such; judgments reported in 1993 MLD 763, PLJ 1997 Quetta 233, 1995 SC MR 284 and 2003 YLR 67 would be of no help to the case of petitioners as in those cases it was held that plaintiff in possession of the property could institute suit for declaration and correction of mutation entries at any time whenever he faces threat to his title or possession and in such case the date on which such mutation entries were carried out would be material for the purpose of limitation, whereas; in the judgment reported in 1994 SCMR 164 the Hon'ble Supreme Court held that mutation entries do not establish title which has to be independently proved and in case the mistake is obvious in giving effect to registered deed, the revenue authorities had gone beyond it. similarly; in the judgment reported in 1992 SCMR 1832 the Hon'ble Supreme Court held that the mutation by itself does not create title and the person claiming title thereunder has to prove that the transferor did part with the ownership of the property in favour of the transferee and that the mutation was totally entered and attested. It was also held that the presumption of truth is attached to entries made under Section 42 and the mutation incorporated in subsequent Jamabandi therefore, if any person considered himself aggrieved by any entry in a record of right, he has to institute a suit for declaration within the statutory period for disputing genuineness of the transaction or collusion and fraud in the attestation of the mutation. In the instant case undisputedly property in dispute was recorded in the name of predecessors of the respondents in the year 1940, which entries were carried out in Jamabandi prepared periodically but the said entries were not challenged by the predecessors of petitioners during their lifetime therefore, it would not be justified to ask the respondents to prove sale transaction having taken place as far as back in the year 1936 between predecessors of petitioners and respondents, particularly; when they are found in possession of the property in dispute alongwith other property which they claimed to have been purchased by their predecessors from Salarzai and Bandarzai tribes and the petitioners' attorney in his statement on oath admitted in lukewarm manner about sale of property by said tribes but denied purchase of share of their predecessors by predecessors of respondents.
For the foregoing reasons, I was unable to discover any mis-reading, non-reading, illegality or jurisdictional defect in the findings of fact arrived at by learned District Judge, Pishin warranting interference by me in exercise of revisional jurisdiction, as such; the petition is being devoid of any merits is dismissed accordingly.
PLJ 2008 Quetta 40
Present: Akhtar Zaman Malghani, J.
IKHTIAR MUHAMMAD and another--Petitioners
versus
Haji ABDULLAH JAN and others--Respondents
C.R. No. 39 of 2002, decided on 14.9.2007.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 145--Right of title--Question of--Civil Court cannot question finding u/S. 145, Cr.P.C. as to possession but it can decide that person found in possession had no right or title and can put any person in possession, if his title is established. [P. 45] A
AIR 1947 Lah. 173 rel.
Mutation--
----Incorporated in Jamabandi carries a presumption of truth and could not be lightly ignored, untill and unless strong evidence is produced by the party challenging such mutation entries. [P. 46] B
PLD 1979 SC 890 fol.
Land Revenue Act, 1967--
----S. 42--Mutation--Presumption of truth--If any person considered himself aggrieved by any entry in record of right, he has to institute a suit for declaration within statutory period for disputing genuineness of transaction or collusion, and fraud in attestation of mutation.
[P. 48] C
Jurisdiction--
----High Court was unable to discover any mis-reading, non-reading, illegality or jurisdictional defect in finding fact arrived by Distt. Judge warranting interference by Court in exercise of revisional jurisdiction. [P. 48] D
Ch. Muhammad Arshad, Advocate for Petitioners.
Mr. Shakil Ahmed Mirza, Advocate for Respondents No. 1, 4
and 7.
Mr. Gohar Yaqoob Khan Yousafzai, Advocate for Respondents No. 5 and 6.
Date of hearing: 24.8.2007.
Judgment
This revision petition is directed against the judgment and decree dated 20.11.2001 passed by District Judge, Pishin, whereby; judgment and decree dated 30.06.2000 rendered by Senior Civil Judge, Pishin decreeing the suit filed by the petitioners, was set aside.
Briefly stated, facts of the case are that the petitioners instituted suit for declaration, cancellation of mutation entries and permanent injunction against the respondents, wherein; it was averred that great grandfather of plaintiffs namely Gharzai by cost Lumar Salarzai of Kakar tribe was owner of water equal to 9 share out of 118 shares in the Mohal Pashai and the land on the basis of share in the water which was succeeded by the plaintiffs after the death of their father and grandfather. It was also stated that the plaintiffs were in peaceful possession of the said land without objection from any person, which they cultivated as and when water was available. According to the petitioners, Respondents No. 1 to 7 having no concern whatsoever or interest in the lands in dispute started unlawful interference in their lawful possession and ownership. It was further stated that the plaintiffs or their predecessor had never sold away the property in dispute to the respondents or to their predecessors nor possession was handed over to them, however; they succeeded in getting revenue entries incorporated in their names in revenue record through fraud, misrepresentation and with connivance of concerned revenue staff behind back of the petitioners.
Out of pleadings of the parties, following issues were framed:--
"1. Whether the suit is not maintainable in view of preliminary objections A to F?
Whether the predecessor-in-interest of the defendants namely Nabo, and Samandar Khan had purchased 4 Shabanaroz from Salarzai and 2 Shabanaroz from Bandarzai in 1936?
Whether the disputed land and water has been in the possession of defendants and their predecessor-in-interest since 1936?
Whether the plaintiffs are legal heirs of Gharzai and have shares out of 118 of water in Mohal Pashai?
Whether the defendants are lawful owner of disputed land?
Relief?
The plaintiffs/petitioners produced 4 witnesses besides statement of their attorney Haji Ikhtiar Muhammad, whereas; defendants produced 3 witnesses and Dr. Shah Muhammad got recorded his statement as attorney for the respondents.
The learned Senior Civil Judge, Pishin vide judgment and decree dated 16.05.2000 decreed the suit. The respondents being dissatisfied preferred an appeal before the District Judge, Pishin, which was allowed vide impugned judgment and decree dated 20.11.2001.
I have heard learned counsel for the petitioners as well as learned counsel for the respondents. Learned counsel for the petitioners vehemently contended that the findings on limitation arrived at by the appellate Court were absolutely wrong because possession was with the petitioners and they could institute a suit as and when there was any threat to their title or possession. He further contended that the witnesses produced by the petitioners consistently deposed that they were in possession, whereas; the witnesses produced by the defendants were shaken during cross-examination, as such; conclusion of appellate Court with regard to possession of the defendants over the property in dispute was contrary to record and liable to be set aside. He next argued that the defendants had admitted that the property in dispute was originally owned by the predecessor of plaintiffs/petitioners and according to their claim was purchased by their predecessors from them but they failed to prove purchase by producing any document. Learned counsel was of the view that findings of the possession recorded by Magistrate in proceedings under Section 145 Cr.P.C could be reversed by civil Court, as such; findings were subject to decision of the civil Court. In support of his contentions learned counsel referred to the judgments reported in 1995 SCMR 284, PLJ 1997 Quetta 233, PLD 2007 SC 287, 1992 SCMR 1832, 1994 SCMR 1454, 2003 YLR 67 and 1999 MLD 763.
On the other hand, learned counsel for the respondents vehemently contended that there was no misreading on the part of learned appellate Court, as such; findings of fact arrived at by it were not liable to be interfered in exercise of revisional jurisdiction. He further contended that in proceedings initiated under Section 145 Cr.P.C. the Magistrate after due inquiry came to the conclusion that the petitioners interfered in possession of the respondents, as such; they were restrained, which findings were not further challenged by the petitioners in the same hierarchy, as such; it was proved that the petitioners were out of possession and the suit was barred by time as they have challenged the entries recorded in favour of respondents in the year 1940. He next argued that after recording of mutation entries in the year 1940 those were carried out in periodical Jamabandi prepared by the revenue staff, as such; strong presumption of truth was attached to such mutation entries.
"The foundation of jurisdiction for a Court to pass an order under S. 145 is only laid when a party is actually found to be in actual possession of the property on the date on which his possession was likely to be disturbed and to cause a breach of the peace. Unless these are found, the Court would have no jurisdiction to declare that a party was in possession of the property either on the date on which a breach of peace was likely to occur or within two months of that date and to order that his possession was not to be interfered with unless he was evicted in due course of law. It is not open to a civil Court to go behind or to question that finding, although it is open to a civil Court to decide that a person found or deemed to be in possession of the property had no right or title whatsoever to be or to remain in possession and to put any other person in possession if his right or title to get into possession are found for him. At all events the legal effect of the order under S. 145 would be to place the party found to be in possession, in possession which will be protected if any attempt is made to contravene the order".
Assistant Commissioner/Sub-Divisional Magistrate, Barshore in his order dated 26.09.1995 passed in proceedings initiated under Section 145 Cr.P.C on the complaint of respondent came to the conclusion that the petitioners illegally interfered in possession of the respondents and directed the petitioners to submit sureties in the sum of Rs. 2, 00,000/- for not interfering in the land in dispute, which order was not further challenged by the petitioners and it has attained finality, therefore; evidence produced by the respondents supported by above decision conclude that the respondents were in possession of the property in dispute and not the petitioners and rightly held so by the learned District Judge. After having found the respondents in possession of the property in dispute the suit filed by the petitioners challenging mutation entries recorded in the name of respondents and their predecessors since 1940 after a period of about 56 years was clearly barred by time.
Furthermore; mutation incorporated in Jamabandi carries a presumption of truth and could not be lightly ignored until and unless strong evidence is produced by the party challenging such mutation entries. The Hon'ble Supreme Court in the judgment reported in PLD 1979 SC 890 observed as under:-
"When a mutation gets incorporated in Jamabandi (i.e. annual record) then as held in Bhagwan Das v. Mangal Said (AIR 1929 Lah. 93), jamabandi carries a presumption of truth and the learned District Judge in the circumstances was not justified to ignore the said jamabandi and its corresponding supporting mutation".
In view of above discussions, in my view the learned District Judge rightly held the respondents in possession of the property in dispute, as such; judgments reported in 1993 MLD 763, PLJ 1997 Quetta 233, 1995 SCMR 284 and 2003 YLR 67 would be of no help to the case of petitioners as in those cases it was held that plaintiff in possession of the property could institute suit for declaration and correction of mutation entries at any time whenever he faces threat to his title or possession and in such case the date on which such mutation entries were carried out would be immaterial for the purpose of limitation, whereas; in the judgment reported in 1994 SCMR 164 the Hon'ble Supreme Court held that mutation entries do not establish title which has to be independently proved and in case the mistake is obvious in giving effect to registered deed, the revenue authorities had gone beyond it. Similarly; in the judgment reported in 1992 SCMR 1832 the Hon'ble Supreme Court held that the mutation by itself does not create title and the person claiming title thereunder has to prove that the transferor did part with the ownership of the property in favour of the transferee and that the mutation was totally entered and attested. It was also held that the presumption of truth is attached to entries made under Section 42 and the mutation incorporated in subsequent Jamabandi therefore, if any person considered himself aggrieved by any entry in a record of right, he has to institute a suit for declaration within the statutory period for disputing genuineness of the transaction or collusion and fraud in the attestation of the mutation. In the instant case undisputedly property in dispute was recorded in the name of predecessors of the respondents in the year 1940, which entries were carried out in Jamabandi prepared periodically but the said entries were not challenged by the predecessors of petitioners during their lifetime therefore, it would not be justified to ask the respondents to prove sale transaction having taken place as far as back in the year 1936 between predecessors of petitioners and respondents, particularly; when they are found in possession of the property in dispute alongwith other property which they claimed to have been purchased by their predecessors from Salarzai and Bandarzai tribes and the petitioners' attorney in his statement on oath admitted in lukewarm manner about sale of property by said tribes but denied purchase of share of their predecessors by predecessors of respondents.
For the foregoing reasons, I was unable to discover any mis-reading, non-reading, illegality or jurisdictional defect in the findings of fact arrived at by learned District Judge, Pishin warranting interference by me in exercise of revisional jurisdiction, as such; the petition is being devoid of any merits is dismissed accordingly.
(M.S.A.) Petition dismissed.
PLJ 2008 SC 1 [Appellate Jurisdiction]
Present : Abdul Hameed Dogar & Sardar Muhammad Raza Khan, JJ.
DIRECTORATE GENERAL CIVIL DEFENCE GOVT. OF PAKISTAN, INTERIOR DIVISION, ISLAMABAD--Petitioner
versus
Mian ABDUL SALAM, DEPUTY DIRECTOR--Respondent
C.P. No. 480 of 2007, decided on 16.7.2007.
(On appeal from the judgment dated 26.3.2007 of the Federal Service Tribunal, Islamabad passed in Appeal No. 1418(R)CS/2003).
(i) Civil Servants Act, 1973--
----S. 13(1)(i)--Constitution of Pakistan, 1973, Art. 212(3)--Notification--Retirement from service--Period of service--Three fold grounds--Officer had out lived his utility for further retention in service--Challenge to--Civil servant was reinstated into service--Leave to appeal--Civil servant had remained on extra ordinary leave which if deducted from the total service, the residue comes to be less than 25 years, not qualifying for retirement u/S. 13(1)(i) of Civil Servants Act, 1973--Leave to appeal declined. [P. 2] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
----Ss. 79 & 80(1)(a)--O. XXVII, R. 3--Civil Servants Act, 1973--S. 13(1)(d)--Constitution of Pakistan, 1973--Art. 212(3)--Leave to appeal--Non-maintainable--Filing any petition, plaint or appeal--Reinstatement of the civil servant stood accepted by the competent authority appointing authority or the Government--Present petition would have been filed by the Secretary who, in view of Ss. 79, 80 (1)(a) read with O. XXVII, Rule 3 CPC happens to be the Government for purpose of filing any petition, plaint or appeal, in addition to his being competent authority as well as appointing authority of civil servant--Petitioner is neither the Govt. nor the appointing authority--Petition is hereby dismissed as non-maintainable and leave to appeal declined. [P. 3] B
Ms. Naheeda Mehboob Elahi, DAG with Mr. Muhammad Hanif, Acting Director; Mr. Arshad Ali Chaudhry, AOR (Absent) for Petitioner.
Mr. Abdur Rehman Siddiqui, ASC with Ch. Muhammad Akram, AOR for Respondent.
Date of hearing : 16.7.2007.
ORDER
Sardar Muhammad Raza Khan, J.--The Secretary Interior Division, Government of Pakistan vide No.9/32/2000-Sceurity-I, dated 17.9.2003 notified, the retirement from service or Mian Abdul Salam, the then Deputy Director (Publicity), Directorate General Civil Defence, Islamabad. The retirement under section 13(1)(i) of the Civil Servants Act, 1973 based on three-fold ground mainly culminated into the fact that the officer had out lived his utility for further retention in service.
The retirement aforesaid was challenged before the Federal Service Tribunal, which, on 17.3.2007, reinstated him into service. Director General Civil Defence Islamabad seeks leave to appeal from the judgment aforesaid.
The reinstatement has been directed on the grounds; firstly, that Mian Abdul Salam had remained on extra ordinary leave which if deducted from the total service, the residue comes to be less than 25 years, not qualifying for retirement under section 13(1)(i) of Civil Servants Act, 1973. It was further held by the Tribunal that the service record of the respondent was never unsatisfactory to furnish a ground for retirement under the said section.
SC Govt. of Balochistan v. Muhammad Ali PLJ (Raja Fayyaz Ahmed, J.)
2008 Govt. of Balochistan v. Muhammad Ali SC (Raja Fayyaz Ahmed, J.)
We have gone through the record with the assistance of the learned counsel on either side and are constrained to observe that our views are altogether different from what is held by the learned Tribunal, on all the three points related to the question of extra ordinary leave, the service record of the respondent and the completion of period of 25 years of service.
Be that as it may, one cannot fail to observe that the reinstatement of the respondent stood, accepted by his competent authority/appointing authority or the Government, as such. Had it been so, the instant petition would have been filed by the Secretary Interior who, in. view of Section 79-80 (1)(a) read with Order XXVII, Rule 3 CPC, happens to be the Government for the purposes of filing any petition, plaint or appeal, in addition to his being the competent authority as well as the appointing authority of the respondent. The petition in hand is filed by Director General Civil Defence who is neither the Government nor the appointing authority. The authority/Government was even not made a party to the present petition despite the fact that in appeal before the Tribunal, Secretary Interior Division and Secretary Establishment Division were arrayed as respondents. The case, well argued by the learned Deputy Attorney General, seems to have fizzled out because of the non-maintainability of the petition. The petition is hereby dismissed as non-maintainable and leave to appeal declined.
B
(R.A.) Leave declined.
PLJ 2008 SC 3 [Appellate Jurisdiction]
Present : Khalil-ur-Rehman Ramday & Raja Fayyaz Ahmed, JJ.
GOVT. OF BALOCHISTAN through Secretary Board of Revenue, Quetta and others--Appellants
versus
MUHAMMAD ALI and 11 others--Respondents
C.A. No. 1359 of 2003, decided 18.1.2007.
(On appeal from the judgment dated 28.2.2002 of the High Court of Balochistan, Quetta passed in Civil Revision No. 282/1997)
Limitation Act, 1908 (IX of 1908)--
----S. 5--Condonation of delay--Delay of 320 days in filing CPLA--Due to serious lapses and failure to discharge the legal duties promptly and within the prescribed period of limitation by all the concerned in the matter in view of the decree of trial Court, of course no actual loss, damages or deprivation of rights had occurred to the public functionaries concerned in the matter, rather, the Government and the Forest Department stand completely deprived of the public property solely meant to be used, utilized and dealt with in the public interest being a public property of which the Government and the Department through its functionaries were the custodian but decree of the trial Court was not assailed before Majlis-e-Shoora within the prescribed period of limitation and for such reason alone, appeal was dismissed, upheld by High Court--CPLA against the impugned judgment was filed after a considerable delay before Supreme Court which acts and omissions had been taken notice of in the larger public interest, keeping all these factors in view and for doing complete justice, the delay in preferring the appeal before the Majlis-e-Shoora and having preferred CPLA before Supreme Court much beyond the prescribed period of limitation was condoned--Appeal filed against the decree of trial Court would be deemed as pending before Majlis-e-Shoora. [P. 9] A & B
Mr. Mehmood Raza Khan, Addl. A.G. for Appellants.
Ex-parte for Respondents No. 1-12.
Date of hearing: 18.1.2007.
Judgment
Raja Fayyaz Ahmed. J.--This Civil Appeal with the leave of this Court is directed against the judgment dated 28.2.2002 passed by the learned Single Judge in Chambers of the High Court of Balochistan, Quetta, whereby Civil Revision No. 282 of 1997 filed by the appellants has been dismissed.
The relevant facts of the case are that Respondents No. 1 to 12 filed a civil suit in the Court of Qazi Uthal at Hub for declaration, perpetual prohibitory and mandatory injunction against the appellants and the proforma Defendants Nos. 4 and 5 in respect of the suit land measuring 4,300 acres approximately, situated in Mouza Kharkara, Tehsil Sonmiani, District Lasbela described in the subject caption of the suit on the stated averments that the said respondents/plaintiffs are in possession of the suit property as owners since the time of their ancestors and have constructed pakka houses, shops, wells, pastures, drinking water tanks and comprising of graveyard, community hall besides 8 goths names whereof, have been given in Para No. 1 of the plaint with the population of more than 2,000 inhabitants. It was further contended that in the year 1914-15 some landed property out of the suit property was purchased in open auction by the grandfather of Respondents Nos. 10 to 11 from Mir Kamal Khan, the then erstwhile Wali-e-Riasat, Lasbela duly confirmed by the said Wali of the State and since then they have been in the physical possession of the said property. According to case of the said respondents/plaintiffs, as set up in the plaint that in the year 1964-65 revenue settlement of the suit properties was carried out as a result whereof, the suit property comprising of Khasra Nos: mentioned in the caption of the suit were entered and attested in favour of the Provincial Government and ever since the respondents had been agitating against the abovesaid entries incorporated in favour of the Provincial Government seeking for correction of the questioned revenue entries, and, despite of the fact that the respondents/plaintiffs produced documentary evidence of having purchased the landed property in auction and are in possession of suit property; the grievance was not redressed, therefore, Respondent No. 12 filed revenue appeal before the then Extra Assistant Settlement Officer/Collector, Lasbela which was dismissed and against this order appeal was filed before the Commissioner, Karachi Division/appellate Authority who by means of the order dated 21.8.1969 remanded the case to the Collector, Lasbela; not disposed of till date. It was further stated in the plaint that in the year 1979, the Forest Department/Appellant No. 2 intended to establish `farms' on the suit land against which at different times applications were submitted by the respondents/plaintiffs complaining that proposed farms site also included agricultural lands of the respondents and the cattle grazing grounds, moreover; their residential houses etc. are also likely to be affected, therefore, it was requested that the proposed site for establishing farms may be shifted to some other place. It was further contended in the suit that vide order dated 12.2.1977 the Collector, Lasbela allowed the application of the father of Respondents Nos. 1 and 2 (late Abdullah) for correction of Khata in respect of Khasra Nos. 61/1, 62/1, 70/2, 71/1, 63/2, 64/1, 76/1, 77/2, 53/2, 54/1, 55/1, 57/1, 58/2, 59/1 and 60/1, measuring 107 acres, 2 rods and 19 poles but the land comprising of Khasra Nos. 363,364, 360 and 464 was ordered to remain in the name of the Provincial Government, against which order late Abdullah filed appeal before the Commissioner, Kalat Division, and was accepted by means of which correction of entries in respect of the above mentioned 4 Khasra Nos. were directed to be made but late Abdullah on account of certain constraints failed to get the implementation of the appellate order in his favour. Subsequently the Deputy Commissioner/Collector, Lasbela vide his order dated 9.5.1984 cancelled/set aside the order regarding correction of the revenue entries on the ground of limitation recommending to the Commissioner, Kalat Division for transfer of the property covered by the abovesaid Khasra Nos: to be made in favour of the Forest Department, Government of Balochistan, after which, on having come to know about the abovesaid recommendation made by the Collector of the District, the father, of the respondents submitted an application dated 21.5.1984 seeking for correction of the revenue entries, stated to be still pending. In Para No. 6 of the plaint, it has been stated that in the year 1980 the entire suit property comprising of the disputed Khasra Nos. measuring about 4,300 acres was transferred in favour of the Forest Department, Government of Balochistan, through the mutation sanctioned and attested in favour of the said department, which fact statedly came to the knowledge of the respondents in the year 1991, therefore, an application was submitted to the Deputy Commissioner, Lasbela for cancellation of the said mutation on the grounds that the respondents are the ancestral owners in possession of the suit property and a week before the institution of the suit when the Forest and the Environmental Protection Department, commenced surveying the lands for plantation of trees and wild through proforma defendants. On these material averments; relief for declaration of title of suit property, perpetual prohibitory and mandatory injunction were claimed.
The appellants/defendants in the suit resisted the suit on various grounds of law and facts by means of their separate written statements. Out of pleadings of the parties, 6 issues were framed in addition to Issue No.7 relating to the relief.
The respondents/plaintiffs produced 7 witnesses in support of their case including documentary evidence, whereas; the appellants produced documentary evidence comprising of revenue record and the notification issued by the Government of West Pakistan. The learned trial Court on conclusion of the evidence of the parties and hearing them vide judgment and decree 5.3.1997 decreed the suit in favour of the respondents/plaintiffs which was assailed in appeal by the appellants before the learned Majlis-e-Shoora on 30.6.1997 barred by time. An application for condonation of delay was also filed. The learned Majlis-e-Shoora dismissed the appeal of the appellants solely on the ground of limitation vide judgment and decree dated 22.7.1997, which has been maintained vide impugned judgment, accordingly the Civil Revision preferred by the appellants was dismissed however; simultaneously the learned Single Judge in the High Court also dilated upon the merits of the case and it was concluded that the appellants failed to rebut the evidence adduced by the respondents/plaintiffs at the trial and that the learned Additional A.G. even on merits could not point out any illegality or irregularity committed by the Courts below, although; it was specifically observed in Para No. 8 of the impugned judgment that the case has not been decided on merits by the learned Majlis-e-Shoora.
Heard the learned Additional A.G. for the appellants. He submitted that the suit property measuring 4,300 acres approximately is a huge chunk of public property and admittedly as per case of the respondents/plaintiffs was entered and attested in favour of the Provincial Government in the year 1964-65 during the revenue settlement of the area and Misal-e-Haqiat was prepared after thorough probe and enquiries made by the concerned revenue staff which was never questioned by the respondents or any other person except through the suit instituted for the first time in the year 1991 which landed property according to the respondents own showing was transferred by the Provincial Government in favour of the Forest Department, Government of Balochistan/Appellant No. 2 for the public purposes. It has further been pointed out by the learned Additional A.G. that the learned Qazi without properly adverting to the question of limitation in the light of the above stated admitted facts of the case in their true perspective and the law; decreed the suit in favour of the respondents, assailed in appeal before the learned Majlis-e-Shoora which non-suited the appellants on the ground of limitation, maintained vide impugned judgment. According to the learned Additional A.G., since the first appeal was not decided on merits, therefore, except attending to the question of limitation, merits of the case were not required to have been dilated upon by the learned High Court and moreso; for the reason that such aspect of the case was specifically pointed out on behalf of the appellants during the hearing of revision petition.
It has been next argued that the lapses for whatever reason in preferring the appeal, beyond the prescribed period of limitation by the public functionaries in respect of the huge public property required to have been taken due notice of and the delay caused in the matter deserved to have been condoned as it eventually deprived the public of its property and not the Government and Forest department to whom it was finally transferred in the public interest which proceeded to utilize the same as such.
Admittedly, as a result of Settlement of the area carried out in the year 1964-65 the suit property measuring 4300 acres approximately was finally recorded in favour of the Provincial Government in the Misal-e-Haqiat presumably after the required probe and inquires etc. which final attestation, of the revenue entries were not challenged by the respondents before a Court of law or the appropriate forum within the prescribed period of limitation. Subsequently, as per respondents own case, the same was transferred in favour of the Forest Department/ Appellant No. 2 for the public purposes. It was further alleged in Para No. 5 of the plaint that in the year 1977 the Collector, Lasbela accepted the application of the father of Respondents Nos. 1 and 2 (late Abdullah) for correction of the revenue entries in respect of land measuring 107 acres, 2 rods and 19 poles bearing Khasra Nos. mentioned in the said para of the plaint but the land comprising of Khasra Nos. 363, 364, 360 and 464 was ordered to remain in the name of the Provincial Government which order to such extent was assailed in appeal before the Commissioner, Kalat Division. This appeal was stated to have been accepted with the direction that correction of the revenue entries in respect of the above mentioned 4 Khasra Nos. be made but late Abdullah on account of certain constraints failed to get the implementation of the appellate order in his favour and subsequently, the Deputy Commissioner/Collector, Lasbela vide his order dated 9.5.1984 cancelled/set aside the order regarding correction of the revenue entries on the ground of limitation recommending to the Commissioner, Kalat Division for transfer of the property covered by the abovesaid Khasra Nos. to be made in favour of the Forest Department, Government of Balochistan. It is interesting to note that according to the respondents own case as setup in the plaint, the suit property was transferred in the year 1979 in favour of Forest Department and in the same breath it was alleged that vide order dated 9.5.1984, the Collector of the District, cancelled the order regarding correction of the revenue entries and recommendations were made to the Commissioner, Kalat Division, for transfer of the land under the abovesaid 4 Khasra Nos. in favour of the Forest Department, whereas, the suit was instituted in the year 1991 out of which proceedings the present appeal has arisen.
ORDER
For what has been observed and noted above, the competent Authority in the matter is required to proceed against all the concerned delinquent officers and the public functionaries by taking disciplinary action under the appropriate law and rules for not having approached to the first appellate Court and this Court within the prescribed period of limitation and in accordance with law; within a period of one month from the date of receipt of this order, compliance whereof and the eventual final action that may be taken in the matter be communicated to this Court for our perusal in Chambers through the Registrar of this Court. Copy of this Judgment and the Order be transmitted to the Chief Secretary, the Secretary, Law Department, the Secretary Forests Department, Government of Balochistan and the Senior Member, Board of Revenue, Balochistan, at Quetta for appropriate action to be taken in the matter as above ordered.
(A.S.) Order accordingly.
PLJ 2008 SC 10 [Appellate Jurisdiction]
Present: Rana Bhagwandas, ACJ and Sardar Muhammad Raza Khan, J.
ZARAI TARAIQATI BANK LIMITED & others--Petitioners
versus
MUSHTAQ AHMED KORAI--Respondent
C.P.L.A. No. 445 of 2007, decided on 16.5.2007.
(On appeal from order of High Court of Sindh, Sukkur Bench, Sukkur dated 28.2.2007 passed in C.P. No. D-951 of 2006).
Constitution of Pakistan, 1973--
----Art. 212(3)--Service Tribunal Act, 1973--S. 2-A--Constitutional petition--Civil servant--Services were terminated--Challenge to--Appeal was accepted--Correctness and vires of judgment--Not assailed--Civil servant was directed to be reinstated in service with back benefits, while penalty of reduction of salary by two stages was restricted to five years--Bank did not assail the correctness and vires of judgment--Legality--Past and closed chapter--No proceedings against respondent were pending--Validity--Bank indeed had raised no grievance against judgment of tribunal for a period of seven years--Petitioners had accepted and acknowledged the finality of judgment passed by tribunal in favour of respondent and in law, there was no legal or moral justification to reopen the case of respondent which had attained finality and was past and closed transaction for all purpose--Held: No illegality, impropriety or arbitrariness on the part of High Court--It cannot be said that all cases acted upon and implemented in entirety would be open for review by employer--Petition dismissed. [P. 13] A
PLD 2006 SC 602 and PLD 1998 SC 1445, ref.
Mr. Hafiz S.A. Rehman, Sr. ASC and Mr. M.S. Khattak, AOR for Petitioners.
Nemo for Respondent.
Date of hearing: 16.5.2007.
Judgment
Rana Bhagwandas, ACJ.--Petitioner-Bank and its Executives are aggrieved by Sindh High Court, Sukkur Bench judgment dated 28.2.2007 allowing Constitutional petition filed by the respondent seeking the following reliefs:
"(a) To declare that the Office Memorandum dated 5.12.2006 (Annexure "D") issued by Respondents Nos. 1 & 2 is illegal, mala fide and without lawful authority and does not affect the rights of the petitioner as regular employee as Extra Assistant Director/MCO of the respondent-Bank.
(b) To stay the operation of the impugned Office Memorandum dated 5.12.2006 (Annexure "D")".
Precise facts appear to be that the respondent was employed in the petitioner-Bank with effect from 13.8.1986. His services were terminated by the petitioner-Bank with effect from 20.9.1995, He challenged his dismissal from service before the Federal Service Tribunal (hereinafter referred to as the Tribunal), which was accepted on 15.5.1999 and he was directed to be reinstated in service with back benefits, while the penalty of reduction of salary by two stages was restricted to five years. Petitioner-Bank did not assail the correctness and vires of this judgment and vide office memorandum dated 8.6.1999, in compliance with the judgment of the Tribunal, reinstated the respondent in service with all back benefits, with retrospective effect from 20.9.1995.
After the judgment of this Court by a Larger Bench in Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 S.C. 602), declaring the provisions of Section 2-A inserted in Service Tribunals Act, 1973 with effect from 10.6.1997, as repugnant to the provisions of Article 212 and other provisions of the Constitution, petitioner-Bank vide office order dated 5.12.2006 withdrew the reinstatement order of the respondent, in view of the aforesaid judgment. Respondent challenged the vires and legality of this order through a Constitutional petition before the Sindh High Court, Sukkur Bench, which, after serious contest, has been allowed. Operative part of the impugned judgment reads as under:--
"In view of the above, present petition also attracts the doctrine of de facto being a past and closed transaction would not fall within the ambit of conditions set forth at sub-paragraph (a) to (e) of Paragraph No. 109 of the judgment in Muhammad Mubeen-us-Salam case, as no case is pending between the parties. We would allow the petition to the extent that the impugned office memorandum dated 5.12.2006 issued by Respondent No. 1 is declared to be unlawful and is set aside.".
"109. Now the question is as to what would be the effect of this judgment on the cases pending before this Court and Federal Service Tribunal. In this behalf it may be noted that following the rule of past and closed transactions, laid down in the case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), it is directed as follows:--
(a) The cases which have been decided finally by this Court in exercise of jurisdiction under Article 212(3) of the Constitution shall not be opened and if any review petition, Misc. application or contempt application, filed against the judgment is pending, it shall be heard independently and shall not be affected by the ratio of this judgment.
(b) The proceedings instituted either by an employee or by the an employer, pending before this Court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of Section 2-A of the Service Tribunals Act, 1973
(c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period.
(d) The cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, which ever is earlier.
(e) The Service Tribunal shall decide pending cases under Section 2-A of the STA, 1973 in view of the above observations. However, if any of the cases is covered by clause `c' (ibid), a period of 90 days shall be allowed to aggrieved party to approach the competent forum for the redressal of its grievance.
Main thrust of the submission of the learned counsel is that in view of clear and unequivocal language employed in clause (d) of the aforesaid dictum, judgment in favour of the respondent stood intact for a period of 90 days from the date of judgment of this Court, which period having expired, petitioner-Bank and its Executives were legally justified in withdrawing and recalling the order of reinstatement in compliance with the judgment of the Tribunal.
We have given our careful consideration to the submission of the learned counsel and examined the reasons and grounds which found favour with the High Court for declaring the case of the respondent as past and closed chapter, covered by the dictum laid down in Mehram Ali v. Federation of Pakistan (PLD 1998 S.C. 1445). It is admitted that no proceedings against the judgment of the Tribunal reinstating the respondent, were pending before this Court among a large number of petitions, appeals, review petitions, contempt applications etc. in Mubeen-us-Salam's case. The petitioner-Bank indeed had raised no grievance against judgment of the Tribunal for a period of seven years. For all intents and purposes, petitioners had accepted and acknowledged the finality of the judgment passed by the Tribunal in favour of the respondent and, in law, there was no legal or moral justification to reopen the case of the respondent, which had attained finality and was a past and closed transaction for all purposes. We do not find any illegality, impropriety or arbitrariness on the part of the High Court when it says that clause (d) must be read and interpreted in the light of opening part of paragraph 109 attaching finality to the doctrine of past and closed transaction, as by any stretch of reasoning, it cannot be said that all cases acted upon and implemented in entirety would be open for review by the employer. In all probability, the cases mentioned in clause (d) (supra) refer only to those cases against the judgment of the Tribunal which were pending before the Court or were filed in office or were in the pipeline i.e. to be filed before this Court by way of petitions under
A
SC Qadir Bakhsh v. Allah Wasayo PLJ (Rana Bhagwandas, J.)
2008 Qadir Bakhsh v. Allah Wasayo SC (Rana Bhagwandas, J.)
Article 212(3) of the Constitution. Indeed, the interpretation placed by the High Court follows the golden rule of harmonious interpretation of instruments and cannot be said to be against the law or justice, good conscience and fair play. Clause (d) (supra) essentially refers to the relevant cases included in the lengthy list thereof, heard by the Court in Mubeenus Salam's case. It cannot and it does not refer to or reopen past and closed transactions, already acted upon. If interpreted to the contrary, it will open a pandora's box of litigation since June 1997, when Section 2-A was inserted in the Service Tribunals Act of 1973.
Since the view taken by the High Court, in our opinion, has done complete justice to the lis, we are not inclined to take a different view and to grant leave in this case.
Petition is, thus, found to be without any merit and substance. It is accordingly dismissed.
(R.A.) Petition dismissed.
PLJ 2008 SC 14 [Appellate Jurisdiction]
Present: Rana Bhagwandas; Hamid Ali Mirza & Ghulam Rabbani, JJ.
QADIR BAKHSH--Petitioner
versus
ALLAH WASAYO & others--Respondents
Crl. P.L.A. Nos. 40-K of 2007, decided on 5.9.2007.
(On appeal from order of Sindh High Court, Sukkur Bench, Sukkur dated 8.3.2007 passed in Crl. Bail Application No. 124 of 2006).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Accused were nominated for committing qatl-i-amd--Bail before arrest was confirmed by High Court--Cancellation of bail--Plea of alibi--Names were Column No. 2--Plea of alibi raised by them, investigating officer recorded the statements of as many as five teachers from the schools and expressed his opinion that accused were least concerned with commission of the crime--Held: Supreme Court does not interfere with the exercise of discretion by High Court unless it is shown to have been exercised in a manner not warranted by law or not supported by the record--Supreme Court are not inclined to disturb order passed by High Court--Petition dismissed.
[Pp. 15 & 16] A & B
Mr. Nur-ud-Din Sarki, ASC and Mr. Suleman Habibullah, AOR for Petitioners.
Nemo for Respondent Nos. 1 & 2.
Dr. Qazi Khalid Ali, Addl. A.G. Sindh for State.
Date of hearing: 5.9.2007.
Order
Rana Bhagwandas, J.--Petitioner-complainant is aggrieved by Sindh High Court, Sukkur Bench order dated 8.3.2007, confirming interim pre-arrest bail granted to Respondents Nos. 1 & 2 vide order 27.3.2006.
Both the respondents alongwith co-accused Mukhtiar Ali, Qurban Ali, Ghous Bakhsh, Abdul Ghafoor and Abdul Ghani were nominated for committing qatl-i-amd of deceased Abdul Hakim and Karim Bakhsh, committed on or about 23.11.2005 at about 9.00 a.m. within the jurisdiction of Police Station `B' Section, District Khairpur. After investigation, both the respondents were found to be not involved in the act, attributed to them. Their names were, accordingly, shown in Column No. 2 of the charge sheet. During the course of investigation, it transpired that respondent-Allah Wasayo was serving as a Senior Teacher/Headmaster in a primary school whereas Khuda Bakhsh was serving as peon in another primary school and were present on duty on the date of incident. In view of plea of alibi raised by them, Investigating Officer recorded the statements of as many as five teachers from both the schools and expressed his opinion that both the respondents were least concerned with the commission of the crime.
Both of them were admitted to pre-arrest bail by the High Court as aforesaid. After notice to State as well as the complainant and hearing the parties' counsel, High Court vide impugned order has confirmed the bail granted to them The necessity to approach the High Court arose upon receipt of charge sheet against the accused persons by the trial Court and summons by the trial Court.
After hearing Mr. Nur-ud-Din Sarki, learned ASC for the petitioner, Dr. Qazi Khalid Ali, learned Additional Advocate General, Sindh, Investigating Officer Javed Hussain Farooqi and verifying the record of the High Court, we are of the considered opinion that the discretion in the matter of grant of bail in favour of respondents, exercised by the High Court, does not suffer from any legal infirmity or arbitrariness. It is well settled that this Court does not interfere with the exercise of discretion by the High Court unless it is shown to have been exercised in a manner not warranted by law or not supported by the record. We are, therefore, not inclined to disturb the order passed by the High Court. Should the prosecution find sufficient incriminating
B
SC Muhammad Bashir v. Abbas Ali Shah PLJ (Tassaduq Hussain Jillani, J.)
2008 Muhammad Bashir v. Abbas Ali Shah SC (Tassaduq Hussain Jillani, J.)
evidence against the respondents, it would be at liberty to approach the trial Court for recall of the bail granted by the High Court.
(R.A.) Petition dismissed.
PLJ 2008 SC 16 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar; Falak Sher & Tassaduq Hussain Jillani, JJ.
MUHAMMAD BASHIR and others--Appellants
versus
ABBAS ALI SHAH--Respondent
Civil Appeal No. 872 of 2005, decided on 23.2.2007.
(Against the judgment of the Lahore High Court dated 28.6.2005 passed in RSA No. 6 of 2003).
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Demand of pre-emption--First demand does not envisage the presence or knowledge of vendee--Second demand i.e. talab-i-ishhad however is the only talab which postulates putting the vendee on notice about the pre-emptor's desire to purchase and the law mandates that it has to be sent through registered post acknowledgment due. [P. 21] A
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 129--General Clauses Act, (X of 1897), S. 27--Statement on oath denying servics--Onus to prove--Analysis of the case law discussed--In the proceeding would show that when presumption is raised in terms of Art. 129 of the Qanun-e-Shahadat Order read with Section 27 of General Clauses Act, on a question of fact, it would stand rebutted if the addressee makes a statement on oath denying service and the onus to prove service would continue to be on the party relying on such a notice unless of course there is other evidence to indicate that in denial of the service by the addressee is against the record.
[P. 25] B
PLD 1965 Lah. 126
Notice--
----Rebuttal--Endorsement of--Personal notice--Mere endorsement of "refusal" would not constitute service petitioner defendant had denied service not only in written-statement but also on oath while appearing in Court. [P. 25] C
1968 SCMR 828 at 832, 1972 SCMR 251, 1983 CLC 302 at 304, 1982 SCMR 354; PLD 1991 SC 660, 2004 SCMR 1773, 2006 SCMR 1275, 2004 SCMR 409.
Malik Muhammad Nawaz, ASC and Mr. M.S. Khattak, AOR For Appellants.
Malik Muhammad Qayyum, ASC for Respondent.
Date of hearing: 13.2.2007.
Judgment
Tassaduq Hussain Jillani, J.--This appeal is directed against the judgment dated 28.06.2005 passed by a learned Judge of the Lahore High Court whereby he allowed respondent's appeal and reversed the judgment and decree of the learned Additional District Judge dated 03.04.2003 through which while reversing the judgment and decree of the learned trial Court dated 30.03.1995 respondent's suit was dismissed. By virtue of the impugned judgment, respondent-pre-emptor's suit stands decreed.
Facts briefly stated are that qua the sale transaction evidenced through Mutation No. 255 dated 15.12.1994, respondent-plaintiff-respondent filed a pre-emption suit and claimed superior right of pre-emption being co-sharer in the suit land as also in amenities and asserted that the requisite Talbs had been performed as required by law. The suit was contested, in terms of the divergent pleas issues were framed, evidence was led and ultimately the suit was decreed on 16.12.1997 which was set aside in appeal by the learned Additional District Judge on 03.04.2003 but the same has been reversed by the learned High Court.
During trial, respondent-plaintiff produced three witnesses namely PW-1 Abbas Ali, PW-2 Abid Hussain and PW-3 Noor Muhammad. The documentary evidence was also led which included mutation Ex. P. 46. Original, notices of Talb-i-Ishhad Ex.P. 15 to Ex.P. 28, registered envelops with A.D. slips are Ex. P. 1 to Ex.P. 14. In defence the appellants produced two witnesses namely DW-1 Bashir s/o Fazal one of the vendees and DW-2 Ashiq Hussain s/o Barkat.
Learned counsel for the appellant submitted that the learned High Court fell in error in reversing the judgment and decree of the learned Appellate Court whereby respondent's suit had been dismissed; that the requisite Talbs as mandated in Section 13 of the Pre-emption Act had not been proved; that respondent-plaintiff expressed a belated Talb-i-Muwathibat inasmuch as the sale transaction was evidenced by mutation dated 15.12.1994 whereas according to respondent-plaintiff's own showing Talb-i-Muwathibat was made on 04.01.1995 and he claimed to have sent notices of Talb-i-Ishhad on 10.01.1995. Both the Talbs were made beyond the statutory period. He contended that the explanation given for the belated Talb-i-Muwathibat that they came to know about the sale transaction on 04.01.1995 is not only belied by the evidence on record but is also repellant to commonsense as it is unbelievable that both the parties residing in the same village would not have come to know about the sale mutation immediately i.e. on 15.12.1994 which was altered in "Ijlas-i-Aam". Coming to notice of Talb-i-Ishhad, learned counsel maintained that there is nothing in evidence to show that the service of this Talb was effected on the appellant; that mere sending notice of Talb-i-Ishhad through registered post acknowledgement due is not sufficient; that the requirement of sending notice through registered post acknowledgement due reflects the intent of the law-maker that there has to be personal service on the addressee and if there was refusal on his part, it had to be proved through a responsible official of the Postal Department and mere endorsement on acknowledgement due card to the effect that it was refused would not constitute service particularly when the appellant/defendant appeared and denied the service. In support of the submissions made, the learned counsel relied on:--
Begum Humayun Zulfiqar Ismail v. Begum Hamida Saadat Ali (1968 SCMR 828 at 832).
Gulzar Begum v. Mst. Sairah Bibi (1972 SCMR 251).
Khair Muhammad v. Akhtar Hussain (1983 CLC 302 at 304)
Amir Din v. Muhammad Siddique (1982 SCMR 354)
Water & Power Development Authority v. Saeed Badar (PLD 1991 SC 660 at Pages 665 & 666).
Messrs journalist Publication (pvt) Ltd v. Mst. Mumtaz Begum @ Mustari Begum (2004 SCMR 1773).
Haji Muhammad Ayub Khan Afridi v. Special Appellate Court, Peshawar (2006 SCMR 1275 at 1285).
Haji Lal Shah v. Abdul Khaliq (2004 SCMR 409 at 411).
Learned counsel for the respondent-plaintiff defended the impugned judgment and submitted that the admission attributed to the respondent-plaintiff (in cross-examination of PW-1) to the effect that the date of attestation (15.12.1994) is the date of possession of the vendee is against the record which is evidenced from the statement of DW-1. The learned Additional District Judge, in dismissing the suit, had relied on this so-called admission which was not tenable and has rightly been reversed by the High Court. The testimony of PW-1 (examination in chief) that he got knowledge of the afore-referred mutation on 04.01.1995 stands corroborated by PW-2 and PW-3, Talb-i-Muwathibat having been made the day he was informed of the sale and notices of Talb-i-lshhad sent within the stipulated period in terms of Section 1 3 it could not be said that the Talbs were not performed in time.
Dilating on Talb-i-lshhad, learned counsel for the respondent submitted that a bare reading of Section 13(1) of the Pre-emption Act indicates that the sending of notice through registered post acknowledgement due is sufficient compliance with requirement of law and it would raise a presumption that the notice stood served. Moreso when there was an endorsement by the official of the Postal Department to the effect that the defendant had refused to effect the service. According to him, sending a notice by registered post acknowledgement due gives rise to a presumption of service under Article 129 of Qanun-i-Shahadat Order, 1984 read with Section 27 of the General Clauses Act particularly when it is received back with endorsement that the addressee refused to accept service. In support of the submissions made, learned counsel relied on:
(i) Hayat Muhammad v. Mazhar Hussain (2006 SCMR 1410).
(ii) Bashir Ahmad v. Mumtaz Khan (PLD 1965 Lahore 126).
(iii) Sher Afzal v. Mohal Lal (AIR 1926 Lahore 520).
(iv) Atar Ali v. Abed Ali (PLD 1954 Dacca 158 at 172).
(v) Sultan Ahmed @ Ladu Mia v. Syed Ahmad (PLD 1967 Dacca 392).
(vi) Nazir-ud-Din v. Muhammad Ali (1980 CLC 203).
(vii) Pridino v. Khurshid Begum (1989 SCMR 880).
(viii) Gulzar Begum v. Mst. Sairah Bibi (1972 SCMR 251).
(ix) Muhammad Sharif v. Maqbul Ahmad (1974 SCMR 136).
(x) Anil Kumar v. Nanak Chandra Verma (AIR 1990 SC 1215)
(xi) Har Charan Singh v. Shiv Rani (AIR 1981 SC 1284).
We have considered the submissions made, have gone through the evidence on record and the precedent case law relied upon by the learned counsel for the parties.
Both the learned counsel mainly focused their submissions on Issue No. 5 i.e. "whether the plaintiff has fulfilled the demand of Talbs under pre-emption law? OPP. The learned trial Court decreed the suit and decided the afore-referred issue in favour of the respondent-plaintiff by holding as follows:--
"The relevant evidence has already been discussed above. The Talb-i-Ishhad has been duly corroborated by the evidence of PW-1 to PW-3. The original postage receipts are on record as Ex.P-29 to P-42 which are dated 10.01.1995. As such the notices Ex.P-15 to P-28 are within period of limitation of first Talb dated 4.1.1995. It is evident from notices Ex.P-15 to P-28 that the plaintiff had mentioned the first Talb having been made by him earlier. All these notices are signed by the witnesses."
"From the perusal of record and after hearing arguments advanced by learned counsel for both the sides, it is found that the respondent instituted suit for possession alleging superior pre-emptive right against impugned mutation Exp-46 dated 5.12.1994 while respondent sent notices to the appellants Exp-15 to Exp-28 through registered acknowledgement receipt Exp-1 to Exp-14 dated 10.01.1995, registered envelopes were unserved to the appellants that note the appellants refused to receive the notices. Respondent produced oral evidence as PW-1, he himself, PW-2 Abid Hussain and PW-3 Noor Muhammad but the respondent failed to produce evidence of responsible official of post office or post man, affirming version of respondent that the appellant refused to receive mandatory notices of Talb-i-lshhad because appellants have specifically denied in the written statement that no notice was issued to the appellants and that were not delivered to the appellants and all the proceedings in this regard were fake and fictitious. In this situation respondent was duty bound to produce any responsible official of post office department which was not done."
The learned High Court, however, set aside the judgment of the learned Appellate Court in revision on the grounds that the three witnesses produced by the respondent-plaintiff were credible; that there was no material discrepancy in their statements; that PW-2 and PW-3 are attesting witnesses of Talb-i-Ishhad; that there was no denial that notices were correctly addressed and that the postal receipts have been appended and produced as Ex.P.24 to P.42 while the copies of registered A.D. receipts were Ex.P.1 to P. 14 which was sufficient compliance of the statutory provisions required for performance of Talb-i-Ishhad.
In terms of Section 13 of the Pre-emption Act, the performance of Talbs is a condition precedent as it stipulates that the "right of pre-emption of a person shall be extinguished" unless the three Talbs are performed. The said provision read as follows:--
"13. Demand of pre-emption.--(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following orders, namely:--
(a) `Talb-i-Muwathibat';
(b) `Talb-i-lshhad'; and
(c) `Talb-i-Khusumat'.
(2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-i-Muwathibat.
(3) Where a pre-emptor has made Talb-i-Muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-lshhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption:
Provided that in areas where owing to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-i-lshhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under sub-section (2), and Talb-i-lshhad under sub-section (3) he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."
A close reading of the afore-referred section would indicate that the requirement of first demand i.e. Talb-i-Muwathibat being immediate is to ensure that the potential pre-emptor genuinely and bonafidely wishes to purchase the land sought to be pre-empted. This first demand does not envisage the presence or knowledge of the vendee. The second demand i.e. Talb-i-Ishhad, however, is the only talb which postulates putting the vendee on notice about the pre-emptor's desire to purchase and the law mandates that it has to be sent through registered post acknowledgement due.
A
The requirement of, "sending a notice in writing" is followed by a rider i.e. "under registered cover acknowledgement due". This signifies that the intention of law is not merely a formal notice on the part of the pre-emptor conveying his intention to pre-empt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere "sending of notice" is enough would make the expression "acknowledgement due" redundant. The service of the addressee, as prescribed in law therefore is imperative. If the acknowledgement card carries an endorsement of "refusal" or "not accepted", a presumption of service would arise unless it is rebutted. The expression "sending notice" came up for consideration in Thammiah, b. v. Election Officer [1980] 1 Kant L.J. 19 and the Court held that it means, "that it should reach the hands of the person to whom it has been given and the giving is complete when it has been offered to a person but not accepted by it."
While there is no cavil with the proposition that in terms of Article 129 of the Qanun-i-Shahadat Order read with Section 27 of the General Clauses Act, a presumption of service does arise if a notice sent through registered covered acknowledgement due is received back with the endorsement of "refused" by the postal authorities but if the addressee appears in Court and makes a statement on oath disowning receipt of notice, the presumption under the afore-referred provision shall stand rebutted and the onus is on the party which is relying on such an endorsement to prove the same by producing the postman who made the endorsement.
In Tekchand Devidas v. Gulab Chand Chandan Mal (AIR 1957 Madhya Bharat 151 Gwalior Bench), reiterating an earlier view (in Madh BL] 1955 HCR 702), it was held that:
"Where a notice is sent by registered post and it is alleged that it has been returned with the postal endorsement that the addressee refused to accept it, the endorsement has to be proved by calling in evidence the postman who tendered the registered letter to the addressee. Unless it is so proved the endorsement is not admissible in evidence in proof of the allegation."
In Anil Kumar v. Nanak Chandra Verma (AIR 1990 SC 1215), the learned Court was of the view that endorsement "refused" was sufficient to raise presumption of service. The Court observed that in such cases, there could be no hard and fast rule; that in certain cases the statement of an addressee could be sufficient to rebut the presumption but if the testimony of the addressee is inherently unreliable, the position may be different and the question in each case is always whether there was sufficient evidence to discharge the initial burden. The Court found that in the said particular case since the addressee was having business premises at Ghaziabad, the plea taken by him that he remained away from the said place for a long period (from 19.12.1984 to 1.1.1985) was not believable and therefore the concurrent findings raising presumption of service were unexceptionable.
In Piridno v. Khurshid Begum (1989 SCMR 880), the question as to service of notice under Section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 issued to the appellant who was undergoing imprisonment at the relevant time was rightly held by the two Courts below on the basis of mere endorsement of "refusal" thereon made by the postal authorities came up for consideration. The Court held that where addressee of a notice appeared in the Court and denied service of notice, legal presumption of service was repudiated and the sender of the notice would be obliged to prove genuineness of signatures of addressee on endorsement of refusal by its comparison with admitted one or by examination of postman to prove that the notice was offered to the addressee and the same was refused. Moreso, when the addressee was in jail and the endorsement did not contain any verification from the jail authorities that the letter was offered to a prisoner and he refused.
In Gulzar Begum v. Mst. Sairah Bibi (1972 SCMR 251), the moot point again was whether service of notice under Section 30 of the Displaced Persons (Compensation & Rehabilitation) Act (XXVIII of 1958) regarding an ejectment petition filed under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) had been effected on the appellant who denied her signatures on the acknowledgement card. It was held that the appearance of the addressee and denial of service was sufficient to rebut the presumption and the trial Court should have got the signatures of the appellant compared with the signatures on the admitted documents or the postman ought to have appeared to prove that the notice of ejectment issued was offered to the appellant for service and that she had received it and signed it.
In Nazir-ud-Din v. Muhammad Ali (1980 CLC 203), the import of presumption in terms of Section 114 of the Evidence Act and Section 27 of the General Clauses Act was considered and it was held that where addressees did not appear in Court as witness to deny service, a presumption would arise against the addressees of having refused service and therefore of having been served.
In Khair Muhammad v. Akhtar Hussain (1983 CLC 302), the question of notice under Section 30 of Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), sent under registered cover acknowledgement due came up for consideration and the Court came to the conclusion as follows:
"Similarly if a notice with correct description of addressee is posted and is returned back with the endorsement of "refused" by the postal authorities, the presumption of service of notice on the addressee will arise in the circumstances. However, the presumption of service in both cases shall stand rebutted if the addressee appears in Court and makes a statement on oath that he did not receive the letter alleged to have been sent to him or that he did not refuse to accept the service of letter. In such cases the initial burden of proving service of letter shall continue to remain on the person who relies on the service of such letter. This burden can be discharged by calling the postman concerned who delivered the letter or who made the endorsement of "refusal"
In Fateh Muhammad v. Gul Sher (2000 CLC 409), the effect of service of Talb-i-Ishhad through registered post acknowledgment due was commented upon and the Court was of the view that since, "the postman had also not been produced to establish that these notices reached to the destination, mere notice is not enough in the matter; its receipt by the defendant had to be established as laid down in case of Muhammad Rafiq v. Ghulam Murtaza (1998 MID 292).
In Qaiser Zamani v. Rasheeda Begum (1985 CLC 596), the question of service of notice under Section 13-A of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) was under consideration and the notice had been sent through registered post acknowledgement due but the addressee denied having received the notice. While dilating on the presumption under Section 114 of the Evidence Act (now Article 129 of the Qanun-i-Shahadat Order) read with Section 27 of the General Clauses Act, the Court held as under:
"As regards presumption of service under Section 114 of the Evidence Act read with Section 27 of General Clauses Act, suffice it to say that Mst. Qaisar Zamani appeared in Court and stated on oath that she did not receive the notice intimating change of transfer. In the circumstances of the case particularly when there was no evidence as to what was contained in the Registered envelope A1, it can be safely observed that no such notice as was required by law was served upon her. Any admission of tenancy, under the present landlady in a suit filed for recovery of rent subsequent to the ejectment proceedings would not avail the respondent landlady. Rent Controller proceeded on the assumption that the ejectment application was itself a sufficient notice."
Similarly in Amroz Khan v. Arbab Mohammad Ghalib (PLD 1980 Peshawar 163), the question of service of notice under Section 13-A of the West Pakistan Urban Rent Restriction Ordinance was a point in issue and the Court was of the view that:--
"The primary evidence was that of the postman who allegedly took the registered notice to the addressee. Failure to produce the postman in support of the claim of Arbab Muhammad Ghalib negates his version that the tenant refused to take delivery of the registered notice. In the case of Nawab Din v. Rafique Ahmed (1) the Lahore High Court has held that where the addressee denied the service of statutory notice the requisite proof to establish the service is the production of the postman as witness."
B
"In this particular case, the strong presumption which arises in favour of Mumtaz Khan respondent under Section 114 of the Evidence Act, has been held as not rebutted by the denial by Rao Bashir Ahmad that the notice was not brought or tendered to him by any postman. It has been admitted by him that Mumtaz Khan had told him that the house had been transferred to him and that he had refused to pay the rent to him until the revisional proceedings, which he had initiated, were decided."
In the instant case, the precise case of the respondent-plaintiff regarding notice of Talb-i-Ishhad in the plaint was that
Admittedly there was no personal notice, and mere endorsement of "refusal" would not constitute service, since the petitioner-defendant had denied service not only in written statement but also on oath while appearing in Court. The statement made by him
C
SC Mst. Nazakat v. Hazrat Jamal PLJ (Abdul Hameed Dogar, J.)
2008 Mst. Nazakat v. Hazrat Jamal SC (Abdul Hameed Dogar, J.)
in Court has been found by us to be reliable. In such circumstances, the presumption if any in terms of Article 129 of the Qanun-i-Shahadat Order stood rebutted and it was for the respondent-plaintiff to prove service by producing the postman who allegedly made the endorsement which has not been done.
(M.S.A.) Appeal allowed.
PLJ 2008 SC 26 [Appellate Jurisdiction]
Present: Abdul Hameed Dogar; Falak Sher & Tassaduq Hussain Jillani, JJ.
Mst. NAZAKAT--Appellant
versus
HAZRAT JAMAL and another--Respondents
Crl. A. No. 195 of 2000, decided on 13.2.2007.
(On appeal from the judgment dated 5.5.1999 of the Peshawar High Court, Peshawar passed in Cr.A. No. 286/97).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Constitution of Pakistan, 1973 Art. 183(3)--Appreciation of evidence--Conviction and sentence recorded against accused by trial Court--Challenge to--Maintaining conviction modification death into imprisonment--Leave to appeal--Motive--Main reason which weighed with the High Court in reducing sentence to imprisonment for life neither motive established nor it was known which remained shrouded in mystry--Being old plea is discarded by Court as a mitigating circumstance to reduced normal penalty of death to imprisonment of life--When prosecution has proved its case beyond any shadow of doubt. [P. 31] A
Motive--
----Lack of--Motive "shrouded in mystry" not a mitigating circumstance for awarding lesser sentence--Lack of motive or weakness thereof is immaterial to withhold the normal penalty of death in murder cases when trustworthy evidence had squarely brought home the guilty against accused beyond any doubt. [P. 31] B & C
Ocular Account--
----Circumstantial evidence--Corroborated by medical evidence--Irrespective of--Ocular account is not one corroborated by medical evidence but is supported by circumstantial evidence such as confessional statement recovery of blood stained churri and blood-stained pistol produced by PW--Held: Accused had acted in collous, ruthless and cruel manner while taking the life of deceased and injuring PW intentionally. [P. 31] D
PLD 2004 SC 44, 2004 SCMR 1676, PLD 1971 SC 541 and PLD 1994 SC 178, ref.
Syed Safdar Hussain, ASC/AOR for the Appellant.
Mr. M. Zaman Bhatti, ASC with Mr. Arshad Ali Ch., AOR for Respondent No. 1.
Mr. M. Bilal, Sr. ASC for State.
Date of hearing: 13.2.2007.
Judgment
Abdul Hameed Dogar, J.--This appeal with leave of this Court is directed against judgment dated 5.5.1999 of the Peshawar High Court, Peshawar whereby Criminal Appeal No. 286 of 1997 filed by Respondent No. 1 Hazrat Jamal was partly accepted and while maintaining his conviction under Section 302 PPC the penalty of death was converted into imprisonment for life with direction to pay Rs.100,000/- as compensation under Section 544-A Cr.P.C to the legal heirs of deceased Inamullah. His conviction and sentence under Section 307 PPC on two counts to 5 years R.I. with fine of Rs.10,000/- each or in default four months R.I. each was maintained and Murder Reference No. 16/1997 sent by learned Sessions Judge/Zilla Qazi for confirmation of death sentence was answered in negative.
The prosecution story as narrated by complainant Khoshdil (PW-7) in FIR No. 59 dated 28.2.1995 of Police Station Totali District Buner are that on 28.2.1995 at 13.00 hours Respondent No. 1 Hazrat Jamal entered into Muslim Commercial Bank, Bazar Ghor Ghushti Branch and started chatting with Mushtaq Ahmed (PW-8 Manager of the Muslim Commercial Bank, Bazar Ghor Ghushti Branch. At that time deceased Inamullah who was Cashier in the Bank was preparing monthly statement. After sometime respondent took out a `Churri' from the fold of his shalwar and attacked firstly on the manager of the Bank and thereafter on deceased Inamullah and complainant Khoshdil. As a result of which they sustained injuries. Inamullah succumbed to the injuries at the spot whereas PW Mushtaq Ahmed and Khoshdil complainant were seriously injured. Respondent was apprehended with churri by the complainant with the help of local inhabitants. To rescue him respondent also fired in air from his pistol. He was beaten by people with bricks and stones which caused him various injuries. Consequently case was registered against respondent under Sections 302 and 307 PPC for causing murder of deceased Inamullah and injuries to complainant Khoshdil and PW Mushtaq Ahmed. The motive as stated by the prosecution is that prior to the occurrence an altercation took place in between respondent and deceased Inamullah with regard to deposit in the bank and respondent nourished a grudge in his mind against deceased. On 1.3.1995 one Alaf Gul produced 30 bore blood stained pistol before Mohabat Khan Inspector/Investigating Officer which was allegedly snatched from respondent during the incident Since respondent was injured as such he was referred for medical treatment under arrest. After his discharge from the hospital, he voluntarily confessed his guilt and thus his confessional statement was recorded on 14.3.1995 whereafter he was remanded to the judicial custody and was sent up to face trial before the learned Sessions Judge/Zilla Qazi, Buner at Daggar.
At trial, the prosecution examined ten witnesses.
Dr. Phag Chand, Medical Officer, Civil Hospital, Swabi examined injured Mushtaq Ahmed (PW-8), complainant Khoshdil (PW-7) and deceased Inamullah and found the following injuries on their persons:--
Mushtaq Ahmed (PW-7)
"A large incised wound on the left side of face extending from the lower margin of left ear to the left margin of mouth, deep into oral cavity, injuring the skin, subcutaneous tissue, vessels, muscles and oral mucosa."
Complainant Koshdil
An incised wound size 3 cm x 1/2 cm deep into bone of lower end of occipital region of scalp.
An incised wound size 2 cm x 1/2 cm deep into muscle on the back of neck.
An incised wound size 3 cm x 1 cm on the palm of left hand.
An incised wound size 3 cm x 1 cm on the middle of scalf, deep into bone.
Deceased Inamullah
An incised wound size 2 cm x 1 cm on the left cheek.
An incised wound size 4" x 2" on the left side of the neck deep into oral cavity.
An incised wound size 1" x 1/4" on the left side of shoulder.
Respondent in his statement recorded under Section 342 Cr.P.C, denied the case of the prosecution and claimed innocence. He neither examined himself on Oath as required under Section 340(2) Cr.P.C, nor led any evidence in defence.
On the conclusion of trial, Respondent No. 1 was convicted under Section 302 PPC and sentenced to death with fine of Rs.80,000/- or in default whereof two years R.I. It was also directed that half of the amount of fine, if recovered, would be given to the legal heirs of deceased as compensation. For causing injuries to PWs Mushtaq Ahmed and Khoshdil he was convicted and sentenced under Section 307 PPC to five years R.I. with fine of Rs.10,000/- in each case or in default to undergo R.I. for four months each. Half of the fine will be paid to injured Mushtaq Ahmad and Khoshdil as compensation. However, he was given the benefit of Section 382-B Cr.P.C.
Feeling aggrieved, respondent filed Criminal Appeal No. 286 of 1996 before learned Peshawar High Court, Peshawar which was partly allowed as stated above.
Leave to appeal was granted by this Court to scrutinize in the detail the following points:--
(i) Whether when the prosecution has proved the guilt of the accused, and normal penalty u/S. 367 Cr.P.C. provided for murder is death then the accused was not legally obliged at least to have narrated the circumstances justifying the imprisonment of lesser penalty?
(ii) Whether in view of the evidence of PWs-7 & 8 the High Court was justified to hold that the motive has not been established?
(iii) Whether it is rule of universal application to award lesser penalty whenever the prosecution fails to prove motive or the motive appears to be insufficient?
We have heard Syed Safdar Hussain learned ASC/AOR for the appellant, Mr. Muhammad Zaman Bhatti, learned ASC for respondent Hazrat Jamal and Mr. M. Bilal, Sr. ASC for State at length and have gone through the record and proceeding of the case in minute particulars.
Learned counsel for the appellant vehemently contended that the learned High Court while reducing the sentence failed to take into consideration the reasons advanced by the trial Court in holding respondent guilty of offence under Section 302 PPC and awarding sentence of death. According to him, the incident was not only pre-meditated but was pre-planned. It has been established by the prosecution that respondent acted brutally and inflicted repeated churri blows on the person of deceased Inamullah P.Ws Mushtaq Ahmed and Khoshdil on vital parts of their bodies. He further contended that eye-witness account furnished by injured eye-witnesses, namely, Khoshdil (PW-7) and Mushtaq Ahmed (PW-8) is not only natural, straight forward but is consistent with the medical evidence and was thus rightly believed by the Courts below. As regard motive, learned counsel stated that the same was set up in the FIR and even if there was no motive, the same could not be a mitigating circumstance for awarding lesser punishment. According to him, the learned High Court has seriously erred in reducing the sentence and ignoring the confessional statement of respondent and appreciating the evidence in its true prospective, thus the judgment of the trial Court be restored and the respondent be awarded death penalty.
On the other hand learned counsel appearing for respondent supported the impugned judgment and contended that the same being well reasoned does not warrant interference. According to him, since the prosecution has failed to establish the motive, as such, the learned High Court was justified in treating the same as the mitigating circumstance. Even the conduct and behavior of respondent at the time of incident does not show his intention of either committing the murder of deceased or robbery. What transpired before that incident, was shrouded in mystery and it was not known as to what happened at the time of incident which prompted respondent to commit the offence hence the impugned judgment is well in accordance with law.
Admittedly, the incident being broad day light took place on 28.2.1995 at 13.00 hours and was reported promptly. The ocular eye-witness account furnished by complainant injured PW-7 Khoshdil and PW-8 Mushtaq Ahmad is fully corroborated by medical evidence furnished by PW Dr. Phag Chand, the Medical Officer.
At the very out set, it is pertinent to note that before the learned High Court, learned counsel appearing for respondent Hazrat
Jamal did not dispute the conviction but confined his arguments to the quantum of sentence only. The main reason which weighed with the learned Division Bench of the High Court in reducing the sentence to imprisonment for life was that neither the motive was established by the prosecution nor it was known as to what happened just before the incident which remained shrouded in mystery. We are afraid this being the old plea is discarded by this Court as a mitigating circumstance to reduce the normal penalty of death to imprisonment for life particularly when the prosecution has proved its case beyond any shadow of doubt. Reference can be made to the case of Muhammad Akbar and another v. The State (PLD 2004 SC 44), wherein it was held by this Court that when prosecution proves its case through reliable and trustworthy evidence beyond any doubt, inadequacy or weakness of motive or where motive was alleged but not proved, would become immaterial and would not adversely affect prosecution case and normal penalty of death can be imposed on the assailants if there were no mitigating or extenuating circumstances for lesser penalty. It has also been held in this case that "motive shrouded in mystery" by itself is not a mitigating circumstance for awarding lesser sentence and this theory has been discarded. In the case of Muhammad Amin alias Irfan and another v. The State (2004 SCMR 1676) also this Court while discarding the motive held that lack of motive or weakness thereof is immaterial to withhold the normal penalty of death in murder cases when trustworthy evidence had squarely brought home the guilt against the accused beyond any doubt.
A
B
C
D
SC Ghulam Murtaza v. Abdul Salam Shah PLJ (Ch. Ijaz Ahmed, J.)
2008 Ghulam Murtaza v. Abdul Salam Shah SC
(Ch. Ijaz Ahmed, J.)
penalty to the principal accused after restoring the judgment of trial Court. Following the principle, this Court in the case of Abdul Subhan v. Raheem Bakhsh and another (PLD 1994 SC 178) by majority view allowed the appeal and set aside the judgment of the High Court and restored the judgment of trial Court whereby respondent Raheem Bakhsh was sentenced to death.
(M.S.A.) Appeal allowed.
PLJ 2008 SC 32 [Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Ch. Ijaz Ahmed, JJ.
GHULAM MURTAZA--Appellant
versus
ABDUL SALAM SHAH and others--Respondents
Civil Appeal No. 798 of 2003, decided on 13.2.2007.
(On appeal from the judgment/order dated 21.2.2001 passed by the Lahore High Court, Lahore, in C.R. No. 409/2001).
Constitution of Pakistan, 1973--
----Art. 185(3)--Concurrent findings--Appellant had failed to prove the contents of the general power of attorney through reliable evidence on record--Court does not normally, interfere in the concurrent conclusion arrived at by the Courts below in exercise of power under Art. 185(3) of the Constitution--Appeal dismissed. [P. 37 & 38] B & C
Administration of Justice--
----Document must be read as a whole. [P. 37] A
PLD 1993 SC 473; PLD 1992 SC 595 & PLD 1957 SC 219 rel.
PLD 2003 SC 31, 1993 SCMR 2099, 1989 SCMR 450, 1491 and PLD 1994 SC 291 considered.
Malik Saeed Hassan, Sr. A.S.C. for Appellant.
Mr. Arif Chaudhry, ASC for Respondents Nos. 2 to 8.
Date of hearing: 13.2.2007.
Judgment
Ch. Ijaz Ahmed, J.--The brief facts out of which the present appeal arises are that land measuring 64 kanals situated in Chak No. 404/GB Tehsil Samundri, Faisalabad, was owned by Abdul Salam Shah, Abdul Sattar Shah, Umtul Hafeez, Mst. Salamat Bibi and Khurshid Bibi sons and daughters of Muhammad Siddiq Shah. Abdul Sattar Shah is father of Respondent Nos. 2 to 7. All the owners mentioned above executed general power of Attorney in favour of Abdul Salam Shah Respondent No. 1 on 29-8-1981 whereas late Abdul Sattar Shah father of Respondent Nos. 2 to 7 had executed general power of attorney in favour of Abdul Salam on 27-2-1988. Respondent No. 1 executed agreement to sell with the appellant with regard to total land measuring 64 kanals on 30-5-1991 for consideration of Rs. 6,50,000/- and also received earnest money amounting to Rs. 2,000,00/-. Respondent No. 1 received remaining consideration from appellant on 15-6-1991. Abdul Sattar Shah died on 28-7-1991 leaving behind his legal heirs widow, daughters and sons. Respondent Nos. 2 to 7 refused to execute registered sale-deed in favour of the appellant. Appellant being aggrieved filed suit for specific performance on 22-8-1993 in the Court of Civil Judge First Class Tandlianwala. Respondent No. 1 filed consenting written statements whereas Respondent Nos. 2 to 7 filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties trial Court framed 11 issues. The learned trial Court dismissed the suit vide its judgment and decree dated 4-1-1997. Appellant being aggrieved filed appeal in the Court of Additional District Judge, Faisalabad who dismissed the same vide judgment and decree dated 12-2-2001. Thereafter the appellant filed Civil Revision No. 409/2001 in the Lahore High Court which was also dismissed vide impugned judgment dated 21-2-2001. Appellant being aggrieved filed Civil Petition No. 640-L of 2001 before this Court which was fixed on 18-4-2003 and leave was granted in the following term:--
"Leave is granted to re-appraise the evidence to consider whether onus to prove execution of power of attorney in view of plea raised by the respondents that though a document was written as a power of attorney but the same related to only obtaining land on behalf of deceased Abdul Sattar from the Government and not to sell the land, continued to be on the plaintiff to prove its execution on the same had shifted to the respondent who had taken a plea contrary to the contents of the document".
Learned counsel for the appellant submits that all the Courts below had erred in law to dismiss the suit by misreading and non reading of the record as is evident that trial Court had decided Issue No. 7 in favour of the appellant and against the respondents and the finding of the trial Court on Issue No. 7 was not disturbed by the Appellate Court and the High Court. He further submits that general power of attorney which was executed in favour of appellant by father of Respondent Nos. 2 to 7 is binding on his legal heirs and this fact was not scrutinized in its true perspective by the Courts below. He further urges that specific power was given by the original owner Abdul Sattar to the Respondent No. 1 vide general power of attorney dated 27.2.1988 to control, manage and sell the land in question and also receive the consideration. Late Abdul Sattar Shah predecessor in interest of the Respondent Nos. 2 to 7 had appointed Respondent No. 1/Defendant No. 1 Abdul Salam Shah as his attorney and authorised him to dispose of the property of the deceased. Therefore Respondent No. 1/Defendant No. 1 was competent to execute the agreement to sell in favour of the appellant/plaintiff. He further urges that the execution of power of attorney was admitted by the respondents in their written statements and this fact was not considered by the Courts below in its true perspective.
Learned counsel for Respondent Nos. 2 to 7 has supported the impugned judgment and stated that all the Courts below had concurrently decided against appellant after proper appreciation of evidence on record. He further maintains that Respondent Nos. 2 to 7 admitted the power of attorney to the extent that their father had given power of attorney to Respondent No. 1 to control and manage all the property and had not given any authority to him to sell the land in question and this fact was duly considered by the all the Courts below. He further maintains that all the Courts below had non suited appellant after appreciation of evidence on record qua Issues Nos. 5 & 6 and found that consideration of the land in question to the extent of share of their father was not paid to him or to his legal heirs, Respondent Nos. 2 to 7. In support of his contention he relied upon Fida Muhammad v. Muhammad Khan (PLD 1985 SC 341) and Maqsood Ahmad v. Salman Ali (PLD 2003 SC 31).
We have considered the submissions made by counsel for the parties and perused the record. It is pertinent to mention here that trial Court after proper appreciation of evidence on Issues No. 5 and 6 had given findings of fact against the appellant as evident from para 10 to 13 of the judgment of the trial Court. The relevant finding is as follows:--
"So far as the execution of general power of attorney is concerned the same is admitted. Defendant 2 is widow and a lady whereas defendants 4 to 7 are minors. But taking judicial notice of the said document Exh.P3, I am of the opinion that the genuineness of this power of attorney is doubtful for the reason that the signatures of Abdul Satar deceased on this document do not tally each other. There is visible difference in the signatures of the deceased. Further from the endorsement on the book of the general power of attorney the sub Registrar has affixed the stamp showing the attestation of a sale-deed and not the general power of attorney.
As the defendants 2 to 7 have denied the authority of defendant 1 in respect of the alienation of the land he was under legal obligation to prove that the agreement to sell was with the consent of Abdul Sattar Shah deceased or that the same was within his knowledge and also that he had passed on the sale consideration to him after receiving the same from the plaintiff. As mentioned above not on iota of evidence has been produced by the plaintiff or defendant 1 in this respect. In view of the above discussion I hold that as the defendant 1 had no authority of alienation of the land of the deceased the agreement to sell executed by him in favour of the plaintiff in respect of the transfer of the land in dispute the plaintiff is not entitled to the decree for specific performance of the same."
General power of attorney:
A
(i) Mian Nawaz Sharif's case (PLD 1993 SC 473)
(ii) Hakim Ali's case (PLD 1992 SC 595)
(iii) Reference by the President (PLD 1957 SC 219)
"In view of nature of authority, the power of attorney must be strictly construed and proved and further the object and scope of the power of attorney must be seen in the light of its recital to ascertain the manner of the exercise of the authority in relation to the terms and conditions specified in the instrument. The rule of construction of such a document is that special powers contained therein followed by general words are to be construed as limited to what is necessary for the proper exercise of special powers and where the authority is given to do a particular act followed by general words, the authority is deemed to be restricted to what is necessary for the purpose of doing the particular act. The general words do not confer general power but are limited for the purpose for which the authority is given and are construed for enlarging the special powers necessary for that purpose and must be construed so as to include the purpose necessary for effective execution. This is settled rule that before an act purported to be done under the power of attorney is challenged as being in excess of the powers, it is necessary to show on fair construction, that the authority was not exercised within the four corners of the instrument."
B
SC Rahim Tahir v. Ahmad Jan PLJ (Muhammad Nawaz Abbasi, J.)
2008 Rahim Tahir v. Ahmad Jan SC (Muhammad Nawaz Abbasi, J.)
law laid down by this Court in various pronouncements. See Guldar Khan's case (1993 SCMR 2099), Nazir Ahmad's case (1989 SCMR 450); Riaz's case (1989 SCMR 1491) and Haji Muhammad Din's case (PLD 1994 SC 291). There is concurrent finding of three Courts on a question of fact and this Court does not, normally, interfere in the concurrent conclusions arrived at by the Courts below in exercise of the power under Article 185 (3) of the Constitution. The learned counsel for the appellant has failed to point out any infirmity or illegality in the impugned judgment. The appeal has no merit and the same is dismissed.
(M.S.A.) Appeal dismissed.
PLJ 2008 SC 38 [Appellate Jurisdiction]
Present: Rana Bhagwandas & Muhammad Nawaz Abbasi, JJ.
RAHIM TAHIR--Petitioner
versus
AHMAD JAN and two others--Respondents
Criminal Petition No. 54-K of 2006, decided on 14.11.2006.
(On appeal from the judgment of High Court of Sindh dated 16.6.2006 passed in Criminal Revision No. 70/2006).
Illegal Dispossession Act, 2005--
----S. 3(2)--Constitution of Pakistan, 1973, Art. 185(3)--Complaint for appropriate action--Illegal and unauthorized occupant--Complaint was dismissed--Assailed--Validity--Illegal Dispossession Act, 2005 having no retrospective effect may not be applicable to cases of unauthorized occupants pending before any other forum on the date of promulgation of Act but if the case not already pending before any other forum on date of enforcement of Illegal Act, same would fall within the ambit of Illegal Dispossession Act 2005--Special enactment which has been promulgated to discourage the land grabbers and to protect the rights of owner and lawful occupant of the property--All cases of illegal occupants would be covered by the Act except the cases already pending before any other forum--Illegal Dispossession Act, is not applicable to an illegal occupant, who was in occupation of premises prior to date of promulgate of the Act has no substance purposes was to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupants--Petition was converted into appeal and case remanded to Sessions Judge. [P. 41] A & B
Mr. Anwar Hussain, ASC for Petitioner.
Mr. Suleman Habibullah, AOR for Respondent No. 1.
Mr. Aslam Shah, S.I., P.S. Manghopir for Respondent No. 2.
Mr. Muhammad Sarwar Khan, Addl. AG Sindh for Respondent No. 3.
Date of hearing: 14.11.2006.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185 (3) of the Constitution has been directed against the judgment dated 16.6.2006 passed by a learned Judge in chamber in the High Court of Sindh at Karachi in a criminal revision arising out of a complaint filed by the petitioner under Illegal Dispossession Act, 2005.
The short facts leading to this petition are that the petitioner holding lease hold rights of the plot bearing No. 872 Sector II, Type `A' measuring 200 sq. yards situated at Sultanabad Town, Manghopir Road, Karachi (West) vide registered lease deed dated 14.6.1987, filed a complaint under Section 3 (2) of Illegal Dispossession Act, 2005 for appropriate action against the respondent, an illegal and unauthorized occupant of the plot. Learned Sessions Judge, Karachi (West) after obtaining report from the SHO of the concerned police station, dismissed the complaint vide order dated 19.4.2000 with the observation that the controversy between the parties pertaining to the possession of the premises, may not fall within the ambit of Illegal Dispossession Act, 2005 and the order passed by the learned Sessions Judge was further maintained by the High Court of Sindh, at Karachi, by dismissing the criminal revision filed by the petitioner under Section 439 Cr.P.C.
The jurisdiction of learned Sessions Judge, Karachi, West, under Illegal
Dispossession Act, 2005, was invoked on the ground that respondent was unauthorized occupant of the premises, whereas the case of the respondent, on the other hand, was that he having entered into agreement to sell dated 20.6.2003, with the petitioner through his attorney, Yousaf Ali, purchased the property for valuable consideration and was in lawful possession of the premises in his own right as owner. However, the petitioner while denying the claim of respondent, stated that no doubt, he had appointed Yousaf Ali as his attorney vide registered deed dated 13.1.1974, but subsequently, the power of attorney of Yousaf Ali was revoked vide registered deed dated 2.4.1998, and he was no more attorney of the petitioner, therefore, the agreement to sell in question was not a legal document to create any right or interest in favour of respondent in the property. In view of the factual position narrated above, the lease hold right of the petitioner of the plot in question, the execution of a registered power of attorney in favour of Yousaf Ali and its subsequent revocation, being not disputed, the authenticity of the documents referred above, was not questionable, therefore, the crucial question requiring determination would be as to whether respondent was an unauthorized occupant in terms or Illegal Dispossession Act, 2005 or not. The expression occupier' in the Act, meansa person who is in the lawful possession of the property' and
`owner' means the person who actually owns the property at the time of dispossession otherwise through process of law. In the present case, the respondent having taken over the possession in an unauthorized manner, subsequent to the filing of the complaint against him by the petitioner under Illegal Dispossession Act, 2005, filed a suit for specific performance of the contract on the basis of an agreement which has no legal sanction and recognition.
The factual position in the background, would apparently lead to the conclusion that possession of the property with the respondent, was not lawful. The agreement on the basis of which, respondent set up his claim of lawful possession, was executed by a person who was neither owner of the property nor he was holding a valid power of attorney of the owner and consequently, the respondent was in possession of the property without lawful authority in terms of Section 3 of the Illegal Dispossession Act, 2005, which is reproduced hereunder for better appreciation of the proposition:--
"3. Prevention of illegal possession of property, etc.--(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owners or occupier of such property.
(2) Whoever contravenes the provisions of the sub-section (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of Section 544-A of the Code."
There is no cavil to the legal position that Illegal Dispossession Act, 2005 having no retrospective effect, may not be applicable to the cases of unauthorized occupants pending before any other forum on the date of promulgation of the above Act but if the case of an illegal occupant was not already pending before any other forum on the date of enforcement of this Act, the same would squarely fall within the ambit of this Act. The expressions "grab, control or occupy" used in Section 3 of the Act cannot be restricted to the illegal occupants who entered in the premises subsequent to the promulgation of the Act rather all cases of illegal and unauthorized occupants would be subject to the Illegal Dispossession Act, 2005, except the cases which were pending adjudication before other forums.
A
In consequence to the revocation of the power of attorney of Yousaf Ali by the petitioner vide registered deed, he had no authority to act as such, therefore, neither the agreement to sell executed by him on behalf of petitioner in favour of respondent would create any right or interest of respondent nor Yousaf Ali had any lawful authority to deliver the possession of the property and consequently, the respondent would not be considered lawful occupier of the property. The mere filing of the suit subsequent to the filing of complaint on the basis of a document which has no legal foundation, would be of no significance to protect the illegal and unauthorized possession.
The Illegal Dispossession Act, 2005, is a special enactment which has been promulgated to discourage the land grabers and to protect the right of owner and the lawful occupant of the property as against the unauthorized and illegal occupants. The careful examination of the relevant provisions in the Act would reveal that all cases of illegal occupants without any distinction, would be covered by the Act, except the cases which were already pending before any other forum. The respondent admittedly was inducted into the premises by a person, who was neither owner nor a lawfully constituted attorney of the owner to have any authority to enter into an agreement of sale on behalf of the owner or deliver the possession of the property to the respondent and thus apparently, he was an illegal and unauthorized occupant of the premises. The contention that Illegal Dispossession Act, 2005, is not applicable to an illegal occupant, who was in occupation of the premises prior to the date of the promulgation of the Act, has no substance. The purpose of this special law was to protect the right of possession of lawful owner or occupier and not to perpetuate the possession of illegal occupants.
B
SC Muhammad Akram v. Mst. Farida Bibi PLJ (Ch. Ijaz Ahmed, J.)
2008 Muhammad Akram v. Mst. Farida Bibi SC
(Ch. Ijaz Ahmed, J.)
(M.S.A.) Case remanded.
PLJ 2008 SC 42 [Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed & Hamid Ali Mirza, JJ.
MUHAMMAD AKRAM and another--Appellants
versus
Mst. FARIDA BIBI and others--Respondents
Civil Appeal No. 1478 of 2006, decided on 26.4.2007.
(On appeal from the judgment/order dated 12.7.2006 passed by the Lahore High Court, Lahore, in C.R. No. 344 of 2002).
Principle--
----No body should get the benefit of the weaknesses of the defendant's plea. [P. 47] A
PLD 1995 SC 351 & 2003 YLR 1285.
Principle--
----It is also a settled law that party can only succeed according to what was alleged and proved. [P. 47] B
1998 SCMR 593.
Pleadings--
----Principle--Pleadings of the parties are not substantive piece of evidence unless and until the averments made in the pleadings proved from the evidence in Court or admitted by the other party.
[P. 47] C
2004 SCJ 250.
Evidence--
----Averment of plaint--Respondents did not adduce any evidence to prove the averments of plaint with regard to their superior right in their oral evidence as well as documentary evidence. [P. 48] D
Interpretation of law--
----Principle--Admissibility of document--It is a settled law that document once it was brought on record and exhibited there the opposite party could not challenge the admissibility of the document in the Court. [P. 48] E
Document--
----Exhibited--Prevented from adjudicating--Superior right of pre-emption--Principle--Objection--If no objection was taken by the other side when the document was exhibited the Court has not prevented from adjudicating its nature, where it is valid or not, or where it is fake or not. [P. 48] F
Maxim--
-----`Secundum allegata et probate'--Meaning of--"(He who alleges a fact must prove it)". [P. 48] H
Interpretation of law--
----Principle--Proof of document--Where a document is produced in Court but neither author of the document is produced nor patwari appeared in support of his note written--Held: Such document was not proved. [P. 48] J
2000 CLC 759 & 1985 CLC 2353.
Pre-emption Act, 1991 (IX of 1991)--
----Ss. 7 & 16--Claim of superior right of pre-emption--Admittedly--Respondents did not adduce any evidence to prove the averments of plaint with regard to their superior right in their oral evidence as well as documentary evidence--Respondents had placed AKs Shajra through their counsel without objection from appellant's--Burden was on plaintiffs in suit to prove their claim that they had superior right of pre-emption as alleged and they had failed to discharge that burden as evident from Aks Shajra and other documents produced by them did not depict that the land in-question was adjacent to the land of respondents--Such documents were misconstrued by First Appellate Court and High Court--Supreme Court as a rule, should give due weight and consideration to the opinion of the Courts below while exercising Constitutional powers--Supreme Court did not meddle with the findings of fact reached by First Appellate Court or High Court when it was satisfied that Courts below were on the whole reasonable and were not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence--Aks Shajra had to prove by respondents/plaintiff by producing patwari, therefore such document did not explain and prove the fact of contiguity--Held: High Court as well as First Appellate Court had committed material irregularity by misreading and non-reading of record--Appeal allowed. [Pp. 48 & 49] G, I, K & L
Syed Fayyaz Ahmad Sherazi, AOR with Mr. Ghulam Farid Sanotra, ASC for Appellants.
Mr. Khalid Mehmood, ASC with Mr. Arshad Ali Ch., AOR for Respondents.
Date of hearing: 26.4.2007.
Judgment
Ch. Ijaz Ahmed, J.--Brief facts out of which the present appeal arises are that appellants purchased land in question measuring 76 kanals 18 marlas vide Mutation No. 149 dated 18-9-1995 from the original owners Muhammad Iqbal and Muhammad Alam for consideration of Rs. 6,20,000/-. The land in question is situated in Khasras Nos. 425,426, 443 to 446, 451,452, 359,360 and 628, Khewat and Khathooni Nos. 4/14 to 16 in village Saddowala Neewan. Predecessor-in-interests of respondents Mst. Atri Begum filed suit for pre-emption in the Court of Civil Judge First Class Narowal on 28-9-1995 against present appellants/defendants. The contents of the plaint reveal that she came to know about the impugned sale on 24-9-1995. She made Talb-i-Muwathibat. She also made Talb-i-Ishhad by sending notice through registered post. She claimed her right of pre-emption on the basis of being beneficiary of joint amenities and contiguity (on the basis of the suit land being adjacent to her land and the common passage) with the prayer that the decree for pre-emption be passed in her favour. During the pendency of the suit original plaintiff predecessor-in-interest of respondents Mst. Atri Begum died before passing of decree in the suit. Present respondents predecessor-in-interest filed amended plaint in the said Court. Appellants/plaintiffs filed written statement controverting allegations levelled in the plaint. Out of the pleadings of the parties trial Court framed 6 issues including the following material Issues Nos. 1 and 2:--
"1. Whether the plaintiffs have got superior right of pre-emption qua the defendants? OPP.
Learned trial Court after recording the evidence of the parties dismissed the suit of the respondents vide judgment and decree dated 31-7-2001. Respondents/plaintiffs being aggrieved filed appeal in the Court of Additional District Judge Narowal who accepted the same vide its judgment and decree dated 26-1-2002. Appellants/defendants being aggrieved filed C.R. No. No. 344 of 2002 in the Lahore High Court, Lahore, which was dismissed by the learned High Court vide impugned judgment dated 12-7-2006. Appellants/defendants being aggrieved filed C.P. No. 1480-L/2006 which was fixed before this Court on 25-8-2006 and leave was granted in the following term vide order dated 25-8-2006:-
"It is contended that all the Courts have mis-read and misconstrued the evidence in holding that respondent Mst. Farida had superior right of pre-emption in respect of the demised land. It was further submitted that the above finding is absolutely contrary to documentary evidence brought on record, viz Aks Shajrah, Ex.P-5 (P.63).
From perusal of the record the contention appears to require consideration. Therefore, leave is granted to the petitioner for reappraisal of the evidence. Issue notice to the respondent."
Learned counsel for the appellants submits that respondents/plaintiffs had not adduced any evidence to prove their superior right of pre-emption and this aspect of the case was not considered in its true perspective by the First Appellate Court as well as learned High Court. He further maintains that both the Courts below had erred in law to non suited the appellants/defendants merely on the ground that DW1 Muhammad Akram had accepted the claim of the respondents/plaintiffs that their land was adjacent to the land in question. He further maintains that respondents/plaintiffs have to prove their case and could not take benefit of the weakness of the appellants/defendants. He further maintains that documents produced by the respondents through their counsel which were exhibited by the trial Court even could not prove the case of the respondents/defendants. As the document Ex. P.5 Aks-shajrah could not depict the position that the land in question is adjacent to the land of the respondents. Similarly Ex.P.8 Mutation No. 172 does not show mat respondents/plaintiffs have no superior right of pre-emption qua the land in question.
Learned counsel of the respondents has supported the impugned judgment. He submits that trial Court dismissed the suit of the respondents/plaintiffs mainly on the ground that original plaintiff predecessor in interest of respondents namely Athri Begum died before passing of a decree in her favour, hence, right of pre-emption could not devolve upon the plaintiffs/respondents which were reversed by the First Appellate Court with cogent reasons as the original plaintiff filed a suit for pre-emption against the appellants on 28.9.95 when the Punjab Pre-emption Act, 1991 was in the field and according to Section 16 of the said act, the right of pre-emption stood transferred to the respondents as her legal heirs. He further maintains that appellants/defendants had not filed any cross objection, therefore, appellants/defendants were estopped to raise question of superior right of respondents before the learned High Court in their revision petition. The learned High Court had dismissed the revision petition with cogent reasons after considering each and every aspect of the case.
We have considered the submissions made by learned counsel for the parties and have also perused the record. It is better and appropriate to reproduce basic facts in chronological order, contents of Ex.P5 and relevant portion of cross examination of DW1 Muhammad Akram to resolve the controversy between the parties:--
(i) Original plaintiff filed suit for pre-emption claiming her right of pre-emption on the basis of being beneficiary of joint amenities and contiguity in para 3 of the plaint (page 50 of paper book).
(ii) Appellants controverted this fact in reply of para 3 in their written statement.
(iii) Specific issue was framed by the trial Court which has already been reproduced hereinabove.
(iv) Respondents did not produce any evidence before the trial Court to prove the contents of para 3 of the plaint.
(v) Respondents had produced documents through their counsel as evident from order dated 23.7.2001 (page 58 of the paper book) including Aks Shajra Ex.P5 and Registers of record of rights.
(vi) Appellants did not object at the time of producing the document by the respondents through their counsel on the said date.
The question for determination by us is what is the effect of the aforesaid portion from the cross-examination of DW1 and what is the status and effect of Ex.P5 and other documents in the shape of registers of record of rights.
In case the pleadings of the parties and portion of cross examination of DW1 be put in a juxta position, then DW1 had not admitted the claim of the respondents in that portion mentioned hereinabove with regard to the contiguity of the land in question with the land of the respondents. It is a settled law that no body should get the benefit of the weaknesses of the defendants' plea. See Mian Iqbal Mehmood Banday's case (PLD 1995 SC 351) and Faqir Muhammad's case (2003 YLR 1285). Both the Courts below erred in law to decide the case in favour of the respondents in view of aforesaid portion of the cross examination of DW1. We have examined the whole evidence of DW1, we do not find that DW1 had accepted the superior right of respondents. It is also a settled law that party can only succeed according to what was alleged and proved as law laid down by this Court in Amir Shah's case (1998 SCMR 593). It is a settled law that pleadings of the parties are not substantive piece of evidence unless and until the averments made in the pleadings proved from the evidence in Court or admitted by the other party. See Faqir Muhammad's case (2004 SCJ 250).
A
B
C
It is an admitted fact that respondents did not adduce any evidence to prove the averments of plaint with regard to their superior right in their oral evidence as well as documentary evidence. However, the respondents have placed on record Ex.P5 Aks Shajra through their counsel as depicted from order dated 23-7-2001 without objection from the appellants' counsel. It is a settled law that document once it was brought on record and exhibited then the opposite party could not challenge the admissibility of the document in the Court. Therefore, the Court is duty bound to look into the document produced on record. It is also a settled law that even if no objection was taken by the other side when the document was exhibited the Court has not prevented from adjudicating its nature, where it is valid or not, or where it is fake or not. The burden was on plaintiffs in suit to prove their claim that they had superior right of pre-emption as alleged and they have failed to discharge that burden as evident from Aks Shajra and other documents produced by them does not depict that the land in question was adjacent to the land of the respondents. These documents were misconstrued by the First Appellate Court and the learned High Court. In the case in hand, as mentioned above, the plaintiffs relied upon in support of their claim that they have superior right and under, the maxim `secundum allegata et probata' "(He who alleges a fact must prove it ). The respondents were required to satisfy the Court about the correctness and genuineness of documents relied upon by them. We have examined the said documents with the assistance of the learned counsel for the parties but the plaintiffs have failed to establish their claim through the Aks Shajra in question and other documents. It is pertinent to mention here That Qanun-e-Shahadat Order, 1984 is a code complete in itself as to the mode of proof of facts by way of oral and documentary evidence. The document in question was not proved by the respondents in terms of the said code. It is a settled law that where a document is produced in Court out neither author of the document is produced nor Patwari appeared in support of his note written, it was held that such document was not proved. See Malik Muhammad Akram's case (2000 CLC 759) and Muhammad Jamal's case (1985 CLC 2353).
We are perfectly conscious that as ultimate Court in the land, this Court, as a rule, should give due weight and consideration to the opinion of the Courts below while exercising constitutional powers. This Court does not meddle with the findings of fact reached by the First Appellate Court or High Court when it is satisfied that the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence. This would be notwithstanding that a different view might also be possible. In the instant case, however, it is difficult to avoid the impression that the conclusions reached by the High Court and the First Appellate Court suffer from serious error of law and fact, which unless
SC Atta Muhammad v. Maula Bakhsh PLJ (Syed Jamshed Ali, J.)
2008 Atta Muhammad v. Maula Bakhsh SC
(Syed Jamshed Ali, J.)
set right are likely to result in miscarriage of justice. We have already referred to misreading of the averments of the documents in question and evidence on record. As mentioned above, Aks Shajra, has to prove by the respondents/plaintiff by producing patwari, therefore, this document did not explain and prove the fact of contiguity. The controversy between the parties qua contiguity is factual in nature hence it has to be proved through evidence. Similarly record of rights could only prove the factum of ownership of the predecessor interest of the respondents/plaintiffs but these documents could not resolve or prove the factual controversy qua contiguity. This factual controversy was not proved by the respondents/plaintiffs in accordance with law.
K
L
(A.S.) Appeal allowed.
PLJ 2008 SC 49 [Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, Syed Jamshed Ali & Ghulam Rabbani, JJ.
ATTA MUHAMMAD--Appellant
versus
MAULA BAKHSH etc.--Respondents
Civil Appeal No. 874 of 2005, decided on 11.4.2007.
(On appeal from the judgment dated 14.6.2005 passed by Lahore High Court, Multan Bench Multan in C.R. No. 269-D/192).
Limitation Act, 1908 (IX of 1908)--
----S. 18--Extension of limitation--Time barred suit--Exercise of discretion--Extension of limitation for a suit is provided u/S. 18 of the Limitation Act, and since the averment in the plain regarding sharing of produce was found to be false and there was no specific averment to bring the case with Section 18 of the limitation Act, it was hopelessly barred by time. [P. 53] A
Laches--
----Delay and laches--Not stricto senso applicable--If law of limitation not stricto senso applicable, delay and laches being wholly incompatible with exercise of discretion to grant declaration the suit was rightly dismissed--Appeal allowed. [Pp. 53 & 54] B
Mr. S.M. Tayyab, Sr. ASC for Appellant.
Mr. Abdul Sadiq Chaudhry, ASC for Respondents.
Date of hearing: 11.4.2007.
Judgment
Syed Jamshed Ali, J:--This appeal is directed against the judgment dated 14.6.2005 passed by the learned Lahore High Court in C.R. No. 269-D/1992 whereby the judgment and decree of the learned two Courts were reversed and the suit filed by respondents, Maula Bakhsh and five others, was decreed. Their case in the plaint was that they were the off springs from the wedlock of Abdur Rehman and his wife Mst. Khairan and on the death of Mst. Khairan in 1972 they occupied the suit property in accordance with their entitlement. However, meanwhile vide Mutation No. 562 attested on 6.1.1942, Atta Muhammad, the appellant, herein had got a mutation of inheritance of the estate of Mst. Khairan sanctioned in his name. It may be noted at the very outset that it was not the case in the plaint that Mst. Khairan was the same lady whose estate was mutated in favour of Atta Muhammad and that she was alive when Mutation No. 562 was attested.
The suit was contested by the appellant. He particularly stated that on 6.1.1942, at the time of attestation of Mutation No. 562, he was aged about 7/8 years. Other objections i.e. that pedigreetable claimed in the plaint was erroneous and that the suit was barred by time were also taken.
The suit was contested and vide judgment dated 21.12.1988 it was dismissed. The framed trial Court found that the respondents had not placed on record any title document showing that the property vested in Abdur Rehman or Mst. Khairan. As far as the relationship of Mst. Khairan with the plaintiff is concerned, the only witness examined in support thereof i.e., PW. 1 was disbelieved by the learned trial Court on the ground, that there was no independent evidence. Ex.P. 7, death entry, in respect of Mst. Khairan was also relied upon according to which she was the wife of Wahid Bakhsh, the plaintiffs-respondents were not able to connect them with Mst. Khairan and that the suit was barred by time as it was filed on 6.3.1988 after 46 years to challenge the mutation which, was attested on 6.1.1942. The learned First Appellate Court affirmed these findings. Notice was taken of Mutation No. 655 attested on 4.6.1947 and Mutation No. 1393 attested on 30.4.1971 according to which Atta Muhammad had got the share of inheritance from the estate of Ghulam Haider (Mutation No. 655) and Mst. Bachi (Mutation No. 1393) the explanation of DW. 1, the appellant, was that after the death of his father Abdur Rehman, Mst. Khairan had married Ghulam Haider, and. his step brothers and sisters were kind enough to give share to him from the estates of Ghulam Haider and Mst. Bachi. The learned First Appellate Court found that it was not established that Mst. Khairan, whose inheritance was claimed by the plaintiffs, was the same lady who had died in 1942. Accordingly, the appeal was dismissed.
The matter was taken to the learned High Court by the respondents. The learned High Court was of the view that inheritance of Mst. Bachi and Ghulam Haider clearly established that the appellant was not the son of Abdur Rehman and Mst. Khairan. Despite concurrent findings of the learned two Courts that plaintiffs-respondents had not been able to establish the right to inherit the estate of Mst. Khairan, the revision petition was allowed with a finding that " no question of limitation arises in a case pertaining to inheritance particularly when it has come on record that the land was subject of river action and was reclaimed 10/12 years before 1988".
The learned counsel for the appellant vehemently contended that the suit was hopelessly barred by time and was rightly dismissed. The second contention is that the appellants had come up with a totally false plea of being descendants of Abdur Rehman and Mst. Khairan, and, therefore, even on this score they were not entitled to be heard in equitable jurisdiction of grant of declaration, the learned two Courts, on consideration of the entire evidence, had come to the conclusion that no case was made out in favour of respondents, the learned High Court could not have interfered by taking a different view of evidence even it was possible, a sweeping statement that no limitation applies to the case of inheritance was not acceptable because it will amount to re-writing the law, the justification found by the learned High Court that the land was subject to erosion and was reclaimed 10/12 years before 1988 was not even pleaded in the plaint.
The learned counsel for respondents however, defendant the impugned judgment of the learned High Court for the reasons stated therein. His emphasis has been that since Mst. Khairan was alive, in 1942 Mutation No. 562 attested on 6.1.1942 was the result of fraud and by undoing it the High Court has passed a just and proper order. The documentary evidence produced on the record shows that Atta Muhammad was son of Ghulam Haider and Mst. Bachi and not Abdur Rehman. Since important evidence was ignored by the learned two Courts, the High Court was fully justified to re-appraise the evidence and come to just and fair conclusion.
The submissions have been considered by us. The basis of the suit was a false pedigreetable claimed in the plaint by the plaintiffs-respondents according to which they claimed to be the off springs of Abdur Rehman and. Mst. Khairan. The pedigreetable was not even supported by PW. 1 who sated that Mst. Khairan had married twice. The first marriage was with Abdur Rehman and this, according to him, continued for about two years and second was with Wahid Bakhsh. The learned High Court relied on the testimony of PW. 1, who had not even supported the pedigree described by the plaintiffs in the plaint. There has been a growing tendency amongst the litigants to approach the Courts by concealing material facts or by misrepresenting them. This is one of the cases where the foundation of the claim was based on falsehood. There is a compelling need in the times in which we are living in which the moral and ethical values have been confined to casualty ward to ensure value of truth and one way is that the Courts take a very strong view of any misrepresentation of facts by a party and refuse to exercise discretionary jurisdiction in its favour. Therefore, apart from the fact that the High Court had little justification to interfere in concurrent findings of fact of the learned two Courts, even for this singular reason that the plaintiffs misrepresented facts by claiming wrong pedigree dismissal of their suit was justified. The Courts should also keep in mind that relief of declaration is discretionary and a plaintiff who seeks discretionary relief must come to the Court with clean hands.
The findings of the learned two Courts is that the plaintiffs were out of possession and they have not been able to establish receipt of rent and profits from the land, although the appellant claimed to the contrary. This was the second misrepresentation which dis-entitled the plaintiffs to any relief in equitable jurisdiction. The learned two Courts held that the suit was barred by time but the learned High Court, by making a sweeping statement, that there is no limitation in the cases of inheritance has, in fact, re-written the law of limitation. It was not a case of inheritance between the co-sharers because the plaintiffs case was that the appellant was a stranger. As far as the mutation of inheritance of the estate of Mst. Khairan in 1942 is concerned, there was absolutely no justification, factual or legal, to over look the delay of 46 years in filing the suit. This delay of 46 years adversely reflected on the bona fides of the claim of the respondents. The learned High Court observed that on account of river action the land suffered erosion but was re-claimed 10/12 years preceding 1988 could hardly be accepted in view of the absence of the pleadings. What happened in 1942 when the mutation was attested could hardly be properly and justly inquired into after 46 years. In interfering the learned High Court was more concerned whether Mutation No. 562 in favour of the appellant was validly attested, although the plaintiffs-respondents were required to prove their own case but had failed. Perusal of the record shows that in fact Mst. Khairan inherited the estate as widow of Abdur Rehman and in accordance with general customs of the Punjab, women use to inherit life estate only to be terminated on re-marriage or death. May be that on re-marriage of Mst. Khairan which she did, the estate of Abdur Rehman in her hand of was mutated in favour of Atta Muhammad. In any case we think it to be plainly unfair to call upon a person to defend a 46 years old transaction. As observed above, the law of limitation was applicable with full force.
We may add that public interest requires that there should be an end to litigation. The law of limitation provides an element of certainty in the conduct of human affairs "Statues of limitation and prescription are, thus, statues of peace and repose. In order to avoid the difficulty and errors that necessarily result from lapse of time, the presumption of coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so, within that period; otherwise his rights, if any, will be forfeited as a penalty for his neglect. In other words the law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts. It requires that persons must come to Court and take recourse to legal remedies with due diligence ". There have been cases where even to claim inheritance law of limitation was applied. In Ahmad Din Vs. Muhammad Shafi and others (PLD 1971 SC 762) mutation of inheritance sanctioned in 1953 was sought to be challenged in 1962, the suit was held to be barred by time which was maintained by this Court. Mst. Phaphan through L.Rs. Vs. Muhammad Bakhsh and others (2005 SCMR 1278) also involved a claim, based on inheritance the mutations attested in 1959 and 1967 were challenged in 1983, the suit was dismissed as barred by time which was upheld. In Luqman and others Vs. Gul Muhammad and others (1984 SCMR 63), mutations of inheritance sanctioned in 1923 and 1936 were challenged in 1978. Dismissal of the suit on the question of limitation was maintained by this Court.
We may also like to observe that extension of limitation for a suit is provided for under Section 18 of the Limitation Act and since the averment in the plaint regarding sharing of produce was found to be false and there was no specific averment to bring the case within Section 18 of the Limitation Act, it was hopelessly barred by time. We are of the view that even if law of limitation was not stricto senso applicable, delay and laches being wholly incompatible with exercise of discretion to grant declaration the suit was rightly dismissed.
A
B
SC Zahoor Ahmed v. State PLJ (Raja Fayyaz Ahmed, J.)
2008 Zahoor Ahmed v. State SC
(Raja Fayyaz Ahmed, J.)
(A.S.) Appeal allowed.
PLJ 2008 SC 54 [Appellate Jurisdiction]
Present: Saiyed Saeed Ashhad & Raja Fayyaz Ahmed, JJ.
ZAHOOR AHMED--Petitioner
versus
STATE--Respondent
Jail Petition No. 85 of 2006, decided on 17.4.2007.
(On appeal from the judgment dated 15.2.2006 of the Lahore High Court Bahawalpur Bench Bahawalpur passed in Criminal Appeal No. 62 of 2002 & M.R. No. 33 of 2002).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence awarded to appellant, assailed--Leave to appeal--Testimony of complainant, who was the natural witness of occurrence--Recovery of the blood-stained hatchet on the pointation of the accused even independently was sufficient to bring home the guilty against the accused--Recovery of blood stained hatchet at the instance of the accused and the medical evidence furnished necessary corroboration to ocular account had been rightly believed. [Pp. 57 & 58] A & B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 342--Conviction and sentence--Assailed--Appreciation of evidence--Accused in his statement u/S. 342 Cr.P.C. pleaded his innocence and false implication in the case but did not opt to record his statement on oath in disproof of the charge nor produced any evidence in defence. [P. 58] C
Motive--
----Motive part of the prosecution case, as set up in the FIR get due support from the testimony of PW/complainant. [P. 59] D
Mitigating--
----No mitigating circumstance was spelt out from the evidence available on record as rightly so observed by High Court to which no exception could be taken--Submissions made for imposition of the lesser punishment of life imprisonment in the given circumstances of the case could not be entertained--Entire evidence available on record stand correctly scrutinized, assessed and appraised in its true perspective by both Courts, which exclude all reasonable hypothesis of the innocence of the accused in the case--No case for leave to appeal had been made out. [P. 59] E
Raja Mehmood Akhtar, ASC for Petitioner.
Ms. Yasmin Sehgal, Deputy Prosecutor General for State.
Date of hearing: 17.4.2007.
Judgment
Raja Fayyaz Ahmed, J.--Petitioner Zahoor Ahmed was found guilty on the charge under Section-302 (b) PPC and "Sentenced to death. He was further held liable to pay Rs. 50,000/- as compensation to the legal heirs of the deceased Rasool Bakhsh, in default whereof to further undergo S.I for six months for committing Qatl-e-Amd of Rasool Bakhsh deceased while sleeping in his own house, in case Crime No. 190 of 2001 registered with Police Station Uch Sharif, Tehsil Ahmedpur East, District Bahawalpur on 5.6.2001 on the report of PW Ashiq Hussain son of Rasool Bakhsh vide judgment dated 28.2.2002 passed by the learned Additional Sessions Judge, Bahawalpur. The record of the case was forwarded to the learned High Court for confirmation of the death sentence within the meaning of Section-374 Cr.P.C.
The petitioner challenged his conviction and sentence awarded to him by the learned trial Court by preferring Criminal Appeal No. 62 of 2002 which was taken up by the learned High Court alongwith the Murder Reference No. 33 of 2002. The learned High Court vide judgment dated 15.2.2006 impugned herein dismissed Criminal Appeal of the petitioner and the Murder Reference was answered in affirmative by confirming the death sentence awarded to the petitioner by the learned trial Court vide abovesaid judgment.
The facts of the case as unfolded in the FIR lodged by Ashiq Hussain-complainant/PW-8 son of deceased Rasool Bakhsh need not to be narrated again in view of the submissions made before us on behalf of the petitioner which have been given in extenso in Paras No. 2 and 3 of the impugned judgment reproduced herein below :--
"2. Briefly, the facts of the prosecution case, as per FIR Ex. PC, lodged at the instance of Ashiq Hussain-complainant PW-8, are that on 4.5.2001 at Isha time, after taking meals, he and his brother Sadiq Hussain slept in the verandah of their house, while their father Rasool Bakhsh slept in the Courtyard of the house on a cot. A lantern was lit hanging along the wall of the verandah in the Courtyard. At about mid night on report of commotion, he woke up and saw in the moon light as well as in the light of lantern that Zahoor Ahmed, accused/appellant, while armed with hatchet, was standing near the cot of his father. The complainant awoke his brother Sadiq Hussain, who also identified Zahoor Ahmed. Within their view, Zahoor Ahmed started giving hatchet blows on the neck of their father. The hue and cry raised by them attracted Abdul Qadir and Bashir Ahmed to the spot, who also witnessed the occurrence. The complainant and the PWs tried to apprehend the accused but he made good his escape along with the hatchet, while extending threats of dire consequences to them. Rasool Bakhsh succumbed to the injuries at the spot.
The motive, as set up in the FIR, was that Noor Ali Olak, grand father of the complainant from his maternal line of relations, had agreed to marry his daughter with Zahoor Ahmed but subsequently, he married his daughter with Riaz Ahmad, maternal uncle of the complainant. Zahoor Ahmed had suspected that Rasool Bakhsh had got conducted that marriage and on account of this grudge, the appellant had committed the murder of deceased".
The learned counsel for the petitioner and Ms. Yasmeen Sehgal, Deputy Prosecutor General for the State have been heard. The impugned judgment and the evidence produced at the trial has been perused carefully and minutely with their assistance.
At the very out set the learned counsel for the petitioner in the given facts and circumstances of the case categorically submitted that presence of the complainant in his own house at the time of incident alongwith the other inmates of the house including his deceased father and having witnessed the occurrence as given in the FIR lodged by him, can not be disputed. The learned counsel further submitted that the prosecution did not produce the brother of the complainant, namely, Sadiq Hussain, who was sleeping at the time of incident in the veranda of their house which caused serious doubt on the veracity of the prosecution story and secondly; an other ocular witness of the occurrence namely, Abdul Qadir PW-9 had not actually witnessed the occurrence, rather, according to the complainant's own showing; had reached to the place of wardat on the hue and cry of the complainant and his said brother, it cannot be safely concluded that PW-9 had witnessed the occurrence as alleged by the complainant. To supplement his view point the learned counsel pointed out that the house of Abdul Qadir PW was situated at a distance of one Bigha from the house of the complainant, which comes to approximately half an acre, therefore, it cannot safely be assumed that he on hearing hue and cry within no time reached to the place of occurrence and had himself witnessed the petitioner giving hatchet blows on the vital parts of the deceased during dark hours of the night. He thus argued, that the version of the said PW cannot safely be relied upon for the purpose of conviction. He while concluding his arguments submitted that imposition of punishment for life imprisonment, as an alternative sentence would meet the ends of justice.
Controverting the above noted contentions the learned counsel for the State submitted that the ocular account furnished by the PWs has further been corroborated from medical evidence, recovery of the blood stained hatchet at the instance of the petitioner and the motive part of the prosecution story. According to the learned counsel, as per evidence of the prosecution, which goes un-impeached; the deceased was done to death in a most cruel and callous manner by the petitioner, who inflicted repeated hatchet blows on the neck of the deceased, while sleeping in his own house in the courtyard who thus, deserved no leniency nor any mitigating circumstances are borne on the record for the imposition of lesser penalty of life imprisonment, as requested for on behalf of the petitioner, while concluding his arguments. She further submitted that ocular account furnished by the complainant and the promptly lodged FIR gets substantial corroboration from medical evidence and the testimony of the complainant and PW Abdul Qadir, who rushed to the place of incident on hearing hue and cry of the complainant and his brother; also witnessed the petitioner giving hatchet blows on the person of the deceased hence; his presence on the spot was neither unnatural nor could be doubted.
The contentions noted above put forth on behalf of the parties learned counsel have been considered in the light of the impugned judgment gone through carefully and minutely in the light of the evidence available on the record. The testimony of the complainant who admittedly was the natural witness of the occurrence, has not been questioned and disputed before us, which as concluded in the impugned judgment finds support from the medical evidence and the recovery of the blood stained hatchet on the pointation of the petitioner even independently is sufficient to bring home the guilt against the petitioner. The petitioner and the complainant party are undisputedly closely related to each other. The petitioner is a maternal cousin of the deceased, as also the first cousin of the deceased through paternal line of relationship and thus in the light of the entire evidence it has correctly been concluded by the learned High Court that the blood relation would not spare the real culprit and instead would involve an innocent person in the case. Further, it has rightly been observed that it was not essential for the prosecution to produce each of the cited witnesses at the trial. The petitioner if was satisfied that had Sadiq Hussain (the brother of the
A
complainant) been produced at the trial would have spoken the truth in respect of the involvement of. the petitioner in the case; the petitioner could have summoned the said cited witness through the process of the Court to be examined as the Court witness or in defence but no request admittedly had ever been made in such behalf, therefore, non-production of the said cited ocular witness was not fatal to the case of the prosecution nor would it per se result in creating any substantial doubt on the prosecution case. The evidence adduced, by the prosecution at the trial has rightly been found wroth credence, reliable and truthful for the purpose of recording conviction of the petitioner. PW Abdul Qadir has deposed that on the date of occurrence at mid night on hearing hue and cry of Ashiq Hussain, and Sadiq Hussain, he alongwith Bashir Ahmed were attracted to the scene of occurrence and had witnessed, the accused giving hatchet blows on the neck of the deceased Rasool Bakhsh lying on the cot and they tried to catch hold the accused but he decamped from the place of occurrence alongwith threatening them of dire consequences. The incriminating part of the evidence of this witness could not be impeached or discredited despite searching cross-examination. In the site-plan Exh.PA/1 the house of the PW Abdul Qadir has not been shown, however, his presence at the place of the occurrence has been shown at a distance of 5 karams from the complainant, whose presence in his own house and having witnessed the occurrence has not been disputed before us. The complainant Ashiq Hussain has stated that on the hue and cry PW Abdul Qadir and Bashir Ahmed were attracted to the scene of occurrence and witnessed the occurrence. This part of the evidence of the complainant also could not be impeached. Moreover, PW Muhammad Ramzan-I/0 before the learned trial Court in cross-examination stated that site-plan Exh.PL was prepared by him during inspection of the place of occurrence on the pointation of the complainant and the PWs, lends further support about their presence at the relevant time at the place of the occurrence.
The chemical examiner report and that of the serologist duly exhibited at the trial, blood stained earth secured from the place of the incident, recovery of blood stained hatchet at the instance of the petitioner and the medical evidence as abovesaid, furnished necessary corroboration to the ocular account which in our considered opinion has been rightly believed.
The petitioner in his statement under Section-342 Cr.P.C. pleaded his innocence and false implication in the case but did not opt to record his statement on oath in disproof of the charge nor produced any evidence in defence. The petitioner in answer to Question No. 9 during his examination by the learned trial Court stated that Noor Ali suspected that his wife Mst. Lal was having illicit relations with Rasool Bakhsh deceased and due to this grudge Noor Ali managed to cause the
SC Commandant Indus Rangers v. Zaheer M. Khan PLJ (Javed Iqbal, J.)
2008 Commandant Indus Rangers v. Zaheer M. Khan SC (Javed Iqbal, J.)
murder of deceased Rasool Bakhsh and; he has falsely been implicated in the case, and that he had been engaged with the daughter of Allah Dewaya by way of Watta Satta hence; there was no question of his marriage with Mst, Kalsoom, the daughter of Noor Ali. In support of this plea, the petitioner even did not come forward to make statement on oath within the purview of Section 342(2) Cr.P.C. nor above noted produced any evidence in defence in support of the said plea. There is nothing on record to suggest that the said plea to be true, reasonable in the circumstances of the case or even probable.
The motive part of the prosecution case, as set up in the FIR gets due support from the testimony of PW Ashiq Hussain ocular witness complainant.
D
No mitigating circumstance is spelt out from the evidence available on record as rightly so observed by the learned High Court to which no exception could be taken, hence; the submissions made before us by the learned counsel for the petitioner for imposition of the lesser punishment of life imprisonment in the given circumstances of the case cannot be entertained. In our considered opinion, the entire evidence available on record stands correctly scrutinized, assessed an appraised in its true perspective by both the learned Courts, which exclude all reasonable hypothesis of the innocence of the petitioner in the case. No case for leave to appeal has been made out. Resultantly, this Jail Petition is dismissed. Leave refused.
E
(A.S.) Leave refused.
PLJ 2008 SC 59 [Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Muhammad Nawaz Abbasi, JJ.
COMMANDANT INDUS RANGERS & others--Appellants
versus
ZAHEER MUHAMMAD KHAN--Respondnet
Civil Appeal No. 764 of 2005, decided on 24.7.2007.
(On appeal from the judgment/order dated 23.5.2005 of the High Court of Sindh, Hyderabad Circuit, passed in 1st Appeal No. 93 of 2002).
Land Acquisition Act, 1894 (I of 1894)--
----S. 54--Potentiality value of land and its nature--Determination--Whether the land in-question was barren, fertile and under cultivation--Whether land was undeveloped and compensation has been allowed--Whether any construction has been carried out in adjacent vicinity in the shape of any residential housing scheme on the basis whereof compensation could be enhanced--Supreme Court inclined to accept the appeal by setting aside the judgment and remand the case for afresh decision after affording proper opportunity of hearing to all concerned preferable within a period of four months. [Pp. 60 & 61] A & B
Raja M. Irshad, DAG for Appellants.
Ch. Mushtaq Ahmad Khan, Sr. ASC for Respondent.
Date of hearing: 24.1.2007.
Judgment
Javed Iqbal, J.--This appeal has been directed on behalf of the Commandant Indus Rangers and others under Section 54 of the Land Acquisition Act, 1894 against the judgment dated 23.5.2005 passed by learned High Court of Sindh (Hyderabad Circuit) whereby the appeal preferred on behalf of respondent has been accepted.
SC Muhammad Azizur Rehman v. Liaquat Ali PLJ (Abdul Hameed Dogar, J.)
2008 Muhammad Azizur Rehman v. Liaquat Ali SC (Abdul Hameed Dogar, J.)
carried out in the adjacent vicinity in the shape of any residential housing scheme on the basis whereof compensation could be enhanced.
It is to be noted that Civil Appeal Bearing No. 2160 of 2004 has been dismissed by this Court being barred by time vide judgment dated 8.12.2006.
B
(R.A.) Case remanded.
PLJ 2008 SC 61 [Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ, Abdul Hameed Dogar, Khalil-ur-Rehman Ramday, Muhammad Nawaz Abbasi & Mian Shakirullah Jan, JJ.
MUHAMMAD AZIZUR REHMAN--Appellant
versus
LIAQUAT ALI--Respondent
Civil Appeal No. 2101 of 2006, decided on 5.3.2007.
(On appeal from the judgment dated 13.9.2006 of the Lahore High Court, Lahore passed in RFA No. 124/04).
Negotiable Instrument Act, 1881 (XXXI of 1881)--
----S. 118--Constitution of Pakistan, 1973--Art. 185(2)--Direct appeal--Suit for recovery on the basis of pronote--Appellant secured a loan against pronote and receipt--Execution of promissory note was admitted but it was an assurance and guarantee for the business--Respondent failed to prove that alleged amount was given to appellant as loan--Marginal witnesses of pronote were disbelieved--Presumption--Burden of proof--Presumption shall be made that every negotiable instrument was made or drawn for consideration--Appellant has not been able to establish on record through independent and cogent evidence that consideration of the promissory note has not been received by him--Held: Burden of proof of non-payment of consideration where execution of a negotiable instrument was admitted would be upon executant of document in which appellant has failed--Appeal dismissed.
[Pp. 64 & 65] A & B
PLJ 1979 SC 196 & 1973 SCMR 100, rel.
Mr. Salim Khan Chechi, ASC for Appellant.
Mr. Irfan Ahmed Wain, ASC for Respondent.
Date of hearing: 5.3.2007.
Judgment
Abdul Hameed Dogar, J.--This direct appeal under Article 185(2) of the Constitution of Islamic Republic of Pakistan, 1973 is filed by appellant Mohammad Aziz-ur-Rehman against judgment dated 13.9.2006 passed by learned Division Bench of Lahore High Court, Lahore whereby RFA No. 124 of 2004 filed by respondent Liaqat Alt was allowed, the judgment of the trial Court was set aside and the suit of the respondent was decreed against appellant in the sum of Rs.6,00,000/-.
Briefly, stated facts giving rise to the filing of instant appeal are that respondent/plaintiff filed a suit for recovery of Rs.6,00,000/- against the appellant/defendant on the basis of pronote dated 03.7.1996 before Additional District Judge-I, Pakpattan. It was alleged in the suit that there were business relations between appellant and respondent. The appellant secured a sum of Rs.600,000/- from respondent as a loan against pronote and receipt both dated 3.7.1996 along with an agreement of even date. When appellant refused to return the said amount on demand, respondent was restrained to file the suit. The suit was contested by appellant and he was permitted to appear and defend the suit on 20.10.1997. In the written statement appellant denied the execution of promissory note but in the cross examination admitted the execution of pronote but without any consideration as it was an assurance and guarantee for the business between the respondent and M/s Asif & Co. and appellant had paid a sum of Rs.380,143/- through two cheques for rendition of account. Out of divergent pleadings of the parties the learned trial Court framed following issues:--
Whether the suit is hit by Order 2 Rule 2 CPC? OPD
Whether the present suit is based on malafide, if so, its effect? OPD
Whether the plaintiff is estopped to bring the present suit? OPD
Whether the suit is frivolous and vexation, if so, whether the defendant is entitled to special costs u/S. 35-A CPC for Rs.25,000/-? OPD
Whether the promissory note and receipt thereof dated 03.07.1997 is based on fraud, misrepresentation? OPD
If Issue No. 5 is not proved, then, whether the plaintiff has been paid the amount claimed by him through cheques mentioned in Para No. 2 of the written statement? OPD
If Issues No. 5 and 6 are not proved, then, whether the plaintiff is entitled to recover Rs. 6,00,000/-? OPP
Relief.
Respondent/plaintiff in order to prove his case examined himself as PW-1, Syed Nadir Shah, the scribe of the pronote and the receipt as PW-2 and the marginal witnesses of the receipt Abdul Qayyum and Muhammad Ali as PW-3 and PW-4 respectively. He also produced pronote dated 3.7.1996 as Ex.P-1 and the receipt of even date as Ex.P-2. On the other hand appellant/defendant examined himself as DW-1 and produced copies of the record/khata of M/s Asif & Company in the name of Azizur Rehman/respondent in his defence as Ex.DA/1-81 and Ex.DB/1-8. On conclusion of trial, learned trial Court dismissed the suit of the respondent/plaintiff vide judgment dated 20.3.2001 on the ground that though Ex.P-1 and Ex.P-2 stand proved as the appellant admitted the same in cross examination but the respondent has failed to prove that alleged amount was given to the appellant as loan. The marginal witnesses of the pronote namely, Abdul Qayyum (PW-3) and Muhammad Ali (PW-4) were disbelieved. Similarly Syed Nadir Shah (PW-2), the scribe of the pronote stated that the amount was not paid before him. It was also held by the learned trial Court that respondent received an amount of Rs.380,143/- on 11.8.1997 through two different cheques and this was on account of the business transaction between the parties and respondent had failed to explain as to why this amount of cheque was received after the preparation of the promissory note and the receipt. Feeling aggrieved respondent filed RFA No. 124 of 2004 before learned Lahore High Court, Lahore which was allowed vide impugned judgment as stated above.
We have heard M/s Salim Khan Chochi, learned counsel for the appellant and Irfan Ahmed Wyne, learned counsel for the respondent at length and have gone through the record and proceedings of the case in minute particulars.
Learned counsel for the appellant vehemently contended that the amount of promissory note was not received by appellant and in fact the pronote was obtained from the him in blank as a security at the time of the commencement of business between respondent and M/s Asif & Company. He further contended that appellant in order to resolve and settle the accounts paid Rs.380,143/- through two cheques but the respondent with malafide intention utilized the promissory note by filling up and attested by two marginal witnesses. According to him the scribe of the document had stated in clear terms that no money was paid in his presence. The marginal witnesses being closely known and related to respondent were rightly disbelieved by the learned trial Court. He contended that in a case where the defendant denies on oath of having received the consideration, the burden to proof would shift upon the plaintiff/respondent to substantiate his plea and plaintiff/respondent has failed to lead any independent and reliable evidence in proof of the payment of such consideration.
On the other hand, learned counsel for the respondent supported the impugned judgment and contended that appellant had admitted the execution of pronote and the receipt. The onus to prove that the same was without consideration lies upon the appellant in which he has miserably failed to do so. He further contended that the amount paid by appellant through two cheques was on account of business transaction between respondent and M/s Asif & Company and not in respect of promissory note and in such case the appellant would have sought the return of the promissory note. He further contended that in addition to promissory note and receipt the appellant had acknowledged the receipt of loan through a separate agreement Ex.DWl/2. He contended that according to Section 118 of the Negotiable Instrument Act, 1881 (hereinafter referred to as `the Act') until the contrary is proved, there is presumption that every negotiable instrument was made and drawn for consideration. He further contended that Abdul Qayyum (PW-3) and Muhammad Ali (PW-4) deposed on oath that the amount was paid in their presence and in the cross-examination their credibility and veracity have not been shattered at all.
The appellant denied the execution of promissory note or receipt in his written statement but in the cross-examination admitted that the pronote and the receipt were executed by him as a guarantee for business with respondent. According to Section 118 of the Act, until the contrary is proved, the presumption shall be made that every negotiable instrument was made or drawn for consideration. The appellant has not been able to establish on record through independent and cogent evidence that consideration of the promissory note has not been received by him.
This Court in the case of Muhammad Boota Vs. Fiaz Ahmed (PLJ 1979 SC 196) while dealing with identical case observed as under:--
"Under Section. 119 of the Negotiable Instruments Act, it had devolved on the defendant to prove that the promissory note thus executed by him was without consideration. Apart from the
SC Executive Engineer, Qadirabad Barrage PLJ Division, Qadirabad v. Ejaz Ahmad (Javed Iqbal, ACJ.)
2008 Executive Engineer, Qadirabad Barrage SC Division, Qadirabad v. Ejaz Ahmad (Javed Iqbal, ACJ.)
cogent and consistent evidence led by the plaintiff to prove the payment of Rs.10,000/- in cash by the plaintiff to the defendant as loan, the latter has miserably failed to discharge the onus of this issue resting on him."
"Under Section 118 of the Negotiable Instruments Act, 1881, there is an initial presumption that a negotiable instrument is made, drawn, accepted or endorsed for consideration. Although this presumption is a rebuttable presumption, yet the onus is on the person denying consideration to allege and prove the same."
B
(R.A.) Appeal dismissed.
PLJ 2008 SC 65 [Appellate Jurisdiction]
Present: Javed Iqbal, ACJ and Sardar Muhammad Raza Khan, J.
EXECUTIVE ENGINEER, QADIRABAD BARRAGE DIVISION, QADIRABAD, etc.--Appellants
versus
EJAZ AHMAD--Respondent
Civil Appeal No. 2206 of 2006, decided on 30.5.2007.
(On appeal from the judgment dated 26.7.2006 in Appeal No. 480/2005 passed by Punjab Service Tribunal, Lahore).
Punjab Removal From Service (Special Powers) Ordinance, 2000--
----S. 3(2)--Constitution of Pakistan, 1973--Art. 212(3)--Civil servant--Disciplinary action initiated on account of inefficiency and misconduct--Civil servant was reinstated by tribunal--Leave to appeal--Glaring illegalities have been committed during disciplinary proceedings by department which cannot be equated to that of "procedural" lapses--No show-cause notice--Validity--Fair opportunity of hearing was not afforded to civil servant to defend his case properly which is not only flagrant violation of the provisions of the Punjab Removal from Service (Special Powers) Ordinance, 2000, but well recognized principles of natural justice and is sufficient to vitiate the entire proceedings--Appeal was dismissed. [P. 67] A
Ms. Afshan Ghazanfar, AAG for the Appellants.
Mr. G.N. Gauhr, ASC/AOR for the Respondent.
Date of hearing: 30.5.2007.
Judgment
Javed Iqbal, ACJ.--Pursuant to disciplinary action initiated on account of inefficiency and misconduct, the respondent was dismissed from service but reinstated by the learned Punjab Service Tribunal by means of judgment impugned, hence this appeal.
"Ch. Aamir Rehman, Additional Advocate General, Punjab submitted that the Punjab Service Tribunal had mis-directed itself in reinstating the respondent in service by the impugned judgment dated 26.7.2005 after it had found that he had not carried out the repair work and had been absent from duty and rude to his superiors.
Leave to appeal is granted to consider, inter alia the above and the other submissions. The office is directed to set down the main appeal on its present record, within a period of 6 months".
Ms. Afshan Ghazanfar, learned Assistant Advocate General entered appearance on behalf of Executive Engineer (appellant) and contended that factum of willful absence and misbehaviour have not at all been adverted to by learned Service Tribunal which resulted in serious miscarriage of justice. It is next contended that procedural lapses should not have been given undue importance as no prejudice whatsoever was caused against the respondent.
A careful scrutiny of the entire record would reveal that glaring illegalities have been committed during the disciplinary
SC Ayaz Baig v. State PLJ (Sardar Muhammad Raza Khan, J.)
2008 Ayaz Baig v. State SC (Sardar Muhammad Raza Khan, J.)
proceedings by the department which cannot be equated to that of "procedural lapses" as contended by learned Assistant Advocate General. It is worth mentioning that the disciplinary proceedings were initiated under the Punjab Removal From Service (Special Powers) Ordinance, 2000 but amazing no show-cause notice was given as envisaged under Section 3 (2) of the Ordinance and besides that fair opportunity of hearing was not afforded to the respondent to defend his case properly which is not only a flagrant violation of the provisions of the said Ordinance but well recognized principles of natural justice and is sufficient to vitiate the entire proceedings. In view of above grave illegalities committed by the department the learned Service Tribunal has rightly held that respondent/department may initiate afresh action against the appellant strictly in accordance with law. The prescribed procedure which is mandatory in nature must be followed and it cannot be flouted on the pretext that the alleged charges against a government employee are serious in nature.
A
The judgment impugned being unexceptionable does not warrant interference. The appeal being devoid of merit is dismissed.
(R.A.) Appeal dismissed.
PLJ 2008 SC 67 [Appellate Jurisdiction]
Present: Rana Bhagwandas, ACJ and Sardar Muhammad Raza Khan, J.
AYAZ BAIG--Petitioner
versus
STATE--Respondent
Crl. P. No. 162 of 2007, decided on 26.6.2007.
(On appeal from the judgment dated 16.5.2007 passed by the Lahore High Court, Lahore in Criminal Revision No. 322 of 2007).
(i) Constitution of Pakistan, 1973--
----Art. 185(3)--Compromise for not being genuine heir--Father and mother were already dead and widow had contracted second marriage--Loosing all relationship and affinity with her previous husband--Question of--Compromise--Validity--Legal heirs--No doubt at the time of death the deceased being issueless and father being alive, his brothers and sisters could not be the legal heirs but now, at the belated stage they cannot be ignored when the question comes to genuineness of compromise and when they are most likely to nurse grudge against the convict--Which agreement is necessary for the future harmoney between the families--Held: Courts below have rightly disallowed the compromise being not genuine--Leave declined. [Pp. 68 & 69] A & C
(ii) Criminal Procedure Code, 1898 (V of 1898)--
----S. 345--Pakistan Penal Code, (XLV of 1860), S. 338-E--Punishment as Tazir--Compromise--Compounable offence--Genuineness has to be the sine qua non of a compromise which may or may not be accepted by the Court, in the circumstances and in cases of punishment as tazir. [P. 69] B
Mr. Muhammad Siddiq Mughal, ASC with Chaudhry Muhammad Akram, AOR for Petitioner.
Nemo for Respondent.
Date of hearing: 26.6.2007.
Order
Sardar Muhammad Raza Khan, J.--Ayaz Baig, a condemned prisoner seeks leave to appeal from the judgment dated 16.5.2007 of learned Lahore High Court, whereby, compromise in the concerned murder case was denied to him, for not being genuine.
The occurrence having taken place in the year 1992, the petitioner was awarded death sentence on 12.9.1994. The conviction as well as the sentence was upheld by this Court in Criminal Petition No. 147-L of 1998 vide judgment dated 19.4.2000.
The deceased Arif, having died issueless, was survived by Imam Din-father, Mst. Ghulam Fatima-mother and Abida, the widow. The father and mother died in the year 1995 and 2002 respectively while the widow Abida contracted second marriage with one Khalid Javed in the year 1994. Two years after the judgment of this Court, the convict has filed compromise at a point of time when the father and mother were already dead and the widow had contracted second marriage in 1994, loosing all relationship and affinity with her previous husband. It was thus easy to win-over or purchase-over the widow. The compromise does not seem to be genuine for the reason.
No doubt, at the time of death, the deceased being issueless and the father being alive, his seven brothers and a sister could not be the legal heirs but now, at a belated stage, they cannot be ignored when
SC Gul Akbar v. State PLJ (Javed Iqbal, J.)
2008 Gul Akbar v. State SC (Javed Iqbal, J.)
the question comes to the genuineness of compromise and when they all are most likely to nurse grudge against the convict. They have not agreed to the instant compromise, which agreement is necessary for the future harmony between the families. With reference to Section 338-E PPC read with Section 345 Cr.P.C and in the light of our judgment in Sh. Muhammad Aslam v. Shaukat Ali (1997 SCMR 1307), the genuineness has to be the sine qua non of a compromise which may or may not be accepted by the Court, in the circumstances and in cases of punishment as Tazir.
B
C
(R.A.) Leave declined.
PLJ 2008 SC 69 [Appellate Jurisdiction]
Present: Javed Iqbal & M. Javed Buttar, JJ.
GUL AKBAR--Petitioner
versus
STATE--Respondent
Crl. P. No. 202 of 2007, decided 25.7.2007.
(On appeal from the order dated 11.4.2007 passed by Lahore, High Court, Lahore in Crim. Misc. No. 1080-B of 2007).
Constitution of Pakistan, 1973--
----Art. 185(3)--Application for bail--Discretion--Trial commenced and case is fixed for recording of prosecution evidence--Application for bail may be moved before trial Court--Validity--It is not practice of Supreme Court to unduly intervene in bail matters, which should ordinarily be left to discretion of the Court inquiry into the guilt of the accused persons--Held: The discretion has, of course, to be exercised on sound judicial principles--Leave to appeal is not granted by Supreme Court where grievance is that the High Court has in proper exercise of its jurisdiction appreciated and assessed evidence or exercised discretion in a manner with which it is easily possible to disagree. [P. 70] A
NLR 1978 Cri. 324; 1969 PCr.LJ 358 & 1969 SCMR 174.
Syed Zafar Abbas Naqvi, ASC for Petitioner.
Ch. Munir Sadiq, DPG, Punjab for State.
Date of hearing: 25.7.2007.
Judgment
Javed Iqbal. J.--Heard Mr. Zulfiqar Abbas Naqvi, learned ASC on behalf of petitioner, Ch. Munir Sadiq, learned Deputy Prosecutor General for State, scanned the entire evidence with their eminent assistance and perused the order impugned carefully. It is to be noted that challan of the case has already been submitted, trial commenced and case is fixed for recording of prosecution evidence for 26.7.2007. The petitioner may move an application for bail before the learned trial Court. We are deliberately withholding our comments on merits of the case to avoid the possibility of causing prejudice against any party. By now it is well settled that "it is not the practice of the Supreme Court to unduly intervene in bail matters, which should ordinarily be left to the discretion of the Courts inquiring into the guilt of the accused persons. The discretion has, of course, to be exercised on sound judicial principles. Leave to appeal is not granted by the Supreme Court where the grievance is that the High Court has, in the proper exercise of its jurisdiction, appreciated and assessed evidence or exercised discretion in a manner with which it is easily possible to disagree". Abdul Haq v. State (1979 SCMR 254), Ghulam Nabi v. State (NLR 1978 Cri. 328), Sultan Khan v. Amir Khan (PLD 1977 SC 642), Haq Nawaz v. State (1969 P.Cr.LJ 358), Haq Nawaz v. State (1969 SCMR 174), Allah Diwaya v. State (PLD 1969 SC 98).
(R.A.) Leave refused.
PLJ 2008 SC 71
[Appellate Jurisdiction]
Present: Rana Bhagwandas, ACJ; Abdul Hameed Dogar and
Sardar Muhammad Raza, Khan, JJ.
ATA ULLAH--Petitioner
versus
ALI MUHAMMAD--Respondent
C.P. No. 836-L of 2007, decided on 13.6.2007.
(On appeal from the judgment dated 19.3.2007 of the Lahore High Court, Lahore passed in CR No. 1389/06)
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Superior right of pre-emption--Co-owner of land in-question--Adjacent land to the suit land--Common passage and source of irrigation--Performance of talbs--Coming to knowledge of sale immediately made jumping demand by disclosing of his superior right of pre-emption--Factum of sending notice of talb-i-ishhad attested by two truthful witnesses--No exception to concurrent findings of Courts below on both talbs which were made in accordance with law--Date, place and time of talb-i-muwathibat--Held: Plaint wherein date, place, and time of talb-i-muwathibat and date of issuance of notice of talb-i-ishhad in terms of S. 13 of the Punjab Pre-emption Act, is not provided, it would be fatal for pre-emptor. [Pp. 73 & 74] A & B
PLD 2003 SC 315; PLD 2007 SC 302; 2000 SCMR 329; 2000 SCMR 314; PLD 2003 SC 315; PLD 2005 SC 977 & 2004 SCMR 1580 ref.
Mr. Ghulam Farid Santora, ASC for Petitioner.
Mian Ghulam Hussain, ASC for Respondent.
Date of hearing: 13.6.2007.
Order
Abdul Hameed Dogar, J.--Petitioner seeks leave to appeal against judgment dated 19.3.2007 passed by learned Judge in Chambers of Lahore High Court, Lahore whereby Civil Revision No. 1389 of 2006 filed by him was dismissed.
Briefly stated facts giving rise to the filing of instant petition are that land measuring 4 kanals and 9 marlas situated in Village Kalianwala District Hafizabad was purchased by petitioner from Shabir Hussain for a consideration of Rs. 150,000/- vide Mutation No. 1571 dated 29.1.2003. On 1.2.2003 at Asar Waila respondent came to know about the sale through Asghar Ali PW-6 and Nawab PW-5 and, in their presence, he announced his intention to purchase the suit land claiming his superior right of pre-emption. After performing Talb-i-Muwathibhat he along with PWs 5 and 6 went to the house of petitioner and asked him to sell the land in his favour but he refused. On 6.2.2003 respondent dispatched notice of Talb-i-Ishhad attested by PWs 5 and 6 through registered post. The respondent then filed suit before learned Civil Judge 1st Class, Hafizabad claiming his superior right of pre-emption being owner in joint khata of suit land as well having land adjacent to the suit land including common source of irrigation and passage. It was alleged in suit that in order to ward off any intending pre-emptor sale price was inflated as Rs. 150,000/-. The suit was contested by petitioner by filing written statement and raising preliminary objection that Talbs as required under the Punjab Pre-emption Act, 1991 (hereinafter referred to as "the Act") were not performed at all. However, the suit of respondent was dismissed by the trial Court vide judgment dated 3.3.2006. Feeling aggrieved, respondent filed appeal before the learned Additional District Judge, Hafizabad, which was allowed on 9.6.2006 and the suit of respondent was decreed whereby he was directed to deposit pre-emption money of Rs. 150,000/- less Zar-e-soam till 8.7.06, failing which the suit shall be deemed to have been dismissed. The petitioner challenged this judgment and decree before learned Lahore High Court, Lahore through Civil Revision No. 1389 of 2006, which was dismissed vide impugned judgment.
We have heard Mr. Ghulam Farid Santora, learned ASC for the petitioner and Mian Ghulam Hussain, learned ASC for the respondent at length and gone through the record and proceedings in minute particulars.
Learned counsel for the petitioners vehemently contended that learned High Court did not appreciate the evidence brought on record in its true perspective which resulted in miscarriage of justice. According to him, neither Talb-i-Muwathibat nor Talb-i-Ishhad as prescribed by law were performed by respondent/plaintiff. He further contended that there are material contradictions in the evidence adduced by PWs as such the same is not worth credence. He vehemently contended that it is settled principle of law that requirements of Talb-i-Muwathibat cannot be fulfilled unless the details, particulars, date, time and place are specifically indicated in the plaint and the names of the persons in whose presence such talab was made. Learned counsel contended that the judgment of trial Court is well reasoned and is based on proper appraisal of evidence and is in accordance with law, as such, the same may be maintained. In support of his contention he relied upon the case of Haji Muhammad Saleem Vs. Khuda Bakhsh (PLD 2003 SC 315) wherein, it was held that it is important for the plaintiff to disclose date and time of the performance of Talb-i-Muwathibat in the plaint so as to prove immediate exercise thereof and also as to whether he performed Talb-i-Muwathibat in the same meeting and before the dispersal thereof, which is a clear indication of compulsion on the prospective pre-emptor that he has to make Talb-i-Muwathibat in between the period of his having received the information in the Majlis and the dispersal of the Majlis, beyond such limitation, the talb exercised would be invalid. Talb-i-Ishhad has to be completed within 15 days after the performance of Talb-i-Muwathibat. Pre- emptor can be non-suited for non-performance of Talb-i-Ishhad as well as the performance of same has to be limited with performance of Talb-i-Muwathibat.
On the other hand learned counsel for the respondent controverted the above contentions and contended that impugned judgment does not suffer from any legal flaw and PWs are unanimous about the date, time and place of gaining of knowledge by the respondent regarding sale and have deposed that respondent instantly expressed his intention of pre-empting the sale. He further contended that respondent has proved the Talb-i-Ishhad by producing its marginal witnesses, namely, PW-5 Nawab and PW-6 Asghar Ali who without any contradiction supported the case of respondent on making talabs. He further contended that even service of notice on petitioners is established through the testimony of independent witness, Muhammad Yousaf, Postmaster (PW-1) who produced the original receipts.
Admittedly, respondent has superior right of pre-emption being co-owner in the suit land. Irrespective of above, respondent has adjacent land to the suit land including common passage and source of irrigation. The Appellate Court as well as Revisional Court on proper appraisal of evidence rightly concurred that respondent on coming to know of sale immediately made jumping demand by disclosing his superior right of pre-emption in the suit land in presence of PWs 5 and 6. Similarly, the factum of sending notice of Talb-i-Ishhad attested by two truthful witnesses stood established on record. Thus there can be no exception to the concurrent findings of the two Courts below on both talabs which were made in accordance with law.
Since there were divergent views of the Benches of this Court in cases of pre-emption as to whether it was mandatory to disclose the particulars and details of date, time, and place of receiving information about sale and making Talb-i-Muwathibhat and also the date of issuance of notice of Talb-i-Ishhad in the plaint, a larger Bench was constituted, which resolved the controvers in the case of Mian Pir Muhammad Vs. Fariq Muhammad through LRs and others reported as (PLD 2007 SC 302) which dissented with the view taken in the cases of Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCMR 329) and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another (2000 SCMR 314) and approved the dictum laid down in the cases of Haji Muhammad Saleem v. Khuda Bukhsh (PLD 2003 SC 315) and Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977). It was held that a plaint wherein date, place, and time of Talb-i-Muwathibhat and date of issuance of notice of Talb-i-Ishhad in terms of Section 13 of the Act is not provided, it would be fatal for the pre-emptor. So far as minor discrepancies in the statements of PWs are concerned, this Court in the case of Allah Bakhsh Vs. Falak Sher (2004 SCMR 1580) held that minor discrepancies of time could not come in the way of pre-emptor. This Court also held in the case of Abdul Malik vs. Muhammad Latif (1999 SCMR 717) that the service of registered notice by pre-emptor containing the names of two truthful witnesses before whom Talb-i-Ishhad was made amounted to substantial compliance of the provisions of law. Learned counsel for petitioners though argued at length yet could not refer to any illegality, misreading or non-appraisal of evidence.
For what has been discussed above, we do not find any reason to interfere with the concurrent findings of two Courts below which are maintained. Resultantly, the petition being devoid of force is dismissed and leave to appeal refused.
(R.A.) Leave refused.
PLJ 2008 SC 74
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan; Ch. Ijaz Ahmed and
Hamid Ali Mirza, JJ.
MUHAMMAD WARIS--Petitioner
versus
STATE and another--Respondents
Crl. P. No. 87 of 2007, decided on 6.4.2007.
(On appeal from the judgment dated 24.1.2007 of the Peshawar High Court, Peshawar passed in Jail Criminal Appeal No. 299 of 2005)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 324 & 337--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against accused--Challenge to--Sentence was maintained with slight modification--Leave to appeal--Question of--Appreciation of evidence--Strong and infallible circumstantial evidence--No hard and fast rule--Proof or non-proof of motive becomes irrelevant--To say that no one from neighbour-hood was attracted, is to ask too much and too rare especially at midnight--Assailants had completed their job within minutes and by the time any neighbour would have got attracted, they had gone and disappeared--There is no hard and fast rule as to who among those, claiming to be eye-witness, should or must lodge the report--High Court was right in turning down such objection by observing that in such circumstances where the assailants stand strongly connected with the commission of offence, the proof or non-proof of motive becomes irrelevant--There is no mis-application or non-appreciation of evidence in the concurrent finding of the two Courts, warranting interference by Supreme Court--Leave refused. [P. 77] A, B & D
Appreciation of Evidence--
----Involvement of accused in previous dispute--Manner of evidence--Manner of appreciation of evidence is totally unheard of in realm of criminal jurisprudence--Such eventuality was never even suggested during trial--It sounds funny that the husband would find his wife in compromising position, would kill her partner, would spare his wife and report would be lodged by same woman against innocent strangers. [P. 77] C
Malik Anwar-ul-Haq, ASC with Mr. Mehr Khan Malik, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 6.4.2007.
Judgment
Sardar Muhammad Raza Khan, J.--Muhammad Waris son of Muhammad Saleem of Ghakkar Mandi Gujranwala, was tried by learned Additional Sessions Judge XIII Peshawar and convicted under Sections 302/324/337 PPC. He was variously sentenced including imprisonment for life, for causing murder of Atta Ullah, vide judgment dated 6.4.2005.
The learned Peshawar High Court upheld the conviction as well as the principal sentence with slight modification in the sentence of other offences. Muhammad Waris seeks leave to appeal from such judgment dated 24.1.2007.
Muhammad Waris and his absconding co-accused Nadeem were running a butcher shop in Gulbahar # 1, Peshawar. They had some dispute with Anwar Shah of the same vicinity. On the night of 17.10.2002, Anwar Shah alongwith his family and another Atta Ullah (35), a nephew of his wife Mst. Parveen Nazli, were all asleep. Atta Ullah was on the ground floor while the other family was at the upper floor. At past midnight some one rang the door bell. Mst. Parveen Nazli woke up and looked through window. She saw Nadeem and Waris standing by the door of the house. Mst. Parveen Nazli asked them the reason for being there at such odd hour of the night, Nadeem replied that he had some important business with Anwar Shah. The latter was awakened by his wife and he proceeded down stairs. After some time, she heard hue and cry whereupon she rushed to the spot and saw that her husband Anwar Shah and her nephew Atta Ullah were lying injured in pool of blood. The assailants had tried to slaughter both. Atta Ullah succumbed to his injuries while Anwar Shah survived stab injuries on his neck. Parveen Nazli took both of them to the casualty of Lady Reading Hospital where she lodged the report at 0120 hours, of occurrence that had taken place at 0005 hours.
So far as the prosecution case is concerned, it originates from a promptly lodged FIR, keeping in view the odd hour of the night. The testimony of Anwar Shah injured witness and Mst. Parveen Nazli, the complainant is relied upon as ocular. It gets strong support from the post-mortem report of Atta Ullah deceased coupled with the medico legal report of Anwar Shah. The inmates of the house at such hours of the night are the most natural witnesses whose presence cannot be doubted. The prosecution has given a motive to kill while there is no motive at all for false implication. Co-accused Nadeem, the brother of petitioner, is an absconder even today. While agreeing with the learned High Court as well as the trial Court, we hold that the prosecution has proved its case beyond any shadow of doubt. In the given circumstances, the conviction is also proper.
Learned counsel for the petitioner opened his case by arguing that Parveen Nazli, according to her own version in the FIR, was not an eye-witness. That Anwar Shah who, as per his statement, had gone upstairs to fetch a glass of water, was also not an eye-witness because by the time he came back Atta Ullah deceased had stood slaughtered and Anwar Shah had not seen the two accused actually slaughtering him.
Not only that we do not agree with the learned counsel but would rather observe that the testimony of Parveen Nazli and Anwar Shah, in the given circumstances, was so true and so natural that it provided a strong and infallible circumstantial evidence, better than any evidence which the learned defence counsel dubs as ocular.
Parveen Nazli, complainant is an eye-witness to the presence of Nadeem and Waris on the main door when she answered the Call. Not only that she saw them but she also talked to them and thereafter awoke her husband. It was Anwar Shah who went downstairs, opened the door and received the two accused who were made to sit in the room where Atta Ullah was asleep. If he goes to fetch a glass of water and on his return in a short time finds Atta Ullah butchered and the two accused present in the room with daggers, no one can deny this to be a strong piece of circumstantial evidence, particularly, when the odd hour of the night is throughout kept in mind. Moreover, when Anwar Shah returned to the room in a very short time, the two accused had not decamped but were still present in the room. They launched an attack on Anwar Shah as well, injured him at the vital part and his hue and cry attracted the wife as well. It was only then that the assailants took to their heals. Nothing could be more abrupt and more natural than what happened on the spot and what the inmates witnessed. To say that no one from the neighbour-hood was attracted, is to ask too much and too rare especially at midnight. The assailants had completed their job within minutes and by the time any neighbour would have got attracted, they had gone and disappeared.
The next objection of the learned counsel was that why the report was lodged by Parveen Nazli when, according to doctor, her husband Anwar Shah was conscious in the hospital. This too is not reasonable because there is no hard and fast rule as to who among those, claiming to be eye-witness, should or must lodge the report. Any one of them would have been equally better. Rather, we have observed that Parveen Nazli was a better complainant because she had confronted certain strong facts that had happened prior to her husband's getting up from sleep. The objection is without force.
The learned counsel for the petitioner, like it was before the High Court, also expected from us to draw an inference about some immoral connection between the complainant and her nephew Atta Ullah aged 35, and that, Anwar Shah having seen them in a compromising position, had killed Atta Ullah. That the present accused were involved due to some previous dispute. This manner of appreciation of evidence is totally unheard of in the realm of criminal jurisprudence. Such eventuality was never even suggested during trial. It sounds funny that the husband would find his wife in compromising position, would kill her partner, would spare his wife and the report would be lodged by the same woman against innocent strangers.
The contradiction in evidence that there was some loan dispute firstly alleged about Nadeem and, later in evidence, about Waris is too minor to be called a contradiction. Both the assailants are working in the same place. They might have had some dispute with Anwar Shah, which night have been known to his wife in general terms about which Anwar Shah subsequently became specific. Anyhow, the learned High Court was right in turning down this objection by observing that in the given circumstances where the assailants stand strongly connected with the commission of offence, the proof or non-proof of motive, becomes irrelevant.
As a sequal to what is discused above, we find no merit in petitioner's case. There is no mis-appreciation or non-appreciation of evidence in the concurrent finding of the two Courts, warranting interference by this Court. The petition is hereby dismissed and leave to appeal declined.
(N.F.) Leave refused.
PLJ 2008 SC 78
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan and
Ghulam Rabbani, JJ.
ABDUL REHMAN--Appellant
versus
Haji GHAZAN KHAN--Respondent
C.A. No. 488 of 2003, decided on 27.9.2006.
(On appeal against the judgment dated 27.6.2002 passed by the Lahore High Court, Rawalpindi Bench in C.R. No. 370/95)
Jurisdiction--
----Appellate Court being a final Court of fact could reappraise the evidence and alter the finding recorded by trial Court and in doing so, Appellate Court rightly exercised its jurisdiction. [P. 80] A
Civil Procedure Code, 1908 (V of 1908)--
----O.VI, Rr. 2 & 4--Punjab Pre-emption Act, (IX of 1991), S. 13--Failed to make talbs--Essentials--Elements of limitation mentioning of date and time--Question of--Detailed particulars of talab-e-muwathibat are necessary to be mentioned in the plaint--Phenomenon of talab-e-muwathibat carries essentially the elements of limitations, mentioning of date and time of disclosure of information is absolutely necessary--It is again necessary because talb has to be made before the dispersal of Majlis and that, as the existence of Majlis is a most material fact related to performance of talab-e-muwathibat, the constituents of Majlis are also necessarily to be mentioned--Such constituents of Majlis are nothing but the members who ultimately are the witnesses to the talab-e-muwathibat. [P. 81] B
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Civil Procedure Code, (V of 1908), O.VI, Rr. 2 & 4--Talab-e-muwathibat--Matter of limitation--Solitary evidence--Failed to mention the date, time and place receipt of information about sale--First time, in his evidence appellant disclosed the name of informer, but preferred not to examine him as a witness and that also without assigning any reason--A pre-emptor claiming right of pre-emption, as a matter of prudence, ought to seek corroboration to satisfy reasonably the judicial mind of Court that talab-e-muwathibat was made by him enabling him to make the other demand (Talab-i-Ishhad)--In the case, failure to put the informer in witness-box, seen from that angle as well, raises a logical presumption that appellant feared that the witness, if examined, could not stand the test of cross-examination or that the witness would not support him or that his evidence would be against him--Appeal dismissed. [P. 81] C
Mr. Muhammad Munir Peracha, ASC for Appellant.
Mr. Gulzarin Kiani, Sr. ASC for Respondent.
Date of hearing: 27.9.2006.
Order
Ghulam Rabbani, J.--This appeal with leave of the Court is directed against judgment dated 27.6.2002 passed by a single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi.
Ali Khan and Akbar Khan, both brothers, sold to respondent Haji Ghazan Khan a piece of land measuring 21 kanals 18 marlas situated in village Misrial Tehsil Talagang vide Mutation No. 271 dated 31.12.1992 for a consideration of Rs. 1,30,000/-. Abdur Rehman, appellant herein, filed a suit for possession of above land through pre-emption on the ground that he was Sharik- i-khata. Learned Trial Judge decreed the suit in his favour vide judgment and decree dated 14.4.1994. On appeal filed by the respondent/vendee, learned Additional District Judge, Talagang, reappraised the evidence and found that appellant/plaintiff failed to make Talab-i-Mowasibat and Talab-i-Ishhad as required by law. Therefore, he set aside judgment of Trial Court and dismissed the suit through judgment dated 5.6.1995. Feeling aggrieved, appellant filed before Lahore High Court, a Revision Application which, was dismissed by the impugned judgment, noted above.
Precisely stated, the leave was granted by this Court to consider whether it was a legal necessity that all the witnesses of Talab-i-Mowasibat should have been examined by the appellant and whether the Courts below had erred in holding that Talab-i-Mowasibat was not made by the appellant/pre-emptor in accordance with law.
In the instant case, the appellant/plaintiff examined himself alone on the point of Talab-i-Mowasibat and in his solitary evidence disclosed for the first time the name of the informer but failed to give the date and time of receipt of information from him about the sale of disputed land and failed to give the date of making immediate demand; rather in his cross-examination stated that he did not remember the same. Mr. Muhammad Munir Peracha, ASC, learned counsel for appellant contended that, although the appellant had, for the first time, disclosed in his evidence the name of the informer; failure to examine the latter as a witness would not, in any way, weaken his case and his solitary evidence was sufficient to prove Talab-i-Mowasibat made by him. According to Mr. Peracha learned Additional District Judge in exercise of his powers as Appellate Authority could not, therefore, touch upon the sufficiency or otherwise of such evidence and his finding recorded on this point was sheer improper exercise of jurisdiction, Mr.Gulzarin Kiani, learned counsel for respondent, on the other hand, disputed the above submissions. He argued that withholding of evidence of an informer would lead to adverse presumption that the witness, if examined, would have not supported the appellant. In support of his contents he placed reliance on the case of Muhammad Mall Khan versus Allah Yar Khan (2002 SCMR 235). Mr. Kiani submitted that the consistent findings of two Courts on the point were based on proper evaluation of evidence on record and that the suit of appellant was rightly dismissed. In this he placed reliance on case of Fazal Subhan and 11 others versus Mst. Sahib Jamala and others (PLD 2005 S.C. 977)
In the first place, we attend to the arguments of Mr. Peracha whether Additional District Judge could or could not exercise its appellate jurisdiction to alter the finding of fact recorded by Trial Court. In this behalf, it may be stated that it is well settled that Appellate Court is the final Court of fact. The appeal is continuity of original proceeding before the superior Tribunal. In case of Muzaffar Ali versus Muhammad Shafi (PLD 1981 SC 94), our respectable brother Justice Karam Elahi Chuhan, Judge, as then he was, speaking for a larger Bench observed that the appeal was regarded as a continuation of trial. In actual fact, on appeal, it is always rehearing of the whole dispute. The Appellate, Court being a final Court of fact could reappraise the evidence and alter the finding recorded by Trial Court and in doing so, in this case, the Appellate Court rightly exercised its jurisdiction. The objection of Mr. Peracha that learned Additional District Judge could not have touched upon the sufficiency of solitary evidence on the point of Talab-i-Mowasibat, is, patently, without any force and is not acceptable.
Coming to the other contention of Mr. Peracha about ' sufficiency of solitary evidence of appellant/plaintiff on the point of Talab-i-Mowasibat; at the out set it may be stated that the right of pre-emption is a feeble right which is activated; rather it is dependent for its enforceability only on making mandatory demand of Mowasibat to take it logically to enable the pre-emptor to resort to the Talb-i-Ishhad. Seen from another angle, such as, for computing the period of limitation for making Talab-i-Ishhad and for institution of suit, in this case from date of knowledge, Talab-i-Mowasibat becomes altogether more important Talab-i-Mowasibat has, thus, a very important role in the scheme of pre-emption and cannot be taken lightly. Therefore, a pre-emptor has to satisfy reasonably the judicial mind of Court through sufficient evidence, that he, in the first instance, made immediate demand (Talab-i- Mowasibat) to be legally entitled to invoke his right of pre-emption by way of a suit instituted within stipulated time.
The sufficiency of evidence, which, need to be in accord with pleading," that Talab-i-Mowasibat was made as prescribed, is to be evaluated in the light of what the law enjoins in this behalf.
Section 13 of the Punjab Pre-emption Act, 1991, hereinafter to be referred to as "the Act", defines Talab-i-Mowasibat by way of explanation to mean immediate demand by a pre-emptor, in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption. Therefore, in order to satisfy the judicial mind of the Court that the immediate demand was made as prescribed, a pre-emptor, first, needs to state in his pleading, among others, necessary/material particulars, such as, the date on which he received information, the name of informer and the names of those persons who constituted the sitting (Majlis) in which the pre-emptor claimed to have received information; and then to lead the evidence in line with his pleading. This point has been elaborated with reference to relevant provision of Code of Civil Procedure by one of us (Sardar Muhammad Raza Khan, J.) in case of Fazal Subhan and 11 others versus Mst. Sahib Jamala and others (PLD 2005 S.C. 977) by observing that, "apart from limitation involved in the matter of Talab-e-Muwathiba, I may refer even with preference to Order VI, Rule 2 of the C.P.C. that the detailed particulars of Talab-e-Muwathibat are necessary to be mentioned in the plaint even under Order VI, Rule 2 and Rule 4 of C.P.C. Also that, "as the phenomenon of Talab-e-Muwathibat carries essentially the elements of limitations, mentioning of date and time of the disclosure of information is absolutely necessary. It is again necessary because Talb has to be made before the dispersal of Majlis" and that, "as the existence of Majlis is a most material fact related to the performance of Talab-e-Muwathibat, the constituents of Majlis are also necessarily to be mentioned. Such constituents of Majlis are nothing but the members thereof who ultimately are the witnesses to the Talab-e-Muwathibat".
8A. Burden of proof was on the appellant to prove through satisfactory evidence that first demand was made as prescribed. In his solitary evidence, he failed to mention the date, time and place of receipt of information about the sale. For the first time, in his evidence, he disclosed the name of informer, but preferred not to examine him as a witness and that also without assigning any reason. A pre-emptor claiming right of pre-emption, as a matter of prudence, ought to seek corroboration to satisfy reasonably the judicial mind of the Court that Talab-i-Mowasibat was made by him enabling him to make the other demand (Talab-i-Ishhad). In this case, failure to put the informer in witness-box, seen from that angle as well, raises a logical presumption that appellant feared that the witness, if examined, could not stand the test of cross-examination or that the witness would not support him or that his evidence would be against him. In this, we are fortified by case of Muhammad Mall Khan (supra), in which, it is observed that:
"... Therefore, in absence of any explanation by the plaintiff as to why he withheld Tayyab Khan (informer) from examining him as his witness the legal presumption would be that in case he had been produced then his deposition must have been against him ....".
We are, therefore, clearly of the view that the concurrent findings of learned single Judge of Lahore High Court and that of Appellate Court suffer from no legal defect or infirmity. The same do not warrant interference.
For the foregoing, we find no merit in this appeal and dismiss the same. No order as to costs.
(N.F.) Appeal dismissed.
PLJ 2008 SC 82
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan; Ch. Ijaz Ahmed and
Hamid Ali Mirza, JJ.
SH. FATEH MUHAMMAD--Appellant
versus
MUHAMMAD ADIL and others--Respondents
C.A. No. 93 of 2003, decided on 10.4.2007.
(On appeal from the judgment/order dated 5.7.2002 of the Lahore High Court, Lahore, passed in R.S.A. No. 58 of 1991)
Interpretation of Law--
----Principle--Each and every case is to be decided on its own peculiar circumstances and facts. [P. 87] A
1994 SCMR 2213; 2002 SCMR 235 and 2002 SCMR 677
Pleadings--
----Various pronouncements--It is settled law that parties are bound by their pleadings. [P. 87] B
PLJ 1983 SC 1; 1985 SCMR 1438; 1998 SCMR 1691; 2004 SCMR 578; PLD 1974 SC 322; 2006 SCMR 619 and 2007 SCMR 368.
Pleadings--
----Principle--It is settled law that pleadings must be proved through evidence. [P. 87] C
2004 SCJ 250, ref.
Principle--
----Several pronouncements--When the ground was not raised before the Courts below, then appellant is estopped to raise the same before Supreme Court. [P. 88] E
2006 SCMR 1034, 2007 SCMR 236, ref.
Appreciation of evidence--
----Principle--Supreme Court does not meddle with the findings of fact reached by the primary Courts or High Court when it is satisfied that the findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of evidence. [P. 88] G
Benami--
----Plea of--Not proved--Issue was not framed--Controversy--Entitlement to challenge--Trial Court has not framed any issue with regard to controversy--Even if the Court has not framed the issue, the appellant had adduced the evidence in such regard--Held: Appellant has not pressed issues except the issues as evidence from the judgment of First Appellate Court--Appellant is not entitled to challenge the findings on other issue as findings qua remaining issues has become final between the parties. [P. 87] D
Concurrent Finding--
----Appreciation of evidence--Rule of Court--Principle--Courts below after examining the evidence on record have given concurrent conclusion against appellant--Supreme Court does not go behind the concurrent finding is on the face of it against evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been misapplication of principle relating to appreciation of evidence. [P. 88] F
Mr. Amir Khan, ASC for Appellant.
Mr. Gulzarin Kiani, ASC for Respondents.
Date of hearing: 10.4.2007.
Judgment
Ch. Ijaz Ahmed, J.--Brief facts out of the which the present appeal arises are that original owner of the land in question Nazir Ahmed Khan father of respondents/plaintiffs sold land measuring 338 kanals and 14 marlas out of land measuring 508 kanals one marla to the appellant/petitioner vide sale Mutation No. 189 dated 11-12-1972 for consideration of Rs. 1,01,400/-. Respondents/plaintiffs filed suit for pre-emption through their next friend Malik Sher Muhammad (their real grandfather) as real son of vendor against the appellant/petitioner wherein they also challenged the sale price of Rs. 1,01,400/- as fictitious against the sum of Rs. 30,000 alleged to have been actually sale price to vendor in the Court of Civil Judge 1st class Mianwali on 5-11-1973. During the pendency of the suit Irfan Nazeer one of the respondents/plaintiffs died. His legal heirs (Mst. Anwar Bibi, mother and Malik Nazir Ahmed, father, vendor) were brought on record and amended plaint was also filed by impleading father and mother of said Irfan Nazir. Malik Nazeer Ahmed Khan, father of the said deceased filed an application before the trial Court for deletion of his name which was accepted. Appellant/petitioner filed written statement controverting the allegations levelled in the plaint. Out of the pleadings of the parties the trial Court framed 17 issues. The trial Court decreed the suit vide judgment and decree dated 4-7-1977 on payment of Rs. 1,01,400/- with costs. Appellant/petitioner being aggrieved filed an appeal in the Court of Additional District Judge Bhakkar who dismissed the same vide judgment and decree dated 11-6-1991. Thereafter the appellant/petitioner filed RSA No. 58/1991 in the Lahore High Court which was also dismissed vide impugned judgment dated 5-7-2002. Appellant/petitioner being aggrieved filed C.P. No. 274-L/2002 which was fixed before this Court on 23-1-2003 and leave was granted in the following terms:
"Leave to appeal is granted to consider, inter alia, the following questions:--
(i) Whether the High Court has correctly held that the case does not suffer from the vice of partial pre-emption?
(ii) Whether the suit brought by minor sons (aged 6 and 2 years) of the vendor having no independent source of income is not collusive? and
(iii) Whether the respondents can be denied the decree on this ground, notwithstanding the absence of plea to that effect?
Status quo as regards possession shall be maintained till final disposal of the appeal."
He further urges that all the Courts below have erred in law to decide the suit against the appellant in violation of the principle of partial pre-emption as all the Courts below have misread the evidence on record. He further urges that principle of waiver is also attracted in the present case which was not considered by all the Courts below in its true perspective. He further submits that appellants have taken specific plea of benami in the written statement and the trial Court failed to frame issue. Therefore keeping in view the principal of Islamic Jurisprudence this Court has ample jurisdiction to remand the case to the trial Court for framing fresh issue with regard to collusion/waiver/benami suit. He sums up his argument that judgments of the Courts below are not in consonance with the law laid down by the superior Courts. In support of his contention he relied upon the following judgments:
Naseer Ahmed's case (PLD 1984 SC 403)
Abdul Hameed's case (2005 SCMR 895)
Zar Wali Shah's case (1992 SCMR 1778)
Khurshid Ali's case (PLD 1992 SC 822)
Ghulam Muhammad's case (PLD 1973 SC 444)
Ghulam Abbas's case (1993 SCMR 2289)
Hashmat Ali's case (PLD 1956 Baghdad-ul-Jadeed 33)
Learned counsel of the respondents supported the impugned judgment. He further submits that respondents filed an application for amendment of the plaint on 11.12.1973 which was allowed by the trial Court vide order dated 7.6.1975 against which the revision petition of the appellant was dismissed on 26.9.1975. The said orders were not challenged by the appellant before any higher forum, therefore, appellant could not re-agitate the same before this Court as the matter relating to the amendment of the plaint was finalized between the parties. In support of his contention, he relied upon Baqa Muhammad's case (PLD 1985 Lah. 476). He further submits that Court has ample power to allow the amendment in terms of Order VI Rule 17 CPC and the law laid down by the superior Courts. In support of his contention, he relied upon Jalal ud Din's case (62 Punjab Record 1914), Mst. Ghulam Bibi's case (PLD 1985 SC 345), Bahadar Shah's case (PLD 1973 Lah. 513) and Qamar ud Din's case (PLD 2001 SC 518). He further urges that principle of waiver or implied waiver is not attracted in the present case. In support of his contention, he relied upon Allah Dad's case (PLD 1960 Lah. 900), Muhammad Amin's case (1993 SCMR 498) and Jam Pari's case (1992 SCMR 786). He further urges that Naseer Ahmad's case supra (PLD 1984 SC 403) is not law declared by this Court as the leave was refused. He similarly urges that case of Abdul Hameed supra (2005 SCMR 895) is also not attracted in the case in hand in view of distinguished features. In the cited case issues were framed and evidence was led by the parties whereas in the present case no issue was framed. He further urges that ground of Benami suit was taken by the. appellant in written statement in preliminary Objection No. 5 and in reply of para 4 on merits. No issue was framed and the appellant had not claimed and filed any application for framing issue qua the Benami suit. No evidence was led by the parties. No suggestion was put to Malik Sher Muhammad who appeared as PW6 before the trial Court. Fateh Muhammad did not utter single word in his statement when he appeared before the trial Court as DW6. He further urges that the controversy between the parties has been pending since 33 years, therefore, it is not proper at this juncture to remand the case to the trial Court as argued by the learned counsel for the appellant. He further urges that appellant could not be given benefit of his own mis-deed or negligence at this stage. In support of his contention, he relied upon Basudev Hazra's case (AIR 1971 SC 722). He sums up his arguments that the appellant's counsel had only pressed Issues No. 1,2,3 and 17 before the First Appellate Court. He further maintains that the pleas which were raised by the counsel for the appellant were not taken before the First Appellate Court as well as before the learned High Court in regular second appeal, therefore, such grounds could not be allowed to be raised before this Court.
We have considered the submissions made by learned counsel for the parties and have also perused the record. It is a settled law that each and every case is to be decided on its own peculiar circumstances and facts as law laid down by this Court in Muhammad Saleem's case (1994 SCMR 2213), Muhammad Mal Khan's case (2002 SCMR 235) and Ghulam Sadiq's case (2002 SCMR 677). It is an admitted fact that appellant's counsel has pressed only Issues No. 1, 2, 3 and 17 before the First Appellate Court as evident from para 4 of the judgment of the Addl. District Judge, Bhakkar. It is also a settled law that parties are bound by their pleadings. There are various pronouncements of this Court qua this proposition of law. See Kanwal Nain's case (PLJ 1983 SC 1), Hashmand's case (1985 SCMR 1438), Mst. Janat Bibi's case (1988 SCMR 1696), Basit Sibtain's case (2004 SCMR 578), Mst. Murad Begum's case (PLD 1974 SC 322), Messrs State Engineering Corporation Ltd's case (2006 SCMR 619) and Shafi Muhammad's case (2007 SCMR 368). It is also a settled law that pleadings must be proved through evidence as law laid down by this Court in Faqir Muhammad's case (2004 SCJ 250). In the present case appellant has taken a plea of Benami suit in reply of para 4 of the written statement but he did not prove the same before the trial Court coupled with the fact that the trial Court has not framed any issue with regard to this controversy. Even if the Court has not framed the issue, the appellant had adduced the evidence in this regard then we may consider this aspect of the case. The appellant, as mentioned above, has not pressed the issues except the aforesaid issues (Issues No. 1, 2, 3 and 17) as evident from the judgment of the First Appellate Court, therefore, appellant is not entitled to challenge the findings on the other issues as the findings qua the remaining issues has become final between the parties. It is a settled law that when the ground was not raised before the Courts below, then appellant is estopped to raise the same before this Court. There are several pronouncements to this aspect. See Muhammad Feroz's case (2006 SCMR 1304). Aurangzeb's case (2007 SCMR 236). It is an admitted fact that all the Courts below after examining the evidence on record have given concurrent conclusions against the appellant. This Court does not, normally, go behind the concurrent findings of fact recorded by the Courts below unless it can be shown that the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice or if there has been any mis-application of principle relating to appreciation of evidence, or finally, if the finding could be demonstrated to be physically impossible. This being the practice and the rule of this Court in civil appeals, the burden lies rather heavily on the appellant to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by us. It is also a settled principle of law that this Court does not meddle with the findings of fact reached by the primary Courts or High Court when it is satisfied that the findings of the Courts below are on the whole reasonable and are not arrived at by dis-regarding any provision of law or any accepted principle concerning the appreciation of evidence. This would be notwithstanding that a different view might also be possible. Points noted in the leave granting order and the plea raised by the learned counsel for the appellant before us have no force in view of circumstances of the case in hand as the appellant, as mentioned above, have not pressed the issue of partial pre-emption, waiver and others as evident from para 4 of the judgment of the First Appellate Court. The appellant, as mentioned above, has not agitated the same before the learned High Court. Therefore, as mentioned above, judgment relied by the learned counsel of the appellant are distinguished on facts and law. As the controversy has been pending adjudication between the parties since last 33 years, therefore, we are not inclined to exercise our discretion as requested by the learned counsel for the appellant to remand the case after framing fresh issue in view of contents of para 4 of the written statement and in view of discussion hereinabove as law laid down by this Court in Rana Muhammad Arshad's case (1998 SCMR 1462) and Muhammad Saifullah Khan's case (PLD 1989 SC 166).
For what has been discussed above, this appeal has no merit and the same is dismissed with no order as to costs.
(A.S.) Appeal dismissed.
PLJ 2008 SC 89
[Appellate Jurisdiction]
Present: Rana Bhagwandas, ACJ and
Sardar Muhammad Raza Khan, J.
SYED ABDUS SAMAD PIRZADA, ASSOCIATE PROFESSOR GOVERNMENT COLLEGE, RAWALPINDI--Appellant
versus
GOVT. OF PUNJAB through Secretary Finance, Punjab Secretariat, Lahore and another--Respondents
C.A. No. 1399 of 2006, decided on 26.6.2007.
(On appeal from the judgment dated 28.1.2006 passed by Punjab Service Tribunal, Lahore in Appeal No. 316/2005).
(i) Constitution of Pakistan, 1973--
----Art. 212(3)--Pakistan Broadcasting Corporation Act, 1973--S. 12(4)--Service matter--Leave to appeal has been granted--Civil servant was News Editor in Pakistan Broadcasting Corporation--Applied for the post of Assistant Professor through proper channel--Selected and relieved of his duties from Broadcasting Corporation--Prayer for re-fixation and serving in connection with the affairs of Federal Government--Such organization was turned into a corporation, the services of civil servants stood transferred to the corporation on the same terms and conditions to which they were entitled immediately before such commencement--When organization from Government service of civil servants was turned into corporation, the terms and conditions of service of the civil servants were not changed to their detriment--Held : Principle of justice, equity and fair play, such privileges should not be denied to a person who being a corporation employees joins a civil service through public service commission and through proper channel--Appeal accepted. [P. 90] A
(ii) Service Tribunal Act, 1973 (LXX of 1973)--
----S. 2-(A)--Pakistan Broadcasting Corporation Act, 1973--Constitution of Pakistan, 1973--Art. 212(3)--Civil servant--Employees of the Corporation holding a civil post will be covered by definition of civil servant as given in S. 2(a) of Service Tribunal Act. [P. 91] B
1995 SCMR 1593 and 2006 SCMR 1864, ref.
Mr. Farrukh Javed Panni, ASC with Mr. M.S. Khattak, AOR for Appellant.
Mrs. Afshan Ghazanfar, Assistant Advocate General Punjab for Respondents.
Date of hearing : 26.6.2007.
Judgment
Sardar Muhammad Raza Khan, J.--Syed Abdus Samad Pirzada, Associate Professor of History Government College Satellite Town Rawalpindi, has been granted leave to appeal from the judgment dated 28.1.2006 of the Punjab Service Tribunal Lahore, whereby, his appeal, asking for fixation of pay in BPS-18 with effect from 4.9.1984, was dismissed.
Rs. 2100/-, the initial stage of BPS-18. His prayer for re-fixation of his pay in BPS-18 with effect from 4.9.1984 by protecting his previous pay was not acceded to either by the department or the Tribunal.
The Corporation where the appellant has previously served, was a creation of Pakistan Broadcasting Corporation Act, 1973, with effect from 20.12.1972. The Broadcasting concern, prior to that, was known as Radio Pakistan, as department of the Government of Pakistan, headed by the Director General Radio Pakistan. All the employees thereof were in the service of Pakistan and serving in connection with the affairs of Federal Government. When such organization was turned into a Corporation, the services of Civil Servants stood transferred to the Corporation on the same terms and conditions to which they were entitled immediately before such commencement, under Section 12 of the Act. Similar was the advantage given to the persons of Information Service of Pakistan under Section 12(4) of the Act whose services stood transferred to the Corporation. The purpose of the above reference is to realize that when the organization from Government service was turned into Corporation, the terms and conditions of service of the civil servants were not changed to their detriment. Thus on the principle of justice, equity and fair play, such privileges should not be denied to a person who being a Corporation employee joins a civil service through Public Service Commission and through proper channel.
The above was the principle of equity and justice that prevailed with a full bench of this Court in a case of this very Pakistan Broadcasting Corporation (1995 SCMR 1593) where it was held that the Pakistan Broadcasting Corporation being a Government controlled regimented Corporation playing an important role in the media of information was like a department of the Government and further that the employees of the Corporation holding a civil post will be covered by the definition of civil servants as given in Section 2(a) of the Service Tribunals Act, 1973. The point to be noticed, with emphasis, is that this status was given to the employees of Corporation when subsequently inserted Section 2-A of the Service Tribunals Act was not even in view.
An employee of Pakistan Broadcasting Corporation though not a civil servant in the strict sense of term yet granted the status thereof through the above judgment, it was followed by a full bench of this Court in Amjad Hussain's case (1998 SCMR 1442) where the matter of fixation of pay was determined in the light of F.R.22 (A)(i). It was a case where, conversely to the one in hand, a civil servant was inducted into an autonomous body and in the given circumstances it was held that he was entitled to the protection and fixation of his pay in terms of Fundamental Rules (Supra), in the light of principle laid down in Chairman Pakistan Broadcasting Corporation (1995 SCMR 1593). F.R.22(A)(i) can also be applied to the cases where a person through proper channel leaves the present Corporation to join civil service.
It may be advantageous to refer to another case of Nafees Ahmad (2000 SCMR 1864) where, again a full bench of this Court while dealing with the case of an employee of State Bank of Pakistan (an autonomous body/Body-Corporate under the State Bank of Pakistan Act, 1956) who was transferred to Government service through Federal Public Service Commission in the Federal Bureau of Statistics, Statistics Division, this Court has gone to the extent of granting him pensionary benefits of previous service under autonomous body. The authorities concerned were held bound, inter alia, to follow the law regarding protection of pay and counting of his period of service with the autonomous body towards the pensionary benefits.
The appellant has placed on record an Order No. 249/UO No. FD.SR.III-1-93/84 dated Lahore the 29th December 1985, whereby, Finance Department, Government of Punjab had given Mr. Aleem-ud-Din Bhatti, a Sub-Engineer Road Construction Division, Rawalpindi nine advance increments on entry into Government service in lieu of his past service in the WAPDA, which also happened to be an autonomous body. He further produced another copy dated 26.4.1984 of the Government of Punjab Department of Housing, Physical and Environmental Planning (No. SO.(E)H&PP-1-2/83), whereby, one Mr. Altaf Hussain Assistant Director (Town Planning) was granted two advance increments in lieu of his past service of about three years as Town Engineer in the Sargodha Improvement Trust. The appellant also demanded the same privilege, whereby, his previous pay could be protected.
For what has been discussed above, the instant appeal is accepted, the impugned judgment dated 28.1.2006 of the Federal Service Tribunal is set aside and the respondent Government is directed to fix the pay of the appellant in BPS-18 with effect from his joining the Education Department by giving him protection of pay that he had last drawn in the Pakistan Broadcasting Corporation.
(R.A.) Appeal accepted.
PLJ 2008 SC 92
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, HCJ and
M. Javed Buttar, J.
AMAR LAL--Appellant
versus
ISHWAR DAS and others--Respondents
C.A. No. 1322 of 2005, decided on 8.8.2007.
(On appeal from the judgment dated 13.9.2005 of the Election Tribunal Sindh passed in Election Petition No. 76 of 2002).
(i) Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 54(a)--Conduct of General Election Order, 2002--Art. 8-F--Election petition--Violation of--Seats for non-Muslims on basis of proportionate representation--Declared as returned candidate--Scope of--Non-compliance of mandatory provision--A direction is mandatory if its disobedience entails serious legal consequences amoutning to invalidity of the act done in disobedience to the provision--Held : Even if the defect is not pointed out by respondents, the Courts is always empowered to ensure that the law under which proceedings have been initiated before it is complied with fully particularly in the cases where non-compliance of mandatory provision prescribes a penalty--Appeal dismissed. [Pp. 93 & 94] A & D
(ii) Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 63--Language of--Leaves no scope--Language of S. 63 of Representation of People Act, leaves no scope for tribunal to exercise its discretion in favour of a party who has not complied with provision of Ss. 54 & 55 of Representation of the People Act. [P. 94] B
(iii) Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 63(a)--Scope of--Non-compliance--All contesting candidates had to be joined as party in the petition--It would amount to non-compliance with the provision of S. 63(a) of Representation of people Act.
[P. 94] C
Mr. Neel Keshav, ASC for Appellant.
Ch. Mushtaq Ahmad Khan, Sr. ASC and Mr. Mehr Khan Malik, AOR for Respondent No. 3.
Date of hearing : 8.8.2007.
Judgment
M. Javed Buttar, J.--Election Petition No. 76 of 2002, instituted by the appellant was dismissed by the Election Tribunal, Sindh vide the impugned judgment dated 13.9.2005. Hence this appeal.
We have heard the learned counsel for the parties and have also seen the available record.
Election Petition was dismissed, inter-alia, on the ground that admittedly all the contesting candidates, in violation of Section 54 of the Representation of the People Act, 1976, who were 84 in number, were not joined as respondents in the Election Petition. It was argued by the learned counsel for the appellant that since the dispute was in regard to the reserved seats for non-Muslims, the election for which was held on the basis of proportionate representation, therefore, after the elections, the dispute of the appellant was only with the 09 candidates nominated by the political parties who were declared as returned candidates and not with others who were in the lists of candidates provided by the political parties in accordance with the provisions of Article 8-F of the Conduct of General Election Order, 2002, hence the rest were unnecessary.
Clause (a) of Section 54 of the Representation of the People Act No. LXXXV of 1976 mandates an Election Petitioner to join all the contesting candidates as respondents to the Election Petition. Section 2 (iv) of the said Act defines "candidate" as a person proposed as a candidate for, or seeking election as a member. Section 2(viii) defines "contesting candidate" who is a validly nominated candidate who has not withdrawn his candidature. Above mentioned shows that the argument of the learned counsel for the appellant has no force. The law does not create an exception in favour of an Election Petitioner permitting him not to join all the contesting candidates within the meaning of Section 2 (viii) of the above Act, who had not withdrawn their candidature, as respondents to his Election Petition, in case the dispute was in regard to the seats reserved was non-Muslims. Hence the Election Petition was liable to be dismissed under Section 63 of the above Act due to the non-compliance of the mandatory provision of Section 54 (a) of the said Act. It is settled law that a direction is mandatory if its disobedience entails serious legal consequences amounting to the invalidity of the act done in disobedience to the provision. Reference in this regard can be made to Niaz Muhammad Khan versus Mian Fazal Raqib, (PLD 1974 SC 134). The petitioner deliberately did not implead all the 84 contesting candidates who had participated in the election considering them as un-necessary party and impleaded only the returned 09 candidates. This was fatal to the Election Petition. The directions contained in Section 54 (a) of the Representation of People Act, 1976 are followed by the penal provisions of Section 63 of the said Act. In Mrs. Syeda Zahida Zaidi versus Hafiz Muhammad Taqi and others (1986 CLC 2066), it was held that the provisions of Section 54 read with Section 63 of the above Act are to be interpreted strictly as they are mandatory in nature. In Naeem Hussain Chattha versus Tawakkal Ullah and another (1997 CLC 192), it was held that non-joinder of contesting candidate would entail dismissal of Election Petition. In Khawaja Muhammad Awan versus Alim Adil and 19 others (1998 CLC 272), it was held that language of Section 63 of the Representation of People Act, 1976 leaves no scope for the Tribunal to exercise its discretion in favour of a party who has not complied with the provision of Sections 54 and 55 of Act of 1976. In Ali Ahmad Khan versus Muhammad Qasim Khan and others (PLD 1985 Jour. 277), it was held that all contesting candidates had to be joined as party in the petition otherwise, it would amount to non-compliance with the provision of Section 63 (a) of the above Act, resulting in dismissal of the Election Petition. In Sardarzada Zafar Abbas and others versus Syed Hassan Murtaza and others (PLD 2005 SC 600), it has been held by this Court that the provisions of Sections 54 and 55 of the above Act are mandatory because they are followed by the penal consequences under Section 63 (a) of the Act that makes it mandatory for the Tribunal to dismiss Election Petition if the provisions of Sections 54 and 55 have not been complied with. In Malik Umar Aslam versus Sumera Malik and another (PLD 2007 S C 362)-an election matter it has been held by this Court that even if the defect is not pointed out by the respondents, the Court is always empowered to ensure that the law under which proceedings have been initiated before it is complied with fully particularly in the cases where non-compliance of mandatory provision prescribes a penalty.
In view of the above mentioned, we find no force in this appeal which is dismissed with costs throughout.
(R.A.) Appeal dismissed.
PLJ 2008 SC 95
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Ch. Ijaz Ahmed, JJ.
MUHAMMAD DIN and others--Appellants
versus
JAMAL DIN and others--Respondents
C.A. No. 1196 of 2005, decided on 28.3.2007.
(On appeal from the judgment/order dated 9.9.2003 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in W.P. No. 1236 of 2003)
General Clause Act, 1897 (X of 1897)--
----S. 24-A--Without judicial application of mind--Public functionaries are duty bound to decide the applications of citizens after judicial application of mind with reasons--Material irregularities--Judgments of all the Courts below were put in juxta position then it is crystal clear that all the orders/judgments were passed without judicial application of mind as evident--Supreme Court had laid down parameters/guidelines that Courts have to decide the cases after judicial application of mind with reasons--Public functionaries are duty bound to decide the applications of citizens after judicial application of mind with reasons--Held : Therefore, Courts below have committed material irregularities the appeal was allowed in such terms. [P. 97] A, B & C
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24(1)--Civil Procedure Code, (V of 1908) S. 115--Suit for pre-emption--Market value of land--Suit accepted--Revision petition--Deposit of zar-e-soem--Probable value of land--Deposit zar-e-soem of 1/3rd amount--Determination of--Courts are entertaining the suits, ought to examine the plaint and any material accompanying it while passing orders for deposit of 1/3rd and the amount payable--Trial Court has accepted the probable value of the land in-question in terms of annual sale average, order for deposit of zar-e-soem--Held: In the interest of justice and fairplay instead of demanding the case to determined the probable value of property in-question in terms of such Act, Court direct the respondents to deposit an amount within one month excluding zar-e-soem--Trial Court shall determine the sole consideration without being influenced by the observation of Supreme Court in accordance with law--Appeal allowed.
[Pp. 97 & 98] D, E & F
Mr. Gul Zarin Kiani, ASC and Mr. M. S. Khattak, AOR for Appellants.
Syed Najam-ul-Hassan Kazmi, ASC for Respondents.
Date of hearing : 28.3.2007.
Judgment
Ch. Ijaz Ahmed, J.--The brief facts out of which the present appeal arises are that original owners namely Ahmed Khan, Abdul Ghaffar and Mst. Amir Begum sold their land measuring 83 kanals 14 marlas to the appellants for a consideration of Rs. 25,00,000/- vide Mutation No. 910 which was attested on 24.12.2001. Respondent Nos. 1 and 2 plaintiffs filed suit for pre-emption against the appellants in the Court of Civil Judge Talagang on 14-3-2002. Respondents Nos. 1 & 2 also filed an application under Section 24(1) of the Punjab Pre-emption Act in the said Court stating that since the stated sale price in sale mutation was inflated and market value of the land in suit in terms of annual sale average came to Rs. 3,85,471/88, an order for deposit of Zar-e-Soem in accordance with it may be made. The trial Court directed the Respondents No. 1 & 2/plaintiffs to deposit Zar-e-Soem in the sum of Rs. 1,74,375/- vide order dated 15-3-2002. Appellants being aggrieved filed revision petition under Section 115 CPC in the Court of Additional District Judge Talagang which was accepted vide judgment and decree dated 6-5-2003 wherein respondents/plaintiffs were directed to deposit Zar-e-Soem of Rs. 25,00,000/- i.e. Rs. 8,33,334/-. Respondents being aggrieved filed Constitutional Petition No, 1236/2003 in the Lahore High Court which was accepted vide impugned judgment dated 9-9-2003. Appellants being aggrieved filed C.P. No. 2552/2003 before this Court which was fixed on 5-10-2005 and leave was granted in the following term:
"It is interalia contended that probable value of the land in question has been determined in vacuum and the relevant five mutations went unnoticed by the learned High Court which resulted in serious miscarriage of justice. It is also pointed out that the writ jurisdiction as conferred upon learned High Court under Article 199 of the Constitution of Islamic Republic of Pakistan could not have been invoked in this case. In this regard reference has been made to Noor Muhammad v. Sarwar Khan (PLD 1985 SC 131), Muhammad Zahoor v. Lal Muhammad (1988 SCMR 322), Bishambhar v. IIIrd Additional District Judge, Azamgarh (AIR 1992 Allahbad 178). It is further contended that proper opportunity of hearing was not afforded and the probable value has been fixed without proper notice and inquiry which should have been done before determining the probable value."
Learned counsel of the appellants submits that trial Court had accepted the application of the Respondent Nos. 1 & 2/plaintiffs without judicial application of mind as evident from order dated 15-3-2002. He further maintains that learned High Court erred in law to interfere with the order passed by the revisional Court merely relying the law laid down by this Court in Haji Ghulam Nabi v. Mst.Sahib Jamala and others (1994 SCMR 845). He further urges that order of the trial Court was not in consonance with the mandatory provisions of Section 24(1) of the Pre-emption Act as the trial Court had passed the impugned judgment without holding any inquiry into the matter.
Learned counsel of the respondents has supported the impugned judgment. He further maintains that revisional Court has passed the impugned order without judicial application of mind.
3A. We have given our anxious consideration to the contentions of the learned counsel of the parties. In case the judgments of all the Courts below are put in juxta position then it is crystal clear that all the orders/judgments were passed without judicial application of mind as evident from order dated 15-3-2002. Operative part of the judgment of the Additional District Judge and para 8 of the impugned judgment which did .not contain any reasons. This Court has laid down parameters/guidelines that Courts have to decide the cases after judicial application of mind with reasons. See Gouranga Mohan Sikdar v. The Controller of Import and Export and others (PLD 1970 SC 158) and Mollah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 SC 173). After addition of Section 24-A in the General Clauses Act even the public functionaries are duty bound to decide the applications of the citizens after judicial application of mind with reasons as laid down by this Court in Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268). As mentioned above all the judgments and orders of the Courts below are not sustainable in the eyes of law in view of the law laid down by this Court in the aforesaid judgments. Therefore Courts below have committed material irregularities while deciding the lis between the parties under Section 24(1) of Pre-emption Act. It is settled proposition of law that the learned Courts entertaining the suits under the Punjab Pre-emption Act, 1991, ought to examine the plaint and any material accompanying it while passing orders for deposit of I/3rd and the amount payable and directed the parties to deposit the said amount in order to avoid complication later on. See Habibullah Khan's case (1995 SCMR 135), Awal Noor's case (1992 SCMR 746), Janat Gul Khan's case (PLD 1993 SC 204), Haji Gul Nabi's case (1994 SCMR 845), Mian Asif Islam's case (1999 SCMR 1350) and Haji Gul Nabi's case (PLJ 1994 SC 201). It is an admitted fact that trial Court had accepted the probable value of the land in question in terms of annual sale average came to Rs. 3,85,471/88, order for deposit of Zar-e-Soem on 15.3.2002 wherein the respondents/plaintiffs were directed to deposit, Rs. 1,74,375/-. The respondents had complied the order dated 15-3-2002 while depositing 1/3rd amounting to Rs. 1,74,375/-, In the interest of justice and fair play instead of remanding the case to determine the probable value of the property in question in term of Section 24 of the Punjab Pre-emption Act, 1991 we direct the respondents to deposit Rs. 5,00,000/- within one month excluding the sum of Rs. 1,74,375/- (already deposited by the pre-emptors). This is of course subject to final determination of the sale price by the trial Court and the trial Court shall determine the sale consideration without being influenced by the observation of this Court in accordance with law.
(N.F.) Appeal allowed.
PLJ 2008 SC 98
[Appellate Jurisdiction]
Present: Javed Iqbal & Raja Fayyaz Ahmed, JJ.
Mst. SURRIYA PARVEEN--Appellant
versus
MUZAFFAR ISLAM MALIK & others--Respondents
C.A. No. 877 of 2002, decided on 27.2.2007.
(On appeal from the order dated 13.7.2001 of the Lahore High Court, passed in Civil Revision No. 406/D of 2001 & CMA 1363, 1364/C of 2001).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Interest of justice--Cancellation of plot by CDA--Contractual obligation--Bona fide purchaser--Respondent had failed to complete the construction within stipulated period--No action was taken by CDA against it--How the plot in-question could have been cancelled by the CDA that too without issuance of any notice and affording proper opportunity of hearing but no satisfactory answer could be given except that notice for cancellation was given by respondent which had no power for the cancellation of plot duly allotted by CDA--Respondent was not party to it and as such it could not be made applicable to him--Held : Appellant had fulfilled her contractual obligations and being a bonafide purchaser her interest must be protected by the CDA and the actual amount of construction should be determined and the amount deposited by appellant be returned to her without loss of time and preferably some constructed house in the same scheme if lying vacant be allotted in her favour as it would be in the interest of justice--Appeal was dismissed.
[Pp. 102 & 103] A, B & C
Mr. Muhammad Munir Peracha, ASC for Appellant.
Syed Ali Hassan Gillani, ASC with Mr. Mehr Khan Malik, AOR for Respondent No. 1.
Nemo for Respondents No. 2 and 3.
Date of hearing: 27.2.2007.
Judgment
Javed Iqbal, J.--This appeal with leave of the Court is directed against the judgment dated 13.7.2001 whereby civil revision petition preferred on behalf of petitioner has been dismissed. Leave granting order-dated 3.6.2002 is reproduced herein below to appreciate the legal and factual aspects of the controversy:--
"The Capital Development Authority (C.D.A.) Islamabad authorized M/s Naqson Rawalpindi respondent herein, for construction of small size houses in Sector I-9 Islamabad, for allotment to Displaced Persons of Islamabad and others vide agreements dated 19.8.1970 and 19.2.1974. Muzaffar Islam Malik respondent was allotted Plot bearing No. 396 measuring 25X60 sq. feet. I-9, Islamabad in 1975.
The allottee in addition to the payment of price of Plot to the C.D.A. also paid an amount of Rs. 11850/- to Respondent No. 3 in installments in connection with cost of construction and as per agreement, the remaining payment was to be made by the Respondent No. l on arranging loan from House Building Finance Corporation but on failure of Respondent No. l to make the payment of outstanding dues till 1984, the CDA taking notice of his default cancelled the provisional allotment of the plot in is his name vide order dated 11.6.1984 and later on the recommendation of Wafaqi Mohtasib restored in the name of M/s Naqson and further allotted to the present petitioner on her nomination made by M/s Naqson. The petitioner having entered into an agreement with CDA made payment of the dues of the CDA as well as M/s Naqson and was delivered possession of the house. Muzaffar Islam Malik on coming to know about the development taken place filed a civil suit in 1988 and learned Civil Judge, Islamabad, decreed the suit for Rs. 2,66,666/-and Rs. 11,850/- The decree holder (Respondent No. l herein) being dissatisfied with the manner of disposal of suit preferred an appeal against the judgment and decree passed by the learned trial judge and a learned Additional District Judge Islamabad vide judgment dated 10.5.2001 allowed the appeal with the observation that Respondent No. 1 was lawful allottee of plot and his allotment was liable to be restored subject to the payment of balance cost of construction.
Mst. Surriya Parveen, the petitioner, challenged the judgment of Appellate Court in the High Court through a Civil Revision Bearing No. 406/D/2001 and a learned Single Judge of the High Court while upholding the judgment in appeal dismissed the revision petition in limine vide judgment dated 13.7.2001. The petitioner has preferred this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan 1973, seeking leave to appeal against the judgment of the High Court.
Learned counsel for the petitioner has contended firstly, that Respondent No. 1 having failed to make payment a per schedule of payment, became defaulter and despite repeated notice given to him by Respondent No. 3 through the counsel he did not bother to discharge his liability and consequently CDA after issue of notice on 11.4.1984 proceeded to cancel the plot vide order dated 11.6.1984. Secondly, as per terms of the agreement of Respondent No. 1 with CDA in case of non payment of cost of construction as per schedule of payment given therein, the provisional allotment was liable to be cancelled and the same was cancelled for violation of this essential condition of the contract but the Appellate Court as well as the High Court were misdirected in coming to the conclusion that Respondent No. 1 was still lawful allottee. Thirdly, the suit for specific performance of the contract was filed on 25.5.1988 whereas as per contents of the plaint cause of action arose in four of Respondent No. 1 on 11.6.1984, therefore, the suit was hopelessly barred by time but the Courts below while treating it a suit for declaration held that it was within time. Fourthly, the two Courts ignored to take notice that equity would not favour to Respondent No. 1 in the given facts.
The Respondent No. 1, who is present in Court in person, has submitted that allotment in his name was cancelled without giving him a proper notice and that the construction work was not completed by the Respondent No. 3 as per commitment with the result that payment as per schedule given in the agreement, was withheld.
We find that the important issue relating to right of ownership of the house in dispute and the question that equity would favour to which party, was not properly attended to by the High Court. We, therefore, to examine these questions grant leave to appeal in this petition. Meanwhile, the parties shall maintain the status quo."
Heard Mr. Muhammad Munir Peracha, learned ASC on behalf of appellant and Syed Ali Hassan Gillani, learned ASC for Muzaffar Islam Malik (Respondent No. 1). None appeared on behalf of CDA (Respondent No. 2) inspite of notice. M/s Naqson Commercial Centre, Satellite Town, Rawalpindi also remained unrepresented. Mr. Muhammad Munir Peracha, learned ASC on behalf of appellant has argued with vehemence that legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice and the Courts below have failed to understand exactly the inter se relationship between CDA and that of M/s Naqson Commercial Centre (Respondent No. 3). It is next contended that the agreement executed between CDA and M/s Naqson Commercial Centre has been misconstrued and misinterpreted. In this regard the Clause 18 and Clause 29 of the agreement have been referred time and again. It is argued that the plot in favour of Mr. Muzaffar Islam Malik (Respondent No. 1) was cancelled as he could not honour the obligations and failed to make the payment qua construction of the house in question to the Naqson Commercial Centre (Respondent No. 3). It is also contended that Muzaffar Islam Malik (Respondent No. 1) had no right to retain the plot in his possession which was cancelled by the CDA and was restored by learned Wafaqi Mohtasib in favour of Mst. Surriya Parveen (appellant) after having gone through all the pros and cons of the controversy which was never challenged by Mr. Muzaffar Islam Malik (Respondent No. 1) and therefore by now it has attained finality. It is pointed out that Mst. Surriya Parveen (appellant) has fulfilled her contractual obligations and the possession of house in question has been delivered and being bona fide purchaser no adverse order could have been passed against her.
Syed Ali Hassan Gillani, learned ASC entered appearance on behalf of Mr. Muzaffar Islam Malik (Respondent No. 1) and vehemently controverted the stance of Mr. Muhammad Munir Peracha, learned ASC for appellant by supporting the judgment impugned for the reasons enumerated therein with the further submission that the plot in question could not have been cancelled by the CDA without affording proper opportunity of hearing causing serious prejudice against Mr. Muzaffar Islam Malik (Respondent No. 1) by whom the entire amount was paid of CDA and the construction charges could not be paid to the Naqson Commercial Centre (Respondent No. 3) as it failed to construct the house within stipulated period and besides that the construction was not up to the mark.
We have carefully examined the respective contentions as agitated on behalf of the parties, scanned the entire record with the eminent assistance of learned counsel and perused the judgment of learned trial and appellate Courts as well as the judgment impugned. There is no denying the fact that plot in question was allotted at first instance in favour of Muzaffar Islam Malik (Respondent No. 1) by whom an amount of Rs. 2,66,666/- was paid to CDA which culminated into an agreement dated 31.7.1975 (Exh.D-2) between CDA and Muzaffar Islam Malik which was also got registered and physical possession was handed over on 26.6.1975. Muzaffar Islam Malik (Respondent No. 1) also got sanctioned loan from House Building Finance Corporation after getting the approval of CDA which means that all the mandatory formalities to get physical possession of the plot in question were completed. It can thus safely be inferred that allotment of the plot in question was confirmed by the CDA. Mr. Muhammad Munir Peracha, learned ASC on behalf of appellant was asked pointedly that how the plot in question could have been cancelled by the CDA that too without issuance of any notice and affording proper opportunity of hearing but no satisfactory answer could be given except that notice for cancellation was given by the Naqson Commercial Centre (Respondent No. 3) which in our considered view had no power whatsoever for the cancellation of plot duly allotted by CDA. The Naqson Commercial Centre (Responent No. 3) at the best could have retained the possession of the house in question constructed on the plot till realization of the entire amount. It is worthwhile to mention here that Muzaffar Islam Malik (Respondent No. 1) had given a cogent and concrete reasoning for not making the payment in his letter (Exh.P-6) relevant portion whereof is reproduced herein below for ready reference:--
"Under restrictions laid down by the CDA for getting the construction done by M/s Naqson. The said contractor executed a deed with the undersigned. A further amount of rupees five thousand was paid to him. Seven years have elapsed but no progress has been made by M/s Naqson.
It is further added that some foundation structure done so far is unsound, requires demolition, as the existing foundation structure cannot take the load of even single story." (emphasis provided)
The CDA pursuant to the said letter has not taken any action for the reason best known to it but such careless approach cannot be appreciated. Naqson Commercial Centre (Respondent No. 3) had failed to complete the construction within stipulated period i.e. 31.12.1975 and no action worth the name was taken by CDA against it which indicates that the slackness on the part of Naqson Commercial Centre (Respondent No. 3) was with the connivance of CDA. It is to be noted that Naqson Commercial Centre has not rebutted the above serious allegations but on the contrary had not contested the suit and resultantly ex-parte proceedings were enunciated against it. At this juncture Mr. Muhammad Munir Peracha, learned ASC on behalf of appellant was asked that as to how the plot in question was cancelled by Naqson Commercial Centre, who while answering the question referred Clauses 18 and 29 of the agreement executed between CDA and that of Naqson Commercial Centre. We have carefully examined the Clauses 18 and 29 of the said agreement which are reproduced herein below for ready reference:--
"Clause 18
Allotment of plots will be made by the Authority and the names of allottees will be supplied to the licensee within one month after the expiry of two months from the date of execution of this agreement.
Clause 29
The licensee shall not make any addition or alteration in the list of 117 persons supplied to the Licensee and contained in Annexure `A' to this agreement duly signed by the parties without permission of the Authority in writing subject to such conditions as may be imposed by the Authority."
A bare perusal of the above Clauses would reveal that the same have been couched in a simple and plain language and no interpretation whatsoever is required. We have no hesitation in our mind to hold that Naqson Commercial Centre was not empowered to cancel the plot in question. In so far as the order dated 11.6.1984 passed by the learned Wafaqi Mohtasib is concerned, Muzaffar Islam Malik (Respondent No. 1) was not party to it and as such it could not be made applicable to him and besides that he was never impleaded as such the order passed against him cannot be considered binding up to his extent.
In sequel to above-mentioned discussion the judgment impugned being well based does not warrant interference. It is further considered essential to observe that Mst. Surriya Parveen (appellant) had fulfilled her contractual obligations and being a bona fide purchaser her interest I must be protected by the CDA and the actual amount of the construction should be determined and the amount deposited by Mst. Surriya Parveen be returned to her without loss of time and preferably some constructed house in the same scheme if lying vacant be allotted in her favour as it would be in the interest of justice, fair play and equity.
The appeal being devoid of merits is dismissed.
(A.S.) Appeal dismissed.
PLJ 2008 SC 104
[Appellate Jurisdiction]
Present: Javed Iqbal, M. Javed Buttar & Hamid Ali Mirza, JJ.
ABDUL SATTAR--Appellant
versus
Mst. ANAR BIBI & others--Respondents
Civil Appeal No. 1341 of 2002, decided on 8.2.2007.
(On appeal from the judgment dated 24.10.2001 of the Lahore High Court, Lahore, passed in C.R. No. 2127 of 1995)
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Constitution of Pakistan, 1973--Art. 185--Relinquishment deed--Defecto guardian could not have executed any relinquishment deed on behalf the minor--Terms and conditions enumerated in relinquishment deed could not be made applicable to the appellant--Jurisdiction of High Court is limited that concurrent findings of facts cannot be treated as sacrasanct and can be interfered with in case of non-reading and misreading of evidence--Validity--Held : High Court can interfere when finding is based on insufficient evidence, misreading of evidence, non-considering of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view on evidence has been taken--Appeal was dismissed. [P. 106] A
2007 SCMR 181 and 1981 SCMR 1075, ref.
Mr. Gulzarin Kiani, ASC with Mr. M. S. Khattak, AOR for Appellant.
Sh. Zamir Hussain, ASC with Mr. M.A. Zaidi, AOR for Respondents No. 1-6, 15.
Ex-parte for Resondents No. 7(i-xi) 9-14.
Nemo for Respondent No. 8.
Date of hearing: 8.2.2007.
Judgment
Javed Iqbal, J.--This appeal is directed against the judgment dated 24.10.2001 whereby the revision petition preferred on behalf of respondents has been accepted.
The facts of the case have been mentioned elaborately in the judgment impugned, hence reproduction whereof would be of no use.
Mr. Gulzarin Kiani, learned ASC entered appearance on behalf of appellant and contended with vehemence that the relinquishment deed whereby a chunk of land was surrendered is not binding upon the appellant for the simple reason that at the time of execution of relinquishment deed admittedly the appellant was a minor. It is also contended that his brother being defecto guardian could not have executed any relinquishment deed on behalf of the appellant being minor and therefore the terms and conditions enumerated in the relinquishment deed could not be made applicable to the appellant. It is also pointed out that the learned High Court in exercise of revisional jurisdiction is not competent to thrash out the entire evidence as it was not a case of non-reading and misreading of evidence but on the contrary concurrent findings of facts have been recorded by the learned trial and appellate Courts and, more-so if the revisional jurisdiction was to be exercised it was obligatory for the learned single Judge in chambers to have assigned cogent reasoning for reversing the well based conclusion of learned appellate Court but no such reasoning could be given and on this score alone the judgment impugned is liable to be set aside. It is also contended that the relinquishment deed which was itself ab initio void and illegal could not have been ratified subsequently. On the question of minority and relinquishment deed and its subsequent ratification following authorities have been referred:
Ahmed Khan v. Rasul Shah (PLD 1975 SC 311), Izzat v. Allah Ditta (PLD 1981 SC 165), Hanifa Begum v. Muhammad Afzal Khan (1981 CLC 1156), Ziariat Gul v. Mian Khan (PLD 1950 Peshawar 69), Fateh Din v. Gurmukh Singh (AIR 1929 Lah. 810), Mt. Anto v. Mt. Reoti Kuar (AIR 1936 All. 837), Md. Zafir v. Amiruddin (AIR 1963 Pat. 108), Kase Molla v. Fajel Shek (PLD 1952 Decca 347), Kunji Amma v. D. Antherjanom (AIR 1954 Tra-co 371).
Muzaffar Khan v. Sanchi Khan (2007 SCMR 181), Tulley Khan v. Ahmed Hassan Khan (1981 SCMR 1075), Midna Pore Zamindary Co, Ltd. v. Abdul Zalil (AIR 1933 Cal. 627).
Mr. Gulzarin Kiani, learned ASC while exercising his right to reply contended that the appellant was not bound to file an objection petition because no adverse judgment was delivered against him but his stance appears to be in violation of the provisions as contained in Section 41 CPC for the simple reason that in case of adverse findings the affectee must file objection petition to get his grievance redressed.
We have carefully examined the respective contentions as agitated on behalf of the appellant, scanned the entire evidence with the eminent assistance of learned counsel and perused the judgment of learned trial Court as well as the judgment impugned carefully. We have not been persuaded to agree with Mr. Gulzarin Kiani, learned ASC that the jurisdiction as conferred upon learned High Court under Section 115 CPC is limited for the simple reason that the concurrent findings of facts recorded by the Courts below cannot be treated as sacrosanct and can be interfered with in case of non-reading and misreading of evidence. It is well settled by now that "the High Courts can interfere when finding is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view on evidence has been taken."
We are also not impressed by the prime contention of Mr. Gulzarin Kiani, learned ASC that while reversing the judgment of appellate Court the learned High Court has not given cogent and concrete reasoning. An in depth scrutiny of the judgment impugned would reveal that appellate Court had examined the entire evidence with diligent application of mind and the conclusion arrived at is strictly in accordance with evidence which has come on record and settled norms of justice. The learned High Court has given solid reasoning for setting aside the judgment of appellate Court.
There is no denying the fact that appellant has miserably failed to point out that as to how the ownership of the land in question was devolved upon him. We have taken into consideration Ex.P/1 whereby the land in question was purchased in the year 1945 when the appellant was not more than 8 years. It is worth mentioning here at this juncture that the appellant has admitted that the land in question was purchased by his maternal uncle namely Gehna for two brothers (Abdul Sattar and Saleem) and their mother. The appellant has also admitted that the joint Khavet was in the name of legal heirs of Nabi Baksh. We found substance in the contention of Sheikh Zamir Hussain, learned ASC on behalf of respondents that a suit was filed by Mst. Anar Bibi the sister of appellant (respondent) which was dismissed and the appeal filed also met the same fate and by that time the appellant had attained majority but the findings recorded adversely against him in the suit preferred on behalf of Mst. Anar Bibi (respondent) could not be challenged and no objection petition whatsoever was filed pursuant to the provisions as enumerated in Order 41 CPC. It must be kept in view that on the basis of relinquishment deed 20 kanals of land was given to Nabi Baksh and 1/4 share was obtained by appellant from it and thus he obtained benefit from the relinquishment deed and now it is too late in the day to challenge such a transaction which cannot be reopened. It further transpired from the scrutiny of the record that the appellant went in a deep slumber and filed a suit after about three decades. It is to be noted that up to some extent the suit filed by Mst. Anar Bibi has adversely affected the appellant and objection petition should have been filed by him after attaining majority. As mentioned hereinabove admittedly on the basis of relinquishment deed 20 kanals of land was given to Nabi Baksh 1/4 and share was obtained by appellant from the same chunk of land and the validity of deed of relinquishment was never challenged. Had this benefit been refused by the appellant the position would have been different. By taking 1/4 share the appellant has impliedly accepted the relinquishment deed. It is to be noted that in the suit as mentioned herein above their main reliance was on the relinquishment deed which was their main defence and therefore, the prime contention of Mr. Gulzarin Kiani, learned ASC concerning minority of appellant seems to be devoid of merit. The Learned single Judge in chambers has examined all the contentions as agitated before this Court in a comprehensive manner in the judgment impugned, relevant portion whereof is reproduced herein below for ready reference:
"5. Ex D.3/1 is the plaint in the suit filed by Petitioner No. 1 and her daughters against Petitioner No. 3 and Respondents No. 1 & 2. She complained that her share in the estate of Nabi Bakhsh comes to 27 kanals 6 marlas. Ex D.3/2 is the statement of Respondent No. 2. In the said case wherein he stated that out of the suit land he and his brother had transferred 1/4 share in favour of Nabi Bakhsh and 1/4 share in favour of Petitioner No. 3. The suit was dismissed by the learned trial Court on 29.3.1977 vide judgment Ex. D.3/6 holding that Nabi Bakhsh was owner to the extent of 1/4 share in the suit land and this was his estate that was to be distributed amongst his heirs. This 1/4 share was obtained from Respondents No. 1 & 2. The appeal was dismissed on 2.3.1981 vide judgment Ex.D.3/7. Mutation No. 2960 is Ex. D.3/8 whereby on the death of said Nabi Bakhsh the said 1/4 share devolved upon his heirs including Respondent No. 1. Coming to the impugned judgments and decrees I find no reference at all to the said admitted fact that the Petitioner No. 1 had earlier filed a suit which was dismissed and the appeal was also dismissed and that the suit was filed against, inter alia, Respondent No. 1. The judgment and the copies of the proceedings were adduced in evidence before Respondent No. 1 entered in the witness box. He has not come out with any explanation or even a denial that he was not aware of the contents of the said proceedings. The learned Courts below have also completely ignored the position emerging from the evidence on record that it stood admitted on record that the land was in fact purchased by Nabi Baksh in the name of his sons. Respondent No. 1 did not even make an effort to prove that he had purchased the land. The plea taken by him in response to cross-examination that his maternal uncle Gehna had purchased the land for him was not put to any of the witnesses of the petitioners, so-much so that his brother Respondent No. 2 who, as it is clear on the face of the record, is supporting Respondent No. 1, denied that the land was purchased by Gehna. In the said background it was all means a settlement of the property by the late owner i.e. Nabi Bakhsh admittedly, the father."
(R.A.) Appeal dismissed.
PLJ 2008 SC 109
[Appellate Jurisdiction]
Present: Rana Bhagwandas, ACJ, Tassaduq Hussain Jillani & Nasir-ul-Mulk, JJ.
ABDUL JABBAR--Appellant
versus
STATE etc.--Respondents
Crl. A. No. 538 of 2000, decided on 26.4.2007.
(On appeal from the judgment of the Lahore High Court dated 20.7.1998 passed in Crl. A. No. 275 of 1994).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence--Leave to appeal--Quantum of sentence--Legal heirs of the deceased--Deceased was legally wedded wife of complainant/ appellant--All the heirs of the deceased were not compounded of the offence--Validity--Parents of deceased had forgiven the respondents/ convicts but not her husband--Punishment of qisas could not be awarded and proceeded to sentence the respondents u/S. 302(c) of PPC--Respondents were liable to be punished u/S. 302(b), PPC as tazir--Conviction/sentence under tazir can be compounded only if all the heirs forgive the offender--Conviction converted from u/S. 302(c) to u/S. 302(b), PPC and sentenced the respondents to life imprisonment--Appeal allowed. [Pp. 114, 118 & 119] A, B & C
Ms. Asma Jahangir, ASC for Appellant.
Mr. Muhammad Ilyas Siddiqui, ASC with Ch. Akhtar Ali, AOR for Respondents No. 2-3.
Ch. Munir Sadiq, Dy. P.G. Punjab for State.
Date of hearing : 26.4.2007.
Judgment
Tassaduq Hussain Jillani, J.--This appeal with leave of the Court is directed against the judgment dated 20.07.1998 passed by a learned Division Bench of the Lahore High Court vide which respondents' (Muhammad Riaz son of Ghulam Sarwar and Muhammad Feroze son of Ali Akbar) appeal against their convictions under Section 302 (c) for the murder of Mst. Amir Khatoon as also against conviction of Riaz respondent under Section 337(E) PPC for murderous assault on Abdul Jabbar complainant was dismissed. However, the sentence of 25 years R.I. awarded by the trial Court under Section 302(2) PPC was reduced to what they had already undergone and criminal revision filed by the complainant was also dismissed.
"Brief facts of the case as narrated in Ex.P.H. by Abdul Jabbar, were that he alongwith Abdul Ghaffar, real brother, Muhammad Akhtar, (maternal uncle), Mst. Jawahar Khatun, mother of Abdul Jabbar, Muhammad Khan father of Abdul Jabbar and one Noor Muhammad son of Mian Muhammad went to the Court of learned Addl: Sessions Judge, Khushab where they had to appear in a case u/S. 10/11 Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979 registered at P.S. Naushera vide FIR No. 25/1992. They were waiting for call of the Court and were sitting in Shehzad Hotel which was situated on the road near the Sessions Court, Khushab. He alongwith his wife Mst. Amir Khatun (now deceased) and mother Jawhar Khatun sat in Shehzad Hotel while his other companions went in to the Court of Sessions Judge to know about the date. At about 8-45 a.m. Abdul Jabbar brother of the complainant and Muhammad Akhtar came in the Hotel and asked them to accompany them to the Court, they followed them, when they reached near Sessions Court, both the appellants while armed with guns came there from the southern side while raising `Lalkars' on which he and his wife Amir Khatun ran towards Shehzad Hotel and entered there and bolted the door from inside. The appellants also came there. They broke the window-panes of the gate of the Hotel and thereafter first of all Feroze Khan fired with his gun which hit Amir Khatun on his right thigh. The other shot was fired by Muhammad Riaz appellant which hit Amir Khatun on his right leg who fell down, thereafter both the appellants fired one shot each which hit on different parts of the body of Amir Khatun who died there and then. Thereafter Muhammad Riaz fired with his gun which hit on the right arm of Abdul Jabbar PW making an entry wound also. The occurrence was witnessed by Abdul Ghaffar, Muhammad Akhtar and Jawahar Khatun etc.
The motive behind the present occurrence was that one year and, 3 months prior to the present occurrence Mst. Amir Khatun without consent of her parents married Abdul Jabbar complainant who in turn lodged the above said case against the complainant, his wife Amir Khatun and other near relations."
During trial the prosecution examined 9 witnesses including the doctor and the Investigating Officer. The ocular account was furnished by Abdul Jabbar PW-7/complainant who is an injured witness and Abdul Ghaffar PW-8. The respondents-appellants denied the prosecution story and pleaded innocence. However, they also moved an application duly supported by affidavits from heirs of the deceased to the effect that they had forgiven the respondents and they be acquitted. Learned trial Court taking into account the fact that though parents of Mst. Amir Khatoon, deceased had forgiven the respondents-convicts but as complainant Abdul Jabbar husband of the deceased had not pardoned them, proceeded to convict the respondents under Section 302(c)/34 PPC by way of Tazir as according to it death sentence could not be awarded. They were accordingly sentenced to 25 years R.I. each and were also directed to pay 1/2 share of Rs. 1,70,610/-as Diyat in equal share to Abdul Jabbar legal heir of the deceased within a period of three years. Muhammad Riaz respondent was also convicted under Section 324 read with Section 337 PPC for causing fire-arm injuries to Abdul Jabbar. He was sentenced to one year R.I. and to pay Rs. 1000/- as Daman to said injured in default whereof to undergo S.I. for three months. The sentences were directed to run concurrently and they were also given the benefit of Section 382-B Cr.P.C. The learned High Court though dismissed the appeal but reduced the sentence to what the respondents had already undergone.
Leave to appeal was granted by this Court on 13th of November, 2000, inter alia, on the ground as under:
"On appeal learned Judge in Chambers altered the conviction of respondents and reduced their sentence of 25 years' imprisonment to the period already undergone. Complainant has assailed the said judgment on the ground that deceased was his legally wedded wife. A case under Hadood Ordinance was got registered against the deceased and her husband but they were acquitted upto the level of Shariat Appellate Bench of this Court, therefore, it is a sufficient proof of the petitioner/complainant and the deceased being husband and wife. It is contended that in such circumstances the ground of sudden provocation or family honour would not arise at all.
After hearing the learned counsel for the petitioner, we are of the view that it is a fit case for grant of leave as it requires consideration whether lesser sentence in such like cases can be awarded."
Learned counsel for the appellant submitted that the deceased Mst. Amir Khatoon was legally wedded wife of the appellant/ complainant; that a false case was got registered by the accused party vide FIR No. 25/1990 under Section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979; that when appellant and Mst. Amir Khatoon deceased went to the District Courts to appear in the said case, she was done to death in broad-day-light; that it was a premeditated murder; that the appellant and the 'deceased were living as husband and wife for the last more than one year when the occurrence took place; that there was no element of grave and sudden provocation to warrant lesser punishment; that the judgment of the learned High Court is likely to give licence to deviant social behaviours reflected in murder in the name of honor and that the impugned judgment is not sustainable in law. In support of the submissions made, learned counsel relied on "Walayat vs. The State (1998 P.Cr.L.J. 111) and "Riaz Ahmed vs. The State (1996 P.Cr.LJ. 43)".
Learned counsel for the respondents-convicts defended the impugned judgment by submitting that the appellant-complainant had started claiming Mst. Amir Khatoon to be his legally wedded wife on the basis of a forged Nikahnama; that cases were registered against them not only under Hudood Laws but under Sections 420, 468, 471 and 419 PPC; that the manner in which Mst. Amir Khatoon was going around with her paramour was a sufficient provocation and the learned High Court rightly reduced the sentence of the respondents.
Learned counsel for the State submitted that Section 302 PPC is a compoundable offence and since the heirs of the deceased Mst. Amir Khatoon had forgiven the respondents, death could not be awarded to them and even otherwise the manner in which Mst. Amir Khatoon was seen with Abdul Jabbar appellant was sufficient grave and sudden provocation to warrant indulgence which was rightly extended by the learned High Court by reducing the sentence.
We have heard Ms. Asma Jahangir, learned ASC for the appellant/complainant, Mr. Muhammad Ilyas Siddiqui, learned ASC for the respondents/accused and Ch. Munir Sadiq, learned Deputy Prosecutor General, Punjab for the State.
The conviction of both the respondents under Section 302(c) PPC for the murder of Mst. Ameer Khatoon stands upheld by the learned High Court vide the impugned judgment dated 20.07.1998 with the modification qua the quantum of sentence i.e. sentence of imprisonment for 25 years awarded by the learned trial Court was reduced to what they had already undergone. The respondents never challenged the impugned judgment. Thus the concurrent findings of fact and conviction recorded have attained finality. The learned trial Court having found the respondents guilty proceeded to convict and sentence them in the following terms:--
"Since Ali Akbar father of Mst. Amir Khatun and Mst. Alam Khatun her mother have given UFW to both the accused and filed application and affidavits to said effect in terms of S. 309 of Qisas and Diyat Ordinance and as such `Qisas' is not applicable to the circumstances of the case.
Now comes the question of sentence to be awarded to the accused. In the background of motive discussed in the earlier part, accused launched a premeditated attack on deceased Amir Khatun by firing shots from their guns which resulted in her death on the spot. As stated above, the parents of Mst. Amir Khatun have granted UFW to the accused whereas PW Abdul Jabbar husband of deceased (whose status as such has been declared by Federal Shariat Court vide judgment Ex.PQ) has not been granted UFW to the accused, the sentence of death cannot be enforced against them and their case shall be covered by S.302(c) PPC in view of the NLR-1993-Cr. 203 & 204."
"That under Section 302(c) PPC a Court can award the sentence till the rising of the Court upto 25 years. In our society no body forgives any person who marry with his sister or daughter without the consent of his parents or his near relations. On the day of occurrence it has not been denied by both the parties that the case FIR No. 25 of 1992 registered against the complainant party was fixed for hearing. The appellants amongst them, Feroze is real brother of Mst. Amir Khatun and Muhammad Riaz is the first cousin of said lady and seeing the deceased with Abdul Jabbar, appellants under grave and sudden provocation, in my humble view, committed the murder of Mst. Amir Khatun and also cause injuries on the person of the complainant. Both the appellants were arrested in the month of July, 1993 and were granted bail by this Court in March 1996. I am of the opinion that the sentence which they have already undergone would be sufficient to meet the ends of justice.
(i) Whether having held the respondents to be guilty of `Qatl-i-Amd' and in absence of requisite proof of Qisas (in terms of Section 304 PPC) could the learned trial Court sentence them under Section 302(c) PPC and not under Section 302(b) PPC on the ground that parents of the deceased had granted UFW (in terms of Section 309 PPC) and her husband had not?
(ii) Whether the respondents acted under grave and sudden provocation' to warrant indulgence extended by the learned High Court with regard to the quantum of sentence?
"Punishment of qatl-i-amd.--Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter, be--
(a) punished with death as qisas
(b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or
(c) punished with imprisonment of either description for the term which may extended to twenty-five years, where according to the Injunctions of Islam the punishment of qisas is not applicable:
Provided that nothing in this clause shall apply to the offence of qatl-i-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be'."
(Note: This proviso was added by Act, 1 of 2005 and would not be relevant in the instant case as the occurrence is dated 18.07.1993).
"Section. 309 PPC: Waiver-Afw ( ) of qisas in qatl-i-amd.--(1) In the case of qatl-i-amd, an adult sane wali may, at any time and without any compensation, waive his right of qisas:
Provided that the right of qisas shall not be waived--
(a) where the Government is the wali; or
(b) where the right of qisas vests in a minor or insane.
(2) Where a victim has more than one wali any one of them may waive his right of qisas:
Provided that the wali who does not waive the right of qisas shall be entitled to his share of Diyat. (Emphasis is supplied).
(3) Where there are more than one victim, the waiver of the right of qisas by the wali of one victim shall not affect the right of qisas of the wali of the other victim.
(4) Where there are more than one offenders, the waivers of the right of qisas against one offender shall not affect the right of qisas against the other offender".
"338-E, PPC. Waiver or compounding of offences.--(1) Subject to the provisions of this Chapter and Section 345 of the Code of Criminal Procedure, 1898 (V of 1898), all offences under this Chapter may be waived or compounded and the provisions of Sections 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences:
Provided that, where an offence has been waived or compounded, the Court may, in its discretion having regard to the facts and circumstances of the case, acquit or award tazir to the offender according to the nature of the offence:
Provided further that where an offence under this Chapter has been committed in the name or on the pretext of honour, such offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case.
(2) All questions relating to waiver or compounding of an offence or awarding of punishment under Section 310, whether before or after the passing of any sentence, shall be determined by trial Court:
Provided that where the sentence of qisas or any other sentence is waived or compounded during the pendency of an appeal, such questions may be determined by the appellate Court:
Provided further that where qatl-i-amd or any other offence under this Chapter has been committed as an honour crime, such offence shall not be waived or compounded without permission of the Court and subject to such conditions as the Court may deem fit having regard to the facts and circumstances of the case.
Section 345, Cr.P.C.
Offence
Sections of Pakistan Penal Code application
Persons by whom offence may be compounded
......
............
............
49[Qatl-i-amd
302
By the heirs of the victim 50[other than the accused or the convict if the offence has been committed by him in the name or on the pretext of karo kari, siyah kari or similar other customs or practices.]
Subs. by Cr. Law (Amendment) Ordi. 1991 + The same re-enacted by Ordinance, XVII of 1992. PLD 1993 Cent. St. 70, Ordi. XC1X of 1995, etc. Act, II of 1997.
Added, by Cr. Law Amendment Act 2004 (Act I of 2005). PLJ 2005 Fed. St 207.
It is a case of partial compromise. The offence of Ta'zir under Section 302 PPC can be compounded only by the "heirs of the victim". In the instant case all the heirs have not compounded the offence but only sparents of Mst. Ameer Khatoon deceased have done so and not her husband. The respondents having been tried and convicted as Tazir, they could be extended the benefit of compromise only if all the legal heirs had compounded the offence. In "Manzoor Hussain and 4 others vs. The State (1994 SCMR 1327)". this Court took a similar view and held at page 1330 as follows:
"Admittedly, Mst. Sakina is the wife of Muhammad
Siddique deceased and being his Shari heir falls within the definition of Walli' and entitled toAfw' under Section 309, PPC and to compound the Qisas under Section 310. PPC. According to her statement recorded by the Court, she has waived her right of Qisas but the same cannot help the appellants in any ways as all the appellants were tried, convicted and sentenced under Ta'zir and not Qisas, therefore, the favour bestowed upon them by the widow of the deceased who happens to be their sister cannot come to their rescue in any way. The trial Court has fairly dealt with this aspect of the case and we have no reasons to differ with it".
"there is no doubt that Section 338-E, PPC provides that subject to the provisions of this Chapter and Section 345 of Cr.PC all offences under this Chapter may be waived or compounded an the provisions of Sections 309 and 310 shall mutatis mutandis apply to the waiver of compounding of such offences. The proviso to the same lays down that where offences have been waived or compounded, the Court may by its discretion having regard to the facts and circumstances of the case acquit or award Ta 'zir to the offender according to the nature of the offence. The above Section is to be interpreted in the light of the guideline for interpretation provided in Section 338-F, which enjoins that the Court while interpreting and applying the provisions of the Chapter in question of the PPC and in respect of matters ancillary or akin thereto, shall be guided by the Injunctions of Islam as laid down in the Holy Qur 'an and Sunnah. In our view, this provision does not nullify the well-settled proposition of law that in case where an accused person has been awarded sentence for murder as Ta'zir and not Qisas, the legal heirs cannot waive or accept Badal-i-Sulh. However, in view of the amendment in Section 345(2) Cr.P.C. the sentence awarded for murder as Ta'zir can be compounded by all the legal heirs of the deceased with the permission of the Court concerned. (Emphasis is supplied)".
"23. The upshot of the above discussion is that since the mother of the deceased had not joined compromise and as the High Court has altered the death sentence into imprisonment for life which could be awarded as Ta'zir and not as Qisas, Section 309(2) PPC, cannot be pressed into service. The above application for compromise is rejected".
The afore-referred view has been reiterated by this Court in "Niaz Ahmed vs. State (PLJ 2004 SC 500)".
The learned trial Court found it to be a case where the respondents were liable to be punished with death, but the said sentence according to it could not be enforced because "As stated above, the parents of Mst. Amir Khatoon have granted UFW to the accused whereas PW Abdul Jabbar husband of deceased (whose status as such has been declared by Federal Shariat Court vide judgment Ex.PQ) has not been granted UFW to the accused, the sentence of death cannot be enforced against them and their case shall be covered by S. 302(c) PPC in view of NLR-1993-Cr. 203 & 204". Accordingly, in invoking Section 302(c) PPC, the Court fell in error. It failed to appreciate that neither this provision nor Section 309 PPC which stipulates grant of UFW by a wali was applicable as these would have been relevant only if the evidence led trial and sentence awarded was for "Qatl-i-Amd" as Qisas. The facts in the instant case were distinguishable and that the law laid down by a larger Bench of this Court in "Muhammad Aslam v. Shaukat Ali (1997 SCMR 1307)" was not brought to its notice.
For what has been discussed above, we are persuaded to hold that the offence of `qatl-i-amd' having been proved against the respondents as Tazir and all heirs of the victim having not compounded the offence, the respondents ought to have been sentenced under Section 302(b) PPC to life imprisonment and not under Section 302(c) PPC. While upholding conviction, we convert the same from 302(c) PPC to one under Section 302(b) PPC and sentence the respondents to life .imprisonment. Under Section 544-A Cr.P.C., they are burdened with a sum of Rs. 50,000/- each to be paid to Abdul Jabbar complainant as compensation in default whereof they shall undergo S.I. for six months each. They shall be granted benefit of Section 382-B Cr.P.C. The remaining convictions and sentences recorded shall remain intact.
Coming to the second question i.e. whether the respondents acted undergrave & sudden provocation' we find that the motive alleged was marriage of choice and without permission of her parents by Mst. Ameer Khatoon with the complainant a year prior to the day of occurrence. The accused party got a criminal case for abduction registered against Abdul Jabbar, Mst. Ameer Khatoon and parents of Abdul Jabbar etc. On the day of occurrence complainant and Mst. Ameer Khatoon had come to the District Courts to appear in the said criminal case. Both the respondents armed with guns in a broad-day-light i.e. 8:45 a.m. chased the victims who tried to take refuge in a nearby Hotel, they broke open the door and made repeated fires on her and the complainant. Mst. Ameer Khatoon received as many as 14 fire-arm injuries whereas Abdul Jabbar who managed to hide himself received only one firearm injury. Admittedly, Mst. Ameer Khatoon and Abdul Jabbar claimed to be and were living as husband and wife pursuant to a registered Nikkah Nama, the veracity of which was affirmed by the learned Federal Shariat Court in a judgment delivered subsequent to the occurrence. The motive alleged, the weapons used, the manner of attack and place of occurrence reflected pre-meditation and planning both. It was neither sudden nor grave. The only `sin' of Mst. Ameer Khatoon in the eyes of the respondents was that she had married a person of her choice without the permission of elders. There is nothing in evidence to indicate that she had acted in a manner which constituted Zina. In "Mohib Ali vs. The State (1985 SCMR 2055), commenting on the elements which could constitute grave and sudden provocation this Court observed as follows:--
"A mere allegation of moral laxity without any unimpeachable evidence to substantiate would not constitute gave and sudden provocation. If such pleas, without any evidence are accepted, it would give a licence to people to kill innocent people."
"The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden passion involving loss of self-control by reason of provocation. An illustration is to be found in the case of a man finding his wife in the act of adultery who kills her or her paramour, and the law has always regarded that, although an intentional act, as amounting only to manslaughter by reason of the provocation received.
"Before parting, I may add that by and large all the cases of grave and sudden provocation would not ipso facto fall within the purview of Section 302(c) particularly those of Qatl-i-Amd of wife, sister or other very close female relatives at the hands of males on the allegation of `Siahkari'. In this context reference may be made to the case of Gul Hasan (supra) wherein Moulana Muhammad Taqi Usmani, learned Member of Shariat Appellate Bench of this Court had very aptly observed as under:
The evidence led examined in the light of the precedent case law referred to in the preceding paragrpahs would indicate that the ground of grave and sudden provocation taken by the learned High Court to reduce the sentence was not available to warrant award of lesser punishment and the judgment on that score is not sustainable.
For what has been discussed above, we allow this appeal, set aside the impugned judgment of the learned High Court dated 20.7.1998 and restore the judgment of the learned trial Court dated 8.5.1994 with modification in terms of para 19 above.
(A.S.) Appeal allowed.
PLJ 2008 SC 121
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J.; Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ.
IMTIAZ AHMED LALI--Appellant
versus
GHULAM MUHAMMAD LALI--Respondent
C.As. Nos. 1037 & 1097 of 2006, decided on 31.10.2006.
(On appeal from the judgment/order dated 23.6.2006 passed by Election Tribunal Lahore High Court, Lahore in Election Petition No. 107/2002)
Interpretation of Statute--
----The Courts, while interpreting a statute, are bound to follow the intention of the legislature and are prohibited to interpret the law in the manner contrary to the intention of the legislature. [P. 126] A
Conduct of General Elections Order, 2002--
----Art. 3, 8D & 2(i)--Representation of the People
Act, 1976, S. 67(3)--Constitution of Pakistan, 1973, Art. 225--Election dispute--Contested for the seat of MPA--Objection--Candidate had been dismissed from service, therefore, he was disqualified to contest the election, on the ground of misconduct involving moral turpitude--Election Tribunal accepted the appeal--Writ petition was dismissed for the reason that the proper remedy was to election tribunal--However fresh pools were ordered to be held--Assailed--Intention of Legislature--Power to change--Validity--Contention that the word or' in the amendment of Art. 8D(2)(i) should be readand' in order to threat the amended provision to be conjunctive instead of injunctive, so that simplicitor habitual absence from duty would not constitute misconduct involving moral turpitude, was repelled, for the reason that neither such conversion was required by the context nor it was necessary to harmonize the provisions of Statute, which were not in conflict with each other and were applicable with its all force; nor there was any question of saving it from unconstitutionality. [Pp. 126 & 127]
B & C
Conduct of General Elections Order, 2002--
----Art. 8D(2)(i)--Representation of the People Act, 1976, S. 99(1a)(i)--Constitution of Pakistan, 1973, Art. 63--Amendment in statute--Scope and object of--Amendment in Art. 8D(2)(i) of the Elections Orders, 2002 incorporated would have prospective effect in its nature and such provision could not be applied retrospectively because the appellant had been declared successful, therefore, it being a past and closed transaction could not be reopened--Art. 63 of the Constitution was amended by substituting disqualification of a person due to dismissal on the grounds of misconduct or moral turpitude--S. 99 of the Representation of the People Act, 1976 was amended by the substituting a disqualification of a person due to dismissal or compulsory retirement on the ground of misconduct or moral turpitude--Intention of the legislature became abundantly clear that by amending the instrument meant for holding the elections, the objection was to block passage for those candidates who were involved in misconduct or moral turpitude; as such to make the law in consonance with the Constitution, amendment in Art. 8D(2)(1) of the Elections Order, 2002 was notified w.e.f. 6th November, 2002 with retrospective effect--Held: Intention behind the amendment in Art. 8D(2)(1) of Elections Order, 2002 was not discriminatory as it would be applicable to all those candidates who were guilty of misconduct of moral turpitude--Object of the amendment was to bring the special law in consonance with the provisions of the Constitution, as essentially subordinate legislature could not run contrary to the Constitutional provisions; to give a retrospective effect to a particular law is a phenomena, which is not alien to the power of legislation. [P. 128] D, E & F
Punjab Police (Efficiency & Discipline) Rules, 1975--
----R. 2(iii)--Government Servants (Efficiency and Discipline) Rules, 1973 & Zakat and Ushr Ordinance, 1980, Preamble--Punjab Removal from Service (Special Powers) Ordinance, 2000, Scope of--Definition of misconduct--Person absent from duty habitually, would not be guilty of misconduct--Held: Appellant being employee of the Police Department, was subject to disciplinary action under the Punjab Police (E&D) Rules, 1975, therefore the definition of `misconduct' under these rules would be applied--Police Rules defined misconduct as conduct prejudicial to good order or discipline in the Police Force.
[P. 129] G
PLD 2003 SC 355; 2003 SCMR 1140 & 1990 SCMR 477 ref.
Conduct of General Elections Order, 2002--
----Art. 8D(2)(2)--Representation of the People Act, 1976, S. 99--Constitution of Pakistan, 1973, Art. 63--Punjab Police (E&D) Rules, 1975, S. 4(2)(a)--Permanent disqualification--Appellant was dismissed from service could not be disqualified or all the time to come to context election despite a lapse of 10 years, had no force--Held: Dismissal from service under R. 4(2)(a) of Police Rules, 1975 disqualified the civil servant for future employment, therefore, lifetime disqualification in view of provisions, of the Constitution as well as law could not be removed by afflux of time.
[Pp. 129 & 130 ] H & I
Constitution of Pakistan, 1973--
----Art. 185 & 225--Representation of the People Act, 1976, S. 99(1a)(i)--Condcut of General Elections Order, 2002, Art. 8D--Appeal against judgment of Election Tribunal--Doctrine of throw-away votes--Successful returned candidates on account of notorious disqualification--Appellant GML being next to respondent I.A.L in securing highest votes, deserved to be declared as successful returned candidate on account of notorious disqualification of respondent, held, was not applicable mainly for the reason that before the amendment in Art. 8D(2)(i) of the Election Order, 2002, the disqualification of the Respondent I.A.L was not notorious particularly in view of the judgment of the Appellate Election Tribunal--Appeals were dismissed. [P. 131] J & K
PLD 1990 SC 632; 1991 SCMR 2164 ref.
Mr. Shahid Hamid, ASC and Mr. Ejaz Muhammad Khan, AOR for Appellant (in C.A. No. 1037/2006).
Mr. Wasim Sajjad, ASC and Mr. Idrees Ashraf, Advocate and Mehr Khan Malik, AOR for Respondent (in C.A. No. 1037/2006).
Mr. Aftab Iqbal Chaudhry, Advocate-General Punjab on Court Notice.
Date of hearing: 31.10.2006.
Judgment
Iftikhar Muhammad Chaudhry, C.J.--Listed appeals have been filed under Section 67(3) of the Representation of the People Act, 1976 against the judgment dated 23rd June 2006 passed by the Election Tribunal, Lahore in Election Petition No. 107/2002. As both the appeals are directed against the same judgment of the Election Tribunal, therefore, we intend to dispose them of by means of instant judgment.
Facts, in brief, leading to filing of instant appeals are that Imtiaz Ahmed Lali and Ghulam Muhammad Lali, appellant and respondent respectively, filed their nomination papers for contesting the elections scheduled to be held on 10th October 2002, from the constituency PP-80 Jhang-VIII District Jhang, for the seat of Member Provincial Assembly Punjab. The candidature of the appellant was objected to by the respondent on the ground that since he had been dismissed from service (as Sub-Inspector in the Punjab Police), therefore, he was disqualified from being elected as such. The objection was upheld by the Returning Officer vide order dated 31st August 2002, prompting appellant to assail the said order through an election appeal, which was accepted by the learned Election Tribunal on 16th September 2002. Feeling aggrieved from the said order, the respondent filed writ petition, which was dismissed by the full bench of the High Court on 18th September 2002, primarily for the reason that the proper remedy would be the election petition under Article 225 of the Constitution of Islamic Republic of Pakistan, 1973. [hereinafter referred to as the Constitution]. Against the said order, respondent preferred Civil petition for leave to Appeal No. 3802-L/2002 before this Court. Since in the meantime, the election had been held and the appellant as per the poll result was declared elected, as such the respondent approached the learned Election Tribunal by way of filing Election Petition with the request to declare the election of the appellant as void and as a consequence he be declared as unopposed member of Assembly. Due to pendency of this election petition, the respondent withdrew his earlier petition pending before this Court on 12th May 2004. Learned Election Tribunal, after taking into consideration all attending circumstances of the case, partially accepted the election petition to the extent that the election of the appellant as Member of the Provincial Assembly Punjab (PP-80 Jhang-VIII) is declared as void and notification to that effect issued by the Election Commission of Pakistan was set aside and fresh elections were ordered to be held to fill in the vacancy. Both, the appellant and the respondent, feeling aggrieved from the said judgment of the Election Tribunal, filed instant appeals.
It may be noted that Election Tribunal struck down following issues for determination arising out of the pleadings of the parties:--
Does the election petition merit rejection for non-compliance with the statutory provisions of Representation of Peoples Act 1976? OPR.
What is the effect of earlier judgment rendered by the Division Bench of this Court in W.P. No. 16830/2002?
Was Respondent No. 1 disqualified from being elected as member? OPP
Is the petitioner entitled to be declared as a returned candidate in case Issue No. 3 is decided in affirmative?
Relief.
For the purpose of disposal of Civil Appeal No. 1037 of 2006 filed by Imtiaz Ahmed Lali, Issue No. 3 is one of the most important issues. The election of the appellant has been assailed on the premises that he was disqualified from being elected or chosen as Member of the Assembly in view of his dismissal from Service which amounted to misconduct in terms of Article 8D(2)(i) of the Conduct of General Elections Order, 2002 (Chief Executive's Order No. 7 of 2002) [herein after referred to as "Elections Order, 2002"] promulgated on 27th February 2002, according to which a person shall be disqualified from being elected or chosen as and from being a member of Majlis-e-Shoore (Parliament) or a Provincial Assembly if he has been dismissed from service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct involving moral turpitude. It is an admitted fact that appellant Imtiaz Ahmed Lali was dismissed from service as SI Police by Superintendent of Police Faisalabad on 28th October 1990. Initially when the appellant submitted his nomination papers the same were rejected by Returning Officer on 31st August 2002, in view of the objection of his not being qualified to contest the election under the above provision of law, but in appeal the order of rejection of his nomination paper was set aside by the Election Tribunal on 12th September 2002. It would not be out of context to note that the Election Tribunal accepted the appeal filed by the appellant as his case is not covered by the provisions of Article 8D(2)(i) of the Elections Order 2002. Relevant para therefrom is reproduced herein below for convenience:-
"5. Under Article 8D(2)(i) of the Conduct of General Election Order, 2002 a person who has been dismissed from service on the ground of misconduct involving moral turpitude is only debarred from taking part in the forthcoming election and by virtue of Article 3 of the ibid Order, the provision of this order shall have effect notwithstanding contained in the Constitution or in any other law for the time being enforced relating to the forthcoming elections of Senate, National Assembly, and Provincial Assembly. In this view of the matter, to disqualify a person on the ground that he being a servant of Provincial Government was dismissed from service; the essential element to be proved is that his dismissal was on the ground of misconduct involving moral turpitude. In the circumstances of this case as discussed above, the precise allegation against the appellant was that he remained absent from the duty and there is no allegation of moral turpitude of any kind against him.
The dismissal order of appellant reveals that he also tendered resignation at one stage but the same was not accepted. This conduct of the appellant clearly shows that he was not interested in police service and voluntarily wanted to quit the job but the same request was turned down and he was forcibly dismissed from the service. Be that as it may, circumstances of this case show that the ingredients of clause (i) of Article 8D(2) of the Conduct of General Election Order, 2002 are not attracted thus the impugned order passed by learned Returning Officer for the Constituency PP 80 Jhang VIII is illegal and the same is set aside. Resultantly, the nomination papers filed by the appellant stand accepted."
"2. Amendment of Article 8D, Chief Executive's Order 7 of 2002. - In the Conduct of General Elections Order, 2002 (Chief Executive's Order 7 of 2002) in Article 8D in clause (2) in sub-clause (i), for the word "involving" the word "or" shall be substituted and shall be deemed to have always been so substituted."
In view of above legislative history of Article 8D(2)(i), learned counsel for appellant argued firstly; that word or' used in the above amendment of Article 8D(2)(i) should be readand' in order to treat the amended provision to be conjunctive instead of injunctive, therefore, simplicitor habitual absence from duty would not constitute misconduct involving moral turpitude.
In this behalf it may be noted that the Courts, while interpreting a statute, are bound to follow the intention of the legislature and are prohibited to interpret the law in the manner contrary to the intention of the legislature. Although this Court in the case of Khadim Hussain v. Additional District Judge, Faisalabad (PLD 1990 SC 632) and Abdur Rauf Khan v. Land Acquisition Collector/D.C. Abbottabad (1991 SCMR 2164), has held that the Courts have power to change and will change `and' to 'or' and vice versa, whenever such conversion is required by the context or is necessary to harmonize the provisions of a statute and give effect to all its provisions, or to save it from unconstitutionality or in general to effectuate the obvious intention of the legislature. [Understanding Statutes (Canons of Construction) 2nd Edition by S.M. Zafar].
Keeping in view the facts and circumstances of the case in hand, the two principles highlighted herein before are not attracted to accept the arguments of the appellant's counsel because neither conversion is required by the context nor it is necessary to harmonize the provisions of a statute, which are not in conflict with each other and are applicable with its all force. Moreover, there is no question of saving it from unconstitutionality, therefore, the arguments raised by the learned counsel is not attracted.
Learned counsel secondly contended that Article 8D(2)(i) of the Elections Order, 2002, incorporated w.e.f. 6th November 2002 would have prospective effect in its nature and such provision cannot be applied retrospectively because the appellant had been declared successful vide notification date 20th October 2002, therefore, it being a past and closed transaction cannot be re-opened.
On the other hand Mr. Wasim Sajjad, learned counsel appearing on behalf of respondent contended that amendment in Chief Executive Order 2002 w.e.f. 6th November 2002 has been applied with retrospective effect as it is evident from the contents of the amending order, wherein by employing the words "shall be deemed to have always been substituted" lawmaker has disclosed its intention. According to him this amendment has become necessary to bring it inconsonance of the provisions of Article 63 of the Constitution, which was amended vide Legal Framework Order, 2002 (Chief Executive's Order No. 24 of 2002) incorporated on 21st August 2002, effect whereof was to be given on a date when the members elected to the Senate take oath vide SRO No. 828(1)/2002 dated 22nd November 2002. He also pointed out that similarly Section 99 of the Representation of the People Act, 1976 was amended vide Ordinance XXXVI of 2002, dated 31st July 2002 by substituting a disqualification of a person, who has been dismissed or compulsory retired from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct or moral turpitude. He further pointed out that the elections conducted in 2002 shall be deemed to be held under the Constitution and shall have effect accordingly in terms of Article 8G of the Chief Executive's Order No. 7 of 2002.
Mr. Nasir Saeed Sheikh, learned Deputy Attorney General also adopted the arguments of respondent's counsel.
We have examined the amendment in above referred three instruments namely in Article 63 of the Constitution, in view of the Legal Framework Order, 2002 (Chief Executive's Order No. 24 of 2002) dated 21st August 2002, wherein following amendment was introduced:-
"(i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or, controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct or moral turpitude; or"
In consonance to above constitutional provision, Section 99(la)(i) was also substituted in the Representation of the People Act, 1976 by Ordinance No. XXXVI of 2002 w.e.f. 31st July 2002. Although Chief Executive's Order No. 7 of 2002 was also amended w.e.f. 31st July 2002 but perhaps due to some oversight while introducing clause (i) the grounds of disqualification in respect of person dismissed from service on account of misconduct involving moral turpitude was mentioned, without realizing that the general law on the subject i.e. the Representation of the People Act, 1976 has also been amended on the same day, holding a candidate disqualified if he is guilty of misconduct or moral turpitude and later on Article 63 of the Constitution was also amended on the same line. Therefore, the intention of the Legislature becomes abundantly clear that by amending the instrument meant for holding the elections noted herein above, the object was to block passage for those candidates who are involved in misconduct or moral turpitude, as such to make the law in consonance with the Constitution, amendment in Article 8D(2)(i) of the Elections Order, 2002 was notified w.e.f. 6th November 2002 with retrospective effect.
There is no cavil with the proposition that Legislature is empowered to promulgate the law with retrospective effect. It may be noted that in the case of Pakistan League (Q) v. Cheif Executive of Islamic Republic of Pakistan (PLD 2002 SC 994), this Court was called upon to examine the implications of Article 8A of the Elections Order 2002, which prescribed the educational qualification for member of Majlis-e-Shoora (Parliament) and a Provincial Assembly, being a graduate, inter alia, on the ground that it tends to take away the right of adult franchise and universal suffrage. This Court on having examined the argument, concluded that the provisions of Article 8A are reasonable and not arbitrary or whimsical because firstly being a step towards transformation of the political culture it was founded on reasonable basis and equally applied to all the graduates and did not discriminate any graduate or create a class within the graduate.
In the case in hand as well, the intention of promulgating Article 8D(2)(i) of Elections Order, 2002, as amended, is not discriminatory as it would be applicable to all those candidates who are guilty of misconduct or moral turpitude, therefore, intention of the Legislature seems to be to make it effective retrospectively with the object to produce such representatives, who are not guilty of misconduct or moral turpitude. It may also be noted that vide amendment on 6th November 2002, the provisions of Article 8D(2)(i) of the Elections Order, 2002 have been brought in consonance with the provisions of the Constitution. Essentially the subordinate Legislature cannot run contrary to the Constitutional provisions. Emphatically, to give a retrospective effect to a particular law is a phenomena, which is not alien to the power of legislation, as it has been held in Amin Ullah v. Pannu Ram (PLD 1967 SC 289), Muhammad Hussain v. Muhammad (2000 SCMR 367). Thus the provisions of Article 8D2(i) of the Elections Order, 2002 as amended on 6th November 2002 qualified the test laid down in the judgments cited herein above, therefore, we are of the considered opinion that no injustice has been caused either to appellant by amending the said provision of law, notwithstanding the fact that he had been notified to be successful candidate on 20th October 2002.
Learned counsel next argued that under the provisions of Punjab Removal from Service (Special Powers) Ordinance 2000, a person absent from duty habitually, would not be guilty of misconduct as per its dictionary meanings and in view of the judgments in Arsalan Hafeez v. Election Tribunal (PLD 2003 SC 355) and Samiullah Khan Marwat v. Government of Pakistan (2003 SCMR 1140).
On the other hand, learned counsel appearing for respondents contended that appellants belonged to Police Department which has got its own Efficiency & Discipline Rules, therefore, instead of applying the dictionary meanings of misconduct or from any other law, like the definition of misconduct under the Government Servants (Efficiency & Discipline) Rules, 1973 and Zakat & Ushar Ordinance, 1980 the meaning of the word misconduct as it appears in Punjab Police (Efficiency & Discipline) Rules, 1975, will have to be applied, as has been observed in the cases of Sheikh Arsalan Hafeez (ibid) and Samiullah Khan Marawat (ibid).
The contention put forward by learned counsel for respondent seems to be reasonable because of the fact that the appellant being employee of the Police Department was subject to disciplinary action under the Punjab Police (Efficiency & Discipline) Rules, 1975, therefore, the definition of `misconduct' under these rules will be material and will be applied. Reference in this behalf may be made to Rule 2(iii), which defines the misconduct and opens with the words "misconduct means conduct prejudicial to good order or discipline in the Police Force. In this behalf reference may be made to the case of Muhammad Farooq v. I.G. Police (1998 SCMR 477), wherein absence from duty was found to be misconduct by the petitioner and leave to appeal, as prayed for on his behalf to interfere in the judgment of the Service Tribunal, was declined while holding that petitioner was rightly found guilty of unauthorized and wilful absent from duty.
Learned counsel appearing for appellant was also of the opinion that appellant was dismissed from service in 1990, therefore, he cannot be disqualified for all the time to come to contest election despite a lapse of considerable period of about 16 years.
In this context it is-to be noted that it is the appellant who himself has earned the permanent disqualification because admittedly he is disqualified even for a petty Government service according to law, therefore, for such permanent disqualification, how he can be allowed to become member of a sovereign body of a Parliament or Provincial Assembly. Thus, with this intention Article 63 of the Constitution, Section 99 of the Representation of the People Act, 1976 as well as Article 8D of the Elections Order, 2002 were amended in order to block the passage of the persons, who are guilty of misconduct or involved in moral turpitude.
Learned counsel stated that when the Elections Order, 2002 (Chief Executive's Order No. 7 of 2002) was promulgated on 26th February 2002, there was no disqualification for the appellant to contest the elections but such disqualification of being guilty of misconduct or involved in moral turpitude was prescribed vide amendment in the Conduct of General Elections Order, 2002 by means of Chief Executive Order No. 21 of 2002 on 31st July 2002, therefore, the appellant for such reason cannot be held disqualified.
We are not in agreement with the learned counsel firstly for the reason that even on the date of promulgation of Elections Order 2002 (Chief Executive's Order No. 7 of 2002) notified on 27th February 2002, appellant had a stigma on him being a former Police Officer, who has been dismissed from service, falling within the mischief of misconduct as per the Punjab Police (Efficiency & Discipline) Rules, 1975 dated 4th December 1975, the law under which he was dealt with while being dismissed from service; secondly Article 8D was promulgated on 31st July 2002 before filing of nomination paper by him, therefore, the date on which he submitted his nomination papers, he had a basic disqualification on his sleeves to be a person who was dismissed from service on account of misconduct. Similarly if for sake of arguments, the amended provisions of Article 8D(2)(i), w.e.f. 6th November 2002 vide Conduct of General Elections (Ninth Amendment) Order 2002 (Chief Executive's Order No. 35 of 2002) is kept out of consideration, still there was provision under Section 99 (1A)(i) of the Representation of the People Act 1976, which was amended w.e.f. 31st July 2002, according to which the candidate would be disqualified on the grounds of misconduct or moral turpitude. Likewise, there is constitutional provision i.e. Article 63(1)(i), though, it was held in abeyance till the taking of the oath by the Senate vide SRO No. 828(I)/2002 Legal Framework Order 2002 dated 22nd November 2002 as according to Article 8G of the Elections Order, deemed to have been conducted under the Constitution, therefore, appellant cannot be considered or deemed to be qualified to contest the elections in view of his dismissal from service on the ground of misconduct. It may also be noted that the disqualification attached to the candidature of the appellant is self acquired because his conduct as member of the force was prejudicial to good order or discipline of the Force. More so, dismissal from service under Rule 4(2)(a) of the Punjab Police (Efficiency & Discipline) Rules, 1975 disqualify him for future employment. Therefore, life time disqualification in view of above provisions of the Constitution as well as law cannot be removed by afflux of time.
Mr. Wasim Sajjad, learned ASC appearing in Civil Appeal No. 1097 of 2006 stated that appellant Ghulam Muhammad Lali secured 34,961 votes, comparing to respondent Imtiaz Ahmed Lali, who obtained 36,411 votes, therefore, being next to him he deserves to be declared as successful returned candidate on account of notorious disqualification of respondent Imtiaz Ahmed Lali, therefore, without applying the doctrine of throwaway votes, appellant Ghulam Muhammad Lali be notified as successful candidate.
The arguments so raised by the learned counsel is not acceptable mainly for the strong reasons that before the amendment in Article 8D(2)(i) of the Elections Order, 2002 vide Chief Executive's Order No. 35 of 2002, dated 6th November 2002, the disqualification of the respondent Imtiaz Ahmed Lali was not notorious, particularly in view of the judgment of the Appellate Election Tribunal [Imtiaz Ahmed Lali v. Salahuddin Siddiqui (2003 YLR 2437)], pronounced in his favour, declaring him to be a qualified candidate, relevant para wherefrom has already been reproduced herein above, coupled with the observation made by this Court in the case of Amjad Aziz v. Haroon Akhtar Khan (2004 SCMR 1484) and Shaukat Ali v. District Returning Officer (PLD 2006 SC 78), as such the argument so raised by the learned counsel is accordingly repelled.
Thus for the foregoing reasons, both the appeals are dismissed with no order as to costs.
(M.A.) Appeals dismissed.
PLJ 2008 SC 131
[Appellate Jurisdiction]
Present: Javed Iqbal & Abdul Hameed Dogar, JJ.
SIKANDAR etc.--Appellants
versus
SHER BAZ (deceased) through LRs etc.--Respondents
C.A. No. 1187 of 2001, decided on 12.7.2007.
Agreement to Sell--
----Limitation--"Agreement to sell" and "sale" are neither synonymous terms nor interchangeable--Question--Any possession which is obtained under an agreement to sell cannot be considered as a possession under the sale for purpose of limitation. [P. 135] A
Khasra Girdawari--
----Authenticity and genuineness--No presumption of correctness can be attached to entries of Khasra Girdawari like those appearing in jamabandi. [P. 135] C
Punjab Pre-emption Act, 1913 (I of 1913)--
----S. 3(5)--Transfer of Property Act, (IV of 1882), S. 54--Meaning of--Completion of sale--Sale was completed when balance amount was paid and there was no denying the fact that balance amount was paid when mutation was attested. [P. 135] B
Arbitration Agreement--
----Transaction cannot be considered as divisible--Validity--It hardly makes any difference as to whether they have mentioned respective shares as the amount was received in lump sum and mutation was got recorded and the transaction cannot be considered as divisible.
[P. 135] D
Kh. Muhammad Farooq, Sr. ASC for Appellants Nos. 1 & 2.
Mr. Gulzarin Kiani, ASC for Appellants Nos. 3 & 4.
Ch. Mushtaq Ahmad Khan, Sr. ASC and Malik Noor Muhammad Awan, ASC for Respondent No. 1.
Ex-parte for Respondents Nos. 2 & 4.
Date of hearing: 10.1.2007 (reserved).
Judgment
Javed Iqbal, J.--This appeal is directed against the judgment dated 7.2.2001 whereby RSA preferred on behalf of respondents has been accepted.
The facts of the case have been mentioned in the judgment impugned in extenso and as such reproduction whereof would be of no use.
Khawaja Muhammad Farooq, learned Sr. ASC and Mr. Gulzarin Kiani, learned ASC entered appearance on behalf of appellants and contended that the entire evidence could not have been reappraised by the learned single Judge in chambers in view of the provisions as contemplated in Section 100 CPC and the learned Judge should have confined only to the question of law or usage having the force of law or decision having failed to determine some material issue of law and usage having the force of law. It is pointed out that there was neither any substantial error nor defect in the procedure nor any illegality has been committed by the learned appellate Court hence the question of interference of the learned High Court in the judgment of First Appellate Court does not arise. It is also pointed out that the judgment impugned is not in consonance with the dictum laid down in case Madan Gopal v. Maran Bipari (PLD 1969 SC 617) because there was no occasion for the learned single Judge to reverse the findings of learned appellate Court after having reappraisal of the entire evidence which is not warranted under Section 100 CPC. It is next contended that the learned appellate Court has given cogent reasoning while deciding Issues No. 2, 3, 5 and 6 which was never taken into consideration while interfering in the judgment which resulted in serious miscarriage of justice. It is next contended that the documentary evidence such as the receipt dated 4.5.1977 (Ex.D/1) has been misinterpreted and misconstrued by ignoring the fact that possession given under the said receipt cannot be equated to that of a possession under the law. In order to substantiate his esteemed view Mr. Gulzarin Kiani, learned ASC contended that definition of sale given in Section 3 (5) of the Punjab Pre-emption Act, 1913 has been ignored which covers a wider range than the definition of sale as mentioned in Section 54 of the Transfer of Property Act (Act-IV of 1882). Mr. Gulzarin Kiani, learned ASC referred case Karim v. Fazal Muhammad Shah (PLD 1967 SC 411) in support of the said contention.
It is argued that the statements of Muhammad Saeed Qureshi (D.W.2) and Saad Ullah (D.W.4) have not been appreciated in its true perspective. It is pointed out that Muhammad Saeed Qureshi (D.W.2) has mentioned in an unambiguous manner that possession was given to the respondents on 4.5.1977 which was also acknowledged by Saad Ullah (D.W.4) who is one of the vendees. It is next contended that copy of Khasra Girdawari from Kharif 75 to Rabi 1979 (Ex.D-6) and Khasra Girdawari (Ex.D-3) were never taken into consideration concerning the possession of the respondents and more-so the physical possession of the Appellant No. 1 (predecessor-in-interest of Appellants No. 2, 3 and 4) has been proved under the sale which was completed in all respects in May 1977 except the sanction of mutation which was got attested on 9.5.1979. It is urged emphatically that the Punjab Pre-emption Act, 1913 makes it abundant clear that in case the possession under the sale is given, the limitation starts from the date of attestation of mutation. In this regard reference has been made to case Sher Muhammad v. Rajadha (PLD 1981 SC 591), Allah Yar v. Raja (1989 SCMR 802), Ghulam Sarwar v. Mazhar Ahmad (PLD 1995 SC 677) and Ahmad v. Noor (PLD 1997 SC 371). It is pointed out that there is no cavil to the proposition that if the possession is delivered prior to the sanction of mutation possession will be treated under the sale. It is next argued that Mutation No. 79 was sanctioned on 9.5.1979 pursuant to the decree dated 26.2.1979 passed by the learned Civil Judge Sargodha which was entered by the Halqa Patwari on 8.4.1979 and sanctioned on 9.5.1979 when admittedly the suit was filed on 10.5.1980 which is barred by time in view of the provisions as contemplated in Section 30 of the Punjab Pre-emption Act, 1913 which provides the period of limitation as one year either from the date of attestation of mutation or from the date of taking possession of any part of land under the sale. According to Mr. Gulzarin Kiani, learned ASC the possession of land in question was taken prior to the date of attestation and as such the suit was barred by time. Khawaja Muhammad Farooq, learned Sr. ASC while adopting the arguments of Mr. Gulzarin Kiani, learned ASC, however, highlighted the delivery of possession by referring Khasra Girdawari and contended that the suit was definitely barred by time. It is worth mentioning that the above mentioned contentions in fact have been raised by Khawaja Muhammad Farooq, learned Sr. ASC as well as Mr. Gulzarin Kiani, learned ASC while arguing the appeal.
Ch. Mushtaq Ahmad Khan, learned Sr. ASC entered appearance on behalf of Respondent No. 1 and supported the judgment impugned for the reasons enumerated therein with the further submission that the provisions as contained in Section 100 CPC do not bar the learned High Court to examine as to whether the controversy has been set at naught in accordance with law or otherwise? It is next contended that the learned appellate Court has not examined the legal and factual aspect of the controversy which resulted in serious miscarriage of justice and more-so the conclusion as arrived at by the learned appellate Court was not in consonance with the evidence which has come on record and therefore, the learned single Judge in chambers has not committed any illegality by interfering in the judgment delivered by the learned appellate Court being perverse and laconic. Ch. Mushtaq Ahmad Khan, learned Sr. ASC has referred his plaint wherein specific date i.e. 9.5.1979 qua sale has been mentioned. The learned Sr. ASC has also referred the written statement whereby it has been admitted in a categoric manner that the mutation was got attested on 9.5.1979 but the transaction struck on 4.5.1977. It is also contended that possession prior to sale has not been established and therefore, the suit cannot be considered as barred by time. The learned Sr. ASC has discussed Sections 10 and 120 of the Limitation Act, 1908 and Section 30 of the Punjab Pre-emption Act, 1913. In order to substantiate his view point reference has been made to case Maqsood Mai v. Abdul Rashid (PLD 2006 SC 306).
We have carefully examined the respective contentions as agitated on behalf of the parties, perused the entire evidence which has come on record and examined the judgments of all the Courts below including the judgment impugned. We have carefully examined the nature of document (Ex.D-1) which at the best can be equated to that of agreement to sell. It is, however, to be kept in view that "agreement to sell" and "sale" are neither synonymous terms nor interchangeable. Any possession which is obtained under an agreement to sell cannot be considered as a possession under the sale especially for the purpose of limitation. It can, therefore, safely be inferred that the possession was never taken under "sale" but pursuant to the mutation got attested on 9.5.1979 (Ex.P2). Even otherwise it is the case of appellant that sale was completed when the balance amount was paid and there is no denying the fact that the balance consideration amount was paid when mutation was attested on 9.5.1979. In order to prove Ex.D-1, Muhammad Saeed Qureshi entered appearance as D.W.2 whose evidence is vague and sketchy as he could not mention the exact amount received by him. He also failed to make mention about the arbitration proceedings which were made rule of the Court. It is amazing that he could not mention that as to whether possession was given after the mutation was got attested or otherwise. He is not clear that how much was the exact consideration. He also failed to point out in an unequivocal manner that as to whether the total sale consideration amount i.e. Rs. 76,000/- was received by him or otherwise? The statement of Muhammad Saeed Qureshi (D.W.2) hardly renders any assistance to the case of appellant. In so far as the statement of Ghulam Hussain (D.W.1) is concerned it is really injurious and detrimental to the claim of appellant who stated in an unambiguous manner that consideration was paid at the time of mutation and that possession was delivered thereafter. The statement of Ameer Haider (D.W.3) has been examined in depth and the only inference that can be drawn is that receipt Ex.D.1 was never executed. The statement of Saadullah (D.W.4) deserves little consideration in view of the statement of Ameer Haider (D.W.3). The learned trial Court has taken all the pain to examine the controversy and the conclusion arrived at being unexceptionable does not warrant interference, relevant portion whereof is reproduced herein below for ready reference:--
"ISSUE NO. 1
The disputed land is agricultural one. The plaintiff got the statement of its net produce, for the year preceding the transaction and valued the suit, at the fifteen times of the net profits. Court fee of the value of not less than Rs.8445/- has been paid and the stamp paper obtained and filed. These appears to be no defect in the valuation. The plaintiff has rather been more careful, while paying the Court fee with regard to the tract, which did not produce any thing, and paid the fee according to its value price. There is no rebuttal to it and hence the issue goes against the defendants.
"ISSUE NO.2
In case the time limitation is calculated from the date of mutation, it is alright and not time barred, but the defendant side has taken the stand that the possession had already been taken over by them, not later than 4.5.77, when an amount of Rs. 50948.20 was paid to the Vendor, vide receipt (Ex.D.l) of the date and the possession was given by the Vendor.
Before threshing out the veracity of the receipt (Ex.D. 1), it is pertinent to point out that the money in the receipt is not in round figures and is strangely to the extent of paisas 20. This has never been the practice. The land admittedly valued much more than this amount and the advance could be Rs.50,000/- or Rs.60,000/-. The figuring itself creates doubt, about the genuineness of the amount paid and received and about the execution of the receipt validly.
This has been admitted by the parties that the transaction cropped up from an arbitration agreement which too is silent about the part payment of the said amount. The same is the case with the award, which was made a rule of the Court, resulting in the decree the basis of the impugned mutation.
The receipt (Ex.D.1) was executed by D.W.2 who sold out the land, on behalf of his grandson. Although the execution admits his signatures annex at Ex.D.1/A yet he says that he does not remember, the total value of the land sold. The DW is a party to the transaction but he does not know, if the Arbitrator pronounced his award or not, and got it made a rule of the Court, or not. The statement of the executant of Ex.D.1 is nothing but reiteration of not knowing and "not remembering". He said that the amount was received by his servants, whereas D.W.3 deposed that the amount of the receipt (Ex.D.1) was received by DW.2 himself. Such a document, thus can hardly be believed the executant of which is not sure of what he executed and what for. This receipt therefore, does not help the contention of the defendants, that they got the possession under this document".
We have no hesitation in our mind that the authenticity and genuineness of Ex-D-1 is not above board. In so far as, Khasra Girdawari is concerned no presumption of correctness can be attached to the entries of Khasra Girdawari like those appearing in Jamabandi. This view point finds support from the dictum laid down in case Muhammad Akram v. State (1977 SCMR 433) and Abdul Majid v. Muhammad Ashraf (1994 SCMR 115).
It also transpired from the scrutiny of record that at first instance the land in question was sold through arbitration and all the appellants were party to the arbitration agreement. It hardly makes any difference as to whether they have mentioned their respective shares or otherwise as the amount was received in lump sum and one mutation was got recorded and thus the transaction cannot be considered as divisible. Besides that the respondent was not a part to the arbitration proceedings.
In view of what has been discussed herein above the appeal being devoid of merit is dismissed with costs.
(N.F.) Appeal dismissed.
PLJ 2008 SC 137
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ.
MUHAMMAD AFZAL KHAN and 5 others--Appellants
versus
MIAN ASHFAQ AHMAD--Respondent
C.A. No. 807 of 2002, decided on 24.1.2007.
(On appeal from the judgment dated 8.1.2002 passed by Lahore High Court, Lahore in R.F.A. No. 274/1992)
Constitution of Pakistan, 1973--
----Art. 185(2)--Direct appeal--Suit for specific performance of contract was filed against appellant on the basis of agreement--Parties agreed to give effect to major part of agreement with mutual understanding that remaining part of agreement would be performed on the settlement of family disputes of appellant, whereas the assertion of the appellants was that the sale-deed was executed in full satisfaction of the agreement--Payment of balance amount in terms of agreement with stipulated time, was not made and appellants had no obligation to fulfill the remaining part of the agreement which stood rescinded by failure of vendee to fulfill his part of contract--Question of--Equitable relief may not be granted against equity--High Court has rendered the judgment contrary to law and facts of case or omitted to consider an important question which may have material effect on the ultimate result of the case--Validity--Grant of relief of specific performance is discretionary with the Court and discretion must not be exercised in arbitrary manner rather it being equitable relief may not be granted against the equity and equities favoured the plaintiff--Held: No valid ground for interference in the judgment of High Court and appeal was dismissed with direction that if the sale price of the property has been deposited within specified period with interest at the prevalent bank rate, failing which the judgment of High Court shall be deemed to be set aside and that of trial Court shall stand restored. [P. 140] A & B
Syed Samar Hussain, ASC for Appellants.
Ch. Muhammad Akram, AOR for Respondent.
Date of hearing: 24.1.2007.
Judgment
Muhammad Nawaz Abbasi, J.--This direct appeal under Article 185 (2) of the Constitution has been preferred against the judgment of Lahore High Court, Lahore, dated 8.1.2002 whereby Regular First Appeal Bearing No. 274 of 1992 filed by the respondent against the judgment dated 29.11.1992 by virtue of which the suit for specific performance of the contract was dismissed by the Court of first instance, was allowed.
The facts of the case, in small compass, leading to the filing of this appeal are that the respondent filed a suit for specific performance of contract against the appellants on the basis of an agreement dated 5.7.1988 entered with Mst. Aziz Fatima their mother through Muhammad Asif s/o Abdul Rashid her general attorney for sale of the land measuring 84 kanals 1 maria for a consideration of Rs. 1,50,000/- per acre and a sum of Rs. 1,11,000/- was paid as earnest money out of which the payment of Rs. 11,000/- was made in cash and remaining amount of Rs. 1,00,000/- was paid by means of pay order dated 4.7.1988. Mst. Aziz Fatima together with the appellants in continuation thereof executed a fresh agreement on 18.8.1988 whereby they having acknowledged the agreement dated 5.7.1988 admitted the receipt of the earnest money and further payment of a sum of Rs. 2,82,984/- vide cheque dated 18.8.1988 (The total payment of a sum of Rs. 3,93,984/-). It was agreed between the parties that on payment of balance amount of Rs. 11,81,016/- by the respondent (vendee) by or before 30.1.1989, the sale-deed would be executed. The appellants instead of performing the agreement in full, transferred an area of 60 kanals and 11 marlas vide registered sale-deed dated 7.2.1989, with the understanding that remaining area of 23 kanals 11 marlas would be transferred on the settlement of internal dispute amongst the appellants but subsequently, on their refusal to perform their part of the contract to the extent of an area of 23 kanals and 11 marlas, the suit for specific performance of the contract was filed. The appellants admitted the execution of the agreements and receipt of part payment of sale consideration with the assertion that the amount of Rs. 7,41,329/- paid through cheque dated 29.1.1989 was adjusted towards the sale price in terms of the agreement on the understanding that respondent would pay the balance amount of Rs. 4,39,687/- within a fortnight from the execution of the sale-deed on 29.2.1989 for transfer of the remaining area of 23 kanals and 11 marlas but on his failure to pay the balance amount, the agreement to the extend of 23 kanals 11 marlas stood rescinded. The suit was dismissed by the learned trial Court vide judgment dated 24.11.1992 but in regular first appeal, the High Court while reversing the judgment of trial Court decreed the suit vide impugned judgment hence the present appeal.
The material facts relating to the execution of sale agreement dated 5.7.1928 and 18.8.1988, the payment of sale consideration to the extent of land of 60 kanals 11 marlas and transfer of the said land vide registered sale-deed dated 7.2.1989, are admitted. The claim of the respondent was that the parties agreed to give effect to the major part of the agreement vide sale-deed dated 7.2.1989 with the mutual understanding that remaining part of the agreement would be performed on the settlement of family disputes of the appellants inter se, whereas the assertion of the appellants was that the sale-deed was executed in full satisfaction of the agreement with the understanding that remaining part of the agreement would deemed to have been abandoned. The learned counsel for the appellants on the basis of oral and documentary evidence brought on record, submitted that preponderance of evidence would show that the findings of the trial Court on the pivotal issue were based on sound reasons and were not suffering from defect of misreading or non-reading of evidence calling for interference of the High Court in appeal. The learned counsel however, has vehemently contended that the payment of balance price in terms of the agreement within the stipulated time, was not made and in consequence thereto, the appellants had no obligation to fulfill the remaining part of the agreement, which stood rescinded by failure of the vendee to fulfill his part of the contract. The High Court in para 5 of the judgment observed as under: -
"It is now to be seen as to whether the appellant paid the entire amount of consideration or not. There is no denial of the execution of sale-deed (Ex. P. 5). This document narrates that a sum of Rs. 3,93,984/- has been received in advance and the balance amount of Rs. 11,81,016/- will be received in presence of the Sub Registrar. The endorsement made on this document narrates that the vendor has admitted the receipt of Rs. 3,93,984/- and has received Rs. 4,39,687/- in cash while a sum of Rs. 7,41,329/- has been paid vide a cheque dated 27.1.1989 which was encashed in his presence and this entire amount of Rs. 15,75,000/- was received by the vendor from the vendee."
The contention raised by the learned counsel for appellants in support of this appeal has no substance. The agreement admittedly pertained to 84 kanals 1 marla of land out of which 60 kanals and 11 marlas was transferred and no evidence was brought on record to suggest the abandonment or waiver of the agreement by the vendee to the extent of 23 kanals 11 marlas or due to his delay or denial of payment, the position of vendor was changed and he could decline the specific performance on equitable consideration. The High Court after detail examination of evidence and considering all aspects of the case, has concluded that the agreement was alive for its performance and so much so the appellants have also pleaded in the written statement that in consequence to the non-payment of the sale price to the extent of 23 kanals and 11 marlas, the agreement in this behalf could not be enforced. The learned counsel for the appellants, has not been able to convince us that the contract was bifurcated with the intention not to enforce one part of it or that for unavoidable reasons, this part of the contract was not capable of being specifically performed.
The perusal of the record in the light of the arguments of the learned counsel for both side, would not lead us to a conclusion different to that of the High Court in respect of the legal position regarding enforcement of the agreement. The learned counsel for the appellants, also has not been able to convince us that either the High Court has rendered the judgment contrary to law and facts of the case or omitted to consider an important question which may have material effect on the ultimate result of the case. This is true that grant of relief of specific performance is discretionary with the Court and this discretion must not be exercised in arbitrary manner, rather it being equitable relief, may not be granted against the equity and in the present case we find that equities favoured the plaintiff.
In the light of forgoing reason, we do not find any valid ground for interference in the judgment of the High Court and consequently, we dismiss this appeal with direction that if the sale price of the land measuring 23 kanals 11 marlas in terms of the judgment of High Court has not been deposited, the same shall be deposited within four months with interest at the prevalent bank rate, failing which the judgment of the High Court shall be deemed to be set aside and that of the trial Court shall stand restored.
(R.A.) Appeal dismissed.
PLJ 2008 SC 141
[Review Jurisdiction]
Present: Sardar Muhammad Raza Khan, Falak Sher and Ch. Ijaz Ahmed, JJ.
KHAN alias KHANI etc.--Petitioners
versus
STATE--Respondent
Crl. Rev. P. No. 50 of 2006 in Crl. A. No. 93 of 2002, decided on 10.9.2007.
(On review from the judgment dated 26.6.2006 passed by this Honourable Court in Criminal Appeal No. 93 of 2002)
Remedy of Review--
----Discretionary relief--Remedy of review cannot be sought as a matter of right--Held: It is discretionary relief as observed by Supreme Court. [P. 142] A
PLD 1973 SC 110 ref.
Supreme Courts Rules, 1980--
----O.XXVI, R. 1--Power of review--Criminal proceedings error of act or law--Power of review is to be exercised in a criminal proceeding on the ground of an error apparent on the face of the record--Review petition does not fall within the parameters prescribed under the Rule 1 of Supreme Court Rules--Error must be one which is apparent on the face of the record that is, it must be so manifest, so clear that no Court could permit such an error to remain on record. [P. 143] B
PLD 1975 SC 300 ref.
Criminal Review--
----Review proceeding is neither in the nature of re-hearing of the whole case, nor is it appeal against judgment under review.
[P. 143] C
Quantum of Sentence--
----Consideration all circumstances--Interference in review--Validity--In criminal matters Supreme Court will not interfere in review with the quantum of sentence, if a legal sentence has been imposed or upheld after due consideration and all the relevant circumstances.
[P. 143] D
Ch. Muhammad Anwar Bhinder, ASC and Ch. Muhammad Anwar Khan, AOR (Absent) for Petitioners.
Nemo for Respondent.
Date of hearing: 10.9.2007.
Judgment
Ch. Ijaz Ahmed, J.--Petitioners have sought review of the impugned judgment dated 26-6-20006 on the following grounds:-
(1) The learned counsel of the petitioner submits that eye witnesses in the case in hand were chance witnesses who had failed to provide sufficient material on record qua their presence at the place of occurrence coupled with the fact that eye-witnesses did not belong to the village where in the incident had taken place. The eye-witnesses belong to different villages which are at a distance of 4 & 5 kilo meters from the place of occurrence.
(2) Incident had taken place all of sudden and this fact was not considered in the impugned judgment.
(3) Ocular account was not corroborated by any piece of evidence on record.
(4) Motive alleged by the prosecution was not proved by the prosecution.
(5) Petitioners are real brothers and sentenced to death each by the Courts below including this Court in the impugned judgment is very harsh.
(6) In view of the circumstances there is sufficient material on the record to award lesser punishment to the petitioners.
"The granting of review is still in the discretion of the Court. It is not bound to grant a review even where adequate ground exists but the discretion must, as in the case of all judicial discretions, be exercised upon sound judicial principles".
The aforesaid proposition of law is also supported by Muhammad Zafarullah Khan's case (PLD 1975 SC 300). It is pertinent to mention here that according to Rule 1 of Order XXVI of the Supreme Court Rules, the power of review is to be exercised in a criminal proceeding on the ground of an error apparent on the face of the record. In view of the finding rendered by this Court in the impugned judgment in para 5-6 and the grounds which have been urged before us in this review petition do not fall within the parameters prescribed under the said rule according to which as law laid down by this Court it is necessary that error must be one which is apparent on the face of the record that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of act or of law but it must be an error which is itself evident and floating on the surface and does not require any elaborate discussion, the contentions raised before us as mentioned above do not fulfill the aforesaid parameters prescribed by this Court in various pronouncements. It is a settled law that a review proceeding is neither in the nature of re-hearing of the whole case, nor is it appeal against the judgment under review. It is accordingly not permissible to embark upon a reiteration of the same contention as were advanced at the time of the hearing of the appeal but were considered and repelled in the judgment under review. It is settled that in criminal matters this Court will not interfere in review with the quantum of sentence, if a legal sentence has been imposed, or upheld after due consideration and all the relevant circumstances.
(R.A.) Petition dismissed.
PLJ 2008 SC 144
[Original Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal, Sardar Muhammad Raza Khan, Faqir Muhammad Khokhar, M. Javed Buttar, Nasir-ul-Mulk and Raja Fayyaz Ahmed, JJ.
PAKISTAN MUSLIM LEAGUE (N) through Khawaja Muhammad Asif, MNA and others--Petitioners
versus
FEDERATION OF PAKISTAN through Secretary Ministry of Interior and others--Respondents
Const. P. Nos. 48 & 49 of 2007, decided on 23.8.2007.
Constitution of Pakistan, 1973--
----Arts. 15 & 184--Right to enter and remain in country--Constitutional petition--Maintainability--Petitioners have an inalienable right to enter and remain in country, as citizens of Pakistan--Such return/ entry into country shall not be restrained, hampered or obstructed by Federal or Provincial Government Agencies in any manner--Petitions accepted. [P. 144] A
Mr. Fakhr-ud-Din G. Ebrahim, Sr. ASC, Malik Muhammad Rafique Rajwana, ASC, Mr. Zain Sheikh, ASC and Mr. M.S. Khattak, AOR for Petitioners (in both cases).
Sahibzada Ahmad Raza Qasuri, Sr. ASC and Mr. Arshad Ali Chaudhry, AOR for Respondent No. 1 (in Const. P. No. 48/07).
Raja Muhammad Ibrahim Satti, ASC and Mr. Arshad Ali Chaudhry, AOR for Respondent No. 1 (in Const. P. No. 49/07).
Malik Muhammad Qayyum, Attorney General for Pakistan Pir Liaqat Ali Shah, A.G. NWFP Mr. Masood A. Noorani, Acting A.G. Sindh Ch. Khadim Hussain Qaiser, Addl. A.G. Pb., Raja Muhammad Saeed Akram, AAG, Pb., Mr. Mehmood Raza, Addl. A.G. Balochistan on Court Notice.
Date of hearing: 23.8.2007.
Order
For reasons to be recorded separately, both the captioned petitions, being maintainable, are accepted.
(R.A.) Petition accepted.
PLJ 2008 SC 145
[Appellate Jurisdiction]
Present: Javed Iqbal and Abdul Hameed Dogar, JJ.
SIRAJ DIN, etc.--Appellants
versus
Mst. KHURSHID BEGUM, etc.--Respondents
C.A. No. 39 of 2001, decided on 21.5.2007.
(On appeal from the judgment dated 10.11.2000 of Lahore High Court, Lahore, passed in C.R. No. 1030 of 1984)
Limitation Act, 1908 (IX of 1908)--
----Art. 113--Suit for specific performance of contract--Question of--Limitation--Determination--Period of three years for filing a suit for specific performance of contract and the same, from which the period of three years begins to run, is provided as the date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused--When the case falls within first clause the second clause is not to be resorted to--In case the time is extended the extension of time would prove a fresh terminus a qua for limitation--Period of three years in second case is to start from a point of time when plaintiff had notice that the defendant refused to perform the contract. [P. 148] A
1986 CLC 1887; PLD 1983 SC 344 & 2002 YLR 1369 ref.
Limitation Act, 1908 (IX of 1908)--
----Ss. 6 & 7--Limitation--If Ss. 6, 7 & 8 of the Limitation Act, are to be read together and if it done then it would appear clearly that S. 8 controls S. 6 which means that after attaining majority plaintiff can file suit within three years and if limitation had started running against him and remainder of limitation is less than three years, then also suit could be filed within three years without any further extention of time. [P. 148] B
AIR 1965 Mad. 541; 1981 CLC 1156 & PLD 1994 SC 462 rel.
Limitation Act, 1908 (IX of 1908)--
----Ss. 6 & 8--Dispossessed during minority--Combined effect--Combined effect of Ss. 6 and 8 is to enable a person who has been dispossessed during his minority to file a suit within three years of his attaining majority or within usual period of time ordinarily allowable to a major, which is longer--If minor attains majority after three years of cause of action he can sue within nine years from the date of attaining majority if period of limitation is 12 years. [Pp. 148 & 149] C
PLD 1994 SC 462.
Limitation Act, 1908 (IX of 1908)--
----S. 6--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Suit for specific performance of contract--Concurrent findings--Minor can file a suit within period of limitation--Determination--Question of--Dispossession during minority--Disability--Attained the age of majority--Applicability--A minor can file a suit within the period as prescribed in Limitation Act, 1908 after his disability has ceased as would has been allowed from time prescribed--Plaintiffs were minors and thus the provisions as enumerated in S. 6 of Limitation Act, can be made applicable and limitation against them would commence after having attained the age of majority--Held: When once limitation has commenced to run it will continue to do so unless it is stopped by virtue of any express statutory provisions--Case of respondents admittedly falls within the provisions as enumerated in S. 6, hence the question of applicability of S. 9 does not arise--Concurrent findings of facts qua the execution of agreement to sell do not warrant interference as only the point of limitation was contested--No illegality or irregularity whatsoever has been committed by the single judge--Appeal was dismissed.
[Pp. 149 & 150] D, E & F
AIR 1950 Mad. 552; 1996 CLC 348 & AIR 1939 Bom 1. rel.
Mr. Muhammad Anwar Sipra, ASC for Appellants.
Mr. Altaf Ellahi Sheikh, for Respondents.
Date of hearing: 9.1.2007.
Judgment
Javed Iqbal, J.--This appeal with leave of the Court is directed against the judgment dated 10.11.2000 whereby the revision petition preferred on behalf of Mst. Khurshid Begum (respondent) has been accepted.
"Briefly stating the facts of the case are that vide an agreement to sell dated 1.3.1971 predecessor-in-interest of the petitioners, Munshi Khair Din, sold 3 marlas of land situated in Chak No. 122, Sargodha Road, Faisalabad, against sale consideration of Rs.5,000/- to the predecessor-in-interest of the respondents Mukhtar Ahmad. After his demise the respondents filed a suit for specific performance of the agreement on 1.11.1978. The petitioners contested the suit inter alia objecting to its maintainability on the ground of limitation. The learned trial Court vide order dated 21.4.1982 dismissed the suit. Similarly appeal filed by the respondents was also dismissed by the District Judge on 24.1.1984. Thereafter, they filed a civil revision before the Lahore High Court, Lahore, which has been allowed vide impugned judgment dated 10.11.2000. Hence, the instant petition for leave to appeal.
Learned counsel for the petitioners contended that the agreement was executed on 21.3.1971 whereas the predecessor-in-interest of the respondents died on 31.3.1974 and in this way the period for filing of suit for specific performance under Article 113 of the Limitation Act has already commenced and expired. Therefore, the learned Judge of the High Court without adverting to the provisions of Section 9 of the Limitation Act has condoned the delay in filing the suit only taking into consideration the provisions of Sections 6 and 7 of the said Act.
The contentions raised by the learned counsel need examination. Leave to appeal is, accordingly, granted. Status quo is to be maintained during the pendency of the appeal."
Heard Mr. Muhammad Anwar Sipra, learned ASC on behalf of appellants who mainly contended that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is further contended that the suit in question was time barred as the limitation had started to run against Mst. Mukhtar Ahmad original agreement-holder by virtue of Section 9 of the Limitation Act, 1908 which after his demise could not be stopped by disability of any of the legal heirs. It is next contended that the provisions as enumerated in Sections 6 and 7 of the Limitation Act, 1908 have been misinterpreted and misconstrued as the same cannot be made applicable in view of the chequered history of the case. It is also contended that the learned single Judge in chambers has failed to consider the import and significance of the provisions as contained in Section 9 of the Limitation Act, 1908.
Mr. Altaf Ellahi Sheikh, learned ASC entered appearance for respondents and supported the judgment impugned for the reasons enumerated therein with the further submission that no illegality or irregularity whatsoever has been committed and the legal provisions as enumerated in Sections 6 and 7 of the Limitation Act, 1908 have been interpreted correctly. It is also contended that Section 9 of the Limitation Act, 1908 has no relevancy whatsoever with the controversy in hand and cannot be made applicable.
We have carefully examined the respective contentions as agitated on behalf of the parties and perused all the judgments passed by learned Courts below including the judgment impugned. We have thrashed out the entire evidence with the eminent assistance of learned ASC on behalf of the parties. The pivotal question which needs determination would be as to whether Article 113 of the Limitation Act, 1908 can be made applicable in this case? A careful scrutiny of the provisions as enumerated in Article 113 of the Limitation Act, 1908 would reveal that the same are free from any ambiguity and couched in a very simple and plain language. Article 113 of the Limitation Act, 1908 provides "a period of three years for filing a suit for specific performance of contract and the same, from which this period of three years begins to run, is provided as the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. When the case falls within first clause the second clause is not to be resorted to. In case the time is extended the extension of time would prove a fresh terminus a qua for limitation. Two sets of facts are contemplated by Art. 113, Limitation Act, one where date is fixed by the party for performance in the agreement itself and second where no such date is fixed. Prescribed period of three years in the second case is to start from a point of time when plaintiff had notice that the defendant refused to perform the contract." (Munawar Bibi v. Maheen Quddusi 1986 CLC 1887, Muhammad Yasin v. Allah Din 19.91 CLC 1457, Ghulam Nabi v. Muhammad Yaqoob PLD 1983 SC 344, Khushi Muhammad v. Khurshid Alam 2002 YLR 1369).
No doubt that the plaintiff/respondent had instituted the suit on 30.10.1978 whereas it should have been filed ordinarily within three years from 19.7.1974. It weighed with the learned trial and appellate Courts that the suit was barred by time. It is, however, observed that the learned trial and appellate Courts have determined the question of limitation in oblivion of the provisions as enumerated in Sections 6 and 7 of the Limitation Act, 1908. There is no cavil to the proposition that "if Sections 6, 7 and 8 of the Limitation Act are to be read together and if it is done then it would appear clearly that Section 8 controls Section 6 which means that after attaining majority plaintiff can file suit within three years and if limitation had started running against him and remainder of the limitation is less than three years, then also suit could be filed within three years without any further extension of time." (Kolandavel Gounder and another v. Chinnappan and others AIR 1965 Mad. 541, Sk. Md. Zafir v. Sk. Amiruddin and others AIR 1963 Pat. 108, Allah Ditta and another v. Muhammad Azeem PLD 1953 BJ 1, Lal Bano etc. v. Hasseen Akhtar etc. NLR 1980 AC 134, Mst. Hanifa Begum v. Muhammad Afzal Khan and others 1981 CLC 1156 and Batuk Prasad Bhagat and another v. Rudra Das Chakravarty and others AIR 1950 Pat.206, Moolchand v. Muhammad Yousuf PLD 1994 SC 462).
It was also observed in case (Moolchand v. Muhammad Yousuf PLD 1994 SC 462) (supra) that "we feel inclined to form the view that combined effect of Sections 6 and 8 is to enable a person who has been dispossessed during his minority to file a suit within three years of his attaining majority or within usual period of time ordinarily allowable to a major, which is longer. If minor attains majority after three years of cause of action he can sue within nine years from the date of attaining majority if period of limitation is 12 years."
A similar proposition was discussed in case Naganna v. Krishnamurthi (AIR 1932 Madras 139) whereby it was held as follows:
"The short question for decision appears to me to be whether there is anything in Ss. 6 and 8, Limitation Act, to prevent a suitor who comes within those sections from having the benefit of S.4. In my opinion there is not. S.4 provides an exception to the general rule laid down in S. 3. S. 6 enables a person who was a minor at the time from which the period of limitation is to be reckoned, to institute a suit within the same period after he attains majority as would otherwise have been allowed from the time prescribed therefor in Col. 3 of Sch. 1. This concession is cut down by S. 8 which says that nothing in S. 6 shall be deemed to extend for more than three years from the cessation of the disability the period within which any suit must be instituted. The illustrations to S. 8 make it quite clear that what is meant is that when time has begun to run against a person during his minority in no case is the period in which he can institute a suit to be extended for more than three years after the cessation of the disability. In other words, by the operation of Ss. 6 and 8 the prescribed period within which an ex-minor can institute a suit is limited to three years from the date when he reached majority. If the three years so prescribed expire on a day when the Court is closed, the position seems to me to be precisely within the terms of S. 4. S.4 does not extend the period of limitation beyond the prescribed period. But it enables the plaintiff, by excluding the time during which the Court is closed, to institute his suit on the reopening day and so to have the benefit of the three year period which the Act gives him for that purpose."
The upshot of the above discussion would be that a minor can institute a suit within the same period as prescribed in the Limitation Act, 1908 after his disability has ceased as would otherwise has been allowed from the time prescribed, therefore, there is no denying the fact that Plaintiffs No. 4 to 8 were minors of Mukhtar Ahmad and thus the provisions as enumerated in Section 6 of the Limitation Act, 1908 can be made applicable and the limitation against them would commence after having attained the age of majority. We are not persuaded to agree with the prime contention of learned ASC that the provisions as contemplated in Section 9 of the Limitation Act, 1908 have been ignored for the simple reason that "Section 9 of the Limitation Act, 1908 is founded on the general principle that when once limitation has commenced to run it will continue to do so unless it is stopped by virtue of any express statutory provisions." (Saba v. Patricia 1996 CLC 348, Ramakrishna v. Srinivasalu AIR 1950 Mad. 552, Ajab Lal v. Jai Prakash AIR 1953 Pat.35).
It hardly needs any explanation that unless a case falls within any one of the exception contained in Sections 4 to 25 of the Limitation Act, 1908 no exemption can be sought from the bar of limitation arising under the Limitation Act, 1908. The case of respondents admittedly falls within the provisions as enumerated in Section 6 of the Limitation Act, 1908, hence the question of applicability of Section 9 of the Limitation Act, 1908 does not arise. In this regard we are fortified by the dictum laid down in case Narayan Jivaji Patil v. Gurunathgouda Khandappagouda Patil (AIR 1939 Bom 1), Hukam Chand v. Shahab Din (AIR 1924 Lah. 40), Hari Singh v. Muhammad Said (AIR 1927 Lah. 200).
It is to be noted that concurrent findings of facts qua the execution, of agreement to sell do not warrant interference as only the point of limitation was contested. No illegality or irregularly whatsoever has been committed by the learned single Judge in chambers and the omission of the learned Courts below has been cured, vide judgment impugned which being well based does not warrant interference. The appeal being merit less is dismissed.
(N.F.) Appeal dismissed.
PLJ 2008 SC 150
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar and Mian Shakirullah Jan, JJ.
Haji MUHAMMAD AFZAL--Petitioner
versus
MUHAMMAD ZAHID--Respondent
C.P. No. 234 of 2007, decided on 26.3.2007.
(On appeal from the judgment dated 22.11.2006 of the Peshawar High Court, D.I. Khan Bench, passed in C.R. No. 18/2004)
N.W.F.P. Pre-emption Act, 1987--
----S. 13(3)--Constitution of Pakistan, Art. 185(3)--Leave to appeal--Requirements of talab-e-muwathibat and talb-e-ishhad were not fulfilled--Provision of law--Not necessary to mention date, time and place qua the performance of talb-e-muwathibat in plaint--Validity--Without disclosure of such factor, date, time and place it would not be possible to determine as to whether talb-e-muwathibat was performed in accordance with law--Factor of time to be mentioned in plaint is necessary because time when talb-e-ishhad was performed has to be counted from the date of talb-e-muwathibat--Petitioner could not substantiate his claim by adducing cogent and concrete evidence--No illegality or irregularity could be pointed out on the basis whereof leave to appeal could be granted--Leave was refused.
[Pp. 154 & 155] A & B
Mr. Zaheer Ahmad Qadri, ASC for Petitioner.
Nemo for Respondent.
Date of hearing: 26.3.2007.
Judgment
Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 22.11.2006 whereby the revision petition preferred on behalf of petitioner has been dismissed.
Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "one Ghulam Yasin was the owner of land measuring 07 kanal 10 maria situated in the limits of village
Paroa, District D.I. Khan and he sold it to Muhammad Zahid for an ostensible sale price of Rs. 45,000/- vide sale Mutation No. 2675 attested on 21.4.1993.
The sale was pre-empted by Haji Muhammad Afzal who instituted pre-emption suit in the Civil Court at D.I. Khan. Muhammad Zahid vendee submitted his written statement and contested the suit mainly on the ground that the pre-emptor had not fulfilled the requirements of Talb-e-Muwathibat' andTalb-e-Ashhad' in accordance with the provisions of Section 13 NWFP Pre-emption Act, 1987." After completion of necessary formalities and recording the evidence pro and contra the suit was decreed by the learned Civil Judge, D.I. Khan by means of judgment and decree dated 30.11.2001 which was dismissed on appeal by the learned District Judge
D.I. Khan vide judgment dated 31.10.2003 which was assailed before the learned
High Court by way of revision which has been dismissed vide judgment impugned, hence this petition.
Mr. Zaheer Ahmad Qadri, learned ASC entered appearance on behalf of petitioner and contended that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to substantiate the said contention it is pointed out that the provisions as enumerated in Section 13(3) of the NWFP Pre-emption Act, 1987 have been misinterpreted and misconstrued. It is also argued that the petitioner has fulfilled the requisite Talbs in accordance with law and merely on the basis of hypothetical considerations a wrong conclusion has been arrived at by the learned High Court which is not in consonance with the evidence which has come on record. It is also argued that it was not necessary to mention the date, time and place qua performance of Talb-e-Muwathibat in the plaint and on this account the suit could not have been dismissed.
We have carefully examined the contentions as agitated on behalf of petitioner in the light of relevant provisions of law and record of the case. The prime contention of learned ASC on behalf of petitioner that it was not necessary to mention the date, time and place qua the performance of Talb-e-Muwathibat in the plaint seems to be devoid of merit and is not in consonance with the dictum as laid down by a larger Bench of this Court while resolving the said controversy in case Pir Muhammad v. Faqir Muhammad (PLD 2007 SC 302), relevant portion whereof is reproduced herein below for ready reference:-
"4. It is observed that great emphasis and importance is to be given to this word in making of Talb-i-Muwathibat and it is necessary that as soon as the pre-emptor acquired knowledge of the sale of pre-empted property he should make immediate demand for his desire and intention to assert his right of pre-emption without the slightest loss of time. According to the dispensation which has been reproduced hereinabove after performing Talb-i-Muwathibat, in terms of Section 13(2) of the Act, the pre-emptor has another legal obligation to perform i.e. making of Talb-i-Ashhad as soon as possible after making Talb-i-Muwathibat but not later than two weeks from the date of knowledge of performing Talb-i-Muwathibat, therefore, the question can conveniently be answered by holding that to give full effect to the provisions of sub-sections(2) and (3) of Section 13 of the Act, it would be mandatory to mention in the plaint date, place and time of performance of Talb-i-Muwathibat because from such date, the time provided by the statute i.e. 14 days under sub-section (3) of Section 13 of the Act shall be calculated. Supposing that there is no mention of the date, place and time of Talb-i-Muwathibat then it would be very difficult to give effect fully to sub-section (3) of Section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-i-Muwathibat in his statement in Court and then on the basis of the same would try to justify the delay if any, occurring in the performance of Talb-i-Ashhad. It is now a well settled law that performance of both these Talbs successfully is sine qua non for getting a decree in a pre-emption suit. It may be argued that as the law has not specified about the timing then how it would be necessary to declare that the mentioning of the time is also necessary. In this behalf, it is to be noted that connotation of Talb-i-Muwathibat in its real perspective reveals that it is a demand which is known as jumping demand and is to be performed immediately on coming to know of sale then to determine whether it has been made immediately, mentioning of the time would be strictly in consonance with the provisions of Section 13 of the Act. This Court in the case of Rana Muhammad Tufail v. Munir Ahmed and another (PLD 2001 SC 13), declined to grant leave to appeal maintaining the judgment of the learned High Court as there was four hours delay in making the Talb-i-Muwathibat from the time of receiving the knowledge of the sale. In the case of Mst. Sundri Bai v. Ghulam Hussain (1983 CC 2441) High Court of Sindh, held the delay of 1-1/2 hours in making Talb-i-Muwathibat to be fatal to the scheme of Shufa when the pre-emptor was residing on the first floor while the purchaser/respondent was residing on the ground floor of the same building. In another case of Mst. Kharia Bibi v. Mst. Zakia Begum and 2 others (C.A. 1618 of 2003) this view was endorsed.
Now we would consider the two judgments pronounced by this Court by larger Benches of equal strength in the cases of Haji Noor Muhammad v. Abdul Ghani (2000 SCMR 329) decided on 27.10.1999 and Altaf Hussain v. Abdul Hameed (2000 SCMR 314) decided on 15.11.1999, wherein the consensus was that in view of the law of pleadings, it is not necessary to give the details including the date, place and time of performance of Talb-i-Muwathibat. With utmost respect it is observed that while expressing the above view this Court did not take into consideration in detail the, importance and implication of the word immediate as has been provided in Explanation I to Section 13 of the Act 1991 otherwise there was every possibility of arriving at the view which we are intending to take in this case. However, we agree and endorse the view taken in both the judgments that there is no necessity of mentioning the name of witnesses because then it would be a departure from the ordinary law of pleading as provided in Order 6, Rule 5, C.P.C. as evidence is not required to be noted in the pleadings and only necessary details are to be furnished for the purpose of making out a prima facie case to establish that a cause of action has accrued for invoking the jurisdiction of the Court for the redressal of grievance. Subsequently, a number of judgments were delivered including in the cases of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315) and Fazal Subhan v. Mst. Sahib Jamala (PLD 2005 SC 977), wherein it was held that furnishing the date and time and place in the plaint is necessary to establish the performance of Talb-i-Muwathibat. Therefore, we endorse the view taken in the judgments and approve that a plaint wherein the date, place and time of Talb-i-Muwathibat and date of issuing the notice of performance of Talb-i-Ashhad in terms of Section 13 of the Act is not provided it would be fatal for the pre-emption suit."
We are of the considered view that without disclosure of such factors i.e. date, time and place it would not be possible to determine as to whether Talb-e-Muwathibat was in fact performed in accordance with law or otherwise? It is worth mentioning that the factor of time to be mentioned in the plaint is otherwise necessary because time when Talb-e-Ashhad was performed has to be counted from the date of Talb-e-Muwathibat. Besides that the petitioner could not substantiate his claim by adducing cogent and concrete evidence. The evidence led to substantiate Talb-e-Muwathibat is vague and sketchy and has rightly been discarded by the learned District Judge, determination whereof has been upheld by the learned High Court vide judgment impugned, relevant portion whereof is reproduced herein below for ready reference:
"5. Even otherwise the evidence produced by the pre-emptor-petitioner is also not indicating that Talb-e-Muwathibat was performed in accordance with the provisions of NWFP Pre-emption Act, 1987. The testimony of the Pre-emptor (P.W.7) with regard to performance of Talb-e-Muwathibat is inconsistent with the statement of the alleged informer Haqnawaz (PW-7). The pre-emptor alleged in his statement that Haqnawaz (PW-8) had informed him about the sale transaction on 27.4.1993 at 9/10 a.m. and that at the same time he performed Talb-e-Muwathibat in the presence of the informer. On the contrary, the alleged informer (PW-8) deposed that he had informed the pre-emptor at noon. Further deposed that in fact at noon time he had gone to the house of pre-emptor and told him about the sale transaction. In view of the above contradiction regarding time of Talb-e-Muwathibat the petitioner's version as to performance of Talbs could not be relied upon. It appears that Talb-e-Muwathibat was not at all performed according to the requirements of law.
No illegality or irregularity could be pointed out on the basis whereof leave to appeal could be granted. The petition being devoid of merit is dismissed and leave refused.
(R.A.) Leave refused.
PLJ 2008 SC 155
[Appellate Jurisdiction]
Present: Rana Bhagwandas, ACJ and Sardar Muhammad Raza Khan, JJ.
MUHAMMAD ISHFAQ--Appellant
versus
MUHAMMAD SHAFIQ and others--Respondents
C.A. No. 1662 of 2006, decided on 21.5.2007.
(On appeal from the judgment dated 28.6.2006 of the Lahore High Court, Lahore passed in Civil Revision No. 392/2002)
Martial Law Regulation, 115--
----Para-24--Registered sale-deed--Mutation was attested in favour of appellant--Mutation was reviewed and cancelled by revenue department--Violative of Para 24--Effect--Question of--Whether the question of a transaction being violative of MRL 115 can be determined by Revenue Authority--Validity--Even, if revenue officer detected any irregularity, it was incumbent upon him to have referred the matter to Land Commission or Deputy Land Commissioner--Held: Order of revenue officer declaring the transaction void, was itself void. [P. 157] A
Martial Law Regulation, 115--
----Para 24--Injunction of Islam--Repugnancy of Para 24--Such repugnancy, being retrospective or prospectiv, is not very relevant in the case--Such was declared repugnant to injunction of Islam by Federal Shariat Court. [P. 157] B
PLD 1989 FSC 80 ref.
Martial Law Regulation, 115--
----Para-24--Past and closed transaction--Registered sale-deed--Mutation was attested--Reviewed and cancelled by revenue department--Violative of--Past and closed transaction and cannot have retrospective effect--Repugnancy did not exist--No transaction could be declared void under Para 24 MLR 115 by revenue authorities, exclusive jurisdiction being vested in Land Commission. [P. 157] C
Martial Law Regulation, 115--
----Para-24--Registered sale-deed--Mutation was attested--Reviewed and cancelled by revenue authorities--Violative of--Whether the question of transaction being violative of MRL 115--Mutation is not deed of title--If mutation stood cancelled, the real and genuine deed of title existed in favour of appellant in the shape of registered deed of remained owner had no right to sell of land. [P. 157] D
Mr. Muzamil Akhtar Shabir, ASC for Appellant.
Ch. Muhammad Yaqoob Sabir, ASC for Respondents Nos. 1 to 9.
Ex-parte for Respondent No. 10.
Date of hearing: 21.5.2007.
Judgment
Sardar Muhammad Raza Khan, J.--One Ali Muhammad being an owner of 85 kanals in Mauza Bangla Kumbohan, Tehsil and District Kasur, vide registered sale-deed No. 673 dated 22.2.1978, sold 29 kanals of land comprising Khasras No. 161, 170 and 171 in favour of Muhammad Ishaq, the present petitioner. The vendor once had challenged this transaction by filing a declaratory suit but the matter ended-up when he withdrew the same on 12.9.1981.
On the basis of the above registered sale, a Mutation No. 925 was also attested in favour of Muhammad Ishaq on 12.12.1978. This mutation was reviewed and cancelled by the revenue department, considering it to be violative of Para-24 of Martial Law Regulation 115, for, it had the effect of bringing the vendor below the subsistence holding. Now, when the sale became non-existent, Ali Muhammad out of Khasra. No. 161 sold 5 kanals in favour of Muhammad Shafiq, the present respondent vide Mutation No. 2168 dated 26.9.1990. Muhammad Ishaq challenged this sale of 5 kanals through a civil suit which though dismissed by the trial Court on 20.9.1990, was decreed by the first appellate Court on 30.11.2000. Muhammad Shafiq succeeded before the High Court in his civil revision which was accepted vide judgment dated 28.6.2006 by learned Lahore High Court, restoring the judgment of the trial Court. Muhammad Ishaq has been granted leave to appeal from the judgment aforesaid.
From the arguments of the learned counsel on either side, we have observed that the present scenario has three facets. Firstly, whether the question of a transaction being violative of MRL 115 can be determined by revenue authorities. We believe, it cannot. Even if, some revenue officer detected any irregularity, it was incumbent upon him to have referred the matter to Land Commission or the Deputy Land Commissioner, being the Principal Officer of the District in the given hierarchy. In the instant case, the order of revenue officer declaring the transaction void, was itself void. This Court has already taken this view in Mst. Aisha Bibi's case (1994 SCMR 1935).
The second aspect is with regard to the repugnancy of Para-24 MLR 115 to the Injunctions of Islam. This matter was discussed by learned High Court but we believe that such repugnancy, being retrospective or prospective, is not very relevant in the present, case. Para-24 of MLR 115 was declared repugnant to the Injunctions of Islam by Federal Shariat Court in Sajwara's case (PLD 1989 FSC 80) but that repugnancy was declared to have effect from 1st January, 1990. It obviously cannot reopen the past and closed transactions and cannot have retrospective effect. At the time of present transaction dated 22.2.1978, the repugnancy did not exist. The only thing material was that no transaction could be declared void under Para-24 MLR 115 by the revenue authorities, the exclusive jurisdiction being vested in the Land Commission.
Lastly, one may say, at the cost of repetition in every third civil case, that mutation is not a deed of title. In the instant case, even if Mutation No. 925 stood cancelled, the real and genuine deed of title existed, in favour of Muhammad Ishaq in the shape of registered deed No. 673 of 22.2.1978. On the strength of such registered deed, Muhammad Ishaq remained owner of 29 kanals and Alt Muhammad had no right to sell 5 kanals therefrom in favour of Muhammad Shafiq.
Consequent upon what has been discussed above, the instant appeal is accepted, the impugned judgment dated 28.6.2006 of the learned High Court is set aside and that dated 30.11.2001 of the learned Additional District Judge is hereby restored with costs.
(R.A.) Appeal accepted.
PLJ 2008 SC 158
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ.
ABDUL HAMEED--Appellant
versus
Mst. AISHA BIBI and anothers--Respondents
Civil Appeal No. 523 of 2002, decided on 25.1.2007.
(On appeal from the judgment dated 14.1.2002 passed by Lahore High Court, Lahore in RFA No. 32 of 1991).
Constitution of Pakistan, 1973--
----Art. 185(3)--Suit for specific performance--Denied the execution of agreement to sell--Obtained thumb impression on blank paper--Suit was decreed--Assailed--Agreement and receipt of earnest money were not proved and reversed to trial Court--Question requiring determination--Whether admission of vendor of his thumb impression on the agreement to sell was sufficient to prove its execution--Document create a right in the property must be proved to have been executed by the person who allegedly executed such document--Vendor having no knowledge of the contents of document affixed his thumb impression that document pertained to settlement regarding encroachment of the house was natural and denial to have put thumb impression on blank paper, would seriously reflect upon the genuineness of agreement--Held: Equitable relief of specific performance could be granted to appellant or findings arrived at by High Court was suffering from any misreading or non reading of evidence or any legal defect in judgment calling for interference of Supreme Court--Appeal was dismissed. [Pp. 160 & 161] A, B & C
Mr. Ihsanul Haq Ch., ASC for Appellant.
Mr. Muhammad Sharif Chohan, ASC for Respondents 1-2(ii-vi).
Ex Parte for Respondents 2 (i).
Date of hearing: 25.1.2007.
Judgment
Muhammad Nawaz Abbasi, J.--This direct appeal has been preferred against the judgment dated 14.1.2002 passed by a learned Division Bench of Lahore High Court Lahore in a RFA arising out of a suit for specific performance of the contact.
Rs. 2,50,000/- was to be paid at the time of transfer of the property in his name through registered sale-deed by or before 15.4.1984 and vendor also executed a power of attorney in his favour but subsequently, it transpired that Din Muhammad gifted the suit property to his wife Mst. Aisha Bibi respondent herein vide registered gift-deed dated 10.4.1984. The appellant, with these averments in the plaint, sought a decree for specific performance of the agreement and cancellation of the gift-deed. Din Muhammad and Mst. Aisha Bibi filed a joint written statement wherein they having denied the execution of the agreement to sell, pleaded that the appellant obtained thumb impression of Din Muhammad on the blank paper on the pretext of compounding the encroachment on the property with the concerned authorities and that Mst. Aisha Bibi was in possessin of th esuit property unde rthe gift. The learned trial Judge in the light of pleading of the parties and the evidence brought by them on record, decreed the suit vide jdugment dated 16.2.1991. The respondents assailed the judgment and the decree passed by the trial Court before the Lahore High Court by way of filing Regular First Apeal and leanred Division Bench of the High Court after detail scrutiny of the evidence on record having formed the opinion that the agreement (Ex. P1) and receipt of earnest money (Ex. P2), were not proved to have been executed by Din Muhammad, reversed the judgment of the trial Court and allowed the appeal vide impugned judgment.
Learned counsel for the appellant has mainly contended that the vendor without denying the thumb impression on the agreement, denied its execution and that there was ample evidence on the record to prove the execution of the agreement but the High Court reversed the findings of the learned trial Judge on the pivotal issue the misreading the evidence. Leanred counsel added that the vendor in his statement in the cross-examination has admitted the filing of the suit for cancellation of the gift-deed in which he having acknowledged his thumb impression on the agreement to sell stated that appellant was in possession of the property since 1982-83 as owner and also admitted the execution of receipt for payment of earnest money. The learned counsel thus concluded that the bare denial of the contents of the documents would be of no significance as the execution of the agreement and the payment of earnest money stood established on record with the stipulation that remaining amount would be paid at the time of registration of sale-deed. In nutshell learned counsel argued that the findings of the trial Court regarding execution of the sale agreement by the vendor and receipt of Rs. 50000/- as earnest money with the delivery of possession of the property was based on the admission of the vendor therefore, the decree passed by the trial Court in the suit was not questionable.
The learned counsel for the respondents on the other hand, has submitted that mere admission of thumb impression on the document is not sufficient to prove its contents and in the present case, the vendor has categorically denied the execution of agreement of sale in the written statement as well as in his statement on oath before the Court and consequently, the plaintiff was under heavy burden to prove the execution of the agreement through cogent and convincing evidence failing which suit could not succeed. Learned counsel submitted that the appellant having taken advantage of his possession on a portion of the suit property as son of Din Muhammad (vendor), prepared s false document with ulterior motive to deprive other legal a heirs of the Din Muhammad from the legitimate right of inheritance in the property.
After hearing the learned counsel for the parties and perused the record with their assistance, we find that sole question requiring determination would be whether the admission of vendor of his thumb impression on the agreement to sell was sufficient to proved its execution and contents, the answer is in the negative as the document purporting to create a right in the property must be proved to have been actually executed by the person who allegedly executed such document. It appears from the record that Din Muhammad was an illiterate person and without being aware of the contents of the document put his thumb impression on it at the instance of his son in good faith with the understanding that it was compound deed. This is a matter of common sense that in the normal circumstances, father would certainly trust his son and may act on his advice and thus in these circumstances, the inference drawn by the High Court that the vendor having no knowledge of the contents of the document, affixed his thumb impression at the instance of his son with the impression that document pertained to the settlement regarding encroachment of the house was quite natural and denial of Din Muhammad to have put his thumb permission on blank paper, would seriously reflect upon the genuineness of the agreement in question. In view thereof, the admission of Din Muhammad of his thumb impression on the agreement in question, would not ipso facto prove its contents to raise the presumption of it being a genuine document to have the legal force. This may be seen that High Court having discussed the evidence in detail has held that the agreement to sell was not proved to have been executed by Din Muhammad and we in the given facts have no reason to differ with the conclusion drawn by the High Court. The learned counsel for the appellant has not been able to satisfy us that on the basis of evidence brought on record and in the facts and circumstances of the case, an equitable relief of specific performance could be granted to the appellant or the findings arrived at by the High Court was suffering from any misreading or non-reading of evidence or there was any other legal defect in the impugned judgment calling for interference of this Court.
In the light of forgoing reasons, we do not find any substance in this appeal, which is accordingly dismissed with no orders as to costs.
(R.A.) Appeal dismissed.
PLJ 2008 SC 161
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Ch. Ijaz Ahmed, JJ.
Sqn. Ldr. (R) UMEED ALI KHAN--Appellant
versus
Dr. (Mrs.) SULTANA IBRAHIM & others--Respondents
Civil Appeal No. 2060 of 2004, decided on 5.12.2006.
(On appeal from the judgment dated 23.9.2004 of the High Court of Sindh at Karachi passed in C.R.A. No. 97 of 2001).
Evidence--
----Principle--Expert's evidence--Direct or circumstantial evidence--Experts evidence is only confirmatory or explanatory of direct or circumstantial evidence and the confirmatory evidence cannot be given preference where confidence inspiring and worthy of credence evidence is available. [P. 164] B
PLD 1976 SC 53 ref.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 78--Documentary evidence--Proof of signature--Handwriting expert report--Suit for specific performance, declaration and possession--Agreement to sell could not be substantiated by any cogent, oral or documentary evidence--"Receipt" and "sale agreement" are two distinct documents having their own peculiar characteristics, significance, import and by no stretch of imagination that both are synonymous or interchangeable--Held: Receipt cannot be taken into consideration as its contents could not be proved and substantiated by leading any other cogent or concrete evidence--Appeal was dismissed. [Pp. 164, 165 & 166] A, C & D
Sahibzada Ahmad Raza Khan Qasuri, Sr. ASC for Appellant.
Mr. Shahenshah Hussain, ASC for Respondents.
Date of hearing: 5.12.2006.
Judgment
Javed Iqbal, J.--This appeal is directed against the judgment dated 23.9.2004 whereby the civil revision preferred on behalf of Dr. Sultana Ibrahim (respondent) has been accepted and judgment dated 19.5.2001 passed by the learned Additional District Judge Karachi (East) has been set aside.
Rs. 4,20,000/-. On the other hand Sqn. Ldr. (R) Umeed Ali Khan filed a suit for specific performance, declaration and possession with the averment that Dr. Sultana Ibrahim had sold half of the plot in question comprising of 788 Sq.Yds but subsequently refused to execute the sale-deed in his favour.
The learned trial Court after completion of necessary formalities, framing of issues and recording the evidence pro and contra dismissed the suit of appellant by means of judgments and decrees dated 12.1.1998 and 16.1.1998. Being aggrieved a civil revision was preferred by Dr. Sultana Ibrahim which has been accepted vide judgment impugned, hence this appeal.
We have heard at length Sahibzada Ahmad Raza Khan Qasuri, learned Sr. ASC on behalf of appellant who mainly argued that the oral evidence and receipt executed by Dr. Sultana Ibrahim duly substantiated by handwriting expert report which went unchallenged have not been appreciated in its true perspective by the learned single Judge of High Court of Sindh, Karachi in chambers. It is also pointed out that the handwriting expert report was never challenged and hence the receipt executed between the parties should have been relied upon as it could not have been discarded without any lawful justification which is badly lacking in this case. Sahibzada Ahmad Raza Khan Qasuri, learned Sr. ASC referred the cases of Mussarat Shaukat Ali v. Safia Khatoon (1994 SCMR 2189) and Khair-ul-Nisa v. Muhammad Ishaque (PLD 1972 SC 25) in support of his esteemed views as mentioned herein above.
Mr. Shahenshah Hussain, learned ASC entered appearance on behalf of respondents and vehemently controverted the view point as canvassed at bar by Sahibzada Ahmad Raza Khan Qasuri, learned Sr. ASC on behalf of appellant and supported the judgment impugned for the reasons as enumerated therein with further submission that the handwriting expert report has been considered and rightly disbelieved by the learned single Judge of the High Court in chambers for the simple reason that it could not be considered as a conclusive proof for the execution of receipt. Besides that the controversy was never referred to the handwriting expert with consent of both the parties. Learned ASC on behalf of respondents also invited our attention to the receipt (Ex.P-1) dated 24.10.1978 and contended that it was never proved in accordance with the relevant provisions of Qanun-e-Shahadat Order, 1984. It is also pointed out that handwriting expert report can at the best be considered as supporting evidence which cannot absolve the appellant to prove the contents of the receipt (Ex.P-1). The learned ASC referred cases titled Hari Singh v. Sardarni Lachhmi Devi (AIR 1921 Lahore 126), Saadat Sultan v. Muhammad Zahur Khan (2006 SCMR 193), Shabbir Hussain v. The State (1968 SCMR 1126) in support of his contentions as mentioned herein above.
We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case, scrutinized the same in depth with the eminent, assistance of learned counsel and perused the judgments of learned trial Court, appellate Court as well as the judgment impugned carefully. The case of appellant mainly hinges upon the consolidated receipt (Ex.P-1) dated 24.10.1978 whereby allegedly sale consideration was received. It is the case of appellant that respondent subsequently refused to execute the sale-deed whereas she had denied in a categoric manner that any agreement of sale whatsoever was made or any sale consideration was ever received and no receipt was executed which is a forged and fake document. It transpired from the judgment of learned appellate Court that much weight has been attached with the handwriting expert report and it prevailed upon the learned appellate Court that receipt (Ex.P-1) was signed by Dr. Sultana Ibrahim which culminated into the conclusion that receipt (Ex.P-1) was executed and besides that oral agreement of sale was also proved. Sahibzada Ahmad Raza Khan Qasuri, learned Sr. ASC on behalf of appellant has also referred the handwriting expert report time and again. It was, however, pointedly asked to Sahibzada Ahmad Raza Khan Qasuri, learned Sr. ASC that how a receipt can be equated to that of sale agreement but no satisfactory answer could be given except referring cases of Mussarat Shaukat Ali v. Safia Khatoon (1994 SCMR 2189) and Khair-ul-Nisa v. Muhammad Ishaque (PLD 1972 SC 25) (supra) which being distinguishable hardly render any assistance to the case of appellant. We have no hesitation in our mind while holding that "receipt" and "sale agreement" are two distinct documents having their own peculiar characteristics, significance, import and by no stretch of imagination it can be held that both are synonymous or interchangeable.
We have also dilated upon the import and significance of the handwriting expert report by whom it was opined that the "receipt" was signed by Dr. Sultana Ibrahim. It is well settled by Law that "expert's evidence is only confirmatory or explanatory of direct or circumstantial evidence and the confirmatory evidence cannot be given preference where confidence inspiring and worthy of credence evidence is available. In this regard we are fortified by the dictum as laid down in Yaqoob Shah v. The State PLD 1976 SC 53. There is no doubt that the opinion of Handwriting Expert is relevant but it does not amount to conclusive proof as pressed time and again by the learned Advocate Supreme Court on behalf of petitioner and can be rebutted by overwhelming independent evidence. In this regard reference can be made to Abdul Majeed v. State PLD 1976 Kar. 762. It is always risky to base the findings of genuineness of writing on Expert's opinion. In this behalf we are fortified by the dictum as laid down in case of Ali Nawaz Gardezi v. Muhammad Yousuf PLD 1963 SC 51. It hardly needs any elaboration that "Expert opinion must always be received with great caution, especially the opinion of Handwriting Experts. An expert witness, however, impartial he may wish to be, is likely to be unconsciously prejudice in favour of the side which calls him. The mere fact of opposition on the part of the other side is apt to create a spirit of partisanship and rivalry, so that an expert witness is unconsciously impelled to support the view taken by his own side. Besides it must be remembered that an expert is often called by one side simply and solely because it has been ascertained that he holds views favourable to its interest. Although such evidence has to be received with `great caution', yet such evidence, and reasons on which it is based, are entitled to careful examination before rejection and non-acceptance by Court of Expert's evidence does not mean that the expert has committed perjury. Of all kinds of evidence admitted in a Court, this is the most unsatisfactory. It is so weak and decrepit as scarcely to deserve a place in our system of jurisprudence". Kazim Hussain v. Shambhoo Nath 1931 O. 298; Deputy Commissioner, Lucknow v. Chandra Kishore Tewari 1947 O. 180; Mushtaq Ahmad Gurmani v. Z.A.Sulehri PLD 1958 Lah. 747; Sadiqa Begum v. Ata Ullah 1933 L.885; Lt.-Col. Muhammad Yousuf v. Ali Nawaz Gardezi PLD 1963 Lah. 141 and Indar Datt v.E. 1931 L. 408. There is nothing in the Evidence Act to require the evidence given by an expert in any particular case to be corroborated before it could be acted upon as sufficient proof of what the expert states. Of course the question as to how much reliance a Court would be entitled to place on the statement of any particular witness in any particular case must necessarily depend on the facts and circumstances of that particular case. Ladharam Narsinghdas v. E. 1945 S.4." (Saadat Sultan v. Muhammad Zahur Khan 2006 SCMR 193). The question regarding the evidentiary value of expert opinion was also examined in case Hari Singh v. Sardarni Lachhmi Devi (AIR 1921 Lahore 126) and it was held as follows:--
"The evidence of a medical man, or other skilled witness, however eminent, as to what he thinks may, or may not have taken place under a particular combination of circumstances, however confidently he may speak, is ordinarily a matter of mere opinion. Human judgment is fallible. Human knowledge is limited and imperfect. (11 W.R. Cr. 25, Foll.) It must be borne in mind that an expert witness, however impartial he may wish to be, is likely to be unconsciously prejudiced in favour of the side which calls him. The mere fact of opposition on the part of the other side is apt to create a spirit of partisanship and rivalry so that an expert witness is unconsciously impelled to support the view taken by his own side. Besides, it must be remembered that an expert is often called by one side simply and solely because it has been ascertained that he holds views favourable to its interests."
The said proposition was also examined in case Shabbir Hussain v. The State (1968 SCMR 1126) and it was observed that "the evidence of the hand-writing expert is neither the only nor the best method of proving the hand-writing or signature of a person. It is at best only opinion evidence. Where other direct evidence of the nature adduced in the case is available there can be no question of any illegality being committed by the acceptance of such direct evidence."
In the light of criterion as mentioned herein above and the judicial consensus on the point we are of the view that the receipt (Ex.P-1) cannot be taken into consideration as its contents could not be proved and substantiated by leading any other cogent and concrete evidence. For the sake of argument if it is admitted that the receipt (Ex.P-1) was signed by Dr. Sultana Ibrahim how it can be proved that the amount of Rs. 21,000/- was received in lieu of the portion of the plot in question, hence no reliance can be placed on the receipt (Ex.P-1). Besides that the agreement to sale could not be substantiated by any cogent, oral or documentary evidence. The upshot of the above discussion is that the appellant has miserably failed to substantiate his claim by leading any convincing or forthright evidence. The appeal being merit less is dismissed.
(A.S.) Appeal dismissed.
PLJ 2008 SC 166
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, Raja Fayyaz Ahmad and Ghulam Rabbani, JJ.
BASHIR AHMED KHAN--Appellant
versus
SHAMAS-UD-DIN and another--Respondents
Civil Appeal No. 575 of 2005, decided on 25.4.2007.
(On appeal against the Judgment dated 11.9.2000 passed by the Lahore High Court, Lahore in C.R. No. 1238/85).
Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 4--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Question of--Appellant as guardian ad-litem--Particulars as required--Matter of--Guardian ad-litem could not be appointed by Court unless a notice to father of minor appellant was issued--Not raised the factual ground in memo of appeal--Father of appellant never appeared himself before Court to corroborate the statement of respondent, no other solid evidence--No such particulars were stated in plaint to say that no notice was issued to father of appellant who was alive and violation of law respondent was appointed as his guardian ad-litem by under hand methods, and that interest of appellant in the suit land was as such impaired--Memo of such appeal that appointment of respondent, as his guardian ad-litem, was illegal--Appeallant cannot, at such stage, take a new plea totally alien to his case--Father of appellant never appeared himself before the Court to corroborate the statement of respondent, also no other solid evidence was produced to establish the point--Appeal dismissed.
[Pp. 169 & 170] A, B & C
Civil Procedure Code, 1908 (V of 1908)--
----O. XII, R. 6, O. XXXII, R. 7--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Compromise by guardian--Satisfactory reasons--Provisions of O.XXXII, R. 7, has no practicability (applicability)in such case inasmuch as the suit had not been decreed on the basis of any compromise but in view of conceding written statement filed by guardian-ad-litem under O.XII R, 6 of C.P.C.--Supreme Court also see no reason to disagree with such finding.
[P. 170] D
Civil procedure Code, 1908 (V of 1908)--
----O.XII, R. 6--Compromise--Discretionary--Provision of Order, XII, R. 6 CPC is discretionary with Court to grant decree on admissions--In such case since the interest of minor was involved, in that situation, it was necessary for the Court to have been cautious to grant decree on conceding written statement filed by his guardian ad litem, non else than his maternal uncle so admitted by appellant in his evidence--Appellate Court seems to have taken note of such situation very carefully and has given satisfactory reasons before setting aside the decree of trial Court--Appeal was dismissed. [P. 171] E
Mr. Tariq Javed, ASC for Appellant.
Malik Abdul Sattar Chughtai, ASC for Respondents.
Date of hearing: 25.4.2007.
Order
Ghulam Rabbani, J.--This Civil Appeal with leave of this Court is directed against the judgment dated 11.9.2000 passed by learned single Judge of Lahore High Court, Lahore, whereby Civil Revision application made by appellant was dismissed.
Relevant facts are that Shamas-ud-Din Respondent No. 1 instituted against appellant a Suit No. 770 of 1976 for declaration to the effect that he was owner in possession of the suit land admeasuring 196 kanals 14 marlas situated in Mauza Lakh Kalan, District Bhakkar. At that time, appellant was a minor and he was sued through his maternal uncle Ahmad Jan Respondent No. 2 herein, who, representing the appellant as his guardian ad-litem, filed on 12.7.1976 a conceding written statement. Accordingly, trial Court passed decree in favour of respondent on the same day. Subsequently appellant challenged the said decree by way of a Suit No. 1103 of 1976 on the ground of fraud and his suit was decreed vide judgment dated 10.11.1979 passed by Civil Judge, 2nd Class, Bhakkar. Respondent No. 1 preferred there against an appeal which was accepted and the suit of appellant was dismissed vide judgment/decree dated 10.2.1985 passed by District Judge, Bhakkar. Feeling aggrieved, appellant made a Revision Application; that, too, met the same fate vide judgment, impugned herein.
Leave was granted vide order dated 24.5.2005, in essence, to consider whether Respondent No. 2 was appointed as guardian ad-litem in suit filed by Respondent No. 1; if so, whether his appointment could be considered valid in absence, on record, of a notice to the father of appellant or to any other of his guardians. To sum up, (a) whether provision of Order XXXII, Rule 3 C.P.C. was adhered to in making the appointment to render a decree dated 12.7.1976 valid or otherwise on the conceding statement filed by Respondent No. 2, (b) whether the interest of minor was properly taken care of, in true spirit of provision of Order XII, Rule 6 or Order XV, Rule 1 of C.P.C. when the conceding statement filed by alleged guardian is not considered to fall within the provision of an agreement or compromise as envisaged by Section 147 or by Order XXXII Rule 7 C.P.C. Also, what would be the effect of testimony of Respondent No. 2 on the decree dated 12.7.1976 when he stated that he was never appointed as a guardian of appellant and that he had never filed any written statement in the suit instituted by respondent.
Mr. Tariq Javed, ASC, learned counsel for appellant contended that Respondent No. 2 was not appointed as guardian ad litem and in that referred to his testimony. Even otherwise, he added that appointment of Respondent No. 2 as a guardian ad-litem of appellant without notice to father of appellant, who was alive at material time, was violative of provision of Order XXXII Rule 3 C.P.C.; and that the Respondent No. 2 as a guardian ad-litem could not file conceding written statement on behalf of minor appellant, unless express leave was obtained within terms of Order XXXII Rule 7 C.P.C.; and that in absence of such permission the decree dated 12.7.1976 was in flagrant violation of relevant provision of law. He submitted that the trial Court had rightly set aside that decree in the suit of appellant while the District Judge, Bhakkar and learned Single Judge of Lahore High Court, under some misconception, could not take note of basic legal requirement and erred in setting aside the decree of trial Court, therefore, their decisions were liable to be undone.
On the other hand, Malik Abdul Sattar Chughtai, ASC, learned counsel for Respondent No. 1 disputed the above oral submissions and argued that Respondent No. 2 happened to be real maternal uncle of appellant; that previously, too, he had, as a next friend, represented the appellant in another suit for pre-emption regarding same land under dispute; and that the appellant, having become owner of the land in question on a decree passed in that suit, sold out the same to Respondent No. 1. Mr. Chughtai, next, argued that the decree dated 12.7.1976 passed in previous suit of Respondent No. 1 was in proper exercise of jurisdiction within terms of Order XII Rule 6 CPC., therefore, the question of obtaining permission under Order XXXII Rule 7 C.P.C. could not arise since it was not contemplated to enter into agreement or compromise on behalf of a minor. Learned counsel supported the judgments of learned single Judge of Lahore High Court and that of the Appellate Court.
We have given due attention to the oral submissions of both the learned counsel and with their assistance we have gone through the material available on record. In the first place, it may be noted that Respondent No. 2 admitted in his evidence that, as a next friend, he represented the appellant in suit for pre-emption which was decreed in his favour. Appellant's witness Juma Khan (PW-1) who was defendant/vendee in the above-referred suit for pre-emption also made identical statement. We have seen the order dated 12.7.1976 available at page 43 of the paper book which reflects that in presence of counsel for parties, Respondent No. 2 was appointed as guardian ad litem of appellant who was minor at that time; therefore, such appointment in ordinary circumstances would not appear illogical to raise eye-brows. The contention of learned counsel for appellant that in previous suit Respondent No. 2 was not appointed as guardian ad litem of appellant, therefore, falls flat.
Coming to the question that guardian ad-litem could not be appointed by the Court unless a notice to the father of minor appellant was issued; it may be stated that we have gone through the plaint in the suit of appellant/plaintiff and find that he had filed a suit simply stating in general terms that Respondent No. 2 was not empowered in fact or legally and the decree was collusively obtained by Respondent No. 2 in favour of other respondent without information or advice, by playing fraud. No particulars were stated as to how the fraud was played upon. In this behalf, it will be useful to mention that Order VI Rule 4 C.P.C. envisages that in all cases in which the party pleading relies on mis-representation, fraud, breach of trust, and in all other cases in which particulars may be necessary beyond such as are exemplified in the relevant forms aforesaid particulars (with date and items if necessary), shall be stated in the pleading. No such particulars were stated in the plaint to say that no notice was issued to the father of the plaintiff who was alive and in violation of law Respondent No. 2 was appointed as his guardian ad-litem by under-hand methods, and that interest of appellant in the suit land was, as such, impaired. Interestingly, in the memo of instant appeal, appellant has, too, not taken the ground that the appointment of Respondent No. 2, as his guardian ad-litem, was illegal. In paragraph (i) of grounds, appellant has simply taken a plea that, "the guardian of minor was not appointed by the Court". As such the impugned judgment and decree are violative of law", which we have already considered in the foregoing para. Thus having not stated his case in his pleading, as required, and having not raised the factual ground in the memo of appeal that his farther was alive calling for a notice to be given to him, in our view, the appellant cannot, at this stage, take a new plea totally alien to his case.
Besides above, it may be stated that as a defendant Respondent No. 2 filed his written statement in the suit of appellant, in which, supporting his case he did not say a single word that the father and uncle of appellant were alive. However, for the first time, in his deposition he stated so. His oral evidence is, thus, beyond his pleading on one hand and on the other it gives an impression that, as an after-thought, he made such disclosure only as a tool to enable the appellant to concoct a false plea that the appointment of guardian ad litem was in disregard of the relevant rules. Be that as it may, this respondent does not appear to be a truthful witness, amongst others, on the ground that he denied in his deposition his actual relationship with appellant. He stated that appellant was not his real nephew but a son of his maternal cousin. This statement of his was denied by appellant himself in his deposition wherein he stated in clear terms that Respondent No. 2 happened to be his real maternal uncle. It also looks strange that the father of appellant never appeared himself before the Court to corroborate the statement of Respondent No. 2, Also; no other solid evidence was produced to establish the point. We are clearly of the view that the arguments of learned counsel for appellant on this point are devoid of any force.
After his appointment as guardian ad litem, Respondent No. 2 filed written statement conceding the averments of Respondent No. 1 leading to the declaratory decree dated 12.7.1976 passed by learned trial Court in his favour. Admittedly, the suit was decreed by trial Court in favour of Respondent No. 1, on the basis of the conceding written statement filed by Respondent No. 2 by invocation of Order XII Rule 6 of C.P.C. a provision distinct to one provided under Order XXXII Rule 7 C.P.C. Learned single Judge of Lahore High Court has made this point clear by observing, rightly so, that "It is true that Order XXXII Rule 7 requires that no compromise on behalf of a minor can be effected by his guardian except with the express permission of the Court. However, this provision has no practicability (applicability) in the present case inasmuch as the suit had not been decreed on the basis of any compromise but in view of the conceding written statement filed by the guardian ad litem under Order XII Rule 6 of the Code of Civil Procedure". We also see no reason to disagree with this finding.
Provision of Order XII Rule 6 C.P.C. is discretionary with the Court to grant decree on admissions. In the instant case since the interest of minor was involved, in that situation, it was all the more necessary for the Court to have been cautious to grant decree on conceding written statement filed by his guardian ad litem, none else than his real maternal uncle so admitted by appellant in his evidence. Appellate Court seems to have taken note of this situation very carefully and has given satisfactory reasons before setting aside the decree of trial Court. It is observed that:
"in the plaint the respondent had alleged that the impugned decree in favour of Shamas Din was the result of fraud and collusion between Shamas Din and his maternal uncle who was arrayed as Defendant No. 2. However, no particulars of the fraud were given. It is true that fraud is not capable of being proved by a direct evidence but circumstances must be brought in to prove the fraud. However, the trial Court without looking into such circumstances, had out-rightly declared the impugned judgment against Bashir Ahmad as void. Defendant No. 2 was non-else than the real maternal uncle of Bashir Ahmad. He did not bear any friend-ship or relationship with Shamas Din. No evidence was brought on the record to show that with the passage of time he had become inimical towards Bashir Ahmad his nephew. When he instituted a suit for pre-emption in favour of Bashir Ahmad as his next friend, he was stated to be acting legally and in the interest of Bashir Ahmad yet when he filed a written statement admitting the claim of Shams Din, he was acting in collusion. It was impossible to hold that he was acting in collusion with Shamas Din or was playing fraud on Bashir Ahmad when he bore no relationship with Shamas Din. The trial Court had altogether lost sight of this aspect of the case".
Also, observed that
"no evidence on the record was brought showing animosity of the Ahmad Jan (Respondent No. 2) with Bashir Ahmad".
There are two concurrent findings of learned single Judge of Lahore High Court and that of the Appellate Court, which, seen in the light of above discussion, suffer from no legal defect or infirmity and warrant no interference.
In the circumstances, we do not find any merit in this appeal, which is dismissed with no order as to costs.
(N.F.) Appeal dismissed.
PLJ 2008 SC 172
[Appellate Jurisdiction]
Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk and Syed Jamshed Ali, JJ.
ZULFIQAR and others--Appellants
versus
SHAHDAT KHAN & others--Respondents
C.A. Nos. 848 & 849 of 2005, decided on 10.4.2007.
(Against the judgments dated 27.4.2004 passed by the Lahore High Court, Lahore in C.Rs. No. 1827 and 1828/2002).
Act of Court--
----Principle--Act of the Court or act of a public functionary on the actions of whom a citizen has no control should not be allowed to prejudice any one. [P. 176] A
Punjab Pre-emption Act, 1991--
----Ss. 3 & 4--West Pakistan Land Revenue Act, 1967, S. 42--Suit for pre-emption--Superior right of pre-emption--Question of law and fact--Attestation of mutation--Completion of sale is to be seen in the light of principles of Islamic law--Evidence of payment of sale consideration to the vendor that the oral sale would be deemed to have been completed on attestation of mutation and not before any prior date--Sales had been completed before attestation of the mutations nor was there any proof on the record of completion of the sale before attestation of the mutation--Copy of Roznamcha Waqiati was neither produced nor the vendor or the Patwari was examined--Although, Roznamcha Waqiati is required to be maintained under West Pakistan Land Revenue Rules, 1968 and entry made during the Course of performance of official duty is admissible yet if the report contains the statement of a private individual, it is required to be proved to establish its correctness--Under Section 42 of West Pakistan Land Revenue Act, 1967, it is the person acquiring a right in the land who has to make such a report to the patwari halqa--Held: Neither the vendor had appeared nor the Patwari who had recorded entry in Roznamcha Waqiati had appeared to prove the sale and, therefore, it was not proved--Appeals were allowed.
[Pp. 179, 180, & 181] B, C, D, E & F
Mr. Gul Zarin Kiyani, ASC Mr. M.S. Khattak, AOR for Appellants (in both cases).
Raja M. Ibrahim Satti, ASC with Mr. Ejaz Muhammad Khan, AOR for Respondents (in both cases).
Date of hearing: 14.12.2006.
Judgment
Syed Jamshed Ali, J.--This judgment shall dispose of Civil Appeals No. 848 and 849 of 2005 as the questions of law and fact arising therein are common. Vide Mutation No. 194 (in C.A. 848/2005) entered on 9.8.1995 and attested on 24.8.1995, the petitioners purchased land measuring 46 kanals 18 marlas for a consideration of Rs. 200,000/- and vide Mutation No. 193 (in C.A. No. 849/2006) entered on 9.8.1995 and attested on 24.8.1995, the petitioners got in exchange land measuring 44 kanals 15 marlas.
Against the aforesaid transactions, separate pre-emption suits were filed by Shahdat Khan, respondent on the ground that he was Shafi Sharik, Shafi Khalit and Shafi Jar. The exchange vide Mutation No. 193 was claimed to be a sale for a consideration of Rs. 90.000/-. The two suits were contested. The learned trial Court found that the respondent-pre-emptor had superior right. However, the suits were dismissed on the ground that "Talb-e-Mawathibat" was not made after attestation of the mutations. This was vide separate judgments and decrees dated 25.9.2001. The two appeals of the pre-emptor were also dismissed. Civil Revisions Nos. 1827 and 1828/2002 of the pre-emptor-respondent were allowed vide the impugned judgments dated 27.4.2004. The learned High Court was of the view that the oral sale was complete when the matter was reported to Patwari Halqa on 9.8.1995, therefore, Talb-e-Mawathibat made thereafter on 18.8.1995 was in order.
The, appellants, in the first instance, filed CPLAs No. 1655 of 2004 and 1656-L of 2004. Since the impugned judgments of the learned High Court were of reversal, and the value of the subject-matter was more than Rs. 50,000/-, appeals under Article 185 (2) were competent, the learned counsel for the appellants with a view to filing appeals withdrew both the petitions which were dismissed vide order dated 15.7.2005. They then filed the present appeals which are barred by time by 425 days and applications for condonation of delay have been moved in both the cases.
The learned counsel for the appellants submits that in C.A. No. 848/2005, the value of the suit for the purpose of jurisdiction as indicated in the plaint was Rs. 24,000/- while in the other case it was Rs. 23,000/- which mislead the appellants to file petitions in the first instance. He strenuously urged that the confusion continued to prevail till this Court in Taza Gul and others Vs. Haji Fazal Subhan (2006 SCMR 504) clarified that the value of the subject-matter in a pre-emption case for the purpose of appeal before this Court shall be the market value of the land. He also relied upon the said judgment to contend that in the said case, the petition which was erroneously filed was converted into appeal and the delay was condoned. In these cases, he contends, the petitions were filed within thirty days and the mistake of mere quoting Article 185 (3) did not take away the jurisdiction of this Court to hear the aforesaid petitions as appeals. Therefore, according to him, even the withdrawal of the petitions by the counsel was a mistake which could not, in the circumstances, be said to be tainted with negligence or bad faith. Another limb of his submission was that Section 3 of the Limitation Act did not apply, by its own force, to the appeals and petitions before this Court and, therefore, in the matter of condonation of delay, the approach has to be liberal to ensure that technicalities are not allowed to operate as tyrant master and the cases are heard on merits. Reliance was placed on Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others (AIR 1987 SC 1353). Yet another contention was that in accordance with a three members bench judgment in Investment Corporation of Pakistan Vs. Syed Jamaat Ali Shah and another (1992 SCMR 1195), the petition initially filed could be heard as such even though an appeal lay and its conversion into appeal was not required. He also relied upon the following judgments i.e. Haji Muhammad Nawaz Vs. Hussain Shah (1990 SCMR 1621), Sardar Abdur Rauf Khan and others Vs. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others (1991 SCMR 2164) Chairman, N.W.F.P. Forest Development Corporation and others Vs. Khurshid Anwar Khan and others (1992 SCMR 1202) to contend that conversion of petitions into appeals has liberally been allowed by this Court and delay condoned. He lastly submits that in fact the office of this Court also contributed in the delay because at the time of presentation of the petitions it was not pointed out that appeals being competent the petitions would not be entertainable. Had the office so pointed out the delay in filing the appeals could be avoided. He next submits that even on merits the concurrent judgments of the two Courts were reversed by the learned High Court and the question of law being raised herein is of utmost importance in as-much-as that it is a question of first impression and in case these appeals are not heard on merits, the judgment of the learned High Court, which in his view, lays down wrong law, will continue to occupy the filed.
On merits, his contention is that right of pre-emption under the Punjab Pre-emption Act, 1991 arises out of a perfected sale and, therefore, the "Talb-e-Mawathibat" could only be made after completion of the sale. He maintains that the question as to completion of the sale will have to be examined in the light of the principles of Islamic Law and the report in Roznamcha Waqiati entered on behalf of the vendor on 8.8.1995 (which was not otherwise proved) could not be said to have brought about a perfected sale.
It is vehemently contended that in fact it has never been the case of the pre-emptor that the sale was complete any time before attestation of the mutation. The pre-emptor made "Talb-e-Mawathibat" on 18.8.1995 and the plea taken in the plaint was that copies of Part Patwar supplied to him by the Patwari indicated that the mutations were attested on 17.8.1995. He further submits that an appeal has the effect of re-opening of the entire case. On this premises he sought to argue that the pre-emptor had no right to claim pre-emption of a large parcel of land because under the Muslim Law, pre-emption on the basis of contiguity extends only to small pieces of land. Reliance was placed on Haji Muhammad Abbas and another Vs. Shaheen and another (1982 CLC 232), Syed Haji Imambakhsh Shah and others Vs. Mir Muhammadali Khan Haji Ali Murad Khan (AIR (33) 1946 Sind 55). He further urged that common source of irrigation from Government owned canal does not confer right of pre-emption. In raising this contention, he submits that a question of law could be raised at any stage of the proceedings. He next contends that Issue No. 6-A, regarding Talbs, was settled on 22.9.2001 at the arguments stage and without taking any evidence and allowing opportunity to either side to produce evidence the cases were decided on 25.9.2001. This caused serious prejudice to the appellants. It was also urged specifically in the revision before the learned High Court but was not attended to.
On the other hand, the learned counsel for pre-emptor has vehemently opposed this appeal. He submits that the pre-emptor was informed by the vendee on the spot on 18.8.1995 that he had purchased the land in dispute on which Talb-e-Mawathibat was made, meanwhile on 9.8.1995, report had already been lodged in Roznamcha Waqiati by the vendor which amounted to sale and, therefore, the pre-emptor was not bound to wait for making Talb-e-Mawathibat till attestation of the mutation. He contends that, presumption of truth was attached to Roznamcha Waqiati which clearly established that sale had taken place on 9.8.1995. Reliance was placed on Muhammad Subhan and others Vs. Mir Qadam Khan and others (2001 MLD 1716), Fazal Rehman Vs. Abdul Qayyum (NLR 1996 Civil 545) and Zafar Ali Vs. Zainul Abidin and another (1992 SCMR 1886). On the question of limitation, his contention is that there was no justification to be guided by the valuation of the suit for the purpose of jurisdiction as given in the plaint. Therefore, the filing of petitions, in the first instance, was a grossly negligent act which could not be condoned particularly the record does not show that any application was moved either for conversion of petitions into appeals or hearing the aforesaid petitions as such. Instead, these were withdrawn. According to him, the defence of limitation is a valuable right which has accrued to the pre-emptor.
We have considered the submissions of the learned counsel for the parties and have gone through the record. We will first like to attend to the question of limitation. As noted by this Court in the case of Taza Gul supra, petitions and appeals in pre-emption matters used to be filed on the basis of jurisdictional value as given in the plaint or as altered by the Court. However, in the said case, it was clarified that the actual value of the subject-matter shall be the determinative factor. The mistake in the said case to file a petition instead of an appeal was considered to be bona fide and since as appeal it was beyond the prescribed period of limitation, when filed, the delay was condoned. In the cases in hand the petitions were filed well within thirty days and no condonation was involved if the office had pointed out on presentation thereof that appeals, and not petitions, were competent, the defect could be rectified. Thus, in fact, although a mistake was committed by the learned counsel in filing the petitions yet its effect was aggravated by silence of the office. It is well settled principle of law that act of the Court or act of a public functionary on the actions of whom a citizen has no control should not be allowed to prejudice any one. Although contributory negligence by the office could not be pressed as a sole ground to seek condonation of delay yet viewed in the over all peculiar facts and circumstances of the case and the reasons to follow we are of the view that in this case it was an important circumstance, bearing on the question of exercise of discretion. We will also like to observe that mere quoting a wrong provision of law i.e. 185 (3) instead of 185 (2) of the Constitution on the memo of petitions originally filed did not stand in the way of this Court to hear the said cases as appeals because even as appeals these were within time. We may also like to refer to the case of Investment Corporation of Pakistan supra in which instead of an appeal a petition was filed. It was heard as such, leave was granted and it was ultimately allowed. We will like to reiterate here that a provision made in a statute for the benefit of an individual could not only be waived but also that such a provision cannot be pressed to his disadvantage. This is being said in the context that right of appeal is much stronger right than the right of filing a petition and if a litigant gives up his right of appeal, he does not necessarily mean that he has given up his right to file a petition. To non suit a litigant for not filing an appeal would in fact amount to punishing him for not availing a right which enured to his benefit. We accordingly, condone the delay in filing these appeals.
The contention of learned counsel for the appellants that Section 3 of the Limitation Act does not apply has not impressed us because even if it does not apply, condonation of delay is in the discretion of this Court and in case it is declined the result would be the same i.e. dismissal of a petition or appeal as barred by time. We are, therefore, not inclined to examine this contention of the learned counsel in further details.
As far as the contention of the learned counsel for the respondent, that limitation has the effect of creating a valuable right in favour of the pre-emptor is concerned, suffice is to say that it is always subject to the discretion of the Court. In these cases, we do not find that the appellants have been negligent or mistake to file the petitions instead of appeals was so reckless that discretion ought not to be exercised in their favour.
As far as the controversy on the merits of the case is concerned, we will like to observe at the outset that it has never been the case of the pre-emptor that the sale was complete any time before attestation of the mutations. In fact, his case in the plaint was that he came to know of the sales on 18.8.1995 on which date, Zulfiqar one of the vendees was found ploughing the disputed land, who informed the respondent of the sales on which Talb-e-Mawathibat was made. However, in para 5 of the plaint it was averred that copy of Part Patwar supplied to the respondent showed 17th August, 1995 as the date on which the mutations were attested. In this paragraph, it was also stated that after obtaining Part Sarkar the date of attestation of mutation was found to be 24.8.1995. The first question, therefore, which was required to be considered is the effect of absence of a specific plea that the sale had been completed before attestation of the mutations and the second is as to whether a mere report in Roznamcha Waqiati amounted to a sale and whether a transaction amounted to sale is to be examined with reference to Islamic Law or the General Law contained in the Transfer of Property Act or any other statute.
As far as the first question is concerned there is ample authority that unless a case is set up in pleadings, decision of the case cannot possibly rest on such a plea. This has been the consistent law with the rationale that the other party is not to be taken by surprise. The contents of the plaint show that the pre-emptor claimed to have been mislead by copy of Part Patwar of the mutations which showed 17.8.1995 as the date of attestation of the two mutations. In fact going through the plaint carefully, plaintiffs own case was that Talb-e-Mawathibat was made on the basis of the copies of the mutation supplied by Patwari showing 17th September, 1995 as the date of attestation of the mutations. It has never been his case that the sale had been completed before attestation of the mutation on a particular date necessitating Talb-e-Mawathibat. We say it with respect to the learned Single Judge, that concurrent findings of the two Courts could not have been upset on the ground that when Talb-e-Mawathibat was made sale had already taken place. As far as the second question is concerned, we will like to observe that Sections 3 and 4 of the Punjab Pre-emption Act, 1991, are a complete answer. According to former section, "in the interpretation and the application of the provisions of this Act, the Court shall seek guidance from the Holy Quran and Sunnah" and according to the latter section, "The provisions of this Act shall have effect notwithstanding anything in any other law for the time being in force". Sale has been defined in Section 2 (d) which is as follows:--
"2. (a) to (c) xxxxxxxxxxxxxx
(d) "sale " means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of hiba-bil-iwaz or hiba-ba-shart al-iwaz but does not include.
(i) to (v) x x x x x x x x x x x x x x x"
"The time for the enforcement of the right to pre-empt and the formalities which establish this right are distinct questions in the Muslim system. The question, as regards the time of enforcement of the right of pre-emption, has assumed importance, as a Muslim cannot have his right established without making the `demands' which must be made after the sale is complete. The sale, according to the Muslim Law, is complete by payment of the price and the delivery of the possession by the vendor to the vendee, but in some cases, under the Transfer of Properly Act, it is not complete unless made by a registered instrument."
In Begum Vs. Muhammad Yaqoob (16 Allahbad 444) a full bench of the Allahbad High Court held that sale must be completed according to Muslim Law and not in accordance with General law. Further, in view of express provisions of Sections 3 and 4 noted above, completion of sale is to be seen in the light of principles of Islamic Law and in the absence of specific plea and the evidence of payment of sale consideration to the vendor we are constrained to hold that the oral sale in this case shall be deemed to have been completed on attestation of the mutation and not before any date prior thereto. We may also like to refer here to Parumal and others Vs. Wadero Mahomedali and others (17 1C 39) according to which assertion of right of pre-emption before completion of the sale is in-effectual.
As far as contention of the learned counsel for the appellants that the entire case is open on an appeal and, therefore, he is within his right to question even the superior right of the pre-emptor respondent is not tenable. Although the judgments of the two Courts were in favour of the appellants yet while defending these judgments they could question findings on issues against them by virtue of enabling provisions of Order XLI Rule 22 of the Code of Civil Procedure. The impugned judgment of the learned High Court shows that no such plea was raised before it that the pre-emptor did not have the superior right. Even, otherwise, the superior pre-emptive right of the respondent has concurrently been found by the three Courts in his favour which could not be reopened before this Court.
The judgments cited by the learned counsel for pre-emptor may now be examined. In the case of Muhammad Subhan supra, a learned Single Judge of the Peshawar High Court took the view that "Talb-e-Muwathibat" was required to be made immediately on completion of the sale and the pre-emptor should not have waited for attestation of the mutation. In the case in hand there was no averment that the sales had been completed before attestation of the mutations nor was there any proof on the record of completion of the sale before attestation of the mutation. In the case of Maroof Khan and another supra, an oral sale, was held to be complete after delivery of possession and recording the statement of the vendor by the Revenue Officer. In the case of Zafar Ali supra, the mutation was entered on 28.8.1987 and was attested on 15.9.1987. As per plaintiff's own showing he came to know of the sale mutation on 12/13th August, 1988 but the "Talb-e-Muwathibat" was made on 16th August, 1988. In this case the Talb-e-Muwathibat was belatedly made and that too after attestation of the sale mutation.
As noted above, copy of the Roznamcha Waqiati was neither produced nor the vendor or the Patwari was examined. Therefore, the entry in the mutations referring to the report recorded in Roznamcha Waqiati was not the primary evidence. Although, Roznamcha Waqiati is required to be maintained under the West Pakistan Land Revenue Rules, 1968 and entry made during the course of performance of official duty is admissible yet if the report contains the statement of a private individual, it is required to be proved to establish its correctness. It may also be noted here that under Section 42 of West Pakistan Land Revenue Act, 1967 it is the person acquiring a right in the land who has to make such a report to the Patwari Halqa. However, in the case in hand the report was made by the vendor and, therefore, within the scope of Section 42, it is even doubtful whether such a report, at the instance of vendor (a person alienating his right) could be said to have been recorded by the Patwari in the discharge of his official duty.
The question was examined in a number of cases. In Noor Muhammad Vs. Abdul Ghani (NLR 2002 AC 42) validity of a mutation of sale was in question. The beneficiary of the mutation was, inter alia, relying upon the entry in Roznamcha Waqiati. While repelling the contention the learned High Court made the following observation:--
"The mutation itself is not an instrument of title. Such a mutation in the light of a specific denial by the owner and an attesting witness of the deed would not have any probative value as the presumption stands rebutted. Similarly, an entry recorded in the Roznamcha Waqiati if not proved to have been made at the instance of the plaintiff and also not proved to have been signed by him would also have no evidentiary value."
"It is difficult to agree with this proposition. An attested mutation may carry a rebuttable presumption of truth but an unattested mutation entered simply by a Patwari has no significance, importance or value in the eyes of law. Supposing if the mutation was not put up for attestation or if the mutation was rejected; the position would have been that no mutation carrying a rebuttable presumption of truth would have been in the filed. In that case only a note by the Patwari would have remained on the record and would have no value. It may be added that an attested mutation in itself is not a document of title, it is an evidence of a fact that a sale recorded therein has been made. Therefore, a note recorded by the Patwari in which statement of the parties to a sale or of a vendor is recorded has to be proved through cogent evidence. "
"It is undisputable that no presumption of correctness attaches to the entry made in Roznamcha Waqiati, as the same does not form part of the record of rights. Such an entry is, therefore, to be proved, especially when the same is to be used against the subsequent purchaser, in the same manner as any other fact is proved."
In the said case it was also observed that neither the vendor had appeared nor the Patwari who had recorded entry in Roznamcha Waqiati had appeared to prove the sale and, therefore, it was not proved.
In Haq Nawaz Vs. Malik Gul Hussain through Legal Heirs and another (1994 MLD 585) a learned Single Judge of the Lahore High Court took the view that Roznamcha Waqiati being a public document maintained by the Patwari in the discharge of his official duties was admissible per se. Even if it was so, no presumption of truth was attached to it unless the maker was examined. We will like to observe here that to hold that an entry in Roznamcha Waqiati amounts to a sale will be laying down a hazardous proposition of law in as much as that fate of land holdings will be at the mercy of a Patwari.
For what has been stated above, these appeals are allowed and the impugned judgments of the learned High Court are set aside with the result that the suits filed by the respondent stand dismissed. No order as to costs.
(A.S.) Appeals allowed.
PLJ 2008 SC 182
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ.
FAZAL DAD--Appellant
versus
COL. (RTD.) GHULAM MUHAMMAD MALIK and others--Respondents
C. A. No. 276 of 2001, decided on 23.4.2007.
(On appeal from the judgment/order dated 21.2.2000 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in W.P. No. 296 of 2000).
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----Ss. 6, 7A, 7B & Preamble--"Terrorist Act"--Scope of--Principle--Preamble is always Key to interpret the statute--Provisions of act be read as a whole with the offence which create a sense of fear or insecurity, causes of death or in dangers a person's life commits an act of vehicle snatching or lifting, damage to or disturbance of, state or private property failing to create panic charging Khatta or criminal tresspasser (Illegal Qabza)--Nothing was on record to show that occurrence created terror, panic, or sense of insecurity among people by securing possession of the land in-question by the respondent.
[P. 188] C
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 6 & Preamble--Terrorist Act--Scope--Object to promulgate the Anti-Terrorism Act, 1997 was to control the acts of terrorism, sectarian violence and heinous offences and speedy trial to bring the offence within ambit of the act. [P. 188] A
Interpretation of Law--
----Scope of--Provisions of law must be read as a whole in order to determine its true nature, impart and scope as law. [P. 188] B
PLD 1993 SC 473 ref.
Interpretation of Statute--
----Word illegal qabza must be read with the previous words used by the legislature in clause D of Section 6 of the Anti-Terrorism Act, 1997 on well known principle that statutory provision ought not to be construed in isolation and Courts always to lean towards reasonable interpretation of statute. [P. 188] D
Interpretation of Special Law--
----Promulgation of special law by itself is not sufficient to supersede provisions of law contained in Cr.P.C.--Offence has no nexus with the parameters of special law, then general law will apply.
[Pp. 188 & 189] E
Mr. Muhammad Munir Peracha, ASC for Appellant.
Mr. M. Ilyas Siddiqui, ASC for Respondents.
Date of hearing: 23.4.2007.
Judgment
Ch. Ijaz Ahmed, J.--The necessary facts out of which the present appeal arises are that petitioner/appellant got registered a case against Respondent No. 1 under Sections 435/447/427 PPC at Police Station Basal, District Attock on 14-2-1995. Formal FIR was recorded under aforesaid sections vide FIR No. 12 dated 14-2-1995 at the said police station. Respondent was sent to face trial under Sections 435/447/427 PPC in the Court of Magistrate with powers of Section 30 Cr.P.C. Jand District Attock. During the pendency of the case, the Magistrate after entertaining challan, returned the same to the SHO for submission before the Special Court established under Anti-Terrorism Act, 1997 with the observation that in the light of Sections 7-A and 7-B of the Act, the offence allegedly committed by the accused could be defined as civil commotion and therefore was triable by Special Court vide order dated 30-10-1999. Investigating Officer thereafter submitted challan before Special Tribunal/Judge Special Court, Islamabad Capital Territory. Respondent being aggrieved filed an application before the Special Court for transfer of the case to the ordinary Court which was dismissed vide order dated 7-2-2000. Thereafter respondent filed Constitutional Petition No. 296/2000 in the Lahore High Court Rawalpindi Bench which was accepted by the learned High Court vide impugned judgment dated 21-2-2000. Petitioner/appellant being aggrieved filed C.P. No. 865/2000 before this Court which was fixed on 14.2.2001 and leave was granted vide order dated 14-2-2001 out of which the present appeal arises.
Learned counsel for the appellant submits that respondent secured impugned judgment from the learned High Court without impleading him as respondent in the Constitutional Petition as is evident from the contents of the memo of parties name in the constitutional petition. He further maintains that the impugned judgment was passed by the learned High Court in violation of principle of natural justice. He further urges that in view of Section 38 of the Anti-Terrorism Act, 1997, the case was triable by the Special Court under the said Act and if the respondent was found guilty he was liable to be punished under the provision of law which was prevailing at the time when the offence was committed. He has also submitted legislative history of provisions of Anti-Terrorism Act, 1997. He sums up his argument that offence is fully covered under Section 6 of the said Act therefore learned High Court erred to transfer the case to the ordinary Court for trial of the respondent.
Learned council for respondents has supported the impugned judgment. In support of his contention he relied upon Jamat-e-Islami Pakistan's case (PLD 2000 SC 111).
We have considered the submissions made by learned counsel for the parties and perused the record. It is better and appropriate to reproduce basic facts, relevant provisions of Anti-Terrorism Act, amended and un-amended provisions of said Act, contents of FIR, to resolve the controversy between the parties:
FIR was lodged under Sections 435, 447, 427 PPC at P.S.Basal, Attock on 14-2-1995. After investigation challan was. submitted before Civil Judge/Magistrate concerned who directed the IO/SHO to submit challan before the Special Court constituted under Anti-Terrorism Act as offence committed by respondent fully covered under the provisions of said Act vide order dated 30.10.1999. Respondent filed application before the Special Court for transfer of the case to ordinary Court which was dismissed vide order dated 7.2.2000. Thereafter constitution petition filed by Respondent No. 1 in the High Court which was accepted vide judgment dated 21-2-2000. Hence present appeal.
Anti-Terrorism Act, 1997 came into force on 20th August, 1997. Relevant provisions are as follows:--
"2(h) "terrorist act" has the meaning assigned to it in Section 6.
Terrorism act.--Whoever, to strike terror in the people, or any section of the people, or to alienate any section of the people or to adversely affect harmony among different sections of the people, does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or fire-arms, or other lethal weapons or poisons or noxious gases or chemicals or other substances of a hazardous nature in such a manner as to cause, or to be likely to cause the death of, or injury to, any person or persons, or damage to, or destruction of, property or disruption of any supplies of services essential to the life of the community or display fire-arms, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties commits a terrorist act.
Punishment for terrorist act committed before this Act.--Where a person has committed an offence before the commencement of this Act which if committed after the date on which this Act comes into force would constitute a terrorist act hereunder he shall be tried under this Act but shall be liable to punishment as authorised by law at the time the offence was committed. "
Anti-Terrorism Amendment Ordinance, 1999 (Ord. IV of 1999) came into force on 27th April, 1999 wherein Section 6 was amended and Section 7-A and 7-B were added which are to the following effect:
"5. Amendment of Section 6, Act XXVII of 1997.--In the said Act, for Section 6, the following shall be substituted, namely:--
"6. Terrorist act.--A person is said to commit a terrorist act if he, (a) in order to, or if the effect of his actions will be to, strike terror or create a sense of fear and insecurity in the people, or any section of the people does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or such fire-arms or other lethal weapons as may be notified, or poison or noxious gases or chemicals, in such a manner as to cause, or be likely to cause, the death of or injury to any person or persons, or damage to, or destruction of, property on a large scale, or a widespread disruption of supplies of services essential to the life of the community, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties; or
(b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity in the people, or any section of the people, or to adversely affect harmony among different sections of the people; or
(c) commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act; or
(d) commits an act of civil commotion as specified in Section 7-A."
"7-A. Creation of civil commotion.--"Civil commotion" means creation of internal disturbance in violation of law or intended to violate law, commencement or continuation of illegal strikes, go-slows, lock-outs, vehicles snatching or lifting, damage to or destruction of state or private property, random firing to create panic, charging bhatha, acts of criminal trespass (illegal qabza), distributing, publishing or pasting of a handbill or making graffiti or wall-chalking intended to create unrest or fear or create a threat to the security of law and order or to incite the commission of an offence punishable under Chapter VI of the Pakistan Penal Code (Act XLV of 1860).
7B. Punishment for creating civil commotion.--Whoever commits an act of civil commotion shall be punished with rigorous imprisonment for a term which may extend to seven years, or with fine, or with both."
The said Ordinance was amended vide Anti-Terrorism (2nd Amendment) Ordinance, 1999 (Ordinance 13 of 1999) wherein Section 6 was amended and Section 7-A and 7-B were also inserted which are to the following effect:
"5. Amendment of Section 6, Act XXVII of 1997.--In the said Act, for Section 6, the following shall be substituted, namely:--
"6. Terrorist Act.--A person is said to commit a terrorist act if he, (a) in order to, or if the effect of his actions will be to, strike terror or create a sense of fear and insecurity in the people, or any section of the people does any act or thing by using bombs, dynamite or other explosive or inflammable substances, or such fire-arms or other lethal weapons as may be notified, or poisons or noxious gases or chemicals, in such a manner as to cause, or be likely to cause, the death of or injury to any person or persons, or damage to, or destruction of, property on a large scale, or a widespread disruption of supplies of services essential to the life of the community, or threatens with the use of force public servants in order to prevent them from discharging their lawful duties; or
(b) commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity in the people, or any section of the people, or to adversely affect harmony among different sections of the people; or
(c) commits an act of gang rape, child molestation, or robbery coupled with rape as specified in the Schedule to this Act; or
(d) commits an act of civil commotion as specified in Section 7-A."
"7-A. Creation of civil commotion.--"Civil commotion" means creation of internal disturbances in violation of law, commencement or continuation of illegal strikes, go-slows, lock-outs, vehicles snatching or lifting, danger to or destruction of State of private property, random firing to create panic, charging bhatha, acts of criminal trespass (illegal qabza).
7B. Punishment for creating civil commotion.--Whoever commits an act of civil commotion shall be punished with imprisonment for a term which may extend to seven years and with fine. "
The aforesaid Ordinance was further amended vide Anti-Terrorism (Amendment Ordinance, 2000) wherein Sections 7-A and 7-B was omitted and Section 6 was also amended which are to the following effect:
"5. Omission of Sections 7-A and 7-B, Act XXVII of 1997.--In the said Act, Sections 7-A and 7-B shall be omitted.
"(5) in case a Judge is on leave, or for any other reasons temporarily unable to perform his duties, the Government making appointment of such Judge may, after consultation with the Chief Justice of the High Court, authorise the Sessions Judge, having jurisdiction at the principal seat of the Anti-Terrorism Court, to conduct proceedings of urgent nature so long as such Judge is unable to perform his duties."
Relevant portion of FIR:
In case the aforesaid provisions and contents of FIR are put in a juxta position then Section 6 of the said Ordinance is not attracted. It is a settled law that pre-amble is always key to interpret the statute. The very object to promulgate the Anti-Terrorism Act, 1997 was to control the acts of terrorism, sectarian violence and other heinous offences as defined in Section 6 of the Act and their speedy trial to bring the offence within the ambit of the act, it is essential to examine that the said offence should have nexus with the object of the act and offences covered by its relevant provisions such as Section 6. It is a settled law that provisions of law must be read as a whole in order to determine its true nature, impart and scope as law laid down by this Court in Mian Muhammad Nawaz Sharif's case (PLD 1993 SC 473). It is abundantly clear that in case the provisions of act be read as a whole with the offence which creates a sense of fear or insecurity in society, causes of death or in dangers a person's life commits an act of vehicle snatching or lifting, damage to or disturbance of, state or private property failing to create panic charging bhatta or criminal tresspasser (Illegal Qabza). As mentioned above, the ingredients of aforementioned offences have no nexus while reading the aforesaid provisions alongwith the contents of the impugned FIR. It is pertinent to mention here that nothing was on record to show that occurrence created terror, panic or sense of insecurity among people by securing possession of the land in question by the respondent. The word illegal Qabza must be read with the previous words used by the legislature in clause of Section 6 of the Anti-Terrorism Act, 1997 on well known principle that statutory provisions ought not to be construed in isolation and Courts always to lean towards reasonable interpretation of statute. The learned High Court was justified to examine the scope of terrorism at the time of deciding the constitutional petition with regard to the transfer of case from Special Court, to ordinarily Court on the well known maxim that legislative intent as a guide to interpretation of statute should be gathered primarily from words used in statute. The case in hand did not qualify to be a terrorist act within the contemplation of Section 6 or schedule of Anti-Terrorism Act and the learned High Court was justified to transfer the case to the ordinary Court. It is settled law that promulgation of special law by itself is not sufficient to supersede provisions of law contained in Cr.P.C. In case, the offence has no nexus with the parameters of special law, then general law will apply. The judgment of the learned High Court is in consonance with the law laid down by this Court in various pronouncements. See Mehram Ali's case (PLD 1998 SC 1445) and Jamat-e-Islami Pakistan's case (PLD 2000 SC 111).
For what has been discussed above, the appeal has no merit and the same is dismissed with no order as to costs.
(A.S.) Appeal dismissed.
PLJ 2008 SC 189
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Hamid Ali Mirza, JJ.
FAUJI FOUNDATION (HEADQUARTERS) through its Manager Administration Rawalpindi--Appellant
versus
PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE & 2 others--Respondents
C.A. No. 1621 of 2005, decided on 13.3.2007.
(On appeal from the judgment dated 10.10.2003 passed by Lahore High Court, Rawalpindi Bench in W.P. No. 2916/2000).
Industrial Relations Ordinance, 1969 (XXIII of 1969--
----S. 25-A--Removal from service--Allegations of--Absent from duty, misconduct for act of cheating, fraud, forgery breach of trust--Labour Appeal--Grievance--Jurisdiction of Labour Court--Controversial questions of law and facts--Determination to status of employee--Whether falls within category of workman or not--Labour Appellate Tribunal as well as High
Court had not properly attended the question, Firstly, the true legal character of Fauji Foundation, whether an establishment' in terms of IRO 1969 and
Standing Orders Ordinance, 1968 or not secondly whether respondent, employed in supervisory capacity in a charitable organization by reason of doing some manual work, would fall within the definition ofworkman'--Held: Case was remanded to Labour Appellate Tribunal for determination of question of jurisdiction of Labour Court.
[Pp. 196 & 197] B
Words and Phrases--
----Superintendent--Meaning--Expression
superintendent'--A person who exercises the power of superintending in supervisory jurisdiction with some authority or control in certain matters whereas the,worker' and `workman' have been defined in Section 2(f) IRO 1969 and Section 2(XXVIII) of Standing Orders Ordinance, 1968. [P. 193] A
Syed Sharifuddin Pirzada, Sr. ASC and Mr. Mehr Khan Malik, AOR for Appellant.
Mr. Tariq Mehmood, ASC and Mr. Ejaz Muhammad Khan, AOR for Respondent No. 3.
Date of hearing: 28.2.2007.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal with the leave of the Court is directed against the judgment dated 10.10.2003 passed by Lahore High Court, Rawalpindi Bench, in a writ petition arising out of a grievance petition under Section 25-A of the Industrial Relations Ordinance, 1969.
The facts of the case, in small compass, leading to the filing of this petition are that Syed Ishrat Ali Zaidi, respondent herein, was employed as Superintendent (E&M) in the Fauji Foundation, Rawalpindi and having been proceeded against on two separate charges (a) absence from duty and (b) misconduct for the act of cheating, fraud, forgery, misappropriation and breach of trust was removed from service on both the charges. The respondent filed two separate grievance petitions (Petitions No. 301/92 and 302/92) under Section 25-A of Industrial Relations Ordinance, 1969, hereinafter called IRO 1969, before the Punjab Labour Court for his reinstatement in service and Labour Court having come to the conclusion that respondent was not a workman to maintain a petition under Section 25A of IRO 1969 read with West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968, hereinafter called Standing Order Ordinance, 1968, dismissed both the petitions vide judgments dated 24.1.1995. Being aggrieved, the respondent preferred two appeals before Punjab Labour Appellate Tribunal and the petitioner also filed two cross appeals with the assertion that respondent was not a `workman' to invoke the jurisdiction of labour Court in the matter. The Labour Appellate Tribunal while reversing the judgment of Labour Court, disposed of all the four appeals together vide judgment dated 24.6.2000 and petitioner, being dissatisfied with the judgment of Tribunal, preferred a constitutional petition before the Lahore High Court, Rawalpindi Bench, which was dismissed vide impugned judgment, hence the instant petition.
Syed
Sharifuddin Pirzada, Senior ASC, learned counsel for the petitioner has contended that the respondent was a contract employee and notwithstanding the fact that his contract of service was not for a fixed period yet as per terms of his appointment, his contract could be terminated at any time on one month notice or pay in lieu thereof. The learned counsel argued that the assignment of superintendent (E &M) in the organization, in view of its characteristics is managerial in nature and its holder is not a workman' to maintain the grievance petition under Section 25-A IRO 1969, therefore, the petition filed by the respondent was rightly dismissed by the Labour Court being not maintainable. Learned counsel placing reliance on the case law, has submitted that Fauji Foundation is a charitable organization which is registered under
Endowment Act, 1890 and is not an establishment within the meanings of expressionestablishment' under IRO 1969 or (Standing Orders) Ordinance, 1968 and thus the employees of the organization are governed by the law of master and servant whereas the employees falling in the category of workman' in the establishment of industrial units set up by Fauji Foundation are subject to the
Labour laws. In nutshell, learned counsel argued that neither the organization of Fauji Foundation is covered by the definition of establishment under IRO 1969 or Standing Order Ordinance, 1968 nor the respondent by nature of his duty, pay and designation falls within the definition ofworkman' to invoke the jurisdiction of Labour Court for redressal of his grievance.
Learned counsel for the respondent on the other hand, taking us to the pleading of the parties and the evidence produced by them in support of their respective stance, contended that the concurrent finding of Appellate Tribunal and the High Court on the precise question of fact regarding the status of respondent as a workman, may not call for interference of this Court. Learned counsel submitted that notwithstanding the nature of appointment of a workman in an industrial establishment either on contract or otherwise, he must be governed by labour laws and in the present case, the petitioner having recognized the respondent as workman proceeded against him for the charge of misconduct under Section 15
(3) of the West Pakistan (Standing Orders) Ordinance, 1968, therefore, the petitioner could not subsequently take a different stand. The learned counsel placing reliance on Abdul Ghafoor Vs. Karachi Shipyard and Engineering Works
Ltd. and others (PLC 1987 Labour 697), Abdul Razzaq Vs. Ihsan Sons Ltd (1992
SCMR 505), Rehmat Ali Vs. Security Papers Ltd. (PLD 1982 Karachi 912), Pakistan
Arab Refinery Ltd. Vs. Muhammad Rashid (1999 SCMR 373) and Mustekhum Cement
Limited Vs. Abdul Rashid (1998 SCMR 644), submitted that the Organization of Fauji Foundation for all intends and purposes is an establishment' in terms of Section 2(ix) IRO 1969 and the assignment of superintendent (E&M) is squarely covered by the definition ofworkman' under Section 2 (i) Standing Orders Ordinance, 1968 read with Section 2 (xxviii) of IRO 1969.
The Fauji Foundation is a charitable organization registered under Endorsement Act, 1890 and respondent as per terms and conditions of his service contained in his appointment letter dated 28.7.1981, had to be governed by the Fauji Foundation Disciplinary and Efficiency Rules, therefore, the first question for determination would be whether the organization is covered by the definition `establishment' of IRO 1969 and Standing Orders Ordinance, 1968. Section 2(ix) of IRO 1969 provides as under:-
"2 (ix) Establishment" means an office, firm, industrial unit, undertaking, shop or Premises in which workmen are employed for the purpose of carrying on any industry and except in Section 22EE, include a collective bargaining unit, if any, constituted under that section in any establishment or group of establishments;"
commercial' andindustrial establishment' have been defined under Section 2
(b) and (f) of Standing Orders Ordinance, 1968 in the following manner:--"2 (b) "commercial establishment" means an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract with the owner of any commercial establishment or industrial establishment, employs workmen, a unit of a joint stock company, an insurance company, a banking company or a bank, a broker's office or stock-exchange, a club, a hotel, a restaurant or an eating house, a cinema or theatre, and such other establishments or class thereof, as Government may be notification in the official Gazette, declare to be a commercial establishment for the purposes of this Ordinance".
"(f) industrial establishment" means--
(i) an industrial establishment as defined in clause (ii) of Section 2 of the Payment of Wages Act, 1936 (IV of 1936); or
(ii) a factory as defined in clause (f) of Section 2 of the Factories Act 1934 (XXV of 1934); or
(iii) a railway as defined in clause (4) of Section 3 of the Railways Act, 1890 (IX of 1890); or
(iv) the establishment of a contractor who, directly or indirectly, employs workmen in connection with the execution of a contract to which he is a party, and includes the Premises in which, or the site at which, any process connected with such execution is carried on; or
(v) the establishment of a person who, directly or indirectly, employs workmen in connection with any construction industry;
Explanation.--"Contractor" includes a sub-contractor, headman or agent."
In the light of the above definition of establishment, it would be essential to determine the legal status of Fauji Foundation, a charitable organization and careful perusal of the record would bring us to the conclusion that the proposition was not properly examined rather the
organization' was mixed with theestablishment' of its industrial units.
The next question for determination relates to the status of the respondent as to whether he falls within he category of "workman' or not. The respondent was employed as superintendent (E&M) in Fauji Foundation and his duty was to check the work of contractors and prepare the measurement book, therefore, the question for consideration would be whether he predominantly was performing the manual work of preparing the measurement book or it was an ancillary duty to his main work of supervision of the contractors and consequently, the assignment of superintendent (E&M) by designation and power vested in it appears to be supervisory in nature.
The expression
Superintendent' in plain words means, a person who exercises the power of superintending in supervisory jurisdiction with some authority or control in certain matters whereas theworker' and `workman', have been defined in
Section 2(f) IRO 1969 and Section 2(xxviii) of Standing Order Ordinance, 1968 as under :--
2(i) "`workman' means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
"2(xxviii) worker' andworkman' means any person not falling within the definition of employer who is employed (including employment as a supervisor as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-Fauji Foundation or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-Fauji Foundation or removal has led to that dispute but does not include any person--
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature."
"The test for determining the question whether an employee is a workman within the meaning of various statutes in the field of labour legislation is well-settled. The consensus of judicial opinion seems to be that it is the nature of the work done by the employee that would be the essential and fundamental consideration for determining the question and not his designation which is not conclusive. The question to be examined is whether manual or clerical work is incidental to the main work is incidental to the main work or a substantial part of it, so that, the fact that a person employed in a supervisory capacity does some manual or clerical work as ancillary or incidental to such employment has been held not to bring him within the ambit of the definition. The main features, the pith and substance of his employment must be manual or clerical before the definition is attracted".
The careful examination of the proposition in the light of law on the subject, the expression superintendent' in general is used in supervisory meanings and a person in such capacity by doing some manual work may not acquire the status ofworkman' in terms of IRO 1969 and Standing Orders Ordinance, 1968'. The mere fact that a person in supervisory capacity, was also doing some manual work is not sufficient to hold that he is a workman and similarly mere supervisory designation may not bring a person out of the category of `workman'.
In the present case, we find that the Tribunal without taking into consideration the definition of workman' andestablishment' proceeded to hold that since respondent was discharging his duty under the supervision of Assistant
Engineer, Deputy Engineer and Chief Engineer, therefore, he was a workman. The question as to whether a person is workman' or not is certainly a mixed question of law and facts which is to be decided in the light of facts of each case and in the present case, we find that the main consideration for holding the respondent asworkman' was the manual work of preparing the measurement book in addition to other duties. This is to be noticed that in such public and private organizations, the managerial staff usually do the manual work and probably all persons in supervisory capacity in one way or the other, do manual work in discharge of their duty, therefore it may not be the true test to determine the status of a person who undertakes any sort of manual work or performs duty in supervisory capacity involving some manual work, as a workmen.
The Labour Court having considered the proposition in the light of evidence, concluded as under:--
"The test for determining the question whether an employee is a workman within the meaning of various labour laws is the nature of work done by the employee. This would be the essential and fundamental consideration for determining the question and not his designation, which is not conclusive. A man who is employed mainly to do managerial or supervisory duty would not fall within the definition of worker. The respondent has produced the charter of duties of petitioner as Ex-R12. This indicates that petitioner was not doing any manual or clerical work at the relevant time. The evidence on record shows that the essential work the petitioner was doing was to supervise the work of contractor and see that he was carrying the work in accordance with drawings etc., given to him and to supervise the execution of minor E&M works as per specifications etc, Moreover petitioner admits that he was getting Rs. 4300/- per month. Keeping in view his duties it becomes crystal clear that work of petitioner was of supervisory nature and not involving personal exertion. Iqbal Saleem Akhtar, RW 2 also fully supported version of respondent. On the other hand, petitioner was failed to produce any work while evidence in support of his case. so from the material brought on record it is apparently clear that petitioner's service was of Supervisory nature, therefore, he cannot be considered a worker/workman under IRO or West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968."
"The mere fact that Mr. Zaidi was designated as Superintendent and was drawing considerable salary in the amount of Rs. 4300/- per month however, would not be enough and the management will have to establish that the duties in which this official was performing were managerial or supervisory and he fell outside the ambit of the term "workman".
establishment' and respondent holding the position of superintendent (E&M) would fall within the definition ofworkman' for the purpose of labour laws to invoke the jurisdiction of Labour Court and maintain the grievance petition under Section 25-A of IRO 1969. The High Court has held as under:--"Now so far as the status of Respondent No. 3 is concerned, the finding of fact recorded by the learned Labour Appellate Tribunal is that although Respondent No. 3 was designated as Superintendent but he was performing duties of manual, clerical, subordinate and secondary nature. Even if he had a clerk and a peon assisting him in the performance of his duties that did not lend administrative or supervisory role to the assignment he was holding. He was subordinate to Assistant Engineer, Project Engineer and then Chief Engineer. It has further been observed that job of Respondent No. 3 was not managerial or supervisory. Learned counsel for the petitioner had not been able to convince me to hold otherwise by interfering with the said finding of fact. Now according to the Scheme of the Administration of the petitioner (Annex-P11), as per para-2(1)(d) the object thereof is to generally administer the Foundation for the purposes and in the manner indicated in the Annexure proceeds of the Fauji Foundation are to be invested in industrial undertakings or otherwise at the discretion of the Committee of Administration, and any income therefrom may be utilized for the collective benefit of the beneficiaries of the Foundation."
establishment' in terms of IRO 1969 and Standing Orders Ordinance, 1968 or not and secondly whether respondent, employed in supervisory capacity in a charitable organization by reason of doing some manual work, would fall within the definition ofworkman'. In view thereof, we without dilating on the factual controversy, deem it proper to send this case back to the Labour Appellate Tribunal for determination of the above question as well as the question of jurisdiction of Labour Court. Consequently, this appeal is allowed and the judgment of the High Court as well as Labour
Appellate Court is set aside. The case is remanded to the Appellate Tribunal for decision of the labour appeals afresh in accordance with law. There will be no order as to the costs.(A.S.) Case remanded.
PLJ 2008 SC 197
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ.
MUHAMMAD AKRAM--Appellant
versus
STATE and others--Respondents
Crl. A. No. 146 of 2001, decided on 17.4.2007.
(On appeal from the judgment/order dated 12.10.2000 passed by the Lahore High Court, Multan Bench, in Cr.A. 115/1994 & Crl. R. 96/1994).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 34--Conviction and sentence--Challenge to--Vicarious liability--Common intention--Specific rule of Jhappha was attributed--Different parameters and principles to re-appraise the evidence qua conviction awarded by the Courts below to convict and acquittal of the convict by High Court or acquittal by trial Court--Accused party had come at the spot alongwith their respective weapon--Accused and principal accused had inflicted to the deceased with their respective weapon, therefore S. 34 of PPC is attracted in the case--To determine the intention of a person qua the commission of offence, it is very rare phenomenon that one can expect to find positive affirmative evidence, generally speaking, the intention is to be gathered from the conduct of the person and the attending circumstances--Appeal was allowed.
[P. 202] A, D & E
Common Intention--
----All the accused came fully prepared and that common intention to take the revenge from the deceased--They were held vicarious liable for murder of deceased. [P. 202] F
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 304(2)--Conviction and sentence--Interest of justice--Ingredients of--Validity--Incident took place initially all of sudden on account of minor dispute of electric connection and thereafter deceased was inflicted injuries by accused and his acquitted co-accused with their weapon of offence--Held: High Court erred in law to convict the accused u/S. 324 of PPC--Ingredients of unamended Section 304(2) PPC were attracted in all force in the case--Accused was convicted and sentenced u/S. 304(2), PPC and sentenced to seven years without compensation as the accused had already paid the compensation to the legal heirs of deceased as awarded by trial Court and upheld by High Court--Appeal allowed. [P. 203] G
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 34--Common intention--S. 34 of PPC is applicable to share and knowledge as well as intention. [P. 202] B
PLD 1961 Lah. 195 ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 34--Participation--Common intention--S. 34 of PPC embodies his participation in action with common intention of committing a crime, once such participation is established Section 34 is at once attracted.
[P. 202] C
Sh. Khizar Hayat, ASC for Appellant.
Mr. M. Ismail Qureshi, ASC for Respondents Nos. 2 & 3.
Mrs. Yasmin Sahgal, Deputy Prosecutor General for Respondent No. 1.
Date of hearing: 17.4.2007.
Judgment
Ch. Ijaz Ahmed, J.--The brief facts out of which the present appeal arises are as follows as mentioned in Para 2 of the impugned judgment:--
"Facts of the case are that a case FIR No. 191/1986 (Ex-PD) dated 30-7-1986 was registered under Sections 302/307/34 PPC at Police Station Saddar Kehror Pacca upon the statement of one Muhammad Akram to the effect that on 29.7.1986 the main electric wire supplying energy to the house of the complainant and one Razzaq, his neighbourer, was burnt. On the day of occurrence at about 4.00 p.m., Abdul Razzaq got his connection restored but the connection of the complainant was dis-connected. On this issue, a dispute between Muhammad Mukhtar (deceased) brother of the complainant and Abdul Razzaq had arise. At their altercation, Bilal son of Badar Din aged 15/16 years had also attracted at the spot. In the meanwhile, brick-batting between both the parties started and a brick bat also hit on the head of Muhammad Bilal. Muhammad Bilal was taken to his house by his relative Liaqat son of Gul Din. At about 6.45 p.m., Mukhtar (deceased) alongwith Muhammad Akram (complainant) and Muhammad Sharif PW was standing in the street in front of the door of his house. In the meanwhile, Muhammad Asghar, Muhammad Yousaf appellants while armed with Churries, whereas Muhammad Ghauri appellant while empty handed came at the place of occurrence. Muhammad Asghar appellant raised a lalkara that they would teach a lesson for hitting a piece of brick on the head of Muhammad Bilal. Muhmmad Asghar appellant inflicted a churri blow which landed in the right side of the abdomen of Muhammad Mukhtar (deceased), whereafter Muhammad Yousaf appellant also inflicted a churri blow on the left buttock of Muhammad Mukhtar (deceased). Muhammad Ghauri appellant held Muhammad Mukhtar (deceased) in a Japha. On hearing alarm Muhammad Usman, PW-4, and Muhammad Saleem (PW-6) younger brother of the complainant were also attracted at the spot and witnessed the occurrence. It was further alleged that Muhammad Saleem tried to intervene but Muhammad Ghauri appellant twisted his left arm. Mukhtar (deceased) after receiving these injuries fell down whereafter all the appellants fled away from the scene of crime towards their houses. The complainant and Muhammad Sharif took Mukhtar to the hospital in an injured condition where he was medically examined. The motive behind this murder as alleged in the FIR and the complaint, Ex-PF was that the appellants in furtherance of their common intention had killed Mukhtar (deceased) on account of a brick-bat injury on the head of Muhammad Bilal.
This case was investigated by different police officers and finally it was opined that Muhammad Asghar and Muhammad Yousaf were innocent and the actual culprit was Muhammad Ghauri appellant thus Muhmmad Yousaf and Muhammad Asghar were placed in Column No. 2 and the challan was submitted. The complainant being not satisfied with the investigation filed a private complaint, Ex-PF. During the trial, complainant party produced eight witnesses in support of their stand."
Respondent Nos. 2 & 3 were convicted and sentenced in a complaint case alongwith co-accused Muhmmad Asghar by Additional Sessions Judge Lodhran vide its judgment dated 14-6-1994 as under:--
Name of Accused Under Section Sentence
Muhammad Yousaf 302/34PPC
Respondent No.2
Muhammad Ghauri, Respondent No.3
Muhammad Asghar
Life imprisonment with a fine of Rs. 50,000/- each and in case of default of payment of fine they shall further undergo R.I. for two years each. Compensation under Section 544-A Cr.P.C. of Rs. 50,000/-to legal heirs of Muhmmad Mukhtar, deceased. In case of default they have to undergo imprisonment for six months each.
Respondent Nos. 2 & 3 alongwith Muhammad Asghar being aggrieved filed Criminal Appeal No. 115/1994 in the Lahore High Court Multan Bench whereas appellant/complainant filed Criminal Revision under Section 439 read with Section 435 Cr.P.C. for enhancement of sentence against Respondents Nos. 2 & 3 and convict Muhammad Asghar in the Lahore High Court Multan Bench. It is pertinent to mention here that during the pendency of the appeal of the respondents alongwith their co-accused Muhammad Asghar an application was filed by appellant and Muhammad Asghar for effecting compromise with the legal heirs of the deceased which was allowed by the learned High Court vide its order dated 20-8-1996. Consequently their co-accused Muhammad Asghar was acquitted from the charge. Learned High Court accepted the appeal of the Respondent No.3 Muhammad Ghauri and he was acquitted from the charge whereas conviction of Muhammad Yousaf, respondent under Section 302/34 PPC was set aside and he was convicted under Section 324 PPC and awarded sentence to imprisonment for a period already undergone by him but his conviction for compensation to the legal heirs of Muhammad Mukhtar deceased was upheld vide impugned judgment dated 12-10-2000. Appellant being aggrieved filed Criminal Petition No. 476-L/2000 before this Court in which leave was granted on 18-4-2001 in the following term:--
"We have gone through the judgment impugned with the help of learned counsel for the petitioner and found that the only ground on which Section 34 PPC was not applied was that it might have been a case of sudden flare up.
We grant leave to appeal to consider that in the presence of positive evidence, can a judgment be given on conjectures,"
Learned counsel of the appellant submits that FIR was lodged at Police Station Saddar Kehror Pacca on 30-7-1986 at 8.45 p.m. whereas the occurrence took place on the said date at 6.45 p.m. Local Police could not investigated the matter fairly and justly and in fact investigated the matter under the influence of Parliamentary Secretary Muhammad Siddiq Kanju MNA. The investigation was transferred from one Investigating Officer to another seven times under the influence of the local politician. Consequently appellant was constrained to file a complaint against the accused persons in the Court of Sessions Judge, Multan under Section 302/34 PPC on 31.8.1987. Appellant has produced 8 witnesses and 23 police officials were also appeared as Court witnesses who had investigated the matter or deal with the case in question. Learned Trial Court after proper appreciation of evidence had convicted the accused persons vide its judgment dated 14-6-1994 whereas learned High Court erred in law to convict the Respondent No.2 under Section 324 PPC instead of Section 302/34 PPC inspite of the fact that incident had taken place in two parts. The dispute arose between the parties on the day of occurrence at the spur of moment on account of disconnection of electricity connection of the complainant and restoration of the electric connection of one Razzaq as mentioned above. Respondents alongwith their co-accused went away and thereafter they had come back after two and half hours with their respective weapons and committed the offence in question. Therefore, learned High Court had erred in law to convict Respondent No. 2 under Section 324 instead of Section 302/34 PPC merely on the ground that incident took place all of a sudden.
Learned counsel of the respondents has supported the impugned judgment. He further submits that appellant had failed to prove on record that local police had investigated the matter under the influence of local MNA. He further urges that learned High Court had rightly come to the conclusion that incident took place on the spur of moment, therefore, Section 34 PPC was not attracted, hence, the Respondent No. 2 was rightly convicted qua his individual act under Section 324 PPC.
We have considered the submissions made by learned counsel for the parties and have also perused the record. It is admitted fact that Respondent No. 2 alongwith his co convict came at the spot alongwith their weapons. Muhammad Asghar inflicted fatal injury to Mukhtar deceased whereas Muhammad Yousaf also inflicted injury on the buttock of deceased Mukhtar. It is also admitted fact that deceased had died on account of the aforesaid injuries. It is also admitted fact that Muhammad Asghar principal accused was acquitted by the learned High Court as mentioned above in view of compromise arrived at between the legal heirs of the deceased and Muhammad Asghar meaning thereby he had accepted his guilt whereas Respondent No. 3 was acquitted by the learned High Court as he did not inflict any injury to the deceased as he was empty handed and the rule was attributed to him was that he held Mukhtar deceased in a `Jhappha'. Therefore, he was acquitted by the learned High Court by giving him benefit of doubt. It is a settled law that there are different parameters and principles to re-appraise the evidence qua conviction awarded by the Courts below to the convict and acquittal of the convict by the learned High Court or acquittal by the trial Court as law laid down by this Court in Ghulam Sakindar's case (PLD 1985 SC 11). Keeping in view the principle laid down in the aforesaid case, appeal to the extent of respondent namely Muhammad Ghauri is dismissed. It is a settled law that Section 34 PPC is applicable to share and knowledge as well as intention. See Inayat's case (PLD 1961 Lah. 195), It is a settled law that the ingredients of Section 34 PPC embodies his participation in some action with the common intention of committing a crime, once such participation is established, Section 34 is at once attracted. See Shahadat Khan's case (PLD 1969 SC 158), J.M. Desai's case (AIR 1960 SC 889), Banwarilal's case (AIR 1956 All. 341), Majeed's case (1971 SCMR 693), Imam Bakhsh's case (PLD 1983 SC 35). It is an admitted fact that accused party had come at the spot alongwith their respective weapon. The Respondent No. 2 and principal accused Muhammad Asghar had inflicted injuries to the deceased with their respective weapon, therefore, Section 34 is attracted in the case in hand in all respect. See Amir's case (1987 SCMR 270) and Mahbub Shah's case (AIR 1945 P.C. 118). The learned High Court erred in law to decide the case on wrong premises without adverting to the ingredients of Section 34, PPC and the facts of the case in hand and the law laid down by this Court in various pronouncements. See Hayat's case (PLD 1957 SC (Pak) 207). It is a settled law that in order to determine the intention of a person qua the commission of offence, it is very rare phenomenon that one can expect to find positive affirmative evidence, generally speaking, the intention is to be gathered from the conduct of the person and the attending circumstances. See Bahar's case (PLD 1954 F.C. 77). The evidence on record in the case in hand clearly depicts that all the accused came fully prepared and that common intention to take the revenge from the deceased. Therefore, they were held vicariously liable for the murder of Mukhtar deceased. See Seraj Mia's case (1969 SCMR 490), Muhammad Arshad's case (PLJ 1996 SC 746), Muhammad Siddiqui's case (1993 SCMR 2114) and Khushi Muhammad's case (1969 SCMR 599).
In the interest of justice and fair play, we have also re-examined the evidence with the assistance of the learned counsel for the parties. It is an admitted fact that incident took place on 30.7.1986 and the FIR was lodged on the same day promptly. The investigating agency has not investigated the matter fairly and justly under the influence of the local MNA as mentioned above and the appellant was constrained to file a complaint against the respondent 2 and 3 alongwith their
co-accused before the Sessions Judge concerned on 31.8.1987. It is an admitted fact that incident took place initially all of sudden on account of minor dispute of electric connection and thereafter deceased was inflicted injuries by the Respondent No. 2 and his acquitted co accused Muhammad Asghar with their weapon of offence (Churris). The other attending circumstances of the case in hand, we are of the view that High Court was erred in law to convict the Respondent No. 2 under Section 324 PPC. In fact ingredients of unamended Section 304 part-2 PPC are attracted in all force in the case in hand in view of over all assessment of the evidence on record. Therefore, Respondent No. 2 is convicted and sentenced under Section 304, Part-II of PPC and sentenced to seven years R.I. without compensation as the Respondent No. 2 had already paid the compensation to the legal heirs of deceased as awarded by the trial Court and upheld by the learned High Court in the impugned judgment.
"Arguments heard. For detailed reasons to be given later, the appeal is accepted, the impugned judgment dated 12.10.2000 of the Lahore High Court is set aside and Respondent No. 2 Muhammad Yousaf is hereby held guilty of offence under Section 304(2)/34 (old) PPC and sentenced to rigorous, imprisonment for a period of seven years. He was present in Court but slipped away before announcement of order.
Learned Sessions Judge Lodhran is directed to cause the arrest of Muhammad Yousaf convict by coercive means and to send him to jail for serving out the sentence and also submit the report of compliance to the Registrar of this Court."
(A.S.) Appeal allowed.
PLJ 2008 SC 204
[Appellate Jurisdiction]
Present: Falal Sher and Raja Fayyaz Ahmed, JJ.
FEDERATION OF PAKISTAN and others--Appellants
versus
Raja MUHAMMAD ISHAQUE QAMAR and another--Respondents
C.A. Nos. 1274 & 1275 of 2005, decided on 23.1.2007.
(On appeal from the judgment dated 10.5.2004 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in W.P. Nos. 2632/2000 & 2808/2000)
Pakistan Air Forces Act, 1953--
----S. 20(1)--Pakistan Air Forces Rules, 1957, R. 31-A--Constitution of Pakistan, 1973, Arts. 185(3) & 212(3)--Leave to appeal--Civil servants--Identical question of law and facts--Service in AIR Force--Offence u/Ss. 420, 468, 469 & 471 of PPC was registered against civil servants--Compromise was effected and acquitted--Inquiry was constituted--Recommended by Board of inquiry that civil servants should be administratively discharged from service with benefits of service--Civil servants were removed from service without any benefits--Assailed--Petitions were declined--Offence of impersonation, fraud and moral turpitude which brought disgrace to PAF and that civil servants were not honourably acquitted--Validity--If the man was involved in an offence involving moral turpitude which brought disgrace to service and was acquitted by giving benefit of doubt, such a person is, normally, not to be retained in service and should be discharged administratively--Such person has been honourably acquitted, he will have to be reinstated and paid all arrears irrespective of the nature of offence in which he was involved--Held: All cases of the nature should be considered on merits and decided on case to case basis--Appeals were dismissed. [P. 208] B
Constitution of Pakistan, 1973--
----Art. 199(3)--Corum non judice--Extraordinary jurisdiction of High Court can be invoked. Where any action has been found to be without jurisdiction or corum non judice or mala fide, extraordinary jurisdiction of High Court u/Art. 199(3) of Constitution could competently be invoked by an aggrieved person. [P. 208] A
Raja M. Irshad, DAG with Ch. Akhtar Ali, AOR for Appelalnts (in both Appeals).
Ch. Afrasiab Khan, ASC with Mr. Arshad Ali Ch., AOR for Respondents (in both Appeals).
Date of hearing: 23.1.2007.
Judgment
Raja Fayyaz Ahmed, J.--Leave to appeal in these two matters arising out of Civil Petitions Nos. 1633 and 1634 of 2003 were granted by this Court vide order dated 14.10.2005 from a common judgment passed by the learned Single .Judge in Chambers of the Lahore High Court, Rawalpindi Bench, Rawalpindi allowing their Writ Petitions Nos. 2632 and 2808 of 2000 on 10.5.2004.
As identical questions of law and facts are involved in these two appeals, therefore, the same are proposed to be decided through a single judgment.
The precise relevant facts of the case are that the respondents in both the appeals namely, Raja Muhammad Ishaque Qamar and Muhammad Ramzan respectively posted as Chief Technician (Pak/467826 GRD SIG) and Senior Technician (Pak-471088 Trade G.S.O. E/W Rafique) in the Pakistan Air Force were accused of the offences under Sections-420,468,469 and 471 PPC in case Crime No. 9 of 1999 dated 13.1.1999 registered at Police Station Saddar, Talagang, District Chakwal. Both the said respondents were tried by a Magistrate Section-30/Civil Judge 1st Class, Talagang and were acquitted of the charges vide judgment dated 13.5.2000. It appears from scrutiny of the available documents that during pendency of the criminal trial, a compromise was effected between the respondents and complainant, which eventually resulted into their acquittal, however; a Board of Inquiry was constituted by the competent Authority of the PAF concerned quarters into the matter and it was recommended by the Board of Inquiry on 15.2.2000 that as per Air Headquarters policy invoked and promulgated vide Air Hq 22661/8/DLS dated 13th December, 1992/C/T Ishaque Pak/467826 GSO and S/T Ramzan Pak/471088, the respondents be administratively discharged from service with all benefits for the services rendered by them.
On receipt of the report of the Board of Inquiry, the respondents removed from service without any benefit vide Letter No. TAB/495, May 2000, which was assailed by the said respondents through Writ Petitions before the learned High Court. They also submitted representations to Appellant No. 2 praying for their reinstatement/retention in service, which was declined vide order dated 8.9.2000.
The appellants filed written statements to the Writ Petitions before the learned High Court pleading ouster of jurisdiction of the learned High Court in the matter and in respect of the action taken against the said respondents as Members of the Armed Forces in view of the bar as contained in Article 199(3) of the Constitution of the Islamic Republic of Pakistan, 1973. As regards the merits of the case, it was admitted that both the accused/respondents were acquitted by the learned Magistrate for having patched up their differences by entering into compromise with the complainant party, in which case the prosecution witnesses also turned hostile. It was alleged in the written statement that the respondents were involved in the offence of impersonation, fraud, and moral turpitude which brought disgrace to the PAF and that the accused-respondents were not honourably acquitted, therefore, their removal from service was made in accordance with Section-20 (1) of PAF Act, 1953 read with Rule 31-A of PAF Act Rules, 1957 by the competent PAF Authority, therefore, they had been validly and legally removed from service.
The learned DAG for the appellants and Ch. Afrasiab Khan for the respondents have been heard. The impugned judgment and the documents available on record have been gone through carefully and minutely with their assistance. The case law cited on behalf of the parties by their learned counsel has also been perused and considered besides the provisions of Article 199(3) of the Constitution.
It has mainly been contended by the learned DAG that the impugned action taken against the respondents in these two appeals was neither malafide nor corum non judice or without jurisdiction, therefore, constitutional jurisdiction of the learned High Court could not have been invoked by the respondents in these two appeals on account of the bar of the jurisdiction of the learned High Court as contained in Article 199(3) of the Constitution. The learned DAG in view of the law laid down by this Court in the case of Ex. Lt. Col. Anwar Aziz (PA-7122) Vs. Federation of Pakistan through Secretary, Ministry of Defence, Rawalpindi and two others (PLD 2001 SC 549) submitted that if an action is found to be mala fide, corum non judice or without jurisdiction though; being subject to PAF Act, an aggrieved person could competently invoke the constitutional jurisdiction of the High Court notwithstanding the provisions of Article 199(3) of the Constitution but in the instant case according to the learned DAG none of the given conditions were attracted. The learned DAG when confronted to the relevant circular/Notification dated 13.12.1992 copy available on the paper book issued on behalf of the Air Headquarters, Chaklala, Rawalpindi on query by this Court submitted that same is in vogue since its issuance which has been followed, acted upon and never offended in the matters as the case may be. Further, the learned DAG contended that the respondents could have against the impugned judgment preferred appeal being an efficacious and alternate remedy before invoking the jurisdiction of learned High Court through the Writ Petitions, which thus were incompetently filed. To supplement his contentions, the learned DAG has also placed the reliance on the judgments of this Court in the case of Sheikh Maqbool Elahi and others Vs. Khan Abdul Rehman Khan and others (PLD 1960 SC (Pak) 266) and Mrs. Shahida Zahir Abbasi and 4 others Vs. President of Pakistan as Supreme Commander of the Armed Forces, Islamabad and others (PLJ 1996 SC 1361).
The learned counsel for the respondents in these two appeals contended that the action taken in the matter by the competent Authority removing the respondents from service by ignoring the findings and recommendations of the Board of Inquiry and being in violation of the circular/Notification dated 13.12.1992 issued on behalf of the Air Headquarters was patently mala fide, hence; appropriately, the respondents approached to the learned High Court, as such; the bar as contained in Article 199(3) of the Constitution on jurisdiction of the learned High Court was not attracted. According to the learned counsel, no appeal against the order impugned in the Writ Petitions has been provided under the statue and Rules made thereunder, hence; competently the respondents had filed the Writ Petitions before the learned High Court to which no exception could be taken. He further submitted that the impugned judgment is not open to any interference by this Court, in view of the peculiar facts and circumstances of the case. Reliance has been placed by the learned ASC on the reported judgments i.e Brig. (Retd). F.B. Ali and another Vs. The State (PLD 1975 SC 506), Federation of Pakistan and another Vs. Malik Ghulam Mustafa Khar (PLD 1989 SC 26) and Ex. Lt. Col. Anwar Aziz (PA-7122) Vs. Federation of Pakistan, through Secretary, Ministry of Defence, Rawalpindi and two others. (PLD 2001 SC 549).
The ratio of the above referred judgments, as has been held is that presumption against provisions regarding ouster of jurisdiction to be strictly construed and the ouster of the jurisdiction of Superior Courts and any law which has the effect of denying access to them to be narrowly construed for the reasons that these are the fora created by the people for obtaining relief from oppression and redress for the infringement of their rights. But then where the ouster clause is clear and unequivocal, admitting of no other interpretation, the Courts un-hesitatedly give effect to it. Seized of the matter in Civil Appeal No. 384/1987 Federation of Pakistan and another Vs. Malik Ghulam Mustafa Khar (PLD 1989 SC 26) alongwith other connected appeals, while examining the ouster clause relating to the jurisdiction of all the Courts including the Superior Courts of the country as contained in clause (4) of Article 270-A of the Constitution saving the Proclamation of the fifth day of July, 1977, all President's Orders, Ordinances, Martial Law Regulations, Martial Law Orders, including the Referendum Order, 1984, the Revival of the Constitution of 1973 Order, the Constitution (Second Amendment) Order 1985, the Constitution (Third Amendment) Order, 1985 and all other laws made between the fifth day of July, 1977, and the date on which the Article 270-A come into force thereby affirmed, adopted and declared, notwithstanding any judgment of any Court, to have been validly made by competent Authority and, notwithstanding anything contained in the Constitution, shall not be called in question in any Court on any ground whatsoever and as further provided in the said Article; it was held by this Court in its judgment that the Article 270-A does not take away the jurisdiction of the High Court from reviewing acts, action or proceedings which suffered from defect of jurisdiction or were corum non judice or mala fide; and drawing a distinction between malice in fact and malice in law was not necessary for such purposes and; that the bar contained in Article 199(3) of the Constitution on the powers of the High Court is not absolute in nature, at least in respect of three categories of cases where impugned judgment is mala fide, or without jurisdiction or corum non judice to which bar of Article 199(3) of the Constitution is not applicable.
The learned High Court in our considered opinion has rightly observed and concluded that notwithstanding the bar contained in the Article 199(3) of the Constitution where any action has been found to be without jurisdiction or corum non judice or mala fide; extraordinary jurisdiction of the learned High Court under Section-199 (3) of the Constitution could competently be invoked by an aggrieved person. In view of the law laid down by this Court each case has to be examined on the touchstone of the rule laid down by this Court in the abovementioned reported judgments which has been done so by the learned High Court, without entering into controversy of the respondents having been acquitted honourably or having earned acquittal simplicitor who admittedly, have been acquitted on the charges.
Para-5 of the circular/Notification dated 13.12.1992 of the Air Headquarters reproduced in Para No. 8 of the judgment impugned herein provided that if the man was involved in an offence involving moral turpitude which brought disgrace to the service and was acquitted by giving benefit of doubt, such a person is, normally, not to be retained in service and should be discharged administratively. If, however; such person has been honourably acquitted, he will have to be reinstated and paid all arrears etc. irrespective of the nature of offence in which he was involved. Further, it has been provided in the said circular/Notification that all cases of the nature should be considered on merits and decided on case to case basis. The learned High Court has rightly not entered into the question of involvement of the respondents in the case of moral turpitude or otherwise; rather; simply examined the impugned action being in accordance with the law or otherwise in the light of the abovesaid relevant para of the circular/Notification dated 13.12.1992 to ascertain, if the Authority had acted fairly and justly in accordance with the said Notification ensuring reinstatement of the incumbents involved in an offence of moral turpitude in case of his honourable acquittal and further entitled to be paid all arrears etc. irrespective of the nature of the offence. The impugned action was found by the learned High Court to be unfair and unjust, in view of the notified policy which in our opinion amounted to have suffered with mala fides. Also the learned DAG failed to satisfy that an alternate and efficacious remedy by way of appeal against the impugned action has been provided in the PAF Statute or the Rules made thereunder. As the respondents in these two appeals had admittedly earned acquittal in the case, therefore, the learned High Court rightly concluded that since respondents can not be retained in service they should be discharged administratively with benefits to which no exception could be taken for having not been dealt with in view of the object and spirit of the abovesaid circular/Notification. Therefore, these appeals being without any substance are dismissed, leaving the parties to bear thier own costs.
(A.S.) Appeals dismissed.
PLJ 2008 SC 209
[Appellate Jurisdiction]
Present : Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ.
GHULAM MURTAZA and another--Appellants
versus
MUHAMMAD AKRAM and another--Respondents
Crl. A. Nos. 498 & 499 of 2000, decided on 25.4.2007.
(On appeal from the judgment dated 25.4.2000 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Crl. Appeal No. 45/1995, Cr. Rev. No. 37/95).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 337(F)(ii)--Criminal Procedure Code, (V of 1898), S. 410--Constitution of Pakistan, 1973, Art. 185--Qatl-i-amd--Conviction and sentence recorded against accused--Challenge to--Common intention--Consolidated judgment having similar facts and law--Different parameters and circumstances for interference in an appeal against acquittal and in appeal for conviction--Question of--Power to enhance the sentence--Determination of--Sentence should be enhanced in cases where the failure to enhance the sentence would lead to a serious miscarriage of justice--Supreme Court might have imposed the capital sentences is not a sufficient reason for enhancement or conviction coupled with fact that defence had taken a defence plea at relevant time of awarding conviction to accused--Held: Decision of High Court in acquittal of accused are well grounded and in back ground of the case discretion exercised by judges is in conformity with accepted principles of criminal justice--Appeal was dismissed.
[Pp. 215 & 216] E
Mitigation of sentence--
----Weapon of offence--Accused inflicted only one injury to deceased through weapon of offence (churri) and did not repeat--Held: All factors cumulatively make out case for mitigation of sentence and lesser sentence of life imprisonment would meet ends of justice. [P. 214] A
PLJ 1995 SC 684, rel.
Enhancement of Sentence--
----Findings of fact--In the case for enhancement of sentence where it depends upon findings of fact or reversal thereof, ordinarily findings of fact would not be reversed. [P. 214] B
Medical Evidence--
----Nature of injury--Ocular evidence--Medical evidence may confirm the ocular evidence with regard to the seat of injury, nature of the injury, kind of weapon used in occurrence but it would not connect the accused with commission of the crime. [P. 215] C
PLD 1976 SC 695 & 1994 SCMR 1928, rel.
Appreciation of Evidence--
----Medical evidence is not a corroborative piece of evidence which is supporting evidence and medical evidence does not disclose who has inflicted injury to the deceased. [P. 215] D
Malik Rab Nawaz Noon, ASC for Appellant (in Cr. A. No. 498/2000).
Mr. M. Javed Aziz Sindhu, ASC for Appellant (in Cr. A. No. 499/2000).
Mr. Muhammad Munir Peracha, ASC with Ch. Akhtar Ali, AOR for Respondent (in Cr.A. No. 498/2000).
Malik Rab Nawaz Noon, ASC for Respondents (in Cr. A. No. 499/2000)..
Ch. Munir Sadiq, Deputy Prosecutor General for State (in both cases).
Date of hearing : 25.4.2007.
Judgment
Ch. Ijaz Ahmed, J.--We intend to decide captioned appeals by one consolidated judgment having similar facts and law arising out of the common impugned judgment of the Lahore High Court Rawapindi Bench, Rawalpindi, dated 25-4-2000. Necessary facts out of which the aforesaid appeals arise are that FIR No. 105 dated 28-6-1994 under Sections 324/302/34 PPC at Police Station Saddar Chakwal was recorded by Khadim Hussain, ASI on the statement of Muhammad Afzal son of Muhammad Shafi, PW-10 against Muhammad Akram, Zafar Iqbal and Munsif Khan on the allegation of having, in furtherance of their common intention committed Qatl-i-Amd of Saqlain Murtaza and murderous assault on Muhammad Afzal and Muhammad Nazeer Sultan PWs at about 6.15 a.m. on 28-6-1994 at Mauza Dhakoo within the jurisdiction of Police Station Saddar Chakwal. Investigating agency investigated the matter and challan was submitted against all the accused mentioned in the said FIR namely Abdur Rashid, Muhammad Akram, Zafar Iqbal and Munsif Khan. Learned Sessions Judge Chakwal vide its judgment dated 13-3-1995 convicted and sentenced aforesaid accused as under:--
Name of accused Under Section Sentence
Muhammad Akram 302(b) PPC Imprisonment for life as
& Zafar Iqbal tazir each. Compensation
under Section 544-A
Rs. 50,000/- each to the legal
heirs of Saqlain Murtaza, deceased.
Zafar Iqbal & 337(F)(ii) One year's R.I. each.
Munsif Khan Rs. 2000/- as daman each.
Munsif Khan was also
convicted under Section
337(f)(i) PPC and sentenced
6 months' R.I. Rs. 500/- as
daman.
Sentences shall run
concurrently with Benefit of
Section 382-B Cr.P.C.
It is pertinent to mention
here that Aforesaid accused
were acquitted qua other
charges by giving them
benefit of doubt whereas
Abdur Rashid was acquitted
by giving him Benefit of
doubt.
Muhammad Afzal being aggrieved filed Cr. Rev. No.37/95 against Muhammad Akram, Zafar Iqbal and Munsif Khan for enhancement of the punishments awarded to the respondents/convicts in the revision petition. Convicts also filed Cr. A. No. 45/95 under Section 410 Cr.P.C. in the High Court against their conviction. The learned High Court dismissed the Cr.Rev. and appeal of Muhammad Akram, convict whereas appeal of Zafar Iqbal convict was allowed and was acquitted whereas conviction and sentence of Munsif Khan under Section 337(f)(ii) PPC was maintained vide impugned judgment dated 25.4.2000. Muhmmad Akram, convict, being aggrieved filed J.P.No. 120/2000 and complainant side filed Cr.P.No. 127/2000 before this Court which were fixed before this Court on 7-12-2000. Leave was granted in both the petitions vide order dated 7-12-2000 out of which the present appeals arise.
During the pendency of the appeal Muhammad Akram has served the sentence, consequently he was released therefore Criminal Appeal No. 499/2000 has become infructuous.
Learned counsel of the appellant submits that learned trial Court had erred in law to award life imprisonment to Muhammad Akram and Zafar Iqbal instead of awarding capital punishment to them. He further maintains that learned High Court after re-appraisal of evidence had found Muhammad Akram guilty of Qatl-i-Amad of Saqlain Murtaza deceased and without any justification awarded alternative punishment of life imprisonment merely on the ground of weak motive of the occurrence in question and keeping in view peculiar feature of the case in hand. He further maintains that learned High Court had also erred in law not to award capital punishment to Muhammad Akram respondent and also erred in law to acquit Zafar Iqbal respondent merely on surmises and conjectures that in the light of the size of injury possibility cannot be ruled out that second injury was also inflicted by Muhammad Akram respondent to the deceased. The same is not in consonance with the evidence on record. The prosecution has specifically attributed two injuries to the respondent Muhammad Akram and Zafar Iqbal which were proved by the prosecution from the statement of the eye witnesses which were corroborated by medical evidence. He further maintains that respondents acted with pre-meditation and virtually caused death of Saqlain Murtaza by causing him 5 incised wounds, all of them on the back side of the chest, buttock and shoulder per-se reveals that the accused acted in furtherance of then common intention.
Learned counsel for the respondents submits that Munsif Khan was not awarded punishment under Section 302 (b) PPC and was awarded punishment under Section 337(f)(ii). The complainant has not challenged his acquittal under Section 302 PPC before the learned High Court. Therefore learned High Court was justified to dismiss the revision petition of the appellant qua Munsif Khan Respondent No.3. The learned High Court had acquitted Zafar Iqbal, Respondent No.2 with cogent reasons by reappraisal of the evidence on record and had taken a lot of pain to reappraisal the size of injuries attributed to the respondents which were inflicted by them to the deceased after examining the medical evidence on record alongwith oral evidence. He further maintains that prosecution had suppressed injuries received by Respondent No.3 Munsif Khan and Muhammad Akram, Respondent No.l. He further maintains that this fact was considered by the learned High Court while acquitting Zafar Iqbal that he was not present at the place of occurrence at the tune of incident as he did not receive any injury. Muhmmad Rashid, acquitted co-accused also did not receive any injury at the time of occurrence and he was also found innocent by the SSP. Consequently he was acquitted by the trial Court. He further urges that respondent had taken a specific defence version as is evident from reply of Question No. 13 of Muhammad Akram and Munsif Khan in reply of Question No. 10 wherein they had categorically stated that Saqlain Murtaza deceased injured Munsif Khan respondent with his chhurri which Munsif Khan snatched from him. Nazir Sultan PW struck Munsif Khan with the knuckles whereas Saqlain Murtaza, deceased, took the chhurri of Muhammad Afzal, complainant, PW and attacked him with the same. Grappling ensued between the parties. Munsif Khan injured Saqlain Murtaza deceased in self-defence. Zafar Iqbal and Abdul Rashid acquitted co-accused were not present at the spot. Defence could cross-examined PW 10 Muhammad Afzal in terms of reply of Question No. 13 mentioned above and this fact was not considered by the Courts below in its true perspective while convicting Muhammad Akram respondent and at the time of acquitting Zafar Iqbal, respondent.
We have considered the submissions of learned counsel of the parties and have perused the record. As mentioned above appeal of convict Muhammad Akram has become infuctuous as he has served out the sentence during the pendency of the appeal. It is an admitted fact that prosecution has suppressed the injuries on the accused as evident from the contents of the FIR. It is a settled law that there are different parameters and circumstances for interference in an appeal/petition against acquittal and in appeal/petition for conviction as laid down by this Court in Muhammad Iqbal's case (1994 SCMR 1928). The relevant observation is as follows,--
`(i) that with the acquittal, the presumption of the innocence of the accused becomes double; one initial, that till found guilty he is innocent, and two, that after his trial a Court below has confirmed the assumption of innocence;
(ii) that unless all the grounds on which the High Court had purported to acquit the accused were not supportable from the evidence on record, Supreme Court would be reluctant to interfere, even though, upon the same evidence it may be tempted to come to a different conclusion;
(iii) that unless the conclusion recorded by a Court below was such that no reasonable person would conceivably reach the same, the Supreme Court would not interfere;
(iv) that unless the judgment of acquittal is perverse and the reasons therefor are artificial and ridiculous, the Supreme Court would not interfere; and
(v) that the Supreme Court, however, would interfere in exceptional cases on ovenwhelming proof resulting in conclusive and irresistible conclusion, and that too, with a view only to avoid grave miscarriage of justice and for no other purpose."
The aforesaid proposition of law is also supported as law laid down in Ghulam Sikandar's case (PLD 1985 SC 11) the learned High Court as well as trial Court were justified to award life imprisonment to Muhmmad Akram, respondent, keeping in view the circumstances of the case in hand. The impugned judgment to the extent of respondent is in consonance with the law laid down by this Court in various pronouncements. See Ansar Ahmed Khan Barqi's case (1993 SCMR 1660). It is pertinent to mention here that Respondent No. 3 inflicted only one injury to the .deceased through weapon of offence (chhurri) and did not repeat, therefore, all these factors cumulatively make out case for mitigation of sentence and lesser sentence of life imprisonment would meet ends of justice as law laid down by this Court in Muhammad Arshad's case (PLJ 1995 SC 684) and Muhammad Akram's case (1999 SCMR 52). It is a settled law that as in the case for enhancement of sentence where it depends upon findings of fact or reversal thereof, ordinarily findings of fact would not be reversed. As in the case for enhancement to death penalty (or for setting aside acquittal) unless amongst others there is either misreading or non-reading of evidence on a very substantial point and/or there has been a miscarriage of justice ordinarily there is no interference. One test to determine: whether, there has been mis-carriage of justice would be to answer a further question; whether, the view taken by the lower Court on question of acquittal or reduction of sentences impossible?. The reasons given by the learned High Court in extending the benefit of doubt to Zafar Iqbal are not irrelevant and extraneous to the record.
We have re-examined the evidence on record and did not find any miscarriage of justice qua the acquittal of Zafar Iqbal coupled with the other circumstance of the case wherein their co-accused Rashid Ahmed was acquitted by the trial Court on the basis of some evidence. The learned counsel of appellant failed to bring the case within the four corner of law laid down by this Court in the aforesaid cases of Muhammad Iqbal and Ghulam Sikandar even otherwise we do not find any infirmity or illegality in the impugned judgment. The learned High Court has rightly acquitted Zafar Iqbal accused after re-examining evidence on record. It is proper to mention here that the prosecution has failed to discharge his burden in the manner laid down by this Court in the case of Muhammad Luqman vs. State (PLD 1970 SC 10) to the extent of Zafar Iqbal respondent. It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the time. There are various judgments of this Court. See Machia's case (PLD 1976 SC 695) and Muhammad Iqbal's case (1994 SCMR 1928). It is a settled law that medical evidence is not a corroborative piece of evidence which is always supporting evidence and medical evidence does not disclose who has inflicted injury to the deceased as law laid down by this Court in Machia supra. The circumstances of the case in hand are justified to acquit Zafar Iqbal whose case was to some extent at bar with his acquitted co-accused Rashid Ahmad. As mentioned above the learned High Court while upholding the conviction of Muhammad Akram respondent, therefore, it would meet the ends of justice. We are of the opinion that the power to enhance sentences should be sparingly exercised by this Court and sentences should be enhanced only in cases where the failure to enhance the sentence would lead to a serious miscarriage of justice. The mere fact that this Court, had it been trying the case, might have imposed the capital sentences is not a sufficient reason for enhancement or conviction coupled with the fact that defence had taken a defence plea at a relevant time and this fact was not considered by both the Courts below at the time of awarding conviction to respondent Zafar Iqbal. We have considered this aspect of the case and found acquittal of respondent Zafar Iqbal was justified as observed by us in the preceding paragraphs. Indeed the considerations which influence the decision of the High Court in acquittal of Zafar Iqbal are well grounded and in the back ground of the case discretion exercised by the learned Judges is in conformity with the accepted principles of criminal justice.
For what has been discussed above, the appeal has not merit and the same is dismissed.
(A.S) Appeal dismissed.
PLJ 2008 SC 216
[Appellate Jurisdiction]
Present : Rana Bhagwandas, ACJ and Sardar Muhammad Raza Khan, J.
MUHAMMAD DIN & others--Appellants
versus
SHAMSHER & others--Respondents
Civil Appeal No. 2046 of 2006, decided on 5.6.2007.
(On appeal from judgment of the Lahore High Court, Lahore dated 4.4.2002 passed in Civil Revision No. 1550/D 1991).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Undisputed pedigree-table--Litigation over the property left by deceased--Propositus--Deceased was survived his mother and sister--Inherit in equal share--Mother of deceased had married his uncle and thus sons and daughters happened to be uterine brothers and uterine sisters of the propositus--They are thus placed in a degree nearer to the propositus as compared to the rest of collaterals share, as residue shall certainly go to the lot of sons and daughters--Question of fact about uterine relationship was illegally ignored by Courts below and it was a serious mis-appreciation of fact as well as of law--Appeal was dismissed. [Pp. 217 & 218] A
Mr. Zahid Hussain Khan, ASC for Appellants.
Ex-parte for Respondents.
Date of hearing : 5.6.2007.
Judgment
Sardar Muhammad Raza Khan, J.--Muhammad Din and others have been granted leave to appeal from the judgment dated 4.4.2002 of a learned Judge in Chambers of Lahore High Court, whereby, on acceptance of Civil Revision of the respondents, the concurrent judgments and decrees of the learned two Courts below were set aside and the suit filed by the petitioners was dismissed.
From the plaint of the petitioners, it is indicated that the parties are litigating over the property left by Haji Ahmad son of Noor Alam. Their pedigree-table is given in the body of the plaint but the learned counsel appearing for the petitioners /plaintiffs conceded that the one given by the defendants/respondents in their written statement may be placed reliance upon. Thus the undisputed pedigree-table is reproduced below in order that the relationships and claims be properly comprehended:--
The property of Haji Ahmad, having died unmarried, is in dispute. At the time the succession opened, the two sharers that he was survived by, were Mst. Sabhai, his mother and Mst. Fateh Khatoon, his sister. They, as sharers, received 1/6 +1/2 = 4/6 or 2/3. The remaining 2/6 or 1/3 was to go to the residuaries. All the sons and daughters of Alam Sher, Sultan Ahmad, Alam Noor and Alam Khan are placed in the same degree as held by Haji Ahmad, the propositus. Thus all of them, who happened to be the plaintiffs, would normally inherit the remaining 2/6 in equal; shares.
But, three sons and two daughters of Alam Sher (most of the present respondents) happened to have an edge over the rest of persons seemingly appearing in the same degree. It is a proved fact that Mst. Sabhai, the mother of Haji Ahmad propositus had married his uncle Alam Sher and thus the sons and daughters of Alam Sher happened to be uterine brothers and uterine sisters of the propositus. They are thus placed in a degree nearer to the propositus as compared to the rest of the collaterals. 2/6th share, as residue shall certainly go to the lot of the sons and daughters of Alam Sher. The same was rightly allowed by the learned Judge in Chambers of the Lahore High Court who had very rightly set aside the concurrent findings of two Courts below. The hard question of fact about the uterine relationship aforesaid was illegally ignored by the two Courts below and thus it was a serious mis-appreciation of fact as well as of law. There being no force in the appeal, it is hereby dismissed.
(A.S.) Appeal dismissed.
PLJ 2008 SC 218
[Appellate Jurisdiction]
Present : Muhammad Nawaz Abbasi & Nasir-ul-Mulk, JJ.
Mian AHMAD RAZA & others--Appellants
versus
--Respondents
Civil Appeal No. 2025 of 2001, decided on 17.1.2007.
(On appeal from the judgment dated 24.11.1999 passed by Lahore High Court, Multan Bench in C.R. No. 413/1985).
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 7--Constitution of Pakistan, 1973--Art. 185--Superior right of pre-emption--Collaterals of vendor--Co-sharer in Khata--Concurrent findings--Validity--Concurrent findings on the issue relating to superior right of pre-emption was suffering from any legal or factual infirmity calling for interference of Supreme Court--Held: Appellants having made statements in affirmative have not claimed their superior right of pre-emption on the basis of their qualification as co-sharers in Khata--Further held: Pre-emption having not claimed superior right of pre-emption on the ground of being co-sharers in their statements have virtually abandoned their claims.
[P. 221] A & B
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 7--Appreciation of evidence--Copy of jamabandi tender in evidence--Admissibility--Question of--Absence of evidence oral or documentary--Sufficient to prove--Validity--Question regarding admissibility of the copy of jamabandi tendered in evidence in the statement without its formal proof--Held: Jamabandi in absence of any evidence oral or documentary may not be considered sufficient to prove the contents of the plaint and superior right of pre-emption on basis of relationship or co-sharer in khata--Copies of relevant record without making the statements in support of his claim could succeed in the suit--Appeal was dismissed. [P. 222] C
Mr. Gulzarin Kiani, ASC for Appellants.
Mian Saeedur Rehman Farrukh, ASC for Respondents.
Date of hearing: 17.1.2007.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal with the leave of the Court, is directed against the judgment dated 24.11.1999 passed by the Lahore High Court, Multan Bench, whereby Civil Revision No. 413 of 1985 arising out of a pre-emption suit in which decree dated 5.6.1978 passed by the learned trial Judge which was reversed by the learned Additional District Judge, Muzaffargarh, in appeal vide judgment dated 16.6.1980, was dismissed.
"Leave to appeal is sought against Lahore High Court Multan Bench Multan Judgment dated 24.11.1999, whereby petitioner' civil revision against the appellate Court's judgment and decree, reversing the findings of the trial Court was dismissed.
Petitioners filed a suit for possession through pre-emption in respect of land measuring 101 kanals 15 marlas situated in Mauza Qasba Janubi, Tehsil & District Muzaffargarh, sold by Abdul Rashid and Abdul Ghafoor, in favour of the respondents vide Mutation No. 449 dated 19.3.1973 for a consideration of Rs. 40,000/-. Petitioners claimed their right to pre-empt the transaction, on the basis of being collaterals of the vendors, co-sharers in the khata and owners in the estate. The suit was seriously contested and ultimately decreed by the trial Court, holding that the petitioners were collaterals of the vendors. In appeal by the respondents, the learned Additional District Judge, Muzaffargarh, vide judgment and decree dated 10.6.1980, dismissed the suit and allowed the first appeal. Dissatisfied, as they were, the petitioners filed a civil revision before the High Court, which was dismissed through the judgment impugned in this petition.
Mr. Gulzarin Kiani, learned ASC for the petitioners vehemently criticized the judgments of the lower appellate Court as also the High Court. According to him, Courts below did not consider the documents tendered in evidence and failed to appreciate oral as well as documentary evidence in its correct perspective. A grievance was made about an observation by the High Court that the petitioners had in fact abandoned their right of superior ownership by complete mis-reading and/or non-reading of the evidence. Learned counsel urged that first appellate Court did not hold that the petitioners had abandoned their right of superior ownership. Moreover, apart from oral evidence claiming to be collaterals with the vendors, the petitioners had tendered in evidence pedigree table to prove their relationship as well as jamabandi entries supporting the case set up by them that they were co-owners with the vendors in the lands and, thus, entitled to claim superior right of pre-emption. Learned counsel referred to Section 76 of the Evidence Act 1872, Sections 41, 42, 52 & 176 of the Punjab Land Revenue Act and Rules 31 & 36 of the Punjab Land Revenue Rules, 1968 in order to re-enforce in the Jamabandi register kept by the Patwari of the Halqa, which per se were sufficient to prove the ownership unless rebutted. He relied upon Khizrat Muhammad v. Ghulam Muhammad (PLD 1962 (W.P.) Lahore 492) in this behalf.
Having heard Mr. Kiani at quite some length and the questions of law raised by him at the Bar as also having regard to the conflict of opinion between the trial Court and the appellate Court as well as the High Court, we are inclined to grant leave to examine, inter alia the submissions made by the learned counsel. Leave to appeal is accordingly granted."
The learned counsel for the appellants in support of this appeal has contended that the plaintiffs in addition to their first right of purchase on the basis of superior qualification as collaterals of the vendor were also co-sharer in the khata and owner in the estate, as was evident from the pedigree table and the jamabandi tendered in evidence but the appellate Court as well as the High Court having misread this documentary evidence, have wrongly concluded that the claim of the appellants to be the co-sharer in the khata and also being collaterals of the vendor to have superior right of pre-emption was not supported by the evidence. Learned counsel however, without pressing the superior rights of pre-emption on the basis of relationship as collaterals of the vendor, has forcefully argued that the appellants being co-sharer in khata, had superior right of pre-emption and were wrongly non-suited.
Learned counsel for the respondents on the other hand, has submitted that the appellants have neither been able to establish their relationship as collateral of the vendors to claim superior right of pre-emption nor they have been able to bring on record any cogent evidence in support of their assertion that they being co-sharer in khata have superior right of pre-emption and could maintain the suit on this ground alone.
The contention of the learned counsel for the appellants that the pre-emptors were entitled to pre-emption decree on the basis of their superior right as co-sharer in the khata was not substantiated on record. The proposition that the jamabandi is part of revenue record and presumption of truth is attached with the revenue record is not disputed but the requirement of the law is that pre-emptor must prove his superior right by producing cogent and convincing evidence both oral and documentary failing which he must face the consequence of dismissal of suit. The mere tendering in evidence, the certified copies of jamabandies is not sufficient to discharge the heavy burden of proving the superior right of pre-emption and thus the appellate Court has rightly formed the opinion on the basis of evidene available on record that pre-emptors have not been able to prove their superior right of pre-emption and the High Court having affirmed this opinion in civil revision has committed no illegality.
We having perused the record with the help of learned counsel for the appellants have not been able to find out any defect of mis-reading or non-reading of evidence to appreciate the contention of the learned counsel that concurrent findings of the two Courts on the issue relating to the superior right of pre-emption was suffering from any legal or factual infirmity calling for interference of this Court. The appellants have not bothered to bring on record any other evidence except the jamabandi to prove the claim of superior right of pre-emption being co-sharer in khata. The appellants having made statements in affirmative have not claimed their superior right of pre-emption on the basis of their qualification as co-sharer in khata and consequently, the appellate Court and also the High Court have rightly drawn an inference that the pre-emptors having not claimed superior right of pre-emption on the ground of being co-sharer in khata in their statements have virtually abandoned their claims. This being so we do not feel it necessary to dilate upon the question regarding admissibility of the copy of jamabandi tendered in evidence in the statement of counsel without its formal proof. This may be observed that the jamabandi by itself in absence of any other evidence oral or documentary, may not be considered sufficient to prove the contents of the plaint and the superior right of pre-emption on the basis of relationship or co-sharer in the khata. Learned counsel for the appellants has not been able to satisfy us that a pre-emptor by placing on record, the copies of the relevant record, without making the statements in support of his claim could succeed in the suit.
For the reasons given above, this appeal fails and is accordingly dismissed with no order as to costs.
(A.S.) Appeal dismissed.
PLJ 2008 SC 222
[Appellate Jurisdiction]
Present: Javed Iqbal, ACJ and Sardar Muhammad Raza Khan, J.
Syed SAJJAD HAIDER KAZMI--Appellant
versus
DIRECTOR GENERAL (S&GA) WAPDA & another--Respondents
Civil Appeal No. 2745 of 2006, decided on 31.5.2007.
(On appeal from the judgment dated 12.10.2006 in Appeal No. 228(L)CS/2003 passed by Federal Service Tribunal, Islambad).
Punjab Removal From Service (Special Powers) Ordinance, 2000 (XVII of 2000)--
----S. 5(4)--Constitution of Pakistan, 1973--Art. 212(3)--Leave to appeal--Service matter--Civil servant was caretaker of Hospital--Fire-arm broke out and caused considerable damage--Inquiry committee was constituted to fix responsibility upon for tragic accident--Civil servant was responsible for faulty functioning--Show-cause notice--Imposed a major penalty of compulsory retirement from service--Assailed--Appeal was partly accepted by Federal Service Tribunal--Denovo proceedings--Miscarriage of justice--Penalty of compulsory retirement--Negligence--Reasonable opportunity of hearing not provided--Illegalities--Held: Civil servant had been mishandled and various glaring illegalities had been committed--Prescribed procedure had not been followed but on the contrary action had been taken in a whimsical and arbitrary manner which could not be appreciated--Civil servant had since been retired and therefore, it would be of no use to initiate denovo proceedings without any lawful justification which was lacking in such case--Denovo proceedings set aside and appeal was accepted. [P. 227] A
1996 PLC (CS) 868; PLD 1994 SC 222; PLJ 1987 SC 1393; 2001 SCMR 1566; PLD 2002 SC 667 and 2003 SCMR 1110, ref.
Mian Mahmood Hussain, ASC for Appellant.
Ch. Muhammad Sharif, ASC for Respondents No. 1-2.
Date of hearing: 31.5.2007.
Judgment
Javed Iqbal, ACJ.--This appeal with leave of the Court is directed against the judgment dated 12.10.2006 passed by learned Federal Service Tribunal (Lahore Bench) whereby the appeal preferred on behalf of appellant has been partly accepted with the direction that denovo proceedings may be initiated against the appellant.
"A fire broke out on 3rd Floor of WAPDA Hospital Complex, Lahore on 13.11.2002 due to some electric short circuit in the fresh air blower system of AC circuit, due to which WAPDA sustained a tentative loss of Rs. 16,00,000/-. The fire alarm system installed in WAPDA Hospital Complex, Lahore was not functioning properly for which, he Syed Sajjad Haider Kazmi Sub-Engineer/Care Taker is responsible, as he failed to operate fire alarm system at the time of incident."
The Show Cause Notice further stated that a formal inquiry had been dispensed with under Section 5(4) of the Ordinance ibid. In his defence reply the appellant denied the allegations levelled against him and pleaded that the fire-alarm system had been out of order since April 2001 and that he had made several attempts to get it rectified through the authorities concerned, and further pointed out that there were fundamental faults in the design and installation of the said system. However, the Competent Authority did not accept the defence version and vide order dated 04.02.2003 imposed upon the appellant the major penalty of compulsory retirement from service. The appellant filed a departmental appeal dated 18.02.2003 before the General Manager (Admn), WAPDA House, Lahore which was rejected vide order date 29.03.2003." The appellant approached the learned Federal Service Tribunal by way of appeal which has been partly accepted, hence this appeal.
"The learned counsel argued that the petitioner had already retired from service w.e.f. 9.10.2006 on attaining the age of superannuation and the office order dated 17.11.2006 was also issued by WAPDA (Establishment Directorate) accordingly. Therefore, the disciplinary proceedings could not be taken against him as laid down by this Court in the case of Abdul Wali vs. WAPDA (2004 SCMR 678). The Service Tribunal was not justified in directing the holding of a de-novo inquiry against him.
CMA No. 4379-L/2006 (STAY MATTER)
Subject to notice, meanwhile further de-novo proceedings shall remain stayed."
It is, inter alia, contended by the learned ASC on behalf of appellant that disciplinary proceedings under the Punjab Removal from Service (Special Powers) Ordinance, 2000 cannot be initiated against a retired Government Employee and, therefore, the learned Federal Service Tribunal has erred while granting permission for de novo proceedings to the competent authority. It is next contended that the legal and factual aspects of the controversy have not been dilated upon and decided by the learned Federal Service Tribunal which resulted in serious miscarriage of justice. It is also contended that in view of various controversial questions the regular inquiry could not have been dispensed with as it was essential to make a thorough probe which was not possible without having recorded the evidence. It is next contended that the appellant cannot be held responsible to keep the Fire Alarm System functional as it was neither his duty nor he was qualified to do so.
Ch. Muhammad Sharif, learned ASC entered appearance for respondents and supported the judgment impugned for the reasons enumerated therein with the further submission that the appellant was responsible to keep Fire Alarm System functional and his negligence resulted in a heavy loss and the appellant has rightly been held responsible after having a full fledged inquiry. It is also argued that de novo proceedings could have been initiated against the appellant.
We have carefully examined the respective contentions as agitated on behalf of appellant and respondents in the light of relevant provisions of law and record of the case. We have minutely perused the judgment impugned. After having gone through the entire record we are of the view that various glaring illegalities have been committed and the mandatory requirements as contemplated in the Punjab Removal From Service (Special Powers) Ordinance, 2000 have not been adhered to which resulted in serious miscarriage of justice. For instance in view of the contentious and controversial issues the regular inquiry should have not been dispensed with. Even otherwise the copy of report of preliminary inquiry was never made available to the appellant and, therefore, he was not aware regarding the exact nature of accusation and the incriminating material relied upon in the inquiry report. Besides that personal opportunity of hearing was never afforded to the appellant. It is worth mentioning that the learned ASC on behalf of respondent had admitted before the Federal Service Tribunal that copy of preliminary inquiry was not made available to the appellant. It was also conceded that personal opportunity of hearing was not afforded which is not only in the violation of well-entrenched principles of natural justice but the law laid down by this Court in various judgments i.e. Ghulam Muhammad Khan v. Prime Minster of Pakistan and others (1996 PLC (CS) 868), Nawaz Khan and another v. Government of Pakistan through Secretary. Ministry of Defence, Rawalpindi and others (PLD 1994 SC 222) concerning the principle of audi alteram partem and reasonable opportunity of hearing. As mentioned herein above a preliminary inquiry cannot be equated to that of a regular inquiry which was quite •inevitable in view of the nature of accusation. In this regard we are fortified by the dictum laid down in case Basharat Ali v. Director Excise and Taxation. Lahore (PLJ 1987 SC 1393), Zahoor Ahmed v. WAPDA (2001 SCMR 1566), Syed Yaqoob Shah v. Xen PESCO (WAPDA) Peshawar (PLD 2002 SC 667), Abdul Qayyum v. D.G. Project Manager Organization (2003 SCMR 1110).
In the same Wake of events it has been observed that reply to show-cause notice has not been examined with diligent application of mind by the competent authority. The following points ought to have been considered as mentioned in reply of show-cause notice submitted by the respondent:
"2. Since we have no expertise for the repair/maintenance of this fault, therefore, we have been repeatedly requesting the Director (Security), WAPDA House, who were handling/ maintaining the similar Fire Alarm System at WAPDA House: to render the services of his office in order to check and repair the Fire Alarm System of WAPDA Hospital Complex, Lahore. (Copies attached at Annexure 2 &3). In which M.S. WAPDA Hospital Complex had also requested the Director Security to make necessary arrangements to depute the concerned/skilled staff to visit the WAPDA Hospital at regular intervals for the reliable and safe operation/maintenance of this vital system, but nothing was done practically in this regard from their end.
Sir, it is also regretted to mention that we have shown our concern regarding non operation of this alarm system which could lead to any accident or loss to authority vide Letter No. Hosp/30600/59/2298-2300 dated 22.08.2001. (Copy attached at Annexure-4).
Sir, later on, as per advice of Director Security, WAPDA, we have contacted the Chief Engineer (TSG) WAPDA, Faisal Town, Lahore for help or to arrange the repair of this Fire Alarm System, vide Letter No. Hosp/30600/59/8668-70 dt. 03.09.2001 (copy attached at annex:-5, but they did not bother at all.
As no wiring diagram/maintenance manual was handed over to WAPDA Hospital Complex, Lahore by the Building Circle/ Contractor. We also requested the concerned office vide Letter No. Hosp/30600(59)875 dt.07,02.2002 (Copy attached at Annexure-6), so that we could arrange the repair of this system from any other firm, but nothing has been provided up till now.
It is worth mentioning here that all the power cables/wiring is running openly in the false ceiling, whereas all the cables/wires should have been properly fixed running in the metalic conduits, as per standard Electrical Wiring Design. Similarly, Oxygen Gas. Supply line (of copper) is also running openly with the electrical wires, which is a live fire hazard to ignite the fire/flame and, Moreover the false ceiling made of wood and chipboard, which added fuel to the fire.
It is very surprising to mention here that the Electrical Staff working under the Sub-Engineer (Electrical) who were operating/maintaining all the electrical system at WAPDA Hospital Complex, Lahore have been out rightly put aside in by the inquiry committee. Whereas the sub standard wiring/cables system and their poor installation/maintenance was root cause of this said incident.
Sir, it is also important to mention here that Fire Alarm System of WAPDA Hospital has its sensors installed in the corridor (in the same false ceiling) linked with the open Wires to the main signal processing panel installed in the telephone exchange at basement.
Since, all these sensors are linked with the main processing panel at basement, so to give the signal through the electrical wires running in the same false ceiling haphazardly, this signal is processed in by the main processing panel, which, in return gives the signal to the concerned bell installed at the particular floor/area".
We are of the considered view that case of appellant has been mishandled and various glaring illegalities have been committed. The prescribed procedure has not been followed but on the contrary action has been taken in a whimsical and arbitrary manner which cannot be appreciated. It is worth mentioning that appellant has since been retired and, therefore, it would be of no use to initiate de novo proceedings without any lawful justification which is lacking in this case.
In sequel to above mentioned discussion, we are inclined to accept this appeal and resultantly the judgment of learned Federal Service Tribunal, up to the extent of holding de novo proceedings, is set aside.
(A.S.) Appeal accepted.
J
PLJ 2008 SC 227
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi & Ch. Ijaz Ahmed, JJ.
M/s. NEW SHAHEEN TRADING COMPANY through its
Managing Director--Petitioner
versus
GOVERNMENT OF PAKISTAN through Secretary Ministry of Commerce Pak. Secretariat, Islamabad and 2 others--Respondents
C.P. No. 97 of 2006, decided on 7.2.2007.
(On appeal from the judgment dated 12.12.2005 passed by High Court of Balochistan, Quetta in Const. Petition No. 727/2005).
Constitution of Pakistan, 1973--
----Art. 185(3)--Government vide notification dated 22.11.2004 changing the policy imposed ban on export of DAP/Fertilizer to Afghanistan and in consequence to inability of the petitioner to export the quantity of DAP/Fertilizer in terms of contract--Challenging the legality of notification by virtue of which ban was imposed by Government on export of Fertilizer--Entitlement of right of export--Due to change of policy, he has been deprived of the legitimate right of export of fertilizer and sustained heavy loss--Notification of imposing ban on the export of DAP/Fertilizer having no retrospective effect, would not place any restriction on the export of DAP/Fertilizer in terms of agreement executed by him under old export policy--Leave declined. [P. 230] A
Constitution of Pakistan, 1973--
----Art. 185(3)--Changing the policy imposed ban on the export of DAP/Fertilizer in terms of contract--Notification--Challenging the legality--Leave to appeal--Applicability--Vested right created under the law cannot be taken away with retrospective effect being based on different facts is distinguishable and may not be applicable to the instant case. [P. 232] B
Promissory Estopple--
----Principle of--Notification--Enforcement of new policy--Claim export of fertilizer under old policy--Right in light of principle of promissory estopple--Policy in public interest--Challenging the legality of notification--Applicability--Export policy is framed in the public interest and on the change of policy, the transaction under old policy in the process would be completed but after enforcement of new policy no one can claim export of fertilizer under old policy as of right in light of principle of promissory estopple on the basis of an agreement executed between the private parties as the principle of promissory estopple is not applicable to the legislative power of Government to amend the law and change the policy in public interest. [P. 232] C
Notification--
----Notification changing the policy imposed ban on export of DAP/Fertilizer in terms of contract--Agreement between private parties--No retrospective effect to take any legal right--Challenging the legality of notification--Threshed out the matter--Validity--Unless it is specifically mentioned in notification itself that same is applicable from the previous date, shall have no retrospective effect to take away the legal right already accrued in favour of a person--Held: Impugned notification would have no retrospective effect, has not been able to convince Supreme Court that agreement between private parties for export of fertilizer under old policy would be binding under law to be given effect even subsequent to the ban imposed on the export of Fertilizer--Leave refused. [P. 232] D & H
Agreement--
----Effect of--Agreement between private parties may have binding force inter se parties but same cannot be enforced against the third party or Government without acknowledgment. [P. 232] E
Change of Policy--
----Act of state does not prejudice the right of a person--Principle of law--Act of State does not prejudice the right of a person accrued in his favour under law and a legal instrument executed in consonance to the policy of law, would have the same legal status and notwithstanding the change of policy would essentially be given effect by Government, is not based on any principle of law. [P. 232] F
Interpretation of Rule--
----Entitlement of claim--Rule of beneficial interpretation cannot be claimed on unreasonable construction of law and counsel has not been able to satisfy Supreme Court that petitioner was entitled to claim the export of fertilizer in terms of agreement as a vested right under the old export policy. [P. 232] G
Syed Zulfiqar Abbas Naqvi, ASC and Mr. M.A. Zaidi, AOR for Petitioner.
Raja Muhammad Irshad, DAG and Raja Abdul Ghafoor, AOR for Respondents.
Date of hearing: 7.2.2007.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been directed against the judgment dated 12.12.2005 passed by the High Court of Balochistan, Quetta in a Constitution petition.
The facts leading to this petition in the background are that the petitioner in the light of the Export Policy Order (EPO), 2000, applied to the Ministry of Commerce, Government of Pakistan, Islamabad for permission to export DAP/Fertilizer to Afghanistan and in pursuance to the reply of the Ministry of Commerce vide letter dated 11.8.2004 that there was no restriction on the export of Fertilizer, under Export Policy and Procedure Order, 2000, he entered into an agreement with an Afghan firm namely M/s. Ramzir Limited Importer Faiz Muhammad Kandhar for supply of 20,000 metric ton of DAP/Fertilizer and also exported some quantity of DAP/Fertilizer under the contract. However, the Government vide notification dated 22.11.2004 changing the policy imposed ban on the export of DAP/Fertilizer to Afghanistan and in consequence to the inability of the petitioner to export the total quantity of DAP/Fertilizer in terms of contract, he filed a writ petition in the High Court of Balochistan at Quetta challenging the legality of the notification by virtue of which ban was imposed by the Government on the export of Fertilizer. The grievance of the petitioner precisely was that he entered into an agreement for export of DAP/Fertilizer with the permission of Government but due to the change of policy, he has been deprived of the legitimate right of export of Fertilizer and sustained heavy loss. The petitioner thus sought a declaration that notification of imposing ban on the export of DAP/Fertilizer having no retrospective effect, would not place any restriction on the export of DAP/Fertilizer in terms of the agreement executed by him under the old export policy.
The High Court having threshed out the matter in the light of the judgment of this Court on the subject in CPLA No. 99-Q of 2004 Aman Ullah Khan Vs. Secretary Ministry of Commerce and others, held as under:--
"4. Learned Standing Counsel for the Federal Government appeared on Court notice and opposed the petition. He stated that both the cases referred to by learned counsel for the petitioners are distinguishable, that there is a shortage of urea in the country and is not even possible to meet the domestic requirements, on account of which Federal Government has decided to import the urea.
Having heard learned counsel for the parties, we are of the view that petitioners' conduct does not entitle them to relief sought and the petitions have rightly been dismissed by the High Court through the impugned judgment. Admittedly petitioners applied for extension of time after lapse of 17 months and no justifiable reason for this delay is spelt out either in the grounds of petition or in the oral arguments. That being so, the impugned judgment is unexceptionable and does not call for interference. Petition having no force is dismissed accordingly."
This Court in Zamir Ahmed Khan Vs. Government of Pakistan (1978 SC 327) held that no legal rights could be claimed under the license as under:--
"..... ..... .... .... It was further held that in such cases the emphasis is on policy, and any discretion vesting in the authorities is directed towards attaining the policy's objectives. Under section 3(I) of the Exports Control Act, 1950, The Central Government enjoyed power of the widest amplitude to prohibit, restrict or otherwise control the import of goods. The decisions taken fall within the realm of policy making, and in all such cases orders made must conformn to the policy decisions of the Government. Accordingly, the amendment made on 9-8-1972 in Item No. 49 signified a change in policy and the petitioner was informed that he was being refused the licence because of the change in policy and not because of any other reason. On these facts it was not possible to subscribe to the proposition that a writ of mandamus would lie against the licensing authority so as to have the effect of defeating the policy competently made by the Federal Government."
The learned counsel with reference to the judgment dated 31.3.2004 rendered by the Peshawar High Court, in a writ petition filed by M/s. Village Development Organization against the Government of Pakistan involving similar question, has contended that in the case under reference, the right of export of Fertilizer to Afghanistan was claimed on the basis of an export order which was issued before the imposition of restriction on the export of DAP/Fertilizer by the Government and the right was recognized by the Court in the light of principle that change of law would not undo the rights already created in favour of a person as laid down by this Court in Anound Power Generation Vs. Federation of Pakistan (PLD 2004 SC 340) wherein it was held that a notification containing the administrative decision may not operate retrospectively at the cost of disadvantage to the people in respect of their vested rights. The learned counsel submitted that export of Fertilizer being permissible under the Export Policy Order (EPO), 2000, the petitioner entered into an agreement with a foreign company and notwithstanding the change of policy vide notification dated 12.1.2005 by virtue of which ban was imposed, he had a legitimate right of export of the Fertilizer as per terms of his agreement in the light of principle of promissory estoppel. He argued that in similar circumstances, the export of Fertilizer was allowed in all those cases in which NOCs were issued before the change of policy whereas for no legal justification, the petitioner has been discriminated.
The learned DAG, on the other hand, has strongly opposed this petition on the ground that no one can claim a vested right of the export of DAP/Fertilizer on the basis of an agreement with the private company inside or outside the country and in any case the petitioner after availing the full facility of export of Fertilizer under the old policy, insisted for further export of Fertilizer on the basis of his agreement with a foreign company in departure to the new export policy.
The judgment of this Court referred above wherein it was held that a vested right created under the law cannot be taken away with retrospective effect being based on different facts is distinguishable and may not be applicable to the present case. The export policy is framed in the public interest and on the, change of policy, the transaction under old policy already in the process would be completed but after enforcement of new policy no one can claim export of Fertilizer under the old policy as of right in the light of principle of promissory estopple on the basis of an agreement executed between the private parties as the principle of promissory estopple is not applicable to the legislative power of the Government to amend the law and change the policy in the public interest. There is no cavil to the proposition that unless it is specifically mentioned in the notification, itself that same is applicable from the previous date, shall have no retrospective effect to take away the legal right already accrued in favour of a person. It may be noted that an agreement between the private parties may have binding force inter se parties but the same cannot be enforced against the third party or the Government without acknowledgement.
The next contention of the learned counsel, that an act of State does not prejudice the right of a person accrued in his favour under the law and a legal instrument executed in consonance to the policy of law, would have the same legal status and notwithstanding the change of policy would essentially be given effect by the Government, is not based on any principle of law and learned counsel for the petitioner also has not been able to show us any provision of law by virtue of which, the petitioner could claim benefit of such instrument from the Government as a legal obligation. The rule of beneficial interpretation cannot be claimed on unreasonable construction of law and learned counsel has not been able to satisfy us that the petitioner was entitled to claim the export of Fertilizer in terms of agreement in question as a vested right under the old export policy. The learned counsel having raised the legal proposition that the impugned notification would have no retrospective effect, has not been able to convince us that the agreement between the private parties for export of Fertilizer under the old policy would be binding under law to be given effect even subsequent to the ban imposed on the export of Fertilizer.
In the light of forgoing reasons, we find no force in this petition and the same is accordingly dismissed. Leave is refused.
(R.A.) Leave refused.
PLJ 2008 SC 233
[Review Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, HCJ, Rana Bhagwandas & Faqir Muhammad Khokhar, JJ.
MAKHDOOM JAVED HASHMI--Petitioner
versus
STATE--Respondent
Crl. Rev. P. No. 75 of 2006, decided on 3.8.2007.
(On review from judgment dated 9.10.2006 of this Court passed in Crl. P. No. 89 of 2005, on appeal from judgment dated 24.3.2005 of the Lahore High Court, Lahore, passed in Crl. M.No. 1530-B/04 in Crl. A. No. 166/2004).
Constitution of Pakistan, 1973--
----Art. 185(3)--Criminal Procedure Code, (V of 1898) S. 426(3)--Pakistan Penal Code, (XLV of 1860) Ss. 124-A, 468, 469, 471, 500, 505, 131 & 109--Leave to appeal--Suspension of conviction and sentence--Except the sentence u/S. 131/109 PPC, accused had already undergone all the other sentences--Accused had also undergone the major portion of his sentence u/S. 131/109, PPC--Prima facie, if the remissions granted to other convicts from time to time by President coupled with remissions under jail manual and Cr.P.C. for total period of about two years and eight months are counted, would have almostly undergone the entire sentence--Leave allowed [P. 237] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 124-A--Criminal Procedure Code, (V of 1860), S. 196--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Jurisdiction--Purpose of taking cognizance of offence u/S. 124-A, PPC, necessary sanction of Government was not obtained in terms of S. 196 of Cr.P.C.--Held: Appellate Court shall be at liberty to express a final opinion in the matter. [P. 237] B
Criminal Procedure Code, 1898 (XLV of 1898)--
----S. 426(3)--Pakistan Penal Code, (XLV of 1860), Ss. 124-A, 468, 469, 471, 500, 505(a), 131 & 109--Suspension of sentence--Excluded the period of sentence--Accused who has already undergone almost half of his sentence may seek suspension of sentence in the interest of justice--If ultimately the appeal of accused is dismissed by the appellate Court, provisions of S. 426(3), Cr.P.C. would come in operation and the period of suspension of sentence shall find excluded and he would have to undergo the sentence awarded to accused by Court--Appeal allowed. [P. 237] C
Mr. Muhammad Akram Sheikh, Sr. ASC Assisted By Dr. Tariq Hassan Barrister Kamran Sheikh; Miss Natalya Kamal, Advocates and Mr.M. A. Zaidi, AOR for Petitioner.
Mr. Arshad Ali Chaudhry, ASC/AOR Ch. Munir Sadiq, DPG, Punjab Raja Saeed Akram, AAG, Punjab for Respondent.
Date of hearing: 3.8.2007.
Judgment
Iftikhar Muhammad Chaudhry, H.C.J.--This petition has been filed for review of judgment of this Court dated 9.10.2006, whereby Criminal Petition No. 89 of 2005, for leave to appeal for suspension of conviction and sentence of Makhdoom Javed Hashmi (convict-petitioner) was dismissed.
"(i) 3 years R.I. with fine of Rs.1,000/- or in default to further undergo two months SI for offence under Section 124-A, PPC;
(ii) 7 years R.I. with a fine of Rs.1,000/- or in default to further undergo two months SI for the offence under Section 131/109 PPC;
(iii) Two years R.I. with fine of Rs. 5,000/- or in default to undergo one month SI for the offence under Section 505(a) PPC;
(iv) Four years RI on each count with a fine of Rs. 5,000/- on each count failing which to further undergo one month SI on each count for offences under Section 468/471 PPC;
(v) One year R.I and a fine of Rs. 5,000/- for offence under Section 500 PPC two years RI with a fine of Rs. 2,000/- or in default to further undergo 15 days SI for an offence under Section 469 PPC;"
All the sentences were directed to run concurrently. The benefit of Section 382-B Cr.P.C was also extended to him.
The petitioner preferred Criminal Appeal No. 166 of 2004 before the Lahore High Court. He also moved Criminal Miscellaneous No. 1530-B of 2004 under Section 426 Cr.P.C for suspension of sentence which was declined, vide order dated 24.2.2006. The Criminal Petition No.89 of 2005, filed by him there-against was also dismissed by this Court vide impugned judgment dated 9.10.2006. The same is sought to be reviewed through the present petition.
The case was heard on 1st August, 2007 when the following order was passed:
"2. According to jail authorities, the petitioner was also convicted under Section 131/109 PPC and was sentenced to 7 years RI with fine of Rs. 10,000/- and in default whereof to undergo further two months S.I. Benefit of Section 382-B Cr.P.C was also extended by this Court for the period he remained as under trial prisoner. The learned counsel, further stated that the petitioner was taken into custody on 29th October 2003 and if the remissions awarded from time to time were calculated he had already undergone the sentence under the law as well.
On the other hand, Mr. Arshad Ali Chaudhry, learned AOR states that the Government had notified Mr. Munir Ahmed Bhatti, ASC to argue the case on behalf of the State but he has already obtained adjournment. Therefore, instant case may be adjourned to a date in the first week of September, 2007.
It was pointed out to learned AOR for the State that if the calculations as has been made by the office of the Superintendent, Central Jail, Lahore vide Letter No. 27011 dated 31st July 2007 are correct then the petitioner had already undergone the sentence except under Section 131/109 PPC. If arguments of the learned counsel for petitioner prevail then he seems to have also served out the sentence for the said offence by adding the remissions which may be taken into consideration for suspension of the sentence. Moreover, after filing of the appeal by the petitioner before the High Court against the judgment of the trial Court dated 12th April 2004 it has been listed for hearing even for once and there is no likelihood of its hearing in near future. Therefore, the learned AOR for the State has been asked to make alternate arrangements to argue the case.
Both the learned counsel for parties agreed that instant case may be fixed for hearing on 3rd August 2007."
The learned counsel for the petitioner contended that:--
(i) This Court had not taken into consideration that the petitioner had already undergone all the sentences except under Section 131/109 PPC. If special remissions granted to the convicts, from time to time, by the President covering total period of approximately one year and eight months and other remissions of over one year under the law were credited to him, the petitioner had already served out the entire sentence of 7 years under Section 131/109 PPC.
(ii) For the purpose of taking cognizance of an offence, under Section 124-A PPC necessary sanction from the Government had not been accorded as required by Section 196 Cr.P.C. He relied on the case of Salman Taseer versus Judge Special Court (1993 SCMR 71). This aspect of the case had escaped the notice of this Court.
(iii) The judgment in the case of Adnan A. Khawaja versus the State (Criminal Petition No. 281 of 2001) had not been taken into consideration wherein it was observed that where a convict had served out almost half of the sentence, his remaining sentence could be suspended depending on the particular facts and circumstances of the case.
(iv) The petitioner had already sought withdrawal of a similar application from the High Court.
(v) The appeal of the petitioner against his conviction and sentence had not been fixed for hearing for the last more than three years.
On the other hand, the learned counsel for the State submitted that during the pendency of instant review petition, the petitioner had already moved an application before the High Court for suspension of sentence. The petitioner was not entitled for remissions being a convict for anti-state offences under Sections 124-A and 131/109 PPC. He further stated that if the sentence of the petitioner was suspended, it would tantamount to disposing of the main appeal pending before the High Court.
Ch. Munir Sadiq, the learned Deputy Prosecutor General, Punjab, stated that since the petitioner had remained incarcerated for a considerable period, he had made out a case for suspension of the sentence. He further stated that supposing the appeal of the petitioner was dismissed by the High Court, the provisions of Section 426(3) Cr.P.C. would take care of the period for which his sentence remained suspended which would stand excluded from his sentence.
Raja Saeed Akram, the learned AAG, Punjab, stated that in view of the nature of offences involved, the petitioner could not claim remissions as a matter of right.
We have heard the learned counsel for the parties at length and have also gone through the relevant record. It is true that while dismissing earlier petition of the petitioner under Article 185(3) of the Constitution, the factum of the period of his sentence already undergone by him had not been taken into consideration. Here, it would be worth mentioning that except the sentence under Section 131/109 PPC, the petitioner has already undergone all the other sentences. He has also undergone the major portion of his sentence under Sections 131/109 PPC. Prima facie, if the remissions granted to other convicts from time to time by the President coupled with the remissions under jail manual and Cr.P.C. for total period of about two years and eight months are counted, he would have almost undergone the entire sentence.
It may also be noted that appeal before the High Court was filed by the petitioner on 24th of April, 2004, but so far not a single hearing had taken place. It is not certain whether the same will be fixed in the foreseeable future. We are also inclined to take a tentative view that, as held in the case of Salman Taseer (supra), for the purpose of taking cognizance of an offence under Section 124-A PPC, necessary sanction of the Government was not obtained in terms of Section 196 Cr.P.C. However, the appellate Court shall be at liberty to express a final opinion in the matter.
The other argument of Mr. Arshad Ali Chaudhry, ASC/AOR, for the State that, in case of suspension of sentence, the object of filing the appeal would be defeated, is equally devoid of any substance. A convict who has already undergone almost half of his sentence may seek suspension of sentence in the interest of justice keeping in view the facts and circumstances of a particular case such as Adnan A Khawaja (supra). It is also mentioned here that if ultimately the appeal of the petitioner is dismissed by the appellate Court, the provisions of sub-section (3) of Section 426 Cr.P.C. would come in operation and the period of suspension of sentence shall stand excluded and he would have to undergo the sentence awarded to him by the Court.
For the foregoing reasons, we are of the opinion, that a case for review of judgment has been made out. The impugned judgment dated 9.10.2006, is reviewed and recalled. As a consequence, the Criminal Petition No. 89 of 2005 of the petitioner under Article 185 (3) of the Constitution is converted into appeal and is allowed. The order dated 24.2.2005 passed by the Lahore High Court in Criminal Miscellaneous No. 1530-B/2004 in Criminal Appeal No. 166/2004 is set aside.
The above are the reasons for the short order of today which is to the following effect and is to be read as integral part of this judgment as well:--
"For the reasons to be recorded separately, this Criminal Review Petition No.75 of 2006 is allowed. The conviction and sentences of the petitioner in case F.I.R. No. 326 of 2003 dated 29.10.2003, registered as Police Station, Secretariat, Islamabad, under Sections 124-A/468, 469, 471, 500, 505(a) read with Sections 131/109 PPC, are suspended during pendency of Criminal Appeal No. 166/2004 before the Lahore High Court. The petitioner shall be released forthwith, if not required in any other case, subject to his furnishing bail bonds in the sum of Rs. 50,000/- with P.R bonds in the like amount to the satisfaction of the Registrar of this Court."
(N.F.) Appeal allowed.
PLJ 2008 SC 238
[Constitutional Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, HCJ, Muhammad Nawaz Abbasi & Mian Shakirullah Jan, JJ.
Dr. MUBASHIR HASSAN & 4 others--Petitioners
versus
FEDERATION OF PAKISTAN and others--Respondents
Const. P. Nos. 76 to 80 of 2007, decided on 12.10.2007.
(Challenge to National Reconciliation Ordinance, 2007)
National Reconciliation Ordinance, 2007 (LX of 2007)--
----Ss. 6 & 7--Constitution of Pakistan, 1973, Art. 184(3)--Challenging the NRO--Suspension of operation of Sections 6 & 7 of Ordinance, 2007--Provisions of law cannot be suspended because Supreme Court can only suspend a order judgment or action--Held: Any benefit drawn or intended to be drawn by any of the public office holder shall be subject to the decision and the beneficiary would not be entitled to claim any protection of action u/Ss. 6 and 7 of NRO 2007, under any principle of law, if Supreme Court conclude that NRO and particularly its provisions are ultra vires of the Constitution.
[P. 242] A
Mr. Suleman Ahmed Raja, ASC with Mr. Ejaz Muhammad Khan, AOR for Petitioner (in Const. P. No. 76/2007).
Mr. Muhammad Ikram Ch. Sr. ASC with Mr. Ejaz Muhammad Khan, AOR for Petitioner (In Const. P. No. 77/2007).
Dr. Farooq Hassan, Sr. ASC with Ch. Muhammad Akram, AOR for Petitioner (In Const. P. No. 79/2007).
Mr. M.A. Zaidi, AOR for Petitioner (In Const. P. No. 79/2007).
Petitioner in person (In Const. P. No. 80/2007).
Respondents not represented.
Date of hearing: 12.10.2007.
ORDER
Iftikhar Muhammad Chaudhry, H.C.J.--These petitions have been filed under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 [herein after referred to as "the Constitution"] challenging the National Reconciliation Ordinance, 2007 (No. LX of 2007) [hereinafter referred to as "the impugned Ordinance"].
(a) Section 7 of the impugned Ordinance being self-executory in nature amounts to legislative judgment, which is impermissible intrusion into the exercise of judicial powers of the State and thus falls foul of Article 175 of the Constitution which envisages separation and independence of the judiciary from other organs of the State.
(b) Legislative judgment cannot be enacted by the Parliament. [Smt. Indira Nehru Gandhi v. Rai Narain (AIR 1975 SC 2299)].
(c) By promulgating Section 7 of the impugned Ordinance, Article 63(1)(h) and 63(1)(l) of the Constitution have been made ineffective, as regards chosen category of people, therefore, it is ultra vires the Constitution as it amounts to defeat the constitutional mandates.
(d) Impugned Ordinance exhorts about or indemnifies a particular class of people i.e. public office holders from proceedings, actions and orders passed by the competent authorities, whereas no such-powers are available to the Parliament or, for that matter, to the President of Pakistan under Federal or Concurrent Legislative List. Further; the President is empowered only to pardon an accused person, under Article 45 of the Constitution, after passing of sentence by a Court of law, whereas by means of impugned Ordinance, the President has been empowered to indemnify or pardon an accused, against whom proceedings are pending before Investigating Agency or a Court of law or in appeal by giving a blanket cover.
(e) The impugned Ordinance violates the provisions of Article 25 of the Constitution because it is not based on intelligible differentia, relatable to lawful objects, therefore, deserves to be struck down.
(f) The impugned Ordinance is against the public policy because it also provides protection against future action in terms of its Section 7 and it had also rendered Articles 62 and 63 of the Constitution ineffective.
(g) Sub-sections (2) and (3) of Section 494 of Cr.P.C. added by means of impugned Ordinance are contrary to provisions of sub-section (1) of Section 494 of Cr.P.C. where it has been provided that cases can only be withdrawn with the consent of the Court, whereas, in newly added Sub-Sections, powers of the "Court" have been conferred upon the Review Boards of the Exclusive Bodies, therefore, these sub-sections are also contrary Article 175 of the Constitution.
and
No criteria has been laid down as to why the cases falling between the 1st day of January 1986 to 12th day of October 1999 have been covered under these provisions, inasmuch as definition of political victimization has not been provided in these sub-sections, as a result whereof it has been left at the subjective consideration of Review Board/Executive Bodies to determine the same. Thus such provisions cannot exist in any manner.
(h) The impugned Ordinance has been promulgated in colorable exercise of Legislative powers and its various provisions have created discrimination among ordinary and classified accused, therefore, all these provisions tantamount to malice in law.
(i) The provisions of impugned Ordinance are so overboard that these have provided blanket cover to all the holders of public office, including chosen representatives and ordinary employees, therefore, the object of national reconciliation cannot be achieved by allowing it to exist.
(j) The provisions of Sections 4 and 5 of the impugned Ordinance are highly discriminatory in nature, therefore, are liable to be struck down.
(k) Section 6 of the impugned Ordinance is contrary to the basic principles relating to annulment of" judgments, even if passed in absentia, in accordance with existing law, according to which unless the basis for the judgment, in favour of a party, is not removed, it could not affect the rights of the parties, in whose favour the same was passed but when the Legislature promulgated the impugned Ordinance, in order to remove the basis on which the judgment was founded, such judgment shall have no bearing on the cases. [Facto Belarus Tractor Ltd. v. Government of Pakistan (PLD 2005 SC 605)]. Hence, provisions of the impugned Ordinance as a whole are against the concept of equality of Islamic Injunction, provided under Article 2A of the Constitution, therefore, on this score as well, deserves to be struck down being ultra vires the Constitution.
(i) The impugned Ordinance is person specific and period specific, therefore, violates Article 25 of the Constitution.
(i) The impugned Ordinance is contradictory to and violative of the United Nation's Convention Against Corruption, enacted in 2005 and ratified by Pakistan on 31st of August 2007.
(ii) Under the Constitution, no indemnity or amnesty can at all be given to any one, except granting pardon in terms of Article 45 of the Constitution.
(iii) Sections 2, 4, 5 and 6 of the impugned Ordinance are violative of the doctrine of trichotomy of powers.
(iv) The impugned Ordinance has in fact changed the basic structure of the Constitution.
(v) The impugned Ordinance has also violated the principles of political justice and fundamental rights because it allows plundering of national wealth and to get away with it. More so, it tried to condone dishonesty of magnitude which is unconscientious and shocking to the conscience of mankind.
Mr. M.A. Zaidi, AOR appeared on behalf of Mr. Muhammad Akram Sheikh, Sr. ASC in Constitution Petition No.79 of 2007 and adopted the above arguments of the learned counsel for the petitioners.
Mr. Tariq Asad, ASC appearing in Constitution Petition No. 80 of 2007 also adopted the above arguments, while adding that:--
(a) The impugned Ordinance has been promulgated on the basis of personal satisfaction of the President of Pakistan but for extraneous reasons and to provide indemnity/immunity to the public office holders which amounts to encourage corruption under the cover of law, therefore, is liable to be struck down.
Learned counsels appearing in Constitution Petitions No. 76, 77 and 78 of 2007 prayed for suspension of operation of Sections 6 and 7 of the impugned Ordinance as according to their apprehension, both these sections contain self-executory powers, therefore, if allowed to continue, the very object of filing of petitions will be frustrated because of extension of benefit to a public office holder, who intends to drive such benefit.
It has been pointed out to them that ordinarily the provisions of a law cannot be suspended because this Court can only suspend a particular order, judgment or action, etc. However, we are inclined to observe in unambiguous terms that any benefit drawn or intended to be drawn by any of the public office holder shall be subject to the decision of the listed petitions and the beneficiary would not be entitled to claim any protection of the concluded action under Sections 6 and 7 of the impugned Ordinance, under any principle of law, if this Court conclude that the impugned Ordinance and particularly its these provisions are ultra vires the Constitution.
Issue notices to the respondents as well as to Attorney General for Pakistan as required in terms of Order XXVII-A CPC and Order XXIX Rule 1 of the Supreme Court Rules, 1980. As important questions of public/national interest have been raised in these petitions, therefore, a request be sent to Mian Allah Nawaz, ASC (former Chief Justice of Lahore High Court), Mr. Shaiq Usmani (former Judge of Sindh High Court) and Mr. M. Sardar Khan, former Attorney General for Pakistan, to appear and assist the Court as amicus curie.
Let these petitions be set for hearing for a date after three weeks.
(R.A.) Order accordingly.
PLJ 2008 SC 243
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Falak Sher, JJ.
Mrs. ANIS HAIDER and others--Petitioners
versus
S. AMIR HAIDER & others--Respondents
Civil Petition No. 844 of 2007, decided on 22.10.2007.
(On appeal from the judgment dated 29.6.2007 of Lahore High Court, Lahore passed in Writ Petition No. 5439/2006).
Civil Procedure Code, 1908 (V of 1908)--
----S. 12(2)--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Suit for administration of property--Agreement for arbitration--Gift on ground of fraud--Gift was forged and fictitious and so award--Allegation of forgery and fraud could never have been decided without recording of evidence--Motivating factor for rejection of application was written statement of arbitrator--Mere written statement has not at all been valid ground for guillotining a serious application--Validity--Trial Court did not exhibit a judicial behaviour and higher Courts endorsed it with no application of mind--Held: Order can be attracted only when a plaint by itself does not disclosed any cause of action--It cannot be rejected on the basis of written statement because the initial burden remains on the plaintiff to prove his case on the basis of assertions made in the pleadings--Further held: If principle adopted by Courts below is endorsed, it would be the easiest thing to dismiss any civil suit simply and merely on the basis of written statement--Petition after conversion into appeal was accepted and case was remanded to trial Court. [P. 246] A
Mr. M. Ramzan Ch. ASC with Raja Abdul Ghafoor, AOR for Petitioners.
Mr. Hamid Khan, Sr. ASC with Mr. M.S. Khattak, AOR for Respondent No. 1.
Mr. Amir Alam Khan, ASC, Mr. Jehanzeb Khan Bharwana, ASC and Mr. Ahmed Waheed Khan, ASC for Respondents No. 2 to 4.
Mr. Ali Akbar Qureshi, ASC for Respondent No. 5.
Mr. Arshad Ali Ch., AOR (absent) for Respondents No. 2-5.
Date of hearing: 22.10.2007.
Judgment
Sardar Muhammad Raza Khan, J.--Mrs. Anis Haider and her three sisters seek leave to appeal from the judgment dated 29.6.2007 of learned Lahore High Court, whereby, their writ petition against the judgment dated 27.4.2006 of Additional District Judge, Lahore was dismissed. Initially it was an application under Section 12(2) CPC filed by the petitioners which stood dismissed in the two Courts below under Order VII, Rule 11 CPC.
Dr. S. Bahadur Ali Shah was the original owner of the disputed property who died on 1.4.1998. His four daughters namely Mrs. Anis Haider, Mrs. Tahira Bokhari, Mrs. Kausar Haider and Mrs. Samana Ali, only three months and twenty seven days after the death of their father and on 28.7.1998, filed a suit for the administration of property against their real brothers S. Amir Haider, Dr. S. Agha Haider and two sisters Mrs. Saeed Khalid and Mrs. Shabi Kausar. The brothers aforesaid filed written statement on 3.10.1998 taking the plea that the subject-matter of dispute had been gifted away to the two brothers by the father through an oral gift on 7.7.1978 and an award dated 7.10.1978, made rule of the Court vide judgment dated 6.11.1979.
From record it appears that an agreement for arbitration was entered into on 1.11.1977 on the pretext that the two sons aforesaid etcetera and Dr. S. Bahadur Ali Shah had a dispute over the property. Such dispute, on the basis of arbitration agreement was referred to S. Afzal Haider, a learned counsel of the Supreme Court as an arbitrator. The arbitrator filed his award on 7.10.1978 declaring that the property stood transferred in the name of S.Amir Haider and Dr. S.Agha Haider by their father on the basis of oral gift.
Dr. S. Bahadur Ali Shah on 25.3.1979 filed an application before Court for making the award a rule of the Court. Such award was made rule of the Court and a decree accordingly granted on 6.11.1979. Nobody challenged such rule and the matter, for the said purpose, became final.
When the sisters, through pleadings, got knowledge of all that had happened earlier, they on 26.11.1998, within one month and twenty three days of the written statement of their brothers, filed an application under Section 12(2) CPC challenging the decree dated 6.11.1979 and the gift etcetera on ground of fraud. They claimed that all the proceedings aforesaid had been taken without their knowledge. That the gift was forged and fictitious and so the award, where, their father had never appeared before the arbitrator. That the entire fictitious proceedings had been resorted to in order only to deprive the daughters from their shari share in the disputed property.
The respondents/defendants in suit for administration filed an application under Order VII, Rule 11 CPC on 17.2.2002 seeking rejection of application under Section 12(2) CPC. The trial Court dismissed such application, framed issues and fixed the case for recording of evidence. The Additional District Judge Lahore accepted the revision and rejected the application of Section 12(2) CPC under Order VII, Rule 11 CPC. The petitioners filed a writ petition and vide judgment dated 14.11.2002 succeeded in getting the order of the trial Court restored.
The respondents thereafter filed a civil petition for leave to appeal before the Supreme Court. Vide order dated 10.4.2003, this Court, on the basis of compromise between the parties, remanded the case back to the trial Court in the following terms:--
(i) Let application under Section 12(2) CPC filed by respondents-applicants Mrs. Anis Haider and three other daughters of Dr. S.Bahadur Ali shah dated 18.11.1998, be decided by the trial Court expeditiously as far as possible within a period of one year from the date of receipt of this order.
(ii) After final decision on the application under Section 12(2) CPC suit for administration of property, filed by the respondents, shall be taken up for hearing if need be.
(iii) The trial Court seized with matters shall decide application under Section 12(2) CPC and the administration suit independently without being influenced in any manner from the impugned judgment dated 14.11.2002, passed by the Lahore High Court, Lahore".
The first round having ended, after remand, the arbitrator Syed Afzal Haider Advocate was arrayed as respondent who filed his reply/written statement. On the basis of such written statement and most probably on his solitary and uncrossed earlier statement dated 1.7.1979, the application under Section 12(2) CPC of the petitioners was rejected once again under Order VII, Rule 11 CPC. This rejection was maintained up to High Court and hence this petition.
It requires no lengthy discussion and there cannot be two opinions about the fact that the matter had already been remanded to the trial Court by this Court on 10.4.2003 for settling the above narrated points and for deciding application under Section 12(2) CPC. Obviously, an application containing serious allegations of forgery and fraud could never have been decided without recording of evidence. It is for this purpose that the Supreme Court had allowed and fixed a period of one year for the decision involved. Despite orders of the Supreme Court, the trial Court never proceeded to record evidence of the parties about their assertions and counter assertions involving serious questions of fact to be settled on both sides. The only motivating factor for rejection of application was the reply/written statement of the arbitrator and his earlier statement dated 1.7.1979. This was a novel procedure adopted by the trial Court and endorsed by the higher Courts, in that, the pleadings of parties could never be taken as an evidence particularly when the arbitrator was not even examined in Court in support of his written statement much-less his cross-examination by the party desiring so to do. A mere written statement by a respondent has not at all been a valid ground for guillotining a serious application filed by the ladies and by-passing the order dated 10.4.2003 of the Supreme Court. The trial Court did not exhibit a judicial behaviour and the higher Courts endorsed it with no application of mind.
The very terminology used in Order VII, Rule 11 CPC is indicative of the fact that it pertains to suits and plaints in particular. The Court should have realized the difference between a regular suit and an application. Section 141 CPC cannot be attracted as it pertains to the ordinary procedure laid down in Civil Procedure Code that may be followed in deciding an application but a substantial requirement of recording of evidence on pure and serious question of fact could not be by-passed by unjustifiable invoking of Order VII, Rule 11 CPC. It appears that even the implications of Order VII, Rule 11 CPC were not properly appreciated and applied. The order can be attracted only when a plaint by itself does not disclosed any cause of action. It cannot be rejected on the basis of written statement because the initial burden remains on the plaintiff/petitioner to prove his case on the basis of assertions made in the pleadings. If the principle in hand adopted by the Courts below is endorsed, it would be the easiest thing to dismiss any civil suit simply and merely on the basis of written statement.
Consequent upon what has been discussed above, the petition after conversion into appeal is accepted and the case is remanded to trial Court with direction to decide the application under Section 12(2) CPC after recording evidence of both the parties and in the light of this Court previous order dated 10.4.2003. The entire exercise shall be completed and the matter shall be decided within six months.
(R.A.) Case remanded.
PLJ 2008 SC 247
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan & Mian Hamid Farooq, JJ.
Malik MUHAMMAD FAISAL and another--Petitioners
versus
STATE LIFE INSURANCE CORPORATION through its Chairman
and 2 others--Respondents
Civil Petition No. 372 of 2007, decided on 7.1.2008.
(On appeal from the judgment dated 28.2.2007 of the Lahore High Court, Lahore passed in RFA No. 56/2001).
Insurance Act, 1938 (IV of 1938)--
----S. 45--Civil Procedure Code, (V of 1908)--O. XXXVII, Rr. 2 & 3--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Suit for recovery--Summary procedure on the basis of dishonoured crossed cheques--Facts of--Petitioners/plaintiffs claiming to be successors-in-interest of deceased--Insurance claim was accepted and consequent thereto, two crossed cheques in favour of petitioner--Respondent stopped payment against the cheques--Contention of--Predecessor-in-interest of the petitioners obtained insurance policy by misrepresentation, furnishing incorrect date of birth by concealment of material facts and it was pleaded that there was no liability for making payment of the suit amount--Suit was dismissed--Concurrent findings--Assailed--Validity--Insurance policy issued in the name of their deceased father could not be challenged and called in-question as the period of two years fixed in Section 45 of Insurance Act, has since expired--As the petitioners failed to plead and raise the ground in their pleadings from the very inception of the case, therefore, they are now precluded from improving their case and to raise new ground of attack by departing from previous pleadings at such stage--Held: If the Insurance company was able to find out the record pertaining to the date of birth of deceased and succeeded in producing sufficient material in evidence to establish deceased's correct date of birth, why the petitioners could not produce some evidence to substantiate their case that the date of birth of their father was 8.3.1945--It cannot be conceived, that the deceased was unaware about his actual date of birth--Further held: Petitioners failed to establish that their father's date of birth was 8.3.1945 instead of 8.3.1940, at the time of obtaining insurance policy incorrect information and fake particulars were furnished act was obtained by practicing fraud--Both judgments are in accordance with the evidence on record and inconsonance with the law on the subject--Supreme Court are not persuaded to interfere in the judgments which are concurrent and hereby maintained--Leave refused. [Pp. 250, 251, 252 & 255] A, B & F
PLD 1974 SC 322; 1988 SCMR 1696; 1996 SCMR 336 &
1998 SCMR 592 ref.
Insurance Act, 1938 (IV of 1938)--
----S. 45--Furnishing of incorrect date of birth at the time of obtaining insurance policy--Defraud the insurance company--Insurance claim was accepted and consequence thereto, two crossed cheques--Cheques were deposited and payment was refused by Insurance company--Insurance policy was obtained by misrepresentation, furnishing his incorrect date of birth--No liability for making payment--Incorrect date of birth--No liability for making payment--Matter of common knowledge that when a person applies for issuance of NIC--Deceased himself gave his date of birth and other particulars and authorities issuing identity card without making any inquiry about furnished particulars incorporate the same in NIC--Held: Furnishing of incorrect date of birth by deceased at the time of obtaining insurance policy was conscious act, he deliberately made false statement and furnished incorrect particulars qua his date of birth and furnished incorrect particulars qua his date of birth as his date of birth only to defraud the Insurance Company. [P. ]253 C
Date of Birth--
----Voluminous evidence--Date mentioned in National Identity Card is to be preferred over the un-rebutted record produced by corporation, which was admitted in evidence without any objection from the petitioner's side--In such a situation correct and true date of birth would be the one as recorded in School/Board record being earliest in time are not open to any exception and Supreme Court are not persuaded to take a contrary than of High Court. [P. 254] D
PLD 2005 SC 962 rel.
Date of Birth--
----Appreciation of evidence--Date of birth furnished by the father of the petitioner to the Board of Secondary Education at the time of taking matriculation examination is to be preferred over the date mentioned in the National Identity Card. [P. 255] E
Kh. Muhammad Farooq, ASC for Petitioners.
Nemo for Respondents No. 1 & 2.
Mr. Zulfiqar Ahmad Abbasi, Officer UBL, Islamabad for Respondent No. 3.
Date of hearing: 7.1.2008.
Judgment
Mian Hamid Farooq, J.--The petitioners/plaintiffs, through the petition in hand seek leave to appeal against the judgment dated 28.2.2007, whereby, the learned Division Bench of Lahore High Court at Lahore dismissed their appeal (RFA No. 56/2001) and maintained the judgment and decree dated 20.12.2000 through which the learned trial Court/Additional District Judge dismissed petitioners' suit for recovery of Rs. 14,00,000/-.
Facts of the case, in brief, are that the petitioners/plaintiffs, claiming to be the successors-in-interest of Malik Maqbool Ahmad deceased, on 9.12.1998, instituted the suit for recovery of Rs. 14,00,000/-, against the respondents, before the learned District Judge under summary procedure provided under Order XXXVII CPC on the basis of two dishonoured crossed cheques, both dated 20.4.1998 (Exh.P-1 & P-2), total amounting to Rs. 14,00,000/-. The case of the petitioners as set out in the plaint was that their father namely Malik Maqbool Ahmad purchased Life Insurance Policy No. 504812122-2 for Rs. 14,00,000/- from Respondent No. 1; the policy was issued, on 15.7.1996, in favour of their late father who had been paying the premium regularly and Malik Maqbool Ahmad nominated the petitioners as his legal nominees to receive the amount of Rs. 14,00,000/-. It was pleaded by the petitioners that Malik Maqbool Ahmad died on 4.6.1997, thereupon the insurance claim was submitted by the petitioners, which was accepted and approved and consequent thereto, two crossed cheques both dated 20.4.1998 total amounting to Rs. 14,000,00/- (Cheque No. 90251826 for Rs. 983,865/- in favour of the Petitioner No. 1 and another Cheque No. 90251827 for Rs. 491,859/- in the name of Petitioner No. 2) were issued, however, when the cheques were deposited in their accounts the payment was refused by Respondent No. 3 on the ground that Respondent No. 1 had stopped payment against the said cheques. Respondents No. 1 & 2 were granted leave to appear and defend the suit, they filed joint written statement thereby admitting issuance of the cheques, however, contended that the predecessor-in-interest of the petitioners obtained insurance policy by misrepresentation, furnishing his incorrect date of birth, by concealment of material facts and thus it was pleaded that there was no liability on them for making payment of the suit amount. The learned trial Court framed five issues, recorded evidence of the parties and in the ultimate analysis dismissed petitioners' suit vide judgment and decree dated 20.12.2000. Petitioners' appeal (RFA No. 56/2001), assailing the said judgment and decree was, also dismissed by the learned Division Bench of Lahore High Court at Lahore vide judgment and decree dated 28.2.2007, hence the present petition.
Learned counsel for the petitioners submitted that in view of Section 45 of The Insurance Act, 1938, the insurance policy in the name of petitioners' father could be called in question on the allegation of fraud within a period of two years from the date it was effected and thus both the Courts erred in law in dismissing petitioners' suit/appeal. He has further submitted that there is no evidence on record to show that the date of birth mentioned in the proposal form was a conscious act of misrepresentation by Malik Maqbool Ahmad with a view to defraud the Insurance Company and the policy holder at the time of making the statement knew that the statement was false and fraudulent. He has relied upon the cases of Mithoolal Nayak v. Life Insurance Corporation of India (AIR 1962 SC 814), Life Insurance Corporation of India v. Nanaki Ammal (AIR 1968 Madras 324), Life Insurance Corporation of India, Bombay v. Parvathavardhini Ammal (AIR 1965 Madras 357), Smt. Benarasi, Debi v. New India Insurance Co. Ltd (AIR 1959 Patna 540), Lakshmi Insurance Co. Ltd. V. Bibi Padma Wati (AIR 1961 Punjab 253). He has next contended that, case reported as State Life Insurance Corporation v. Mst. Begum Jan (PLD 1983 SC 421) relied upon by the High Court, is clearly distinguishable from the facts of the present case.
We have heard the learned counsel at length and perused the total record of the case. Upon the in-depth examination of the contents of the plaint, we do not find that the petitioners raised the plea of Section 45 of The Insurance Act now vigorously pleaded by the learned counsel. It was simply stated in para-8 of the plaint that Respondents No. 1 & 2 with malafide intentions, illegally, fraudulently and without any reason refused to make payment of these two cheques to the petitioners. Para-8 of the plaint reads as follows:--
"That the Defendants No. 1 and 2 with malafide intentions on its part illegally, fraudulently and without any reason whatsoever refused the payment of these two cheques to the plaintiffs on 24.4.98".
The petitioners did not agitate in the plaint that the insurance policy issued in the name of their deceased father could not be challenged and called in question as the period of two years fixed in Section 45 ibid has since expired. As the petitioners failed to plead and raise the said ground in their pleadings from the very inception of the case, therefore, they are now precluded from improving their case and to raise new ground of attack by departing from previous pleadings at this stage. It appears appropriate to refer to the followings case law, which is apt to the subject in hand. Mst. Murad Begum etc. v. Muhammad Rafiq etc, (PLD 1974 SC 322):--
" ........It is well settled that a party cannot be permitted to raise an altogether new ground of attack or defence, by departing from its previous pleadings, especially when the opposite-party had no opportunity to adduce evidence in this behalf or to otherwise have an opportunity of meeting the plea during the course of the trial. Reference in this behalf may be made to Siddik Mahamed Shah v. Mst. Saran (1), Hem Chand v. Pearay Lal (2), Kanda v. Waghu (3), Messrs Choudhry Brothers v. Jaranwala Central Co-operative Bank Ltd. (4), Mst. Sherina v. Haji Ghawar Khan (5) and Abdul Karim v. Mirza Bashir Ahmad"
Mst. Jannat Bibi v. Sher Muhammad and others (1988 SCMR 1696).
".......In civil proceedings a party is not permitted to deviate from his or her pleadings, nor can the Court set up a different plea for a party and decide the suit on that basis, much less at the appellate stage ".
Binyameen and 3 others v. Chaudhry Hakim and another (1996 SCMR 336).
"......The appellants thus changed plea of oral agreement to a written agreement. This was not permissible in law and furthermore such a document could not have proved the plea of oral agreement pleaded in application under Section 12(2), CPC. It is a well-settled principle of law that a party can prove a case which has been pleaded by it. In support of his contention, the learned counsel for the appellant referred to Government of Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad (PLD 1976 Supreme Court 469). It is also a well-settled principle that no evidence can be led or looked into in support of a plea which has not been taken in the pleading".
Anwar Ali and others, v. Manzoor Hussain and another (1996 SCMR 1770).
".....6. Unfortunately, no such plea was taken by the appellants in the written statement filed in the suit. The learned counsel for the appellants conceded that a defendant in a suit must deal specifically with each allegation of fact of which he does not admit the truth. Such provision exists in Order VIII, Rule 3 of the Code of Civil Procedure".
Muhammad Sarwar v. Zulfiqar and others (1998 SCMR 592)
"......It is a settled principle of law that a party cannot be allowed to succeed on a case not set up by him. This plea is, therefore, violative of the rule of "Secundum Allegata et-Probata i.e., a party can only succeed according to what was alleged and proved".
In the above perspective, as the petitioners did not raise any such plea in the pleadings, therefore, they are now estopped to agitate the bar of two years as contained in Section 45 of Insurance Act 1938, as it will amount to improvement and deviation of the case originally set up in the pleadings. The first contention of the learned counsel is without any force.
It has been established on record through production of oral as well as documentary evidence by the respondent Insurance Company, as rightly appreciated by both the Courts, that Malik Maqbool Ahmad procured the insurance policy by furnishing false and incorrect particulars about his date of birth. The Petitioner No. 1 namely Malik Muhammad Faisal (PW-1) appeared as the sole witness and produced certain documents in his statement. Besides, the petitioners did not produce any independent and convincing evidence to advance their case and to establish that the date of birth of their father, as incorporated in National Identity Card (Exh. D-5) i.e. 8.3.1945, is correct. Contrarily, the Insurance Company was able to dig out the record of the Board of Intermediate & Secondary Education Lahore pertaining to the date of birth of the deceased to demonstrate that the correct and true date of birth of Malik Maqbool Ahmad was 8.3.1940 and not 8.3.1945. It examined Nazir Hussain Record Keeper of the Board to prove certificate (Exh. D-1) showing that true date of birth of Malik Maqbool Ahmad in the record of the Board is 8.3.1940. Not only this but the said witness also produced the original Gazette confirming the said date of birth of the deceased. It may be noted that the petitioner did not lead any piece of evidence to rebut the convincing and irresistible evidence produced by the Insurance Company and to establish that the date of birth is 8.3.1945 and not 8.3.1940. Net result which flows therefrom is that the evidence produced by the Insurance Company stood un-rebutted and rightly believed by the two Courts below. If the Insurance Company was able to find out the record pertaining to the date of birth of the deceased and succeeded in producing sufficient material in evidence to establish deceased's correct date of birth, why the petitioners could not produce some evidence to substantiate their case that the date of birth of their father was 8.3.1945. It cannot be conceived, in view of the cogent available evidence that the deceased was unaware about his actual date of birth and not in the knowledge that his date of birth is 8.3.1940 and not 8.3.1945. PW-1 has admitted that his father was matriculate. Malik Maqbool Ahmad, admittedly, passed matriculation examination, therefore, it cannot be believed that he was not aware about his date of birth recorded by the Board in his matriculation certificate. It may be noted that Malik Maqbool Ahmad when appeared in the matriculation examination, himself filled up the form (Exh. D-1) showing his date of birth as 8.3.1940. The record of the Board including Exh. D-2 admitted in evidence shows the same date. Malik Maqbool Ahmad, vide letter dated 30.6.1996 (Exh.D-6), showed his inability to produce any record showing his date of birth stating that he had no proof of his age except the entry in the Identity Card. It is a matter of common knowledge that when a person applies for issuance of National Identity Card, he/she himself/herself gives his/her date of birth and other particulars and the authorities issuing the Identity Card without making any inquiry about the furnished particulars incorporate the same in the National Identity Card. To our mind furnishing of incorrect date of birth by the father of the petitioners at the time of obtaining insurance policy was his conscious act, he deliberately made false statement and furnished incorrect particulars qua his date of birth knowingly that his date of birth was 8.3.1940 and gave the incorrect date i.e. 8.3.1945 as his date of birth only to defraud the Insurance Company. It may be noted that, as disclosed by DW-3, Malik Maqbool Ahmad was a Sales Manager of State Life Insurance and thus he was aware about the in and out of the working of the Insurance Corporation and sufficiently equipped with the tricks of the trade.
Now the question arises as to whether under the facts and circumstances of this case, the entry of date of birth incorporated in the National Identity Card is to be believed or record produced by the respondent-Corporation should be preferred. It has rightly been held by the High Court that "Ordinarily the date of birth mentioned in the National Identity Card is to be taken to be correct unless proved to be contrary by cogent and convincing evidence". This Court in the case reported as Abdul Khaliq and another v. Maulvi Muhammad Noor and others (PLD 2005 SC 962) has held as under:--
"Para-10......... Normally the date of birth mentioned in the Identity Card would have to be given preference over the certificate issued by the Balochistan Board of Intermediate and Secondary Education, Quetta and the Matriculation Examination form but in view of the facts and circumstances of this case it is found difficult to prefer the date of birth mentioned in the Identity Card over the date of birth certificate issued by the Balochistan Board of Intermediate and Secondary Education, Quetta and the Matriculation Examination Form". (underlining is for emphasis)
As noted above, the petitioners' father himself filled up the form (Ex.D-1) giving his date of birth as 8.3.1940 and the record produced by the respondent-Corporation as detailed above, also endorse same date of birth, therefore, in the facts and circumstances of the present case and in view of the voluminous evidence on record it can neither be argued nor held that the date mentioned in the National Identity Card is to be preferred over the un-rebutted record produced by the Corporation, which was admitted in evidence without any objection from the petitioners' side. In view whereof the findings of the learned High Court to the effect that "in such a situation correct and true date of birth would be the one as recorded in the School/Board record being earliest in time" are not open to any exception and we are not persuaded to take a contrary view than of the High Court. This answers the second contention raised by the learned counsel.
Now coming to the case of State Life Insurance Corporation v. Mst. Begum Jan (PLD 1983 SC 421) which according to the learned counsel is distinguishable. We endorse the views of the High Court and feel appropriate to reproduce portions of the judgment, which read as under:-
"........Fraud of the agent of Sales Representative of an Insurance Company vitiates the contract of Insurance itself and this happens to be a proposition universally recognized. In Lakshmishankar Kanji Rawal v. Gresham Life Assurance Society, Ltd. (1), it was held that false statement in a proposal form whether at the instance of the assured or of the agent absolves the Company of the liability under the contract. The question involved in that case was answered in the alternative by holding as follow:-
"Either the assured authorized these answers to be given or by his negligence he made it possible for the agent to deceive the Company, in neither case can the plaintiff succeed".
"......Clause (9) of the Insurance Policy would, therefore, be attracted and in terms thereof as the age of the appellant has been proved to be materially different from what was disclosed, the contract would be rendered void. This has been the effect also of the fraud perpetrated by the Sales Representatives on the principal as well as the on the assured".
Assuming, contention of the learned counsel is correct, even then it will not improve the case of the petitioners, as it has been held above that the date of birth furnished by the father of the petitioners to the Board of Secondary Education Lahore at the time of taking matriculation examination is to be preferred over the date mentioned in the National Identity Card.
In the above backdrop, we have examined both the judgments and find that both the Courts have concurrently held that the petitioners failed to establish that their father's date of birth was 8.3.1945 instead of 8.3.1940, at the time of obtaining insurance policy incorrect information and fake particulars were furnished and the policy was obtained by practicing fraud. We are of the considered view that both the judgments are in accordance with the evidence on record and inconsonance with the law on the subject. We are not persuaded to interfere in the judgments, which are concurrent, and hereby maintained.
In view of the above, the present petition being devoid of any merits is hereby dismissed and leave to appeal refused.
(R.A.) Leave refused.
PLJ 2008 SC 255
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, Ijaz-ul-Hassan &
Zia Perwez, JJ.
RAHIMULLAH JAN--Petitioner
versus
KASHIF and others--Respondents
Crl. Ps. for Leave to A. Nos. 142-P, 143-P & 144-P of 2003, decided on 3.1.2008.
(Against the judgment dated 16.7.2003 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 205/2002, Criminal Revision No. 80/2002, Criminal Appeal No. 236/2000 and Criminal Appeal No. 461 of 2000).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 41(2)--Pakistan Penal Code, (XLV of 1860)--Ss. 302 & 34--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal against acquittal by High Court--Conviction and sentence recorded against respondent/accused by trial Court and set aside by High Court--Assailed--Benefit of doubt were given to accused--Un-witnessed occurrence and claim of the petitioner having accompanied his brother to the spot at the relevant time, stands belied by host of circumstances--Presumption of innocence--Held: When an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record--Leave refused. [P. 257] A
Abscondence--
----Value of--Absconsion is not proof of guilt of accused person--Facts of--Absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view overall facts of the case. [P. 258] B
Ocular Evidence--
----Appreciation of evidence--Medical evidence may confirm the ocular evidence with regard to the seat of injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime. [P. 258] C
Recovery of Blood--
----Venue of occurrence--Not connect the accused--Held: So far as recovery of blood from the spot is concerned, it established the venue of occurrence and does not connect the accused in any manner with the commission of offence. [P. 258] D
Ch. Afrasiab Khan, ASC for Petitioner.
Respondent in person.
Date of hearing: 3.1.2008.
Judgment
Ijaz-ul-Hassan, J.--These three petitions have been filed by Rahimullah Jan, petitioner, under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 seeking leave against judgment dated 16.7.2003 passed by learned Division Bench of the Peshawar High Court, Peshawar accepting Criminal Appeal No. 205/2002 of Kashif, respondent, setting aside the conviction and sentence awarded to him under Section 302/34 PPC by Addl. Sessions Judge, Karak vide judgment dated 18-6-2002 and dismissing petitioners' Criminal Revision No. 80/2002 for enhancement of sentence of Kashif as well as Criminal Appeal No. 236/2000 and Criminal Appeal No. 461/2000 of the State filed against acquittal of Habib-ur-Rahman and Assadullah, respondents, by Sessions Judge, Karak vide judgment dated 30-5-2000.
The prosecution story in brief, is that on the fateful day, i.e. 13-12-1988 at 1430 hours, petitioner and his brother Noor Salim Jan, deceased, were on their way to Karak bazar. When they reached near Ice Factory, respondents Habib-urRehman, Asadullah and Kashif were standing there. On calling, Noor Salim Jan, deceased, went towards them. Respondents and deceased climbed up to the balakhana, while petitioner remained on the road side waiting for the return of his brother. In the meanwhile, petitioner heard the report of fire shots. In order to apprise himself of the situation, petitioner went inside the `balakhana'. Petitioner, saw Habib-ur-Rehman, Asadullah and Kashif, respondents, coming out from the balakhana. Kashif was having a .12 bore pistol in his hand. Petitioner found the victim lying on the ground in injured condition. The victim succumbed to the injuries while enroute to the hospital. The motive leading to the incident was that deceased was suspected of having illicit relations with the daughter of Habib-ur-Rehman, respondent.
At the conclusion of trial, respondents Habib-ur-Rehman and Asadullah were given benefit of doubt and acquitted of the charges by the trial Court vide judgment dated 30-5-2000. Respondent Kashif remained absconder and did not face trial. He surrendered on 12-6-2000 and was convicted and sentenced as stated and mentioned above.
Ch. Afrasiab Khan, learned ASC for petitioner, impugned the judgment of acquittal on the ground that it was a day light occurrence and there was no chance of misidentification; that FIR was lodged promptly and that learned High Court has not properly appreciated the prosecution version, which has resulted in miscarriage of justice. He further added that abscondence of Kashif was a further incriminating circumstance to connect him with the alleged offence.
On the contrary, respondents, who appeared in person, controverted the arguments of learned counsel for petitioner and fully supported the impugned judgment.
We have heard the arguments of learned counsel for petitioner and re-examined the record on file. Learned counsel has not been able to point out any piece of evidence which could persuade us to hold that the findings of fact recorded by the High Court are against the evidence brought on record. The reasons given by the High Court for acquittal of the respondents are neither perverse nor arbitrary nor against the evidence led by the prosecution. It is an un-witnessed occurrence and claim of the petitioner having accompanied his brother to the spot at the relevant time, stands belied by host of circumstances.
It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record.
Insofar as the abscondence of respondent Kashif is concerned, it may be stated that mere absconsion is not conclusive proof of guilt of accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of abscondence, therefore, depends on the facts of each case. The Courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view overall facts of the case.
It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime.
So far as recovery of blood from the spot is concerned, it established the venue of occurrence and does not connect the respondent in any manner, with the commission of offence.
In view of the above, we do not find any substance in these petitions, which are dismissed and leave refused.
(R.A.) Leave refused.
PLJ 2008 SC 258
[Review Jurisdiction]
Present: Ijaz-ul-Hassan & Mian Hamid Farooq, JJ.
MAJID MAHMOOD--Petitioner
versus
MUHAMMAD SHAFI--Respondent
C.R.P. No. 167 & 168 of 2007 in C.A. No. 1517 & 1518 of 2005, decided on 15.1.2008.
(For review of judgment dated 9.3.2007 passed by this Court in C.As. No. 1517 & 1518 of 2005).
Civil Procedure Code, 1908 (V of 1908)--
----S. 114 & Scope of--Review--No error or mistake warranting review--Maintainability--Case cannot be re-opened on merits in review--Scope of review is very limited and review petition is not maintainable on such points which have been decided one way or other--Held: Any dispute which has already been resolved cannot be reviewed, even if the same has been resolved illegally. [P. 260] A
Review--
----The review of the judgment cannot be allowed merely on the ground that a party to it conceives himself to be dissatisfied with the decision made therein. [P. 260] B
Civil Procedure Code, 1908 (V of 1908)--
----S. 114--Findings of Court--Held: Findings of the Court given in an appeal after considering the relevant material cannot be made basis for the review until and unless it is shown that there is mistake apparent on the face the record. [P. 261] C
Review--
----Review cannot be allowed to reopen the case for the purpose of affording rehearing of the points already resolved. [P. 261] D
Civil Procedure Code, 1908 (V of 1908)--
----S. 114--Review--Question of law--Review jurisdiction--Legality--Points already raised and considered before the Court, cannot be reagitated in review jurisdiction which is confined to extent of patent error or a mistake floating on the face of record which if not corrected may perpetuate illegality and injustice--Another view of the matter was possible or conclusion drawn in the judgment was wrong, would not be a valid ground to review the judgment unless it is shown that the Court has failed to consider an important question of law--Held: Exercise of review jurisdiction does not mean a re-hearing of the matter and as finality attaches to the order, a decision even though it is erroneous per se, would not be a ground to justify its review.
[P. 261] E & F
Review--
----Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced. [P. 261] G
Ch. Muhammad Rafique Warraich, for Petitioner (in both cases).
Mr. Mehdi Khan Chohan, ASC for Respondent (in both cases).
Date of hearing: 15.1.2008.
Judgment
Ijaz-ul-Hassan, J.--Through instant petitions Majid Mahmood, petitioner, seeks review of the judgment dated 9.3.2007 rendered by this Court dismissing Civil Appeal Nos. 1517 and 1518 of 2005 filed against the identical judgments dated 30.6.2005 of Lahore High Court, Lahore, in Civil Revision Petition Nos. 2390 & 2391 of 2000, dismissing suit of petitioner setting aside order of the two Courts below and allowing objections petitions filed by Muhammad Shafi, respondent.
Facts of the case need not be reiterated as the same have been narrated in the impugned judgment of this Court.
Ch. Muhammad Rafique Warraich, learned counsel for petitioner, contended with vehemence that this Court has omitted to take into consideration the lapse of bank officials handing over challan forms to petitioner's old age father, and petitioner could not be held liable for late transmission of pre-emption money. He reiterated that at appeal stage it was brought to the notice of this Court that no separate order for dismissal of suit was passed for non-payment of preemption money which was sine qua non for non-suiting the petitioner but the same has not been taken into consideration which has resulted in manifest injustice.
On the other hand, Mr. Mehdi Khan Chohan, learned counsel for respondent, while controverting above view point canvassed at bar supported the impugned judgment for the reasons narrated therein with further submissions that no case for review is made out and review petitions merit outright dismissal.
After hearing learned counsel and carefully examining the record, we find that the impugned judgment suffers from no error or mistake warranting review of the same. All the points agitated while arguing the review petitions have been dilated upon and decided after going thorough entire record with care and caution. From whatever angle the matter may be examined, no case of review is made out. This is settled law that the case can not be re-opened on merits in review. Scope of review is very limited and review petition is not maintainable on those points which have been decided one way or the other. Moreover any dispute which has already been resolved can not be reviewed, even if the same has been resolved illegally. In Allah Ditta and others vs. Mehrban and others (1992 SCR 145), it has been observed that "even otherwise the mere incorrectness of a decision on a particular issue or a question falling for determination in a case can never be a ground for review as to permit a review on the ground of such incorrectness would amount to granting the Court a jurisdiction to hear appeal against its own judgment. The review of the judgment cannot be allowed merely on the ground that a party to it conceives himself to be dissatisfied with the decision made therein."
In Zafar Iqbal vs. Allotment Committee of Municipal Committee Mirpur and others (1994 SCR 157) it has been held that "the findings of the Court given in an appeal after considering the relevant
material cannot be made basis for the review until and unless it is shown that there is mistake apparent on the face of the record."
It is settled proposition of law that the review cannot be allowed to reopen the case for the purpose of affording rehearing of the points already resolved. In Sh. Mehdi Hassan vs. Province of Punjab through Member, Board of Revenue and 5 others (2007 SCMR 755) this Court has observed that "this is settled law that the points already raised and considered before the Court, cannot be reagitated in review jurisdiction which is confined to the extent of patent error or a mistake floating on the face of record which if not corrected may perpetuate illegality and injustice. The mere fact that another view of the matter was possible or the conclusion drawn in the judgment was wrong, would not be a valid ground to review the judgment unless it is shown that the Court has failed to consider an important question of law."
The exercise of review jurisdiction does not mean a re-hearing of the matter and as finality attaches to the order, a decision, even though it is erroneous per se, would not be a ground to justify its review. Accordingly, in keeping with the limits of the review jurisdiction, it is futile to reconsider the submissions, which converge on the merits of the decision. It needs no reiteration that before an error can be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self evident and floating on the surface and does not require any elaborate discussion or process of rationcination. It is not denied that if the Court has taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order cannot be obtained on the grounds that the Court took an erroneous view or that another view on reconsideration is possible. Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced. The contentions of learned counsel for the petitioner as rightly urged, are nothing but reiteration of the same grounds, which were urged at the hearing of appeals, but were rejected by this Court after consideration. These contentions cannot be allowed to be raised again in review proceedings as in the garb of proceedings for review, the petitioner cannot obtain rehearing of the appeal.
In the above perspective, finding no ground for review, these petitions are dismissed with no order as to costs.
(R.A.) Petitions dismissed.
PLJ 2008 SC 262
[Original Jurisdiction]
Present: Muhammad Nawaz Abbasi & Ch. Ejaz Yousaf, JJ.
HUMAN RIGHT CASE NO. 5818 OF 2006
Human Right Case No. 5818 of 2006, decided on 27.12.2007.
Constitution of Pakistan, 1973--
----Arts. 184 (3) & 199--Islamabad Land Disposal Regulation, 2005--Regl. 5--Suo Moto Notice--Directive of Prime Minister for allotment of residential plots--Determining the eligibility criteria for allocation of plots--Validity--Privileges--Fulfillment of eligibility criteria--Government is always empowered to grant appropriate privileges to its employees within the scope of law and its authority but nevertheless such power, Government is not under legal or Constitutional obligation to establish housing schemes and provide residential or commercial plots to its employees and it is not a Constitutional or legal right of any person in the service of Pakistan to claim such privilege in addiction to the terms and conditions of the service provided under the law--Court should not ordinarily interfere in the matters falling within exclusive domain of Govt. or nullity its legal and Constitutional authority--Held: Supreme Court in exercise of the powers under Art. 184(3) of the Constitution, may interfere in public interest litigation only in exceptional cases of public importance relating to enforcement of any legal right, the provision of Art. 199 of the Constitution can be invoked by an aggrieved person--Further held: Present case does not such fulfill the test for interference of Supreme Court or High Court in Constitutional jurisdiction--Proceedings in suo moto action are dropped.
[Pp. 268 & 269] A, B & G
Suo Moto Notice--
----Human Right case--Public functionaries--Discretionary power--Law without infringement of any legal right--Scope of--Directive of Prime Minister for allotment of residential plots to senior officer of Federal Government--Determining the eligibility criteria, directed capital development for allocation of residential plots--Maintainability--Discretionary power conferred on the Govt. should be exercised and subject to existence of the essential conditions required for exercise of such powers within scope of law--Held: Exercise of discretion in discharge of public duty in a manner which is considered beyond the scope of law or for extraneous consideration, is no doubt an abuse of discretionary power and exercise of such power in a manner which exceeds the bonds of authority may not be immuned from the scope of judicial review of superior Courts in their Constitutional jurisdiction but if the power is exercised in just and proper manner within the bonds of law without infringement--Held: Govt. in just and proper manner exercising its discretionary power, directed for allotment of residential plots to the category of its senior officers within the bonds of law. [P. 268] C, E & F
Words and Phrases--
----`Discretion' power or right conferred upon an authority by law and when applied public functionaries means to exercise power according to the judgment and conscious of such public authorities but discretion cannot be given a settled or established meaning which can be invariably applied in any situation rather the exercise of discretion is judged in each case on the basis of its own particular facts.
[P. 268] D
Raja Abdul Ghafoor, AOR on behalf of FGEHF & CDA.
Mr. Shahid Hameed, Director General, FGEHF.
Malik Zafar Abbas, Law Officer FGEHF.
Mr. Tariq Mehmood Khan, Director, CDA.
Mr. Iftikhar Anjum, SO (Lit-IV), Estt. Div.
Mr. Mumtaz Ahmed Sheikh, Member (Legal), Federal Board of Revenue.
Date of hearing: 27.12.2007.
Order
Muhammad Nawaz Abbasi, J.--This Human Right Case has arisen out of a Suo Moto Notice taken by this Court on a news item published in the "Pakistan Daily Times" dated 07.11.2006. The press clipping containing the directive of Prime Minister of Pakistan for allotment of residential plots in Sector D-12, CDA, Islamabad to the Federal Secretaries to Government of Pakistan and other senior Officers of the Federal Government, is read as under:--
"Prime Minister Shaukat Aziz has directed that plots be allocated to an additional 36 officers (grade-22), following his decision to allot 46 plots to federal secretaries, sources said on Monday. Establishment Division Secretary Tariq Ali Bukhari confirmed that he had received new orders from the Prime Minister Secretariat to submit the plot allotment summary to the PM for the remaining 36 Federal Government Officers. Earlier, Aziz had issued plot allotment directives for the grade 22 secretaries at the behest of the Secretaries Committee. Federal Minister for Housing and Construction Safawanullah also confirmed the new scheme. The Prime Minister has ordered that D-12 sector plots be allocated to every Federal Secretary (grade-22) who has held the position for the last 14 months. NWFP Chief Secretary Ijaz Qureshi had previously threatened to move a petition before the Court against the plan. Later, however, the chief secretaries of Punjab, Balochistan and Sindh as well as the Inspectors Generals of Police (IGP) for Sindh, NWFP and Punjab also demanded plot allotments. It has also been suggested, sources said, that Islamabad-based bureaucrats who have already been allotted plots under Government schemes, could be entitled to additional plot allotments. However, the final decision rests with the Prime Minister, while implementation of the scheme will fall within the purview of the Interior and Housing and Development Ministers. Bureaucrats expected to be awarded plots under the new directives are; seven grade 22 officers of the Minister of Foreign Affairs, including former high commissioner to India, Aziz Khan, current Ambassador to Russia Mustafa Kamal and Special Secretary Ministry of Foreign Affairs Sher Afgan; two officers of Audit and Accounts Group, including Chaudhry Ilyas, Director General Intellectual Property Rights Yasin Tahir; two officers posted to the World Bank, Sabtain Fazal and Sayed Shuja Haider, Water and Power Development Authority (WAPDA) Chairman Tariq Hameed, Federal Public Service Commission (FPSC) member Muhib Ullah; Pakistan Electronic Media Regulatory Authority (PEMRA) Chairman Iftikhar Rasheed; National Electric Power Regulatory Authority (NEPRA) Chairman Lt. Gen(r) Saeed; two members of the Planning Commission; Trading Corporation of Pakistan Chairman Asif Zaman Ansari; Small and Medium Entrepreneurs development Authority (SMEDA) Chairman Shahab Anwar Khawaja, Punjab Revenue Board senior member Safdar Javed; Punjab Planning and Development Chairman Salman Ghani; Election Commission of Pakistan Secretary Kanwar Muhammad Dilshad; Senate Secretary Raja Muhammad Amin; Chief Secretary Sindh Fazalur Rehman, Chief Secretary Punjab Salman Sadique; Chief Secretary NWFP Ijaz Ahmed Qureshi; Chief Secretary Balochistan KB Rindh; IGP Sindh Jehangir Mirza; IGP NWFP Rifat Pasha; and IGP Punjab Major (r) Ziaul Hassan."
"As directed by Honourable Chief Justice Supreme Court of Pakistan, following are the submissions:--
(a) CDA has not been issued with any direction about allotment of plots to all Grade 22 Officers. There is no regular scheme for such allotments to Grade 22 Officer till the filing of these comments. However, on 27th June, 2006, the Establishment Division moved a summary for the Prime Minister regarding facilities for Federal Secretaries and other Civil Servants (copy attached). This summary included a package for consideration and approval of the Prime Minister. The Prime Minister Secretariat vide U.O.No. 81/OS/Estt/2006 dated 21.07.2006 intimated the Prime Minister's approval of the following package:--
(i) Special pay @ 20% of the basic.
(ii) Provision of one orderly on retirement/completion re-employment on contract.
(iii) Residential plot on payment (in addition to the plot being given on turn through FGEHF) when available.
(b) Based on this approval the Ministry of Interior formulated and eligibility criteria for allotment of the plots which was approved the Prime Minister (copy attached), (c) The Ministry, of Interior vide U.O.No. 4/10/2006-CDA-II dated 28.7.2006 (copy attached) requested Capital Development Authority to make necessary arrangements for allotment of plots. 46 plots of 600 sq. yards each available in Sector D-12 were placed by the CDA at the disposal of the Federal Government Employees Housing Foundation (FGEHF) as per policy laid down by the Federal Government for further allotment to the eligible Federal Secretaries.
(d) On 2.11.2006, allotment of the plots to Federal Secretaries was made by the FGEHF on reserve rate of Rs. 4500/- per square yard to be paid by the allottees in six quarterly installments (total price Rs. 27 lacs). CDA provided the plots only whereas allotment was made by FGEHF.
(e) The plots in Sector D-12 are undeveloped and under Rule 5(2) of the Land Disposal Regulations, 2005 CDA can dispose of such plots for the residences of Government Employees. The relevant clause is reproduced:
"Notwithstanding anything contained in Clause (1), the Authority may reserve any land for the residences of Government Employees including employees of CDA, autonomous and semi autonomous bodies and for the Affectees of Islamabad"
(f) The allotment of plots were made by FGEHF and allotment letters were also issued by the Foundation and the price of these plots is required to be deposited by the allottees in CDA Accounts.
"The allottees of the plots have engaged Mr. Abdul Hafeez Pirzada, Sr. ASC who is out of country for medical treatment, therefore, a request has been made on his behalf for adjournment of the case.
Mr. Muhammad Akram Sheikh, learned Sr. ASC for intervener stated that it is necessary to issue notice to the Secretary Establishment to submit parawise comments particularly highlighting the policy alongwith the competence of the Authority who passed the same without formulating any law or scheme under the relevant provisions of Law. In this behalf he, particularly, referred Article 4 of the Constitution of the Islamic Republic of Pakistan and relied upon the judgment in the case of Jamat-I-Islami Pakistan through Syed Munawar Hussain Secretary General vs. Federation of Pakistan through Secy. Law and MQM thr. Deputy Convener, Senator Aftab Ahmed Sheikh vs. Federation of Pakistan thr. Secy. M/o Interior (PLD 2000 SC 111) and stated that it is a case of discrimination.
DG Housing and Foundation stated that he received orders of the Government of Pakistan, through Secretary Establishment for making allotment of plots. He is directed to file all those documents alongwith list of the officers of all the departments to whom plots were allotted.
Let the office, after receipt of the list, issue notices to all of them to show-cause under what authority the Government of Pakistan, through Secretary Establishment had directed to the DG Housing and Foundation for allotment of plots in their favour. DG Housing and Foundation is directed to conduct survey and if such like plots are purchased by an ordinary person from market then what would be its approximate price.
"5. Residential Plots.--(1) All residential plots in developed Sectors shall be allotted through open auction. The residential plots in other Sectors shall be disposed of in the following manner:--
(i) Through open balloting at prevalent market price. 75%
(ii) Federal Government Servants including employees of Federal autonomous, Semi-autonomous bodies. 10%
(iii) Defence Services Personal including , Civilians paid out
of Defence Estimates. 5%
(iv) Deprived Group including widows, orphans, destitute, handicapped persons and persons
needing compensation. 5%
(v) CDA Employees. 5%
5(2). Notwithstanding anything contained in clause (1) the Authority may reserve any land for the residences of Govt. employees including employees of CDA, autonomous and semi-autonomous bodies and for the Affectees of Islamabad.
The FGEHF, on completion of the formalities, allotted the plots in question as per policy of the Federal Government against the price fixed by the CDA payable in six quarterly installments.
Mr. Zafar Iqbal, Law Officer of FGEHF alongwith Mr. Shahid Hameed, Director General, FGEHF has submitted that Federal Government Employees Housing Foundation is a registered Body which was established under the directive of Prime Minister of Pakistan in the Ministry of Housing and Works Government of Pakistan, with the aim and object of development of housing schemes in CDA Area, Islamabad, for the benefit of different categories of employees of Federal Government He further stated that Housing Foundation in pursuance of the direction of Federal Government, allotted the plots in question to the category of the employees mentioned therein on the basis of eligibility criteria on payment of price fixed by the CDA.
Mr. Tariq Mehmood Khan, Director (Estt) CDA, submitted that newspaper clipping on the basis of which suo moto action was taken, was misleading and that plots in question were allocated for allotment by the FGEHF against the CDA price in strict compliance of the direction of the Federal Government and neither any loss was caused to the public exchequer nor any legal right of any person was infringed.
The Government is always empowered to grant reasonably appropriate privileges to its employees within the scope of law and its authority but nevertheless such power, Government is not under legal or constitutional obligation to establish housing schemes and provide residential or commercial plots to its employees and similarly it is not a constitutional or legal right of any person in the service of Pakistan to claim such a privilege in addition to the terms and conditions of his service provided under the law. This is however, prerogative of the Government to grant certain privileges to a particular category of its employees on the basis of reasonable classification and law is that the Courts should not ordinarily interfere in the matters falling within the exclusive domain of Government or nullify its legal and Constitutional authority. The Courts may not undo the action taken by the Government in its discretion unless there is infringement of a legal right rather the Courts in the light of aim and object of the action, should broadly regard the authority confided in the Government. This is however, well settled principle of law that discretionary power conferred on the Government should be exercised reasonably and subject to the existence of the essential conditions required for exercise of such powers within the scope of law.
The `discretion' means a power or a right conferred upon an authority by law and when applied to the public functionaries means to exercise power according to the judgment and conscious of such public authorities but the discretion cannot be given a settled or established meaning which can be invariably applied in any situation rather the exercise of discretion is judged in each case on the basis of its own particular facts. The exercise of discretion in discharge of public duty in a manner which is considered beyond the scope of law or for extraneous consideration, is no doubt an abuse of discretionary power and exercise of this power in a manner which exceeds the bonds of authority may not be immuned from the scope of judicial review of the superior Courts in their Constitutional jurisdiction but if the. power is exercised in just and proper manner within the bonds of law without infringement of any legal right, the same may not be questionable.
In the present case, in consequence to the approval of Prime Minister, CDA on the directive of the Federal Government placed a specified number of residential plots in Sector D-12 at the disposal of FGEHF for allotment to the category of senior officers of the Federal Government on payment of price fixed by the CDA subject to the fulfillment of eligibility criteria and we find that the Government in just and proper manner exercising its discretionary power, directed for allotment of residential plots to the category of its senior officers within the bonds of law. The grant of the above privileges by the Government to its employees was not illegal or beyond the authority of the Government, therefore, in absence of very strong and sound reasons or infringement of a legal right, the interference of the Courts in the matter, may not be legal. This Court in exercise of the powers under Article 184(3) of the Constitution, may interfere in public interest litigation only in exceptional cases of public importance relating to the enforcement of fundamental rights enshrined in Part-II of Chapter-I of the Constitution and similarly, in case of enforcement of any legal right, the provision of Article 199 of the Constitution can be invoked by an aggrieved person. The present case does not as such fulfill the test for interference of this Court or the High Court in the Constitutional jurisdiction.
In the light of foregoing reasons, further proceedings in suo moto action are dropped.
(R.A.) S.M.A. dropped.
PLJ 2008 SC 269
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, Nasir-ul-Mulk, Ch. Ijaz Ahmed & Syed Jamshed Ali, JJ.
AKHTAR ALI & others--Appellants
versus
STATE--Respondent
Crl. A. Nos. 274 & 275 of 2003, decided on 17.9.2007.
(On appeal against the judgment dated 11.3.2002 passed by the Lahore High Court, Lahore, in Crl. Appeal No. 917 of 1998 & 1043 of 1998, M.R. 242-T/98 & Cr. A. 98-J/98).
Eye-witness--
----Appreciation of evidence--Eye-witnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration. [P. 274] D
PLJ 1976 SC 29 rel.
Ocular Evidence--
----It is also a settled law that credibility of the ocular evidence is not divisible. [P. 275] E
PLD 1959 P.C. 24.
Maxim--
----Credibility of statement--When a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dis-honestly--Held: Credibility becomes doubtful on the well known principle of criminal jurisdiction that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witnesses. [P. 275] F
Delay in FIR--
----Principle--FIR was lodged after considerable delay of 10/11 hours--Delay in lodging of FIR provides sufficient time for deliberation and consultation--Held: Possibility cannot be ruled out qua false implication of the accused. [P. 275] G
Delay--
----Delay of 10/11 hours in making FIR not explained leads to inference that occurrence was un-witnessed. [P. 275] H
FIR--
----Principle--Unexplained delay in registration of FIR specially in the circumstances of the case creates lot of doubt qua the story of the prosecution. [P. 275] I
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 34--Criminal Procedure Code, (V of 1898), Ss. 154, 156 & 161--Conviction and sentence--Challenge to--Benefit of doubt--Contents of FIR and supplementary statement were put in a juxta position that prosecution had taken U-turn from his previous stand--Such fact created doubt in the prosecution story and the fact was not considered by High Court--Validity--It is an improvement made by the complainant in the supplementary statement, the statement of the complainant involving the appellants in the case was obviously false and no reliance can be placed therein in view of all attending circumstances available on the record and High Court was therefore, not justified to upheld the sentence of the appellants--Held: Conviction of the appellants was not sustainable in the eye of law--High Court had erred in law to uphold their conviction--Evidence re-examined in the interest of justice and fairplay--Defence plea appeared to be reasonable and appellants were entitled to the benefit of doubt as of right and not as a matter of grace as prosecution has not proved its case against appellants beyond any shadow of doubt--Appeals allowed. [Pp. 274, 275 & 276] A, B, C, K & L
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 154 & 156--FIR--Criminal trial--FIR is the document which is entered into u/S. 154 of Cr.P.C. book maintained at the police station at the application of the complainant--Police u/S. 156, Cr.P.C. started investigation of the case--Further statement of the complainant recorded during investigation by the police would neither be equated with FIR nor read as part of it, therefore subsequent supplementary statement is also considered as statement recorded u/S. 161, Cr.P.C. which is not sign or thumb marked. [P. 276] J
Mr. Iqbal Bhatti, ASC for Appellant (in Cr.A. No. 274/03).
Mr. Jehanzeb Tamman, ASC for Appellants (in Cr. A. No. 275/2003).
Ms. Yasmin Sehgal, DPG for State.
Date of hearing: 17.9.2007.
Judgment
Ch. Ijaz Ahmed, J.--We intend to decide captioned appeals by one consolidated judgment having similar facts and law arising out of the common impugned judgment of the Lahore High Court dated 11-3-2002 wherein Cr.Appeal No. 1043/1998 and Cr.A. No. 917/1998 filed by the appellants against their conviction were dismissed. The detailed facts have already been mentioned in para 2 of the impugned judgment. However necessary facts out of which the aforesaid appeals arise are that the appellants alongwith their acquitted co-convict namely Muhammad Asharf alias Papoo, Waris Ali, Niaz Hussain alias Naja, Mushtaq alias Makha and Majid alias Maujoo were involved in a case FIR No. 189/98 which was registered at Police Station Jaranwala District Faisalabad on 9-2-1998 under Sections 302/452/394/397/449/109/34 PPC for the murder of Muhammad Mushtaq and Sadiq Ali. The Investigating Agency investigated the matter and submitted challan against the appellants and 5 others before the competent Court. The learned trial Court (learned Special Judge, Special Court of Anti-Terrorism (Punjab), Faisalabad Division, Faisalabad) vide its judgment dated 26-9-1998 convicted and sentenced the appellants as under:--
Name of accused Under Section Sentence
Muhammad Ilyas 302/34 PPC Death punishment as
Arshad alias Neela tazeer on each count
Akhtar Ali with a fine of Rs.
Majid alias Maujoo 50,000/-. In case of
default of payment of
fine they have to
undergo 6 years' R.I. In
case if fine is recovered
the same shall be paid to
legal heirs of both the
deceased as compen-
sation.
-do- 449 PPC Life imprisonment each
with a fine of Rs.
10,000/- each. In default
of payment of fine they
have to undergo further
R.I. for 6 years.
-do- 393 PPC Seven year's R.I. each
with a fine of Rs.
10,000/- each. In default
of payment of fine 2
years' R.I. Fine if
realized will be paid to
the legal heirs of both
the deceased.
-do- Under Section Death punishment for
7 of Anti- each count with a
Terrorism fine of Rs. 50,000/-
Act, 1997 each. In default 6
years' R.I.
Muhammad Ashraf 109 PPC read L.I. each
alias Pappoo with 302 PPC
Niaz Hussain alias Naja
Mushtaq alias Matlha
Waris Ali
-do- 109 PPC read Two years' R.I. each
with 393 PPC
All the sentences shall
run concurrently with
benefit of Section 382(B)
Cr.P.C.
"We ex-facie are of the view that contentions raised by the learned counsel for the petitioners need reappraisal of evidence in the light of principles laid down by this Court for safe administration of criminal justice. Accordingly leave to appeal is granted to re-appraise the evidence in the light of the contentions raised."
(a) Appellants were not named in the FIR wherein it was specifically mentioned that unknown four persons had committed offence.
(b) FIR was lodged after delay of 10/11 hours.
(c) Akhtar Ali appellant was residing in the same Dera where the occurrence had taken place.
(d) Inspite of the presence of the Akhtar Ali at Dera, his name was not mentioned in the first statement of the complainant PW14 and in formal FIR.
(e) Reasons advanced by the learned High Court did not appeal to the common sense that the complainant could not be expected to behave like a normal person whose two real brothers were murdered and was not controlled in senses. Therefore, his non mentioning the names of the appellants in his first statement before PW 16 Inspector/SHO could be condoned.
(f) Prosecution evidence is full of contradictions and this fact was not considered by the learned High Court in the impugned judgment in its true perspective.
(g) The prosecution story was accepted without application of mind in violation of the dictum laid down by this Court and rejected the defence version without putting the same in juxta position with the prosecution story.
(h) Empties were recovered on 9.2.1998 and the gun was recovered on 21.2.1998 which was sent on 24.2.98 to Forensic Science Laboratory, therefore, learned High Court was not justified to rely the report of F.S.L.
(i) The learned High Court had acquitted their co-convict Majeed on the basis of same evidence and there was no independent corroboration to connect the appellants with the commission of offence.
The learned Deputy Prosecutor General has supported the impugned judgment.
We have considered the submissions made by learned counsel for the parties and perused the record. It is an admitted fact that the complainant PW14 did not mention name of the accused persons in his first statement which was recorded by the Inspector/SHO PW16 and formal FIR was recorded. According to which four unknown persons had committed the offence whereas the complainant had nominated the appellants and his acquitted co-accused in his supplementary statement before the Investigating Officer on the same day coupled with the fact that Akhtar Ali convict was also residing in the same Dera where the occurrence had taken place. In case the contents of the first information report and supplementary statement are put in a juxta-position then it is crystal clear that the complainant had taken altogether U Turn from his previous stand. This fact creates doubt in the prosecution story and this fact was not considered by the learned High Court in its true perspective in the impugned judgment. It is, therefore, established that the name of the appellants alongwith their acquitted co-convict did not appear in the FIR, therefore, it is an improvement made by the complainant in the supplementary statement, therefore, the statement of the complainant involving the appellants in the case is obviously false and no reliance can be placed therein in view of all attending circumstances available on the record and learned High Court was, therefore, not justified to upheld the sentence of the appellants. See Muhammad Rafique's case (1994 SCMR 1169), Qalab Ali's case (2005 SCMR 1857), Rahab's case (2001 SCMR 1745), Rahab's case (2002 SCMR 233) and Khalid Javed's case (2003 SCMR 1419). We have also re-examined the record in the interest of justice and fair play qua the finding regarding guilt of the appellants whereas the learned High Court had acquitted their co-convict namely Majid alias Maujoo who was also awarded death sentence having same role attributed to him as assigned to the present appellants. The learned High Court had acquitted one convict of the appellants mentioned above and upheld the sentence of the appellants without highlighting any independent corroboration available on record qua the appellants so that the case of the appellants could be distinguished from the acquitted co-convict. It is pertinent to mention here that the learned High Court had also acquitted four other co-convicts as mentioned above on the basis of same evidence who were involved by the complainant in his supplementary statement that convicts had committed the offence with the connivance of the four aforesaid acquitted co-convicts. It is a settled law that eye-witnesses found to have falsely implicated five out of eight accused then conviction of remaining accused on the basis of same evidence cannot be relied upon without independent corroboration. See Ghulam Muhammad's case (PLJ 1976 SC 29), Sheral alias Sher Muhammad's case (1999 SCMR 697) and Ata Muhammad's case (1995 SCMR 599). It is also a settled law that credibility of the ocular evidence is not divisible. See Faiz Bakhsh's case (PLD 1959 P.C. 24), Nadia's case (42 Cr. LJ 53), Muhammad's case (PLD 1954 FC 84), Sher Bahadar's case (1972 SCMR 651) and Muhammad Afsar's case (PLD 1954 FC 171). It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dis-honestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisdiction that improvements once found deliberate and dis-honest cast serious doubt on the veracity of such witnesses. See Hadi Bakhsh's case (PLD 1963 Kar. 805). It is also an admitted fact that the FIR was lodged by the complainant after considerable delay of 10/11 hours without explaining the said delay. The FIR was also not lodged at police station as mentioned above. 10/11 hours delay in lodging of FIR provides sufficient time for deliberation and consultation when complainant had given no explanation for delay in lodging the FIR. It is enough time for complainant to fabricate the story even then the complainant did not nominate appellants and their acquitted co-convicts, therefore, possibility cannot be ruled out qua false implication of the appellants. It is also a settled law that delay of 10/11 hours in making FIR not explained leads to inference that the occurrence was un-witnessed. In the case in hand this fact is also established in view of supplementary statement and conduct of the eye witnesses. It is also a settled law that un-explained delay in registration of FIR specially in the circumstances of the case creates lot of doubt qua the story of the prosecution specially the stand taken by Akhtar Ali accused while replying Question No. 10 which is to the following effect:
"Q.No. 10. Why this case against you and why the PWs has deposed against you?
Answer. All the PWs of this case are interse related and also with the deceased. There were illicit relations between Zaib-un-Nisa daughter of the complainant and one Master Sharif who was influential and his real brother is in police Department. In fact I used to restrain not to continue relation with Zaib-un-Nisa and her relations with Master Sharif but Mst. Zaib-un-Nisa and her relative felt annoyed since it was a blunt/blind murder. Mst. Zaib-un-Nisa and her relatives in consultation with Master Sharif and his brother (Police Official) roped me into this false case."
It is also a settled law that FIR is the document which is entered into under Section 154 Cr.P.C. book maintained at the police station at the application of the complainant. It brings the law into motion. The police under Section 156 Cr.P.C. started investigation of the case. Any statement or further statement of the complainant recorded during investigation by the police would neither be equated with FIR nor read as part of it, therefore, subsequent supplementary statement is also considered as statement recorded under Section 161 Cr.P.C. which is not signed or thumb marked as held by this Court in Khalid Javed's case supra. The learned High Court had misread the evidence on record in violation of the dictum laid down by this Court in various pronouncements as mentioned above, therefore, conviction of the appellants is not sustainable in the eyes of law. The learned High Court had erred in law to uphold their conviction. We have re-examined the evidence in the interest of justice and fair play, as mentioned above, we are of the view that the defence plea appears to be reasonable, therefore, appellants are entitled to the benefit of doubt as of right and not as a matter of grace as prosecution has not proved its case against the appellants beyond any shadow of doubt. See Nadeem-ul-Haq's case (1985 SCMR 510), Chandoo's case (1986 SCMR 720).
For what has been discussed above, the appeals are allowed Convicts, Akhtar Ali, Muhammad Ilyas and Arshad alias Neela are acquitted of the charge and set at liberty forthwith, if they are not required in any other case.
(A.S.) Appeals allowed.
PLJ 2008 SC 277
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J. Muhammad Moosa K. Leghari & Mian Hamid Farooq, JJ.
REHMAT ALI JOHAR--Appellant
versus
ADDL. CHIEF ENGINEER and others--Respondents
Civil Appeal No. 1377 of 2006, decided on 1.1.2008.
(On appeal from the judgment dated 7.4.2006 passed by High Court of Balochistan, Quetta in C.P. No. 866 of 2005).
Pakistan Army Act, 1952--
----Ss. 7 & 8(1)--"Active Servive"--Definition--Scope--Appellant from the date of his appointment had been working and had been attached with the Army--Though the appellant was not a regular member of Armed Forces yet he was serving in an organization attached with the force on active service engaged in military operation--Held: Appellant was squarely covered by the definition and expression "Active Service" and was consequently subject to the provisions of Pakistan Army Act for the purpose of FGCM--Judgment passed by High Court was legally valid warranting no interference--Appeal dismissed. [Pp. 279 & 280] A, B & C
Appellant in person.
Mr. Mujeeb-ur-Rehman, ASC; Col. Hafeez Jehangiri, JAG Deptt. and Mr. M.S. Khattak, AOR for Respondents.
Date of hearing: 1.1.2008.
Order
Mohammad Moosa K. Leghari, J.--Instant appeal by leave of this Court is directed against the judgment passed by learned High Court of Balochistan, Quetta whereby Constitution Petition filed by the appellant was dismissed.
Briefly stated facts of the case are that the appellant was inducted in service in the year 1982, having been recruited through F.P.S.C. According to the appellant, letter of his appointment specifically provided that in the matters of discipline he was to be governed by the normal rules applicable to the civilian gazetted officers of the Defence Services. It appears that being aggrieved of the act of respondent of cancellation of his sanctioned leave, he approached the Federal Service Tribunal for getting the said order declared illegal and void, which annoyed the respondents. It is pleaded that retributively a malafide directive was issued by Respondent No. 3 to Respondent No. 2 for initiating action against the appellant under the Field General Court Martial and he was directed to proceed to Station Headquarter Quetta Cantt on temporary duty (to be tried by FGCM).
Being aggrieved of the said action and the orders mentioned above, the appellant seems to have moved High Court of Balochistan by way of Constitution Petition seeking a declaration to the affect that the orders dated 15.12.2005 and 17.12.2005 issued by the respondents were void ab-initio and without jurisdiction. The said petition was dismissed vide judgment dated 11th April 2006, which has been impugned through this appeal.
Vide order dated 02.08.2006 leave was granted inter alia on the following points:--
(a) What is the exact import and implication of the provisions as contained in Section 2(1)(c) of the Pakistan Army Act, 1952?
(b) What does the active service mean as defined in Section 8 of the Pakistan Army Act, 1952 and as to whether the petitioner falls within the ambit of active service or otherwise?
(c) What is the significance and import of the notification issued on 3.1.1975 pursuant to the provisions as contemplated in Section 7 of the Pakistan Army Act, 1952?
(d) Whether the judgment impugned is in consonance with the dictum as laid down by this in case Fasihuddin v. Khawar Latif Butt (1993 SCMR 1), Secretary, Ministry of Defence v. Zahoor Ahmed Javed (2005 SCMR 1767), Federation of Pakistan v. Khurshid Ahmed (1999 SCMR 664).
The appellant who argued his case in person, mainly contended that he was a civilian officer working in Engineer-in-Chief branch and was not amenable to the provisions of Pakistan Army Act, as such could not be proceeded against under FGCM which is only meant for Army Personnel and not for civilians. The appellant strenuously argued that the provisions of Sections 7 & 8 of the Pakistan Army Act 1952 (hereinafter referred to as "the Act") were not applicable to him.
Conversely the above arguments were rebutted on behalf of the respondents, relying upon the judgment in the case of Federation of Pakistan and others Vs. Khurshid Ahmad and others (1999 SCMR 664) which has further been affirmed in the case of Secretary Ministry of Defence and another Vs. Zahoor Ahmad Javed (2005 SCMR 1767).
We have carefully considered the arguments advanced before us and have perused the material placed on record, besides examining the judgments referred before us.
It is an admitted position that from the date of his appointment, the appellant has been working in Engineer-in-Chief branch and has been attached with the Army. Though the appellant was not a regular member of Armed Forces yet he was serving in an organization attached with the force on active service engaged in military operation. Certainly the appellant is not covered by the definition of "active service" as contained in Section 8(1) of the Army Act. However, Section 7 of the Act by its own force has created yet another category of "active service" in respect of persons who are subject to the Act. Section 7 of the Act reads as under:
"7. Power to declare persons to be on active service.--Notwithstanding anything contained in clause (1) of Section 8, the Federal Government may, by notification, direct that any person or class of persons subject to this Act shall, with reference to any area in which they may be serving or with reference to all or any of provisions of this Act or of any other law for the time being in force, be deemed to be on active Service within the meaning of this Act.."
The Federal Government issued a notification dated 3.1.1975 under Section 7 of the Act, which reads as follows:
"In exercise of the powers conferred by Section 7 of the Pakistan Army Act, 1952 (XXXIX of 1952) and in supersession of this Ministry's Notification No. 4852/325/PSIA/D-2(A)71, 23rd November, 1971, the Federal Government is pleased to direct that persons subject to the said Act, shall, with reference to any area in or outside Pakistan in which they may be serving and with reference to all the provisions of the said Act, and of any other law for the time being in force, be deemed to be on active service within the meaning of that Act".
The above notification is still holding the field and undoubtedly the appellant is covered by the said notification. The import and implication of all the relevant provisions of the Pakistan Army Act, 1952, and the significance and import of the Notification dated 03.01.1975 come to be considered by this Court in the judgment reported as Federation of Pakistan Vs. Khurshid Ahmad and others (1999 SCMR 664) and have further been threadbare examined and affirmed by learned Full Bench in the case of Secretary Ministry of Defence and others Vs. Zahoor Ahmad Javed (2005 SCMR 1767). It will be pertinent to reproduce hereunder the relevant portion of paragraph 8 of the judgment delivered in the case of Secretary Ministry of Defence and others (Supra):--
"The careful examination of Section 2(1)(c) would convey the meaning that a person not otherwise subject to the Army Act, if is accompanying a portion of Army or a person on active service, would be deemed to be on active service and a persons who is on active service is deemed to be subject to Pakistan Army Act. The result is that the civilian employees in any defence organization which is attached with a force which is on active service while engaged in military operation, would be deemed to be on active service. The interpretation of the expression "subject to this Act" with reference to Section 2(1)(c) will be read in respect of a person who is not otherwise subject to the Pakistan Army Act when he is attached with a person or persons on active service who are engaged in military operation. The intention was to bring all those persons within the ambit of Pakistan Army Act, who being not otherwise subject to Army Law have directly and indirectly formed part of the force because of their attachment with the persons or class of persons who while engaged in military operations were on active service. The intention and the purpose behind Section 2(1)(c) of the Act in the light of above discussion, was to be collected from the cause and necessity of the enactment of this provision." (emphasis supplied)
In the light of above discussion we are of the considered view that the appellant is squarely covered by the definition and expression "Active Service" and is consequently subject to the provisions of Pakistan Army Act for the purpose of FGCM.
The judgment passed by High Court of Balochistan is legally valid warranting no interference. The appeal being without merit is, therefore, dismissed with no order as to costs.
(A.S.) Appeal dismissed.
PLJ 2008 SC 280
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J. Muhammad Moosa K. Leghari & Ch. Ejaz Yousaf, JJ.
SAEED PERVAIZ--Petitioner
versus
Syed MASOOD HASSAN--Respondent
Civil Petition No. 1498-L of 2007, decided on 2.1.2008.
(On appeal from the judgment dated 13.9.2007 passed by the Lahore High Court, Lahore in SAO No. 8/2007).
Civil Procedure Code, 1908 (V of 1908)--
----O. XXVII, R. 3--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Respondent/Landlord filed an eviction application against the petitioner who was a tenant--Personal bonafide need and willful default--No opportunity was afforded to petitioner to produce the evidence--Right to lead evidence was struck off--Equitable Principles--Not applicable--Question of--Provisions of CPC--Stricto senso--Held: Provisions of CPC was not applicable to the proceedings before Rent Controller--Petitioner's defence could not have been struck off--Validity--Though the provisions of CPC in stricto senso are not applicable yet, equitable principles thereof can be applied to rent proceedings as well the Rent Controller is empowered to adopt procedure of his choice, which of course has to be legal--Held: Though Controller was given powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence and pass orders after holding enquiry yet, he was not bound, in every case to follow the procedure laid down in Code of Civil Procedure as the question of nature in inquiry is left to him.
[P. 283] A & B
PLD 1965 SC 459, rel.
Equitable--
----Principle--Though the Rent Controller, in his discretion was entitled to follow the equitable principles of CPC but he was also free not to follow technical provisions of the Code. [P. 284] C
Civil Procedure Code, 1908 (V of 1908)--
----O. III, R. 4--Scope of--No party is prejudiced by procedure--Maintainability of the application--Power of Attorney was not filed by counsel in accordance with the provisions of Order III, Rule 4 of the CPC, therefore, application submitted alongwith the same was not maintainable too, was found to be without substance that though CPC was well as the Evidence Act were not applicable yet, proceedings before the Rent Controller were not to be frustrated by mere formalism as in such the case, the only requirement was to ensure that no party is prejudiced by the procedure adopted by him.
[P. 284] D
Civil Procedure Code, 1908 (V of 1908)--
----O. XXVIII, R. 1--Susbequent application--Question of--Maintainabilit--Equitable principle--Withdrawing the earlier eviction application--Before withdrawing the earlier eviction application permission was not sought from the Court within the ambit of Order XXVIII, Rule 1 of CPC--Held: Subsequent application was not maintainable too was repelled and it was laid down that though CPC was not applicable to the rent cases, yet equitable principles might be applied to advance justice. [P. 284] E
Constitution of Pakistan, 1973--
----Art. 185(3)--West Pakistan Urban Rent Restriction Ordinance, 1959, S. 13--Ejectment application--Leave to appeal--Requirement of submission his own affidavit--Date was fixed in the notice--Held: Parties shall be bound to produce their witnesses in Court for cross-examination and in case of failure they would face the consequences and in such a situation their evidence shall be excluded from consideration--Leave refused. [P. 285] F
Mr. Islam Ali Qureshi, ASC for Petitioner.
Mr. A.H. Bhatti, ASC for Respondent.
Date of hearing: 2.1.2008.
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against judgment dated 13.9.2007 passed by a learned Single Bench of the Lahore High Court, Lahore, whereby order dated 06.01.2007, passed by Additional District Judge, Lahore, in appeal filed by the petitioner, was upheld.
Facts of the case lie in a small compass. The respondent/landlord filed an eviction application against the petitioner, who is a tenant in the disputed property, on the ground of personal bona fide need and wilful default. The eviction application was contested. On conclusion of respondent's evidence, the petitioner was directed to adduce evidence but he failed to do the needful despite opportunities given. Resultantly, his right to lead evidence was struck off. Review application, seeking withdrawal of the said order, was also dismissed. Thereafter, Additional District Judge, as well as, the Lahore High Court were approached, but in vain, hence this petition.
It has been, inter-alia, contended by the learned counsel for the petitioner that though action to strike off his defence was taken under Order XXVII, Rule 3 CPC yet, the impugned order was patently in violation of the said provision of law itself because parameters of the provision in question were not fulfilled and final opportunity, as required, was not afforded to him to produce evidence. He has also tried to canvass that since CPC was not applicable to the proceedings before the Rent Controller, therefore, his defence could not have been struck off. It is further his grievance that though, on the said date, the petitioner himself could not appear yet, since affidavits of the witnesses were filed on his behalf, therefore, it was incumbent on the Rent Controller to take the same into account while deciding the eviction application.
Mr. A.H. Bhatti, learned ASC for the respondent, on the other hand, while controverting the contentions raised by the learned counsel for the petitioner has stated that a number of opportunities, to produce evidence, were granted to the petitioner but were of no use, resultantly a final opportunity, vide order dated 16.3.2006 for 25.3.2006, was afforded to him, which too, was not availed. Neither the petitioner nor his counsel did appear on the said date and merely affidavits on his behalf were filed by a stranger and it all was part of the strategy to delay the proceedings, hence Rent Controller had no option but to proceed further with the case by passing the impugned order.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the available record with their assistance. The first contention that since parameters of order XXVII, Rule 3 of the CPC were not fulfilled as no opportunity was afforded to the petitioner to produce his evidence, on its face appears to be misconceived because as per available record a number of opportunities were provided to the petitioner to produce evidence but he failed. The case was therefore, finally fixed for his evidence on 25.3.2006, on which date, again he did not bother to produce evidence or to appear himself in Court. Instead affidavits of some of the witnesses were filed and that too, by some other person. Resultantly, defence of the petitioner was struck off. The contention therefore, having been belied by the record, is devoid of force.
Adverting to the next contention of the learned counsel for the petitioner that since CPC was not applicable to the proceedings before the Rent Controller therefore, petitioner's defence could not have been struck off, it may be pointed out here that though the provisions of CPC in stricto senso are not applicable yet, equitable principles thereof can be applied to the rent proceedings as well, for a just cause because the Rent Controller is empowered to adopt procedure of his choice, which of course, has to be legal. Law is well settled in this regard. The earliest decision on the point was in the case of Khadim Mohyuddin v. Rehmat Ali (PLD 1965 SC 459) wherein it was observed that though Controller was given powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence and pass orders after holding enquiry yet, he was not bound, in every case, to follow the procedure as laid down in the Code of Civil Procedure as the question of nature in inquiry is left to him. In the case of Ayub Khan & another v. Fazal Hag and others (PLD 1976 SC 422), service on one of the parties was affected by affixation which was challenged as illegal on the ground that as the Rent Controller was not a Court, he could not have followed the procedure prescribed by the CPC. The contention was repelled and it was held that though the Rent Controller, in his discretion was entitled to follow the equitable principles of the CPC but he was also free not to follow technical provisions of the Code. In the case of Muhammad Saleh v. Muhammad Shafi (1982 SCMR 33) which is somewhat identical to the one in hand, petitioner's defence, who was tenant in the premises, was struck off by the Rent Controller as a result of failure to deposit the arrears of rent. It was argued that since provisions of CPC were not applicable under the Rent Restriction Ordinance, therefore, the Rent Controller could not have done so. The contention was found without merit on the ground that although the provisions of CPC were not applicable in terms to the proceedings under the Rent Restriction Ordinance yet, the Controller was in his discretion competent to apply them if he had considered it necessary. In the case of Abdul Majid v. Syed Azhar Ali Shah and others (PLD 1985 SC 191), the contention that since Power of Attorney was not filed by the counsel in accordance with the provisions of Order III, Rule 4 of the CPC, therefore, application submitted alongwith the same was not maintainable too, was found to be without substance on the ground that though Civil Procedure Code as well as the Evidence Act both were not applicable yet, proceedings before the Rent Controller were not to be frustrated by mere formalism as in such cases the only requirement was to ensure that no party is prejudiced by the procedure adopted by him. In the case of Shaikh Muhammad Ibrahim v. Syed Abdul Aziz Shah and others (1990 SCMR 542), the objection taken that since before withdrawing the earlier eviction application permission was not sought from the Court within the ambit of Order XXIII, Rule 1 CPC, therefore, the subsequent application was not maintainable too, was repelled and it was laid down that though CPC was not applicable to the rent cases yet, equitable principles might be applied to advance justice. In a recent judgment delivered in the case of Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami and others (2007 SCMR 118), while referring the cases of Ayub Khan (supra) and Messrs Bambino Ltd. v. Messrs Selmore International Ltd. and another (PLD 1983 SC 155), Sh. Abdul Hameed's case (PLD 1994 Kar. 379), Atta-ul-Haq's case (NLR 1992 Civil 479), Abdul Hameed's case (1986 MLD 541), Sh. Miraj Din's case (PLD 1965 Lah. 374), Sr. Lakshmi Narayan's case (PLD 1964 Dacca 177), Ahmad-ul-Haq's case (PLD 1960 Dacca 452), and Mst. Fatima Bibi's case (1991 SCMR 1031), it has once again been reiterated that provisions of CPC are not applicable to the rent proceedings in stricto senso, however, Rent Controller is entitled to follow principles thereof. The contention therefore, has no force.
As regards the next contention of the learned counsel for the petitioner that since affidavits of some of the witnesses were filed in Court on the date when the impugned order was passed, therefore, the Rent Controller ought to have considered the same as evidence, it may be pointed out here that no doubt in the case of Barkat Ali v. Muhammad Ehsan and another (2000 SCMR 556), it was for quick decision of cases, laid down, inter-alia, that while replying to the ejectment application the respondent shall be required to submit his own affidavit and affidavits of two other witnesses in support of his affidavit on the date fixed in the notice served upon him, yet it was also held therein that the parties shall be bound to produce their witnesses in Court for cross-examination and in case of failure they would face the consequences and in such a situation their evidence shall be excluded from consideration. That being so, this contention too, has no force.
Upshot of the above discussion is that this petition being misconceived is hereby dismissed and leave refused. However, in the interest of justice, the petitioner is afforded three months time to vacate the premises.
(R.A.) Leave refused.
PLJ 2008 SC 285
[Original Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Muhammad Moosa K. Leghari & Ch. Ejaz Yousaf, JJ.
SUO MOTO CASE NO. 21 OF 2007
CMA No. 3034 of 2007 & Suo Moto Case No. 21 of 2007, decided on 2.1.2008.
(Clash of Lawyers, media persons and members of the Civil Society with police/Law enforcing agencies outside Supreme Court Building & in front of Election Commission of Pakistan on 29.9.2007)
Government Servants (Efficiency and Discipline) Rules, 1973--
----Art. 5(1)--Removal from Service (Special Powers) Ordinance, 2000--S. 4--Suo Moto action by Chief Justice of Pakistan--Serious clash took place between Lawyers, media persons and members of Civil Society with police contingent law enforcing agencies when they intended to lodge protest--Lawyers and media persons were allegedly beaten up and injured--Chief Justice who issued suo moto notice to Secretary Interior, Inspector General of Police--Secretary Interior was directed to place I.G., SSP and Deputy Commissioner under suspension--Forced leave or suspension beyond a period of three months again requires approval of authority--Held: Government servant who has been placed under suspension or forced to proceed on leave would be deemed to have been reinstated unless before the expiry of the period the approval of the authority to the Government servant continuing to be under suspension or on leave has been obtained--Since no such approval of the competent authority was obtained in the present case--Suspension order cannot continue any further--CMA disposed of.
[P. 288] A
Mr. Mujeeb-ur-Rehman, ASC and Ch. Akhtar Ali, AOR for Applicants.
Raja M. Bashir, ASC for (Muhammad Ali De).
Malik Muhammad Qayyum, Attorney General for Pakistan; Ms. Nahida Mehboob Ellahi, DAG; Qazi M. Amin, Addl. AG Punjab; Raja Saeed Akram, AAG Punjab and Ms. Viqar-un-Zeb, Js M/o Interior on Court notice.
Date of hearing: 2.1.2008.
Order
Abdul Hameed Dogar, HCJ.--This CMA has been filed for setting aside suspension order dated 01.10.2007 passed by Cabinet Secretariat, Establishment Division and Ministry of Interior whereby Capt. (Retd.) S. Morawet Ali Shah, Inspector General of Police, Islamabad, Mr. Muhammad Naeem Khan, Senior Superintendent of Police, Islamabad and Ch. Muhammad Ali, Deputy Commissioner were placed under suspension with immediate effect and until further orders in terms of Section 4 of the Removal From Service (Special Powers) Ordinance, 2000.
Briefly stated facts leading to the filing of instant application are that on 30.9.2007 serious clash took place between lawyers, media persons and members of the civil society with police contingent/law enforcing agencies when they intended to lodge a protest before Election Commission of Pakistan where the nomination papers of General Pervez Musharraf and others for the election of the President of Islamic Republic of Pakistan were being scrutinized. During the above incident lawyers and the media persons were allegedly beaten up and injured as they wanted to move towards the office of Election Commission of Pakistan for registration of their protest. There were also reports that the Minister of State for Information Mr. Tariq Azeem was also manhandled in front of the office of the Election Commission of Pakistan. Similarly Dr. Farooq Sattar, MNA met with the same treatment in front of Federal Government Services Hospital, Islamabad. The matter was brought to the notice of the then Chief Justice of Pakistan who issued suo moto notice to the Secretary, Interior, Government of Pakistan, Inspector General of Police, Deputy Commission/Duty Magistrate and Senior Superintendent of Police Islamabad. The matter came up for hearing on 01.10.2007 when the Secretary Interior was directed to place Morawat Ali Shah, Inspector General of Police, Islamabad, Muhammad Naeem Khan, SSP Islamabad and Ch. Muhammad Ali, Deputy Commissioner, Islamabad under suspension forthwith. Accordingly, all the above three officers were placed under suspension vide Notifications No. 214/2007-D.1 dated 1st October 2007 and No. 2/47/87-ICT-I dated 1st October 2007 and the same were made part of the order of this Court.
We have heard Mr. Mujeeb-ur-Rehman, learned ASC and Raja M. Bashir, learned ASC for the applicants as well as Malik Muhammad Qayyum, learned Attorney General for Pakistan at length and have gone through the record and proceedings of the case in minute particulars.
M/s. Mujeeb-ur-Rehman, learned ASC and Raja M. Bashir, learned ASC contended that no opportunity of hearing was provided to the applicants which being the basic principle of natural justice was violated. It is further contended that while taking impugned action neither any show-cause notice was issued nor statement of allegations was provided to the applicants. The learned counsel referred to SI. No. 126 of the ESTACODE (2000 Edition, page 622), which envisages that disciplinary proceedings against Government servants placed under suspension should be finalized within two months of the date of suspension and if in any case it is not possible to finalize departmental proceedings against the Government servant within said time, the matter should be reported to the Secretary Establishment giving reasons for not completing the proceedings. Then it is for the Secretary Establishment to scrutinize the case and if he finds no justification to continue the proceedings he may recommend the competent authority to cancel the order of suspension.
Malik Muhammad Qayyum, learned Attorney General for Pakistan placed on record concise statement on behalf of Ministry of Interior and stated that in this case no proceedings of any sort have been commenced. According to him, in the instant case, the Ministry of Interior had constituted a fact finding committee for the incident of 30.9.2007. However, after suo moto notice was taken by this Court, the inquiry committee delayed its proceedings. He further stated that Ministry of Interior has no objection if the suspension orders are recalled.
Ms. Viqar-un-Zeb, Joint Secretary Ministry of Interior also confirmed that no departmental proceedings of any sort have been commenced against above mentioned officers.
According to SI. No. 85(2)(b) of the ESTACODE (2000 Edition, page 567), since continuation of forced leave or suspension beyond a period of three months again requires the approval of the "authority", on expiry of the said period of three months, the Government servant who has been placed under suspension or forced to proceed on leave would be deemed to have been reinstated unless before the expiry of the said period the approval of the "authority" to the Government servant continuing to be under suspension or on leave has been obtained. Since no such approval of the competent authority was obtained in the present case, the suspension order cannot continue any further. Moreover, SI. No. 126 of the ESTACODE (2000 Edition, page 622), provides that disciplinary proceedings against Government servants placed under suspension should be finalized within two months of the date of suspension and if in any case it is not possible to finalize departmental proceedings against the Government servant within such time, the matter should be reported to the Secretary Establishment giving reasons for not completing the proceedings, Rule 5(1) of the Government Servants (Efficiency and Discipline) Rules, 1973 also contains similar provision. It may be advantageous to reproduce the same as under:
"5.(1) In case where a Government servant is accused of subversion, corruption or misconduct, the authorized officer may require him to proceed on leave or, with the approval of the authority suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every three months."
The plea raised by the learned counsel for the applicants also finds support from the observations made by learned High Court in the case of Mian Munawar-ud-Din v. Federation of Pakistan (PLD 1979 Lahore 699), relevant portion whereof reads as under:
"It may further be noted that according to rule 5(1) reproduced above, any continuation of suspension requires approval of the authority after every three months. This provision also makes it further clear that not only the contemplated suspension but the continuation must be preceded by approval. This view is further supported by the official interpretation of the Department, as given in Office Memo No. 7/2/75-DI, dated 22nd February, 1975, issued by the Establishment Division of the Cabinet Secretariat, Government of Pakistan. The relevant portion may be reproduced with advantage :--
(a) Since under
Rule 5 of the Government Servants (Efficiency and Discipline) Rules, 1973, the
authorised Officer' can only suspend a Government servant after obtaining the approval of theauthority', on the basis of principle embodied in Section 25 of the General Clauses Act, 1897, the `authorised officer' would be competent to reinstate the
Government servant only with the approval of the authority.
(b) Since continuation of forced leave or suspension beyond a period of three months again requires the approval of the authority' it would appear that on expiry of the said period of three months, the Government servant who has been placed under suspension or forced to proceed on leave would be deemed to have been reinstated unless before the expiry of the said period the approval of theauthority to the Government servant continuing to be under suspension or on leave has been obtained."
The above judgment follows the law laid down by this Court in the case of Nazir Ahmed v. Pakistan and 11 others (PLD 1970 SC 453).
(R.A.) CMA disposed of.
PLJ 2008 SC 289
[Original Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, M. Javed Buttar, Ijaz-ul-Hassan, Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari, Ch. Ejaz Yousaf, Muhammad Akhtar Shabbir & Zia Pervez, JJ.
Dr. ZAHOOR MEHDI--Petitioner
versus
CHIEF ELECTION COMMISSIONER ISLAMABAD & others--Respondents
Constitution Petition No. 83 of 2007, decided on 22.11.2007.
Presidential Election Rules, 1988--
----R. 5(3)(b)--Constitution of Pakistan, 1973, Arts. 41, 62 & 184(3)--Election of President--Candidate for election of President--Nomination papers for election of President were rejected--Requirement of proposer and seconder--Absence of proposer and seconder does not constitute violation of the Constitution--Held: Supreme Court did not dispense with requirement of proposer and seconder--Order of Chief Election Commissioner rejecting the nomination papers of the petitioner is unexceptionable. [P. 291] A
Constitution of Pakistan, 1973--
----Art. 184(3) & Chapter I, Part-II [Arts. 8 to 28]--Constitutional petition before Supreme Court--Maintainability--Petitioners challenging matters relating to the election of President do not involve question of public importance with reference to enforcement of fundamental rights conferred by Chapter 1 of Part II of the Constitution--Petition dismissed. [P. 291] B
PLD 2008 SC 30 fol.
Petitioner in person.
Nemo for Respondent No. 1.
Malik Muhammad Qayyum, Attorney General for Pakistan Ms. Nahida Mehboob Ellahi, DAG, Sardar M. Ghazi, DAG, Raja Niaz Ahmed Rathore, DAG, Haji Muhammad Rafi Siddiqui, ASC, Roy M. Nawaz Kharal, ASC, Mr. M. Aslam Nagi, ASC, Raja Abdur Rehman, ASC and Mr. Arshad Ali Ch., AOR for Respondent No. 2.
Syed Sharifuddin Pirzada, Sr. ASC, Mr. Wasim Sajjad, Sr. ASC, Raja Muhammad Ibrahim Satti, ASC and Mr. Arshad Ali Ch., AOR for Respondent No. 3.
Resondents No. 4-9 not represented.
Date of hearing: 22.11.2007.
Order
Abdul Hameed Dogar, C.J.--Through the titled Constitution Petition, petitioner Dr. Zahoor Mehdi, a candidate for election of President prays that the order of the Chief Election Commissioner dated 29.9.2007 whereby his nomination papers for election of President were rejected may be set aside and he may be held qualified to contest the Presidential election. He further prays that under the doctrine of necessity he may be given caretaker charge of the Government so that he is able to ameliorate the national economy which objective he would achieve by saving 30% of running expenditure of the country and by boosting up 90% NGDP.
In support of the petition, the petitioner contended that Articles 41 and 62 of the Constitution, which deal with the qualifications for the President, do not lay down the requirement of proposer and seconder for a Presidential candidate, but is the requirement of sub-rule (3)(b) of Rule 5 of the Presidential Election Rules, 1988, which is a subordinate legislation, therefore, absence of proposer and seconder does not constitute violation of the Constitution. When confronted with the provisions of Paragraph 4 of the Second Schedule to the Constitution (Election of President), he took the plea that the same are not mandatory in view of the word `may' used therein. To substantiate his plea, he submitted that the candidates for appointment to different posts in the public service offer themselves without any proposer and seconder and the same principle should apply vis-a-vis the election of President. Moreover, the petitioner is of the view that finding no suitable candidates for the election of President, he has offered himself as a candidate for that said office.
We have heard the petitioner at some length. The petitioner was unable to convince us as to how deviation from the constitutional as well as statutory provisions, referred to above, was permissible and how departure could be made from the law laid down in the case of M.P. Khan v. Muhammad Rafiq Tarar (1999 SCMR 90) where this Court did not dispense with the requirement of proposer and seconder. The order of the Chief Election Commissioner rejecting the nomination papers of the petitioner is unexceptionable.
Even otherwise, the petition, exfacie, is not maintainable under Article 184(3) of the Constitution. This Court has already held in the case of Qazi Hussain Ahmed v. General Pervaiz Musharraf (Constitution Petition No. 58 of 2007) that the petitions challenging matters relating to the election of President do not involve question of public importance with reference to the enforcement of fundamental rights conferred by Chapter 1 of Part II of the Constitution (Articles 8 to 28).
In view of the above, the petition is dismissed.
(R.A.) Petition dismissed.
PLJ 2008 SC 291
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, CJ and M. Javed Buttar, J.
Malik SALEH MUHAMMAD GUNJIAL--Appellant
versus
KAMRAN ELAHI BANDIAL and others--Respondents
Civil Appeal No. 723 of 2006, decided on 6.8.2007.
(On appeal from the judgment dated 28.4.2006 passed by Election Tribunal, Lahore in Election Petition No. 50 of 2002).
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 55(3)--Pakistan Air-Force Act, 1953--S. 20--Remained absent for a considerable period and on account of fact he was dismissed from service--Disqualification for dismissal from service of Air Force--Being deserter from Pakistan Air-Force was disqualified to contest the election--Maintainability--Such disqualification is to be treated life time disqualification as the same is self acquired by a person who is suffering from the same himself--Held: Since on merit the appellant was disqualified, the tribunal has rightly accepted the petition--Neither such fact has been mentioned in the petition nor any copy of the writ petition has been placed on record--Appeal dismissed. [Pp. 295 & 296] A & B
Mr. Muhammad Munir Peracha, ASC for Appellant.
Syed Iftikhar Hussain Gillani, Sr. ASC for Respondent No. 1.
Nemo for Respondents No. 2 & 3.
Date of hearing: 6.8.2007.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--This appeal calls in question order dated April 28th, 2006 passed by Election Tribunal, Lahore whereby on accepting the Election Petition dated 22nd November 2002 filed by the election petitioner, the appellant has been de-seated from the seat of P.P.40, Khushab-II.
Precisely stating facts of the case are that election of the appellant was questioned by respondent Karam Elahi Bandial son of Malik Fazal Elahi Bandial principally on the ground that he being a deserter from Pakistan Air-Force, was disqualified to contest the election. Appellant contested the petition interalia raising objection that petition was not maintainable as the respondent had not signed and verified the schedule and annextures to the Election Petition as provided by Section 55(3) of the Representation of the People Act, 1976. It is important to note that with regard to the disqualification for his dismissal from service of Air-Force, no categorical reply was submitted except stating "incorrect and denied".
Learned Election Tribunal on 17th March, 2003 framed issues arising out of the pleadings of the parties. At this juncture it is important to note that on 28th February, 2003 Civil Misc. No. 1/2003 was filed on behalf of the appellant seeking dismissal of the petition as the Schedule and Annex had not been signed and verified. The objection was in consonance to the objection which had already been raised in the reply. Another Civil Misc. No. 2/2003 was filed on behalf of respondent seeking permission to amend the Schedule and Annex to the election petition. Learned Tribunal disposed of both these applications on 9th June, 2003. Para No. 7, therefrom is reproduced herein below:--
"In the instant case also although the election petition is duly verified in accordance with law, yet the annexure have not been so verified. In view of the aforesaid authoritative judgment of the Honourable Supreme Court of Pakistan, I am inclined to dismiss the application filed by Respondent No. 1 (C.M.No. 1/2003) and to accept that of the petitioner (C.M.2/200) and hence I pass this order accordingly i.e. dismissing the application of Respondent No. 1 and accepting the application of the petitioner. The petitioner is allowed to amend the annexure/schedules in accordance with law (to the extent of their verification)"
In the meanwhile evidence produced by the parties was also recorded. Surprisingly yet another Civil Misc. Application No. 3/2003 was filed on 29th September, 2003 by the appellant wherein dismissal of the election petition was sought for want of verification of pleadings. This application was followed by Civil Misc. No. 4 of 2003 dated 21st October, 2003 filed by the respondent with the prayer that he be permitted to bring on record the stamp of Oath Commissioner on the verification of the election petition. Both these applications were disposed of by the Tribunal on 2nd April, 2004. The appellant's application being Civil Misc. No. 3/2003 was held to be incompetent in view of the earlier decision dated 9th June, 2003 in Civil Misc. No. 1-2. C.M.No. 4 of the respondent was disposed of as not pressed, because of the findings which had already been recorded by the Tribunal while disposing the earlier applications on 9th June, 2003 in para 7 that election petition was duly verified in accordance with law. On the conclusion of evidence of the parties, learned Tribunal vide impugned judgment accepted the election petition of respondent as a result whereof the appellant was de-seated. Hence this appeal.
Learned counsel for the appellant contended that he has been wrongly de-seated on the ground that he was dismissed from service. According to him under Section 20 of the PAF Act, 1953 a person can only be discharged and not removed because Sections 38 and 73 prescribe that if a person deserts then his Court-martial has to be conducted which is followed by conviction and thereafter he can be declared as deserter, therefore, according to him, appellant was not disqualified in terms of Article 63(1)(i) of the Constitution of Islamic Republic of Pakistan.
On the other hand learned counsel for the respondent contended that as far as the dismissal from service is concerned, it tantamounts to misconduct because evidence has come on record furnished by PW-4 Sqr. Leader Muhammad Khalid Javed (officer incharge documents), besides, appellant himself has admitted, that he remained absent for a considerable period and for this reason he was dismissed from service.
We have considered arguments and have gone through the relevant provisions of Pakistan Air-Force Act, 1953 (hereinafter referred to as `the Act'). Section 20 of the Act, deals with dismissal from service of persons other than officers. There is no dispute that appellant remained absent for a considerable period and on account of this fact he was dismissed from service as it is evident from the evidence of PW-Muhammad Khalid Javed, referred to herein before as well as the certificate issued by PAF according to which he was dismissed on 4th March, 1982 and the reason assigned for his dismissal was that it was u/S. 20(1) of the Act, of 1953. As far as other document is concerned, its contents have not been denied by any of the parties, particularly, the appellant in his own statement has admitted this fact. Reference to the statement of PW-2 would also be important to examine the arguments of the learned counsel for the appellant that such dismissal can take place only if a Court Martial has been held under Section 38 read with Sections 73 and 79. This witness in cross-examination had stated that concerning all offences, penal action is taken by the Air Force, sometimes penal action also involves incarceration/confinement and even if penal action is not taken against any person, the offence still remains there. Now we have a glance at Section 38 which deals in respect of desertion and aiding desertion. Under this provision any person who is subject to the Act, if deserts or attempts to desert the service, shall on conviction by Court Martial, be liable to suffer long imprisonment prescribed therein and provided in Section 73 of the Act. Admittedly in this case Court Martial of the appellant was not held but it doesn't mean that he was not found guilty of absence from his service as this fact is indicative from the certificate which has been referred to herein before. Appellant himself categorically admitted that he was dismissed on account of desertion. Relevant lines from his evidence read as under:--
"I was dismissed from Pakistan Air Force on account of `desertion', however, no allegation of immoral turpitude against me."
Learned counsel has attempted to take out the case of the appellant from disqualification by making reference to Article 63(1) (i) of Constitution of Islamic Republic of Pakistan 1973, which says that a person shall be disqualified to contest election, if he has been dismissed from service of Pakistan on the ground of mis-conduct, unless a period of five years has elapsed since his dismissal. According to him no offence of misconduct has been proved against him. Suffice it to say in this behalf that absence from duty itself is a misconduct on behalf of a person in government service as it has been held by this Court in the case of Secretary Education Vs. Mustamir Khan (2005 SCMR 17). Relevant para from the judgment is reproduced herein below:--
"Probably it was not within the knowledge of the Minister that wilful absence amounts to misconduct on the basis whereof major penalty of dismissal from service can be imposed."
Identical proposition in respect of a member of police force came for consideration before this Court in the case of Imtiaz Ahmed Lali Vs. Ghulam Muhammad Lali (PLD 2007 SC 369) wherein it has been held that such disqualification is to be treated life time disqualification as the same is self acquired by a person who is suffering from the same himself. Therefore, we are of the opinion that since on merit the appellant was disqualified, the Tribunal has rightly accepted the petition filed by the respondent.
Now turning towards the arguments raised by the learned counsel for the appellant in respect of verification of the plaint, it is to be noted that in terms of relevant para, which has been reproduced hereinabove from the order dated 9th June, 2003 the Court has held that as far as the petition is concerned, it is duly verified. As far as the question of non-verification of the annex and schedule is concerned, it has never been treated fetal by the Courts in view of the judgment reported as S.M. Ayub Vs. Syed Ausaf Shah and others (PLD 1967 SC 486) and Iqbal Zafar Jhagra Vs. Khalilur Rehman (2000 SCMR 250). Learned counsel contended that as the appellant had no remedy at the relevant time against the order dated 9th June, 2003, therefore, same was not challenged. We are not in agreement with him because of the fact that knowing well that such observations had been made, the appellant himself moved yet another application on the ground that the plaint had not been verified being CMA No. 3/2003 on 29th September, 2003. The same was dismissed because of the previous findings recorded by the trial Court that the plaint was duly verified. Learned counsel for the appellant contended that the petition was filed challenging the order dated 9th June, 2003 but the same was withdrawn as the appellant had made a statement that he would agitate this point finally at the time of hearing. In this behalf it is to be noted that neither this fact has been mentioned in the petition nor any copy of the writ petition has been placed on record.
Thus for the foregoing reasons, appeal is dismissed leaving the parties to bear their own costs.
(R.A.) Appeal dismissed.
PLJ 2008 SC 296
[Appellate Jurisdiction]
Present: Javed Iqbal & Abdul Hameed Dogar, JJ.
KHURSHID and others--Appellants
versus
UMAR BAKHSH (decd) through L.Rs--Respondents
Civil Appeal No. 396 of 2005, decided on 12.7.2007.
(On appeal from the judgment of the Lahore High Court, Multan Bench, Multan, dated 26.4.2000 passed in Civil Revision No. 691/1985).
Civil Procedure Code, 1908 (V of 1908)--
----O. VI, R. 4--Constitution of Pakistan, 1973, Art. 185(3)--Suit for Pre-emption--Leave to appeal--Particulars to be given where necessary--Principle of "sinker" was never pressed into service--Question of estopple--Divisibility of transaction--No illegality or irregularity--Statement of witness is indicative of fact that nothing was stated in his examination-in-chief on the basis whereof some inference could have been drawn qua his conduct which was considered as estopple by Appellate Court--In cross-examination nothing was mentioned except that at the relevant time respondents had no amount to purchase the land in-question which does not amounts to lack of interest and especially when the requisite amount was subsequently arranged and it was also made abundant clear while answering one of the questions during cross examination--Nothing has come on record on the basis whereof it could be inferred that the amount was paid separately to the vendor--Written statement is also silent in that regard and it was never mentioned that respondents had paid the amount separately--Basic fact should have been incorporated in the written statement but no such plea was taken, hence the evidence led in such regard would have no bearing on merits of the case--No illegality and irregularity has been committed by revisional Court warranting interference in the judgment impugned which is well reasoned--Appeal dismissed. [Pp. 299 & 301] A, B & E
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 3--Right of pre-emption--Question of--Sinker--Principle of sinker was never pressed into service--Indivisibility of transaction--Transaction cannot be held to be divisible, so as to avoid the doctrine of sinker, for the simple reason that the amount paid towards the price has not been separately apportioned to each vendee but has been shown to have been paid by one of the vendees in lump sum--If transaction is not divisible, the Court was right in holding that first three appellants cannot separately claim a superior right and defeat the right of pre-emption set up by respondents--Held: There can be no presumption as to the divisibility of transaction merely on the basis of the recital in the deed that the vendees took the property in specified shares if the consideration was mentioned as a lump sum--Appeal dismissed. [P. 300] C & D
PLD 1968 SC 140; PLD 1991 SC 130; 1993 SCMR 2035; PLD 1995 SC 482; PLD 1970 Lah. 168; PLD 1962 SC 42; PLD 1973 SC 347; PLD 1962 Pesh. 14; 94 PR (1902) and PLD 1989 SC 474 ref.
Ch. Muhammad Yaqub Sidhu, ASC for Appellants.
Mr. Gulzarin Kiani, ASC for Respondents.
Date of hearing: 12.1.2007.
Judgment
Javed Iqbal, J.--This appeal with leave of the Court is directed against judgment dated 26.4.2000 whereby the revision petition preferred on behalf of respondents/plaintiffs has been accepted.
"Khursheed son of Meera and the legal heirs of Sher Muhammad, his co-vendee seek leave to appeal against the judgment dated 14.3.2005 whereby Civil Revision No. 691 of 1985 though fixed for rehearing yet the previous judgment dated 26.4.2000 having already been passed therein, was no recalled. The ultimate effect was that the pre-emptor stood granted a decree for pre-emption against the petitioner-vendees holding that though the principle of waiver was not attracted to the facts of the case, the principle of sinker was proved and the respondent-vendors had failed to defend that the disputed transaction was divisible one.
(a) Whether the non-availability of funds with the prospective pre-emptor at the time of sale transaction and inability to purchase at such time constituted waiver.
(b) Whether the plea of sinker was bound to be taken by the pre-emptor in the plaint.
(c) Whether the decision of High Court on the question of divisibility in the light of evidence on record is sustainable.
(d) What is the effect of the vendees having led evidence on the question of divisibility of the transaction on the non-taking of plea qua sinker by pre-emptor in the plaint.
(e) What is the effect of absence of plea of sinker in the plaint when all the Courts, in the light of evidence, have discussed such question and have given decisions thereon.
To resolve the aforesaid questions, leave to appeal is granted. Subject to notice, the status quo is directed to be maintained."
Ch. Muhammad Yaqub Sidhu, learned ASC entered appearance on behalf of appellants and contended that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is urged with vehemence that the principle of "sinker" has been misinterpreted and misconstrued which was neither pleaded nor proper opportunity for leading evidence in rebuttal has been afforded. It is also argued that the dictum as laid down in case Abdullah v. Abdul Karim (PLD 1968 SC 140), Sultan Muhammad v. Nawab Khan (PLD 1991 SC 130) could not have been made applicable being distinguishable in the case. It is mentioned time and again that the doctrine of "sinker" has not been mentioned in the plaint and, therefore, the appellants could not have been knocked out on this score.
Mr. Gulzarin Kiani, learned ASC entered appearance for respondents and supported the judgment impugned for the reasons enumerated therein with the further submission that authorities referred to and relied upon by the learned ASC on behalf of appellants are not relevant and deserve little consideration. It is also pointed out that the principle of "sinker" was never raised before the learned appellate Court and further more no such ground was taken in the memorandum of revision. It is also argued that the sale was indivisible which has rightly been appreciated by the learned trial Court, determination whereof has been upheld by the learned revisional Court.
We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. Let we make it clear at the out set that the principle of "sinker" was never pressed into service. In this regard, we have carefully examined the written statement which is silent about it and even a remote mention has not been made to the principle of "sinker", hence the law laid down in the different authorities as referred by Ch. Muhammad Yaqub Sidhu, learned ASC on behalf of appellants would not improve the case of appellants. No such ground has been taken in the memorandum of revision petition rather the entire stress was laid on Issue No. 2 i.e. "whether plaintiff is estopped by his conduct"? and Issue No. 6. i.e. "whether plaintiff has a superior right of pre-emption"? An in-depth scrutiny of the record would reveal that the point qua principle of "sinker" has admittedly been raised in this petition on first occasion and as such it cannot be entertained. In this regard reference can be made of Malik Shier v. Rab Nawaz (1993 SCMR 2035).
We have also adverted to the question of estopple (Issue No. 2) mentioned in the preceding paragraph which has not been decided in accordance with the evidence which has come on record. The conclusion as arrived at by the learned appellate Court is not in consonance with the evidence which has been misinterpreted and misconstrued. The statement of Allah Rakha (PW-1) is indicative of the fact that noting was stated in his examination-in-chief on the basis whereof some inference could have been drawn qua his conduct which was considered as estopple by the learned appellate Court. Even in cross examination nothing was mentioned except that at the relevant time the respondents/plaintiffs had no amount to purchase the land in question which does not amounts to lack of interest and especially when the requisite amount was subsequently arranged and it was also made abundant clear by Allah Rakha (PW-1) while answering one of the questions during cross examination in the following words:--
On the question of divisibility the learned ASC was asked pointedly as to whether the respondents/plaintiffs had paid price of the land in question separately to the vendor but no satisfactory answer could be given. It is, however, to be noted that nothing has come on record on the basis whereof it could be inferred that the amount was paid separately to the vendor. The written statement is also silent in this regard and it was never mentioned that the respondents/plaintiffs had paid the amount separately. This basic fact should have been incorporated in the written statement but no such plea was taken, hence, the evidence led in this regard would have no bearing on merits of the case pursuant to the provisions as contained in Order 6, Rule 4 CPC. While discussing the doctrine of "sinker" and divisibility it was held by this Court in case Muhammad Ashraf v. Zahoor Muhammad Sarohi (PLD 1995 SC 482) as follows:--
"5. The doctrine of sinker is a well known doctrine in the law of pre-emption. "Where a vendee having an equal or superior right of pre-emption associates a stranger i.e. a person having an inferior right of pre-emption then the pre-emptor, the rule of sinker will apply and the pre-emptor's suit decreed, unless the impugned sale is divisible i.e. it is a sale wherein not only the share of each vendee is specified but the amount paid towards the price by each vendee is also specified." Mir Ahmad v. Attaullah alias Atta Muhammad" (PLD 1991 SC 210). And a transaction is regarded as indivisible if "the purchase money for a sale is paid in a lump sum without specification of the amounts paid by each of the vendees, ..... though the shares to be taken by the various vendees may have been specified in the deed"
A similar proposition was dilated upon and decided in case Sultan Muhammad v. Nawab Khan (PLD 1991 SC 130) wherein it was held that "the transaction in the present case cannot be held to be divisible, so as to avoid the doctrine of sinker, for the simple reason that the amount paid towards the price has not been separately apportioned to each vendee but has been shown to have been paid by one of the vendees in lump sum. Thus, if the transaction is not divisible the Court was right in holding that the first three appellants cannot separately claim a superior right and defeat the right of pre-emption set up by the respondents. Allah Ditta v. Feth Khan PLD 1970 Lah. 168, Syed Abdul Rashid v. Pakistan PLD 1962 SC 42, Jallu v. Muhammad Khan PLD 1973 SC 347, Mustaqim v. Sher Bahadur PLD 1962 Pesh. 14, 94 PR (1902), Muhammad Ismail v. Karamat Ali PLD 1989 SC 474, Mir Ahmad v. Attaullah Appeal No. 10 of 1983, Muhammad Anwar Khan v. Attaullah Appeal No. 20 of 1984." It is worth mentioning "that there can be no presumption as to the divisibility of the transaction merely on the basis of the recital in the deed that the vendees took the property in specified shares if the consideration was mentioned as a lump sum." Abdullah v. Abdul Karim (PLD 1968 SC 140).
The learned revisional Court has examined the entire controversy with diligent application of mind on the touchstone of the criterion as mentioned herein above and all the contentions raised have been dilated upon and decided in a comprehensive manner vide judgment impugned, relevant portion whereof is reproduced herein below for ready reference:--
"In view of the above discussion I find that the learned Additional District Judge has in fact acted with material irregularity in the exercise of his jurisdiction while passing the impugned judgment and decree. This Civil Revision is accordingly allowed. The judgment and decree dated 19.10.1985 of learned Additional District Judge is set aside while that dated 18.10.1982 of the learned trial Court is restored. In case the petitioners have not already deposited the amount of Rs. 13,000/- they shall deposit the same subject to adjustment of l/5th or any other amount already deposited in the learned trial Court on or before 31.5.2000. In case the amount is not so deposited the suit of the petitioners shall stand dismissed with costs. For the moment the parties are left to bear their own costs."
The upshot of the above discussion is that no illegality or irregularity has been committed by the learned revisional Court warranting interference in the judgment impugned which is well reasoned. The appeal being devoid of merit is dismissed.
(N.F.) Appeal dismissed.
PLJ 2008 SC 301
[Appellate Jurisdiction]
Present: Rana Bhagwandas, ACJ and Sardar Muhammad Raza Khan, J.
GHULAM MUSTAFA SHEHZAD--Petitioner
versus
LAHORE HIGH COURT through Registrar & another--Respondents
C.P.L.A. No. 2601 & 2005, decided on 21.6.2007.
(On appeal from judgment of Punjab Subordinate Judiciary Service Tribunal dated 9.9.2005 passed in Appeal No. 67 of 2002).
Punjab Civil Servants (Efficiency and Discipline) Rules, 1999--
----Rr. 3(e) & 4(b)(iv)--Adverse remarks touching his integrity etcetera in Annual Confidential Reports--No regular enquiry--Civil servant was serving as Additional District and Sessions Judge--Guilty of having reputation of being corrupt, falling within purview of Rule 3(e) entailing one of the major penalties--Show-cause notice--Civil servant submitted a representation with request that the notice be withdrawn and a regular enquiry be held--To afford an opportunity of hearing to civil servant--Validity--After hearing the civil servant and examining the service record as well as reply to show-cause notice, came to conclusion that civil servant was not fit to be retained in judicial service and proposed his removal from service--Civil servant was removed from service by the competent authority--After availing of the departmental remedy civil servant filed service appeal before Punjab Subordinate Judiciary Service Tribunal, which has been dismissed--Contention--No direct evidence to show that civil servant had accepted any illegal gratification and that order of removal from service was based on presumption and suppositions and proceedings under Rules were in nature of quasi-criminal proceedings requiring establishment of misconduct on basis of positive evidence, free of all doubts--An act of accepting illegal gratification in order to show some favour or to oblige the person would definitely call for positive evidence to show that incumbent had indulged in act of demanding and receiving illegal kickbacks amounting to gratification other than legal remuneration--Held: Conjectures or suspicion cannot take the place of proof--Without expressing any cavil with proposition of law, ratio in reported case can hardly be attracted in the case--Further held: Authorised Officer is empowered to dispense with the enquiry but he is required, by an order in writing to inform the accused of the action proposed, alongwith the grounds of action and to give him reasonable opportunity of showing cause against the action proposed--Authority before passing the impugned order had duly complied with the provision of law and rules of natural justice--Civil servant cannot be heard to say that he was condemned unheard or that he was deprived of explaining his position--Officer authorised are fully empowered to opt whether to hold a regular enquiry or not depending on the facts and circumstance of each case--Petition dismissed. [Pp. 303, 304 & 306] A, B, C, D, E & G
A.C.R.--
----Doctrine of double jeopardy--Adverse A.C.R--Doctrine of double jeopardy is neither involved nor can it be argued that the civil servant has been vexed twice for the same act. [P. 306] F
Hafiz Tariq Nasim, ASC with Mr. Mehr Khan Malik, AOR for Petitioner.
Chaudhry Muhammad Hussain, Additional Advocate General, Punjab and Mr. Nazar Hussain, Deputy Registrar (Confidential) Lahore High Court for Respondents.
Date of hearing: 21.6.2007.
Judgment
Rana Bhagwandas, ACJ.--Petitioner, while serving as Additional District and Sessions Judge, Hafizabad, was served with a show-cause notice dated 6.10.2001 by Lahore High Court to show-cause as to why he be not dismissed from service. Allegations against the petitioner were that the Chief Justice and Judges of High Court, after perusing his service record, had noticed that he had been earning adverse remarks touching his integrity etcetera, in his Annual Confidential Reports. It was averred in the show-cause notice that in view of observations recorded by a Division Bench of the High Court, while disposing of Criminal Appeal No. 291 of 1994 on 28.9.1999, re-passing of sentence and fine and extending benefit of Section 382-B Cr.P.C. being not warranted in law, he was directed to be careful. He was informed that aforesaid grounds forming basis of Annual Confidential Reports and judicial orders were matters of record, therefore, holding of regular enquiry was not considered necessary by the Authority under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 (hereinafter referred to as the Rules 1999). Lastly, he was informed that by reason of above, he appeared to be guilty of having reputation of being corrupt, falling within the purview of Rule 3(e) of the Rules 1999, entailing one of the major penalties. Their Lordships of the High Court had, thus, ordered the issuance of notice to him to show-cause as to why penalty of dismissal from service be not imposed upon him.
Faced with the above said show-cause notice, petitioner submitted a representation with the request that the notice be withdrawn and a regular enquiry be held. Said representation was, however, turned down and the Authority decided to proceed with the case. Petitioner submitted his detailed reply to the show-cause notice on 10.12.2001, refuting various allegations leveled against him and reiterating his request that regular enquiry may be initiated against him. On receipt of such reply, Mr. Justice Muhammad Nawaz Abbasi (as he then was) was nominated by the Authority to afford an opportunity of hearing to the petitioner on behalf of the Authority. The said Honourable Judge, after hearing the petitioner and examining the service record as well as reply to the show-cause notice, came to the conclusion that the Officer was not fit to be retained in judicial service and, thus, proposed his removal from service under Rule 4(b) (iv) of the Rules 1999. Petitioner was resultantly removed from service by the competent authority vide order dated 24.7.2002. After availing of the departmental remedy petitioner filed service appeal before the Punjab Subordinate Judiciary Service Tribunal, Lahore High Court (hereinafter referred to as the Tribunal), which has been dismissed vide judgment dated 9.9.2005. This petition is directed against the said judgment seeking leave to appeal.
We have heard Hafiz Tariq Nasim, learned ASC for the petitioner and Chaudhry Muhammad Hussain, learned Additional Advocate General Punjab on behalf of the respondents.
Hafiz Tariq Nasim, learned counsel for the petitioner vehemently contended that the question of removal or dismissal of a Judicial Officer from service on the charge of corruption was a serious matter and it should not have been finally disposed of without holding a regular enquiry into the charge of corruption. Learned counsel submitted that except for the period from 28.5.1997 to 31.12.1999, Annual Confidential Reports for remaining part of the service of the petitioner were quite satisfactory, therefore, competent Authority should not have dispensed with the holding of detailed enquiry. Learned counsel, in order to reinforce his submissions, heavily relied upon Samiuddin Qureshi v. Collector of Customs (PLD 1989 S.C. 335) (relevant at page 339) and Shabbir Hussain v. Registrar, Lahore High Court (PLD 2004 S.C. 191). In Samiuddin (supra), leave to appeal was granted to consider, inter alia, the contention that there was no direct evidence to show that civil servant had accepted any illegal gratification and that the order of removal from service was based on presumptions and suppositions and, whether, proceedings under the Rules were in the nature of quasi-criminal proceedings requiring establishment of misconduct on the basis of positive evidence, free of all reasonable doubts. The question involved in the reported case would appear to be entirely distinct and different from the one confronted by the petitioner before us. An act of accepting illegal gratification in order to show some favour or to oblige the person concerned would definitely call for positive evidence to show that the incumbent had indulged in act of demanding and receiving illegal kickbacks amounting to gratification other than legal remuneration. Reported case, therefore, cannot be held to be parallel to the case of the petitioner who had consistent reputation of being corrupt, which would not be capable of proof by concrete and definite evidence, as contended. It was held in the reported case that in order to dismiss a civil servant or for that matter, any employee on a charge of taking bribe or misconduct is as serious a matter as convicting a person for a crime because his whole career is ruined. Therefore, the order of dismissal must be based on some evidence. It was held in case (supra) that finding of attempted bribe by the disciplinary authority was based on mere suspicion and the Court did not find any evidence in support of the finding. Furthermore, Enquiry Officer also, in the first instance, had given the appellant benefit of doubt, though he ought to have, on evidence before him, found that the charge against the appellant was not proved, as there was no evidence. It was in these facts and circumstances that this Court held that the conjectures or suspicion cannot take the place of proof. In our view, without expressing any cavil with the proposition of law, ratio in the reported case can hardly be attracted in case in hand.
Conversely, respondents have relied upon the dictum laid down by a Larger Bench of five Judges in Nawab Khan v. Government of Pakistan (PLD 1994 S.C. 222). It was held in this case that the question whether a major punishment can be imposed on a civil servant without holding enquiry, would depend upon facts of each case. It was laid down that the Authorised Officer is empowered to dispense with the enquiry but he is required, by an order in writing, to inform the accused of the action proposed, along with the grounds of action and to give him reasonable opportunity of showing cause against the action proposed. It may not be out of context to point out that the appellant was duly informed that the competent authority had decided to dispense with the regular enquiry; the allegations against him were made known to him and he was afforded reasonable opportunity of personal hearing by a sitting Judge of the High Court nominated by the competent Authority. He was also informed of the proposed action, therefore, it can safely be concluded that the Authority, before passing the impugned order, had duly complied with the provision of law and the rules of natural justice. Thus, the petitioner cannot be heard to say that he was condemned unheard or that he was deprived of explaining his position.
In Shabbir Hussain v. Registrar Lahore High Court (PLD 2004 S.C. 191), a Full Bench of this Court held that though all the civil servants are bound to be honest, having unblemished integrity yet the Judicial Officers are supposed to excel in this trait of character in view of the sacred and sensitive nature of their duties and owing to the pivotal position that justice occupies in Islam. After citing Surah 4, Verse 135 of Holy Quran, the Court proceeded to hold that Islam enjoins that those who perform the function of Judge must not only possess profound knowledge and deep insight but also be men of integrity, capable of holding the scales of justice even under all circumstances. The Court observed that Judicial Officers are expected to guard their reputation jealously and the Reporting Officers/Countersigning Officers are obligated to assess their conduct after careful consideration and without being led away by any prejudice or bias.
Adverting to the contention of the learned counsel that the petitioner was proceeded against on account of adverse remarks for a period only of 19 months and that, such short period could not form the basis of the show-cause notice, as it had the effect of blocking his career. Factually, it may be observed that the petitioner had challenged the correctness and validity of his adverse remarks for a period of two years and seven months and preferred appeals for different periods before the Tribunal, which were dismissed on merits. He had preferred Civil Petitions Nos. 2780-L of 2001 and 2782-L of 2001 for leave to appeal and expunction of adverse remarks before this Court but the same were dismissed, after providing an opportunity of hearing to him before this Court. Civil Review Petitions against the judgment were also dismissed on 27.4.2004. Nevertheless, there is no rule of law that adverse entries reflecting consistent and chronic reputation regarding lack of integrity cannot form the basis of a show-cause notice. Indeed, a larger number of appeals in Shabbir Hussain's case (supra) were directed against the judgments arising out of adverse Annual Confidential Reports. The doctrine of double jeopardy is, therefore, neither involved nor can it be argued that the petitioner has been vexed twice for the same act.
Learned counsel lastly urged that the Tribunal consisted of two junior Judges of the Lahore High Court, who could hardly dare to disagree with the views of seven senior Judges of the High Court comprising Administration Committee. The argument is without any merit and wholly fallacious as there is no concept of junior Judges in the Superior Courts being treated as subordinate or subservient to the senior Judges. Since policy decisions of far reaching important consequences are taken by the Administration Committee of the High Court by convention and invariably senior most Judges are associated with such affairs. Instances are not lacking where the members of the Tribunal have set aside the disciplinary action taken by Chief Justice on the recommendation of the Administration Committee. In many petitions such decisions were brought to this Court and were either modified or upheld. This question was also dealt with in Shabbir Hussain's case (supra) and repelled with all emphasis. It was pointed out that the mere fact that two appeals before this Court had been filed by the Lahore High Court against acceptance of the appeal preferred by a Judicial Officer was sufficient for holding that composition of the Tribunal was unexceptionable and there was no force in the contention that being composed of three Judges junior to the Members of Administration Committee of the High Court, it was illusory. This Court pointed out that there was no dearth of cases where a junior Judge declined to concur with the senior Judges of the Bench and wrote a dissenting judgment. We are, thus, completely fortified by the view taken by Full Bench in a case decided only three and a half years before.
Having examined the case of the petitioner from every angle and given our anxious thought to the submissions made at the bar, we are of the considered view that the Officer Authorised/Authority are fully empowered to opt whether to hold a regular enquiry or not depending on the facts and circumstances of each case. The case in hand having been fairly and equitably dealt with by the High Court as well as the Tribunal does not warrant any interference by this Court.
Consequently, we find no merit in this petition, which is accordingly dismissed.
(R.A.) Petition dismissed.
PLJ 2008 SC 307
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan and Muhammad Moosa K. Leghari, JJ.
MUHAMMAD BASHIR--Appellant
versus
STATE--Respondent
Crl. A. No. 313 of 2007, decided on 14.11.2007.
(On appeal from the judgment dated 4.12.2006 of the Lahore High Court, Rawalpindi Bench in Cr. A.52/01)
High Court (Lahore) Rules and Orders--
----Vol. III, Chapt. XXIV, Part-C--Decision in absentia--Entitlement of defended by counsel--Statutory right of accused--Counsel has filed power of attorney on his behalf and would appear on the date of hearing--On the date of hearing advocate moved an application before the Court that due to death of his near relative, he would not be present and requested for adjournment--Application was disallowed and appeal of accused was heard in the absence of his counsel--Held: Every person charged with committing an offence with death should have legal assistance at his trial either in Court of Sessions or in High Court--Such was statutory right of the accused to be represented by counsel in case where capital punishment is awarded--Case remanded. [P. 309] B & C
Constitution of Pakistan, 1973--
----Art. 185(3)--Pakistan Penal Code, (XLV of 1860), S. 302(b)--High Court (Lahore) Rules and Orders--Vol. III, Chapter XXIV, Part-C--Leave to appeal was granted by Supreme Court to consider whether appeal involving death sentence could be decided in absence of counsel. [P. 308] A
PLD 1973 Lah. 365, PLD 2003 Quetta 77 & 1984 SCMR 59, ref.
Ch. M. Akram, ASC for Appellant.
Ch. Munir Sadiq, DPG Punjab for State.
Date of hearing: 14.11.2007.
Order
Abdul Hameed Dogar, HCJ.--Appellant Muhammad Bashir has assailed judgment dated 4.12.2006 passed by learned Division Bench of Lahore High Court, Rawalpindi Bench whereby Criminal Appeal
No. 52 of 2001 filed by appellant Muhammad Bashir, Criminal Appeal No. 53 of 2001 filed by complainant Mirza Yasir Ali and Murder Reference No. 18 of 2001 for confirmation of death sentence were disposed of.
The appeal filed by appellant was dismissed and death sentence awarded to him by learned trial Court was confirmed whereas appeal filed by complainant against acquittal of Sajawal Khan was disposed of as not pressed and murder reference was answered in affirmative.
Leave to appeal was granted by this Court on 14.9.2007 to consider whether the appeal involving death sentence can be decided in absence of counsel.
Briefly stated facts leading to the filing of instant appeal are that appellant was convicted under Section 302(b) PPC and sentenced to death with compensation of Rs. 50,000/- to be paid to the legal heirs of deceased under Section 544-A Cr.P.C. or in default whereof to further undergo six months S.I. whereas his co-accused Sajawal Khan was acquitted by the learned trial Court. Though appeal challenging his acquittal was filed but the same was not pressed at the time of hearing which was disposed of having not pressed.
We have heard learned counsel for the appellant and learned DPG Punjab at length and have gone through the record and proceeding of the case in minute particulars.
Learned counsel for the petitioner vehemently contended that learned trial Court proceeded and decided the appeal of the appellant in absence of advocate. Learned counsel while arguing the matter has referred to Para 3 of the impugned judgment wherein it has been mentioned that appeal was filed by Sardar M. Tahir Ayub Khan Sandozai, Advocate. But when it came up for hearing on 13.6.2005 learned Division Bench passed following order:
"None has entered appearance on behalf of the appellant despite repeated calls. Even no intimation has been sent by the learned counsel for his non-appearance. The Deputy Registrar (Judicial) of this Court shall establish contact with the appellant through Superintendent Jail concerned to intimate him that in case his learned counsel does not appear on the next date, a counsel at State Expense shall be appointed to argue his case. A notice shall also be issued to appellant's learned counsel. To be relisted after doing the needful."
It is further pointed out that even on the date of hearing junior of Mr. M. Akhlaq Awan, Advocate appeared before the learned High Court and presented an application for adjournment on the ground that close relative of Mr. M. Akhlaq Awan, Advocate had died in Muzaffarabad and he had to go there to attend his namaz-e-janaza as such he was unable to attend the Court.
Learned Deputy Prosecutor General Punjab appearing on behalf of State supported the view taken by the learned High Court.
As per impugned judgment petitioner has sent an application through Superintendent Jail intimating that Mr. M. Akhlaq Awan, Advocate has filed Power of Attorney on his behalf and would appear on the date of hearing. It also mentioned in the impugned judgment that on 4.12.2006 the date of hearing junior of Mr. M. Akhlaq Awan, Advocate moved an application before the Court that due to death of his near relative in his native town at Muzaffarabad on 3.12.2006 he would not be present and requested for adjournment. The said application was disallowed and appeal of appellant was heard in the absence of his counsel whereby his death sentence was confirmed. We have also gone through the case laws referred by the learned High Court in impugned judgment but are of the view that the same are not relevant to the facts and circumstances of the case in hand. It is provided in High Court Rules and Orders (Lahore), Vol. III, Chapter XXIV, Part C that every person charged with committing an offence with death should have legal assistance at his trial either in a Court of Sessions or in the High Court. In the case of Muhammad Sharif Vs. The State (PLD 1973 Lahore 365) reference has been made to these provisions by learned High Court and the judgment of District and Sessions Judge was set aside and the matter was remanded for retrial. It was held in the case of Major (R) Nadir Ali Vs. The State (PLD 2003 Quetta 77) that where accused had been awarded the sentence of imprisonment for life by the trial Court on the basis of evidence recorded in absence of a counsel and he in the circumstances was entitled to be defended by a counsel. Even this Court in the case of Muhammad Bakhsh Vs. The State (1986 SCMR 59) has laid down the rule that once appeal is admitted for regular hearing cannot be dismissed for non-prosecution or on the ground of absence of counsel.
In view of above provisions of law, we are of the view that it is the statutory right of the accused to be represented by the counsel in case where capital punishment is awarded. Accordingly, impugned judgment is set aside and case is remanded to the learned High Court for re-hearing of the above mentioned criminal appeal afresh after affording full opportunity of hearing to both parties. It would be appreciated if the matter is decided preferably within a period of three months.
(R.A.) Case remanded.
PLJ 2008 SC 310
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan & Muhammad Moosa K. Leghari, JJ.
SYED ARSHAD ALI, etc.--Petitioners
versus
PAKISTAN TELECOMMUNICATION COMPANY LTD., etc.--Respondents
Civil Petition No. 903 of 2007, decided on 30.11.2007.
(On appeal from the judgment and order of the High Court of Sindh, Karachi, dated 18.9.2007 passed in C.P. No. D-2086 of 2006).
Constitution of Pakistan, 1973--
----Arts. 199, 212 & 185(3)--Industrial Relations Ordinance (XCI of 2002), S. 46(5)--Leave to appeal--Termination of service--Daily wages employees--Entitled to protection of service--High Court dismissed the petition--Constitutional jurisdiction of High Court--Scope--Challenge to--Petitioners claimed to be employees of PTCL and alleged that their services were terminated by an incompetent authority in violation of law and fundamental rights--Alternative remedy before Labour Court is available--Question of law involving fundamental rights was raised--Validity--If a right has been conferred by a statute and complete mechanism has been provided for enforcement thereof, there could hardly be any occasion to invoke applicability of fundamental rights--Jurisdiction of High Court will be patently barred under Art. 212 of the Constitution--Held: Writ jurisdiction could not be exercised where equally efficacious remedy is available--Petitioners are workman and have been employed by a corporation and their remedy would lie before Labour Court established under Industrial Relations Ordinance--Leave was refused. [P. 311] A & B
Mr. M. A. Ghani Chaudhry, ASC for Petitioners.
Nemo for Respondents.
Date of hearing: 30.11.2007.
Judgment
Muhammad Moosa K. Leghari, J.--This petition for leave to appeal is directed against the order dated 18.9.2007 passed by a learned Division Bench of High Court of Sindh, Karachi, whereby the Constitution Petition filed by the petitioners was dismissed. The petitioners claimed to be the employees of Pakistan Telecommunication Company Ltd. and alleged that their services were terminated by an incompetent authority in violation of the law and fundamental rights.
Learned counsel appearing for the petitioners admitted before the learned High Court that the alternative remedy before the Labour Court is available to the petitioners. Accordingly the petition filed by the petitioners was dismissed and it was observed that the petitioners shall be free to seek redressal of their grievances from the proper forum under the law.
We have heard learned counsel for the petitioners at length. Learned counsel contended that the petitioners were employed by the Pakistan Telecommunication Company Ltd. on daily wages basis and were working there since 5-6 years, as such they have become permanent workers consequently they are entitled to protection of service under the Standing Orders Ordinance, but their services were terminated without notice, in violation of law and the fundamental rights provided under the Constitution. Thus the High Court was competent to invoke the Constitutional jurisdiction.
However after considerably arguing the case learned counsel for the petitioners has to eventually concede before us that the petitioners being workmen were entitled to seek remedy from the Labour Court under the Industrial Relations Ordinance, 2002. He however subsequently made a feeble submission to convince us that since a question of law involving fundamental rights was raised, Constitution Petition before the High Court was competent. We are afraid this proposition is simply unacceptable. It is well recognized that if a right has been conferred by a statute and a complete mechanism has been provided for enforcement thereof, there could hardly be any occasion to invoke the applicability of fundamental rights. The jurisdiction of the High Court will be patently barred under Article 212 of the Constitution of Islamic Republic of Pakistan, in view of the specific forum provided for redressal of the grievances of the petitioners, even if the order proposed to be challenged may have been passed in whatsoever circumstances viz! mala fide, corum-non-judice or without jurisdiction. This principle has been laid down in the case of I.A. Sharwani and others Vs. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041). Besides it is also well settled proposition of law that writ jurisdiction could not be exercised where equally efficacious remedy is available. As claimed by the petitioners in the case in hand, they are workman and have been employed by a corporation i.e. Pakistan Telecommunication Company Ltd. In such circumstances, their remedy would be before the Labour Court established under the Industrial Relations Ordinance.
In view of the above, the petition is dismissed and leave is refused.
After the order was announced, learned counsel for the petitioners submitted that the petitioners intend to seek remedy from the appropriate forum but their grievance petitions may not be entertained on account of bar of limitation. He therefore, prayed for issuing such directions, so as to condone the delay. We are unable to accept such a prayer as it will be for the competent forum to deal with the question of limitation. However, we feel it proper to observe that in case of any such move is made on behalf of the petitioners it may be given due consideration in view of the fact that the rights of employment of the petitioners are involved in the matter.
(R.A.) Leave refused.
PLJ 2008 SC 312
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Muhammad Moosa K. Leghari & Mian Hamid Farooq, JJ.
MUHAMMAD NAZIR KHAN--Petitioner
versus
AHMAD & 2 others--Respondents
Civil Petition No. 482 of 2007, decided on 31.12.2007.
(On appeal from the judgment dated 27.2.2007 of the Lahore High Court, Lahore passed in Civil Revision No. 852 of 2002).
Administration of Justice--
----Finding attained finality--Post remanding proceedings--Jurisdiction of Civil Court--Civil Court has jurisdiction to adjudicate upon the suit and decided the issue against the petitioner--Finding of trial Court was not challenge either through appeal or cross-objections, such findings on the issue would attain finality. [P. 314] A
Estoppel--
----Principle of--Applicability--Contentions were raised before First Appellate Court--Effect--Contentions regarding lack of jurisdiction was raised at time of arguing the appeal before First Appellate Court--Held: Petitioner acquiesced over the matter and is now precluded and estopped from raising plea of jurisdiction, when findings have attained finality. [Pp. 314 & 315] B
Colonization of Government Lands (Punjab) Act, 1912 (V of 1912)--
----S. 10--Constitution of Pakistan, 1973, Art. 185(3)--Cancellation of allotment--Principle of--Land was allotted on lease for a period of three years and on expiry he was again granted lease of the same land for period of fifteen years--No notice was given to him or he was heard by collector at any point of time--Held: Respondent was at least entitled to a notice and personal hearing in view of principle of natural justice--After allotment of land favoring the respondent certain rights accrued in his favor and he could not be deprived of such rights without affording opportunity of hearing--Appellate Courts have rightly concluded that before resumption of land was entitled for a notice and he has been condemned unheard--Leave refused. [Pp. 315 & 316] D, E & F
Civil Procedure Code, 1908 (V of 1908)--
----S. 9--Colonization of Government Lands (Punjab) Act, 1912, S. 36--Jurisdiction of Civil Court--Bar--Principle contention--Respondent was within his rights to maintain the suit before Civil Courts--Bar of Section 36 of the Colonization of Government Lands (Punjab) Act, 1912 does not apply and Civil Court could competently proceed to adjudicate and entertain the suit. [P. 315] C
Raja Imran Aziz, ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 31.12.2007.
Judgment
Mian Hamid Farooq, J.--Muhammad Nazir Khan, the Petitioner/Defendant No. 3, through the present petition seeks leave to appeal against the judgment dated 27.2.2007, whereby, the learned single Judge of Lahore High Court, Lahore dismissed petitioner's revision petition (C.R.No. 852/2002) and maintained the judgment and decree dated 20.2.2002 passed by the learned Additional District Judge, Jhang.
Ahmad, Respondent No. 1/plaintiff, instituted the suit, against the petitioner and Respondents No. 2 & 3, seeking a decree for declaration inter alia pleading that the suit land, described in the plaint, was barren; he made improvements over the suit land; it was allotted to him under 15 years Lease Scheme; he fulfilled all the terms and conditions of the lease; he was entitled to its proprietary rights under Notification No. 11-3215-79/3339/C-II dated 15.5.1979 and that the action of the defendants including the disputed land in the schedule of land earmarked for rehabilitation of Jammu & Kashmir Refugees and resumption of land from him was illegal and without notice. The respondents resisted the suit through separate written statements. Respondents No. 2 & 3 contended that the Civil Court had no jurisdiction to try the suit; the petitioner was in illegal occupation of the suit property and thus has no right to claim its proprietary rights. The petitioner asserted in his written statement that the suit land was reserved for Azad Jammu & Kashmir Refugees Scheme, it was lawfully allotted to him on 14.7.1987 under the said permanent scheme and the possession was handed over to him on 20.4.1987. The learned trial Court out of the divergent pleadings of the parties framed necessary issues, recorded the evidence of the parties and ultimately dismissed the suit, vide judgment and decree dated 27.11.1993. Respondent No. 1 filed the appeal, which was allowed on 18.1.1996 and the matter was remanded to the learned trial Court for fresh decision. In the post remand proceedings, the learned trial Court decided Issues No. 1, 2, 4 & 5 against the Respondent No. 1, however, Issue No. 3 (regarding jurisdiction of Civil Court) was decided in his favour holding that the Civil Court, under the circumstances, had the jurisdiction to embark upon the suit and consequently dismissed the suit vide judgment and decree dated 26.9.2000. Respondent No. 1 challenged the said judgment and decree before the appellate Court and the learned Additional District Judge, Jhang reversed the findings on Issues No. 1, 2, 4 & 5, set aside the judgment and decree of learned trial Court and proceeded to decree Respondent No. 1's suit, vide judgment and decree dated 20.2.2002. Petitioner's revision petition (C.R.No. 852/2002) was dismissed by the learned single Judge of Lahore High Court, Lahore on 27.2.2007, hence the present petition.
We have heard the learned counsel and examined the available record. The principal contention raised by the learned counsel that the Civil Court had no jurisdiction to entertain Respondent No. 1's suit in view of clear bar contained in Section 36 of the Colonization of Government Lands (Punjab) Act, 1912, has no substance on more than one counts. Firstly, the trial Court framed Issue No. 3 on the said controversy and in the post remand proceedings came to the conclusion that the Civil Court has the jurisdiction to adjudicate upon the suit and thus decided the said issue against the petitioner, who did not challenge the said findings either through appeal or cross-objections, thus the findings on Issue No. 3 qua the petitioner has attained finality. Learned counsel on query raised by the Court had acknowledged that the petitioner did not file the appeal or cross-objections challenging the findings on (Issue No. 3; Secondly, we have examined the judgment dated 20.2.2002 rendered by the learned Additional District Judge and find that the learned counsel for the petitioner although agitated some other contentions yet no plea regarding lack of jurisdiction was raised at the time of arguing the appeal before the learned Additional District Judge; thus the petitioner acquiesced over the matter and is now precluded and estopped from raising plea of jurisdiction at this belated stage, more so when the said findings have attained finality; Thirdly, the learned single Judge after properly adverting to the principles of law laid down by this Court in the case of Alam Sher through legal heirs, v. Muhammad Sharif and 2 others (1998 SCMR 468) and taking into consideration the facts of the instant case held that the action of Respondents 2 & 3 is without jurisdiction and void, therefore, Respondent No. 1 was within his rights to maintain the suit before the Civil Courts, the bar of Section 36 of the Colonization of Government Lands (Punjab) Act, 1912 does not apply and the Civil Court could competently proceed to adjudicate and entertain the suit; Lastly, this Court in a case reported as Hamid Hussain. v. Government of West Pakistan and others (1974 SCMR 356) while relying upon an earlier judgment of this Court in the case of Muhammad Jamil Asghar v. Improvement Trust (PLD 1965 SC 698) has held as under:--
(b) Jurisdiction--
----Jurisdiction of Civil Courts even if barred and conferred upon special tribunals, Civil Courts being Courts of ultimate jurisdiction have jurisdiction to examine acts of such forums to see if such are in accordance with law, or illegal, or even mala fide.
petitioner. To our mind the learned First Appellate Court as well as the High Court have rightly concluded that Respondent No. 1 before resumption of land was entitled for a notice and he has been condemned unheard.
In the above perspective, we have deeply examined the impugned judgment rendered by learned single Judge of the Lahore High Court, Lahore and find that the said judgment does not suffer from any legal infirmity. The matter was decided not only on the basis of evidence available on record but also in consonance with the law on the subject. We are not persuaded to interfere in the concurrent findings arrived at by the learned Additional District Judge and the High Court.
In view of the above, the instant petition being devoid of any merit is hereby dismissed and leave to appeal refused.
(A.S.) Leave refused.
PLJ 2008 SC 316
[Shariat Appellate Jurisdiction]
Present : M. Javed Buttar, Chairman; Ch. Ejaz Yousaf, Dr. Allama Khalid Mahmood & Dr. Rashid Ahmed Jullundhari, JJ.
SIRAJ-UL-HAQ and another--Petitioners
versus
STATE--Respondent
Crl. Sh. P. Nos. 6(S) & 7(S) of 2006, decided on 4.12.2007.
(On appeal from the judgment dated 26.1.2006 in Cr.A. 185/I of 2005 & J.Cr.A. No. 160/I of 2005 passed by the Federal Shariat Court, Islamabad).
Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979)--
----S. 17(3)--Constitution of Pakistan, (1973) Art. 203 (g)--Conviction and sentence, assailed by petitioners--Quantum of evidence--Statements of eye-witnesses did not involve petitioners in commission of impugned crime nor any role was attributed to petitioner in the commission of crime--No role having been attributed to each accused, identification parade would be of no use and no reliance could be placed on such evidence. [Pp. 319, 320 & 321] A & B
Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979)--
----S. 17--Constitution of Pakistan (1973), Art. 203(g)--Conviction and sentence of imprisonment--Statement of eye-witness after two and half year of occurrence--Eye-witness was not attributing any specific role to petitioners in the commission of impugned crime--Non-participation of eye witness in identification parade--Possibility that such witness might have mistakenly pointed out petitioners at the trial could not be ruled out--Prosecution has, thus, failed to make out case against petitioners--Conviction and sentence of imprisonment and fine was set aside and accused were ordered to be released.
[P. 321] C
Mr. Muhammad Ilyas Siddiqui, ASC for Petitioners (in Cr. Sh. P. 6(5)/2006).
Mr. Altaf Ellahi Sheikh, ASC for Petitioner (in Cr. Sh. P. 7(S)/2006).
Sardar Shaukat Hayat, Addl. A.G. NWFP for State.
Date of hearing : 4.12.2007.
Judgment
Ch. Ejaz Yousaf, J.--By this judgment we propose to dispose of Criminal Shariat Petitions No. 6(S) & 7(S) of 2006 as both arise out of common judgment dated 26th January, 2006 passed by learned Division Bench of the Federal Shariat Court, whereby appeals filed by both the petitioners were dismissed and convictions and sentences recorded against them under Sections 395/400 PPC by Additional Sessions Judge/Izafi Zila Qazi Awal, Swat, were maintained.
u/S. 395 PPC Imprisonment for life each plus a fine of Rs.50,000/- each
u/S. 400 PPC Ten years R.I. each plus a fine of Rs.10,000/- each
In failure to pay separate fines imposed under Sections 395 and 400 PPC, the petitioners were directed to undergo one years S.I. each. Both the sentences were ordered to run concurrently. Benefit of Section 382-B Cr.P.C. was however, not extended to the petitioners.
Being aggrieved, the petitioners along with others filed appeals in the Federal Shariat Court, which though were dismissed yet, two of the co-convicts, namely, Ibrahim and Afzal Khan were acquitted of the charge as no incriminating evidence was found against them, hence these petitions.
Mr. Muhammad Ilyas Siddiqui, learned counsel for the petitioner Siraj-ul-Haq, has contended that neither petitioner Siraj-ul-Haq was named in the FIR nor any overt act was attributed to him by the complainant as well as any of the other eye-witnesses nor was he identified by both the eye-witnesses i.e. Bavar Khan and his grandson, namely, Safdar Ali, nor any of the incriminating articles including the part of looted money was recovered from his possession, therefore, he could not have been convicted for the offence.
Mr. Altaf Ellahi Sheikh, learned counsel for the petitioners Dawood and Darwaiza alias kaley, while adopting the arguments advanced by the learned counsel appearing for petitioner Siraj-ul-Haq, added that though a sum of Rs.20,000/- was allegedly handed over by the petitioner Dawood and Darwaiza to PW Muqadar Shah as part of the looted money yet it could not have been taken as incriminating circumstance against the petitioners for the simple reason that complainant at the trial had categorically stated that it were 5,000/- Riyals which were looted from his house, hence, the amount recovered cannot in any way connect the petitioners with the crime. He has also vehemently contended that though it was claimed by the complainant as well as PW-8 Safdar Ali that they had identified the culprits at the time of occurrence, at the test identification parade by PW Safdar Ali and in Court as well, yet, their statements could not have been relied upon in this regard, because neither the petitioners were named in the FIR, nor their features by appearance were given therein nor any overt act was attributed to any of them. So much so, it was not even pointed out, at the trial, as to who of the accused persons was who and what part had he played in the crime. He maintained that in the absence of requisite details no sanctity could have been attached to the evidence of identification, nor the recovery of the looted money could have saddled the petitioners with the liability of dacoity.
Both the learned counsel for the petitioners maintained that for the reasons mentioned above, the petitioners may be acquitted of the charge.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the available record with their assistance minutely. The prosecution case is based on the ocular testimony furnished by PW-6 Bavar Khan in whose house, allegedly the dacoity was committed, the evidence of identification and the recovery of a sum of Rs.20,000/- from the possession of petitioners, namely, Dawood and Darwaiza. In order to bring home charge against the petitioners, the prosecution has relied upon the statement of accused Zulam, recorded by the police during investigation, wherein he had allegedly confessed his guilt and stated that the accused persons had committed various dacoities and robberies but irony of the situation is that Zulam has himself been acquitted by the trial Court. The name of Siraj-ul-Haq petitioner, however, does not find place in his statement. Though, in his above statement Zulam had also named Afzal, Adam, Ahmad Shah, Rehmani Gul @ Amir Sahib, Pir Sahib, Umar, Kaley, Babar, Ayub, Ibrahim, accused persons out of which, some have been either acquitted or have been declared proclaimed offenders yet, none of the petitioners was implicated by him. In his above statement Zulam had further stated that a sum of Rs.17,000/- was handed over by him to the police as part of the looted money from the house of Bavar Khan, yet, certainly it was not the money allegedly recovered from the petitioners because as per Bavar Khan only Saudi Riyals were looted from him. Statement of Zulam before the police which otherwise, was admissible for limited purpose of Article 40 of the Qanun-e-Shahadat Order, 1984, thus cannot in any way connect the petitioners with the crime.
So far as the statements of both the eye-witnesses against the petitioners are concerned, it may be pointed out here that none of them has involved any of the petitioners. Fact remains that fifteen persons were challaned to the trial Court, out of which nine were tried and five persons including the petitioners were convicted. Out of these five, two namely, Ibrahim and Afzal were acquitted by the appellate Court. The evidence of identification in the case has been furnished by PW-6 Bavar Khan and PW-8 Safdar Ali his grandson, but in our view their statements would be of no help to the prosecution for the reasons, firstly, that Bavar Khan at the first instance had stated before the police that none of the culprits was identified by him and secondly, if he had actually identified them then neither roles to each of them were attributed, nor their features or description by appearance was given by him, therefore, it was not safe to rely on the evidence of identification. It has been repeatedly laid down by the apex Court that unless role to each accused in the crime is attributed at the very out set, his identification at the identification parade or in Court subsequently, would be of no use. In the case of Khadim Hussain v. The State (1985 SCMR 721), the prosecution had relied on the identification of the culprits in the identification parade held after eight months after the occurrence. While relying on the famous case of Lal Singh v. The Crown (1924) 5 ILR 396, it was held that since it was not clear from the evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes and if it was the identification of their role then it should have been specific so as to complete the picture of crime, therefore, the value of identification parade was reduced to naught. In the above context it was further held that the principal evidence of identification is the evidence of a witness given in Court to the effect that as to how and under what circumstances, he came to pick out a particular person and the details of the part which that accused played in the crime and that the statement made by such a witness at identification parade might be used to corroborate the evidence in Court as otherwise, it would be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight. In the case of Ghulam Rasool and others v. The State (1988 SCMR 557), it was held that since PW had not described the role played by each of the accused person at the time of commission of the offence, therefore, the evidence of identification had lost its efficacy and could not have been relied upon. In the case of Asghar Ali alias Sabah and others v. The State and others (1992 SCMR 2088), The Supreme Court while referring the case of Lal Singh (supra), was pleased to hold that identification in Court of a person produced as an accused months after the event could not satisfy the requirements of law for proving the identity of the culprit, unless it is disclosed by the witnesses that in which context he had identified the accused. In the case of Mehmood Ahmad and others v. The State and another (1995 SCMR 127), the prosecution had also relied upon identification parade in which one of the witnesses had allegedly identified the appellants. The learned Judges of the High Court had also relied upon the same as a corroborative piece of evidence. It was held that identification of accused persons in the identification parade without attributing to them their roles in the crime was of no evidentiary value.
Following the ratio decidendi of the afore-quoted judgments, we are inclined to hold that in the instant case since roles to each of the petitioners were not attributed by the PWs in their statements under Section 161 Cr.P.C, in the FIR, at the test identification parade or even at the trial, therefore, it was not safe to rely on the evidence of identification.
An other fact which cannot be lost sight of is that PW-6 Bavar Khan has claimed that he had seen the faces of three culprits, whereas PW-8 Safdar Ali has not stated that he had seen the faces of the culprits at the time of the occurrence. He has at the trial, only claimed to have identify the culprits at the test identification parade. It is also not case of the prosecution that the petitioners at the test were identified by PW Bavar Khan. PW Safdar Ali, at the trial, is silent about participation of the petitioners in the crime, what to speak of attributing roles to them, he has not uttered a single word about his own presence at the place of occurrence, hence in the absence of requisite details identification of the accused persons by him at the test identification parade had lost its significance. On the contrary PW-6 Bavar Khan who had identified the petitioners at the trial was not associated with the test identification parade. It would be pertinent to mention here that the occurrence in the instant case took place in the night between 20th & 21st February, 2001, whereas statement of PW Bavar Khan was recorded in Court on 28.10.2004 about two and a half year thereafter, hence in the absence of specific roles attributed to each of the accused persons and his non-participation in the test identification parade, the possibility that the witness might have mistakenly pointed out the petitioners at the trial could not have been ruled out. Naturally, memory fade by the lapse of time.
The result of foregoing is that the prosecution has miserably failed to make out its case against the petitioners. It is well settled that in criminal administration of justice, no body is to be punished unless proved guilty on the basis of reliable evidence and that benefit of reasonable doubt must go to the accused. We, therefore, are inclined to convert both these petitions into appeals and allow the same. Order accordingly. Consequently the impugned judgments dated 30.5.2005 passed by the learned Additional Sessions Judge/Azafi Zilla Qazi Awal, Swat, as well as of the Federal Shariat Court, dated 26.1.2006 are set-aside and the petitioners/appellants, namely, Siraj-ul-Haq son of Gul Azim, Dawood s/o Rekhmeen and Darvaiza alias Kaley s/o Sariqi are acquitted of the charge. They shall be released forthwith if not required in any other case.
(A.A.) Appeal accepted.
PLJ 2008 SC 322
[Appellate Jurisdiction]
Present : Abdul Hameed Dogar, C.J.; Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
KHALID MEHMOOD BUTT and another--Petitioners
versus
STATE through Prosecutor General Punjab--Respondent
Crl.P.L.A. No. 327 of 2007, decided on 23.1.2008.
(On appeal from the judgment dated 18.9.2007 in Cr.A. No. 136 of 2007 (Crim. Misc. No. 270-M of 2007) passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Constitution of Pakistan 1973, Art. 185--Plea for suspension of sentence of petitioners during pendency of appeal, rejected by High Court--Legality--Recovery of small amount of Narcotics from petitioners--Two conflicting reports relating to material in-question--Petitioners were in jail since 21.3.2001--No likelihood of petitioner's appeal being heard in near future--Petitioners have made out a case for suspension of their sentences--Petitioners sentences of imprisonment were suspended and they were allowed to be released on bail in the sum of specific amount. [P. 324] A
Sardar Muhammad Latif Khan Khosa, ASC Ch. Akhtar Ali, AOR for Petitioners.
Mr. Muhammad Siddique Khan, DPG Punjab for State.
Mr. A.D. Nasim, Special Prosecutor ANF for ANF.
Date of hearing : 23.1.2008.
Order
Ch. Ejaz Yousaf, J--This petition for leave to appeal is directed against order dated 18.9.2007 passed by a learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby Criminal Misc. No. 270-M of 2007 filed by the petitioners, for suspension of sentence of the petitioner during pendency of appeal, was rejected.
Briefly stated, facts of the case as gathered from the available record are that the petitioners were convicted under Section 9(c) of the Control of Narcotic Substances Act, 1997 and sentenced to undergo R.I. for 14 years along with a fine of Rs.1,00,000/- each or in default thereof to further undergo R.I. for one year each, in case FIR No. 136 dated 21.3.2001 registered, under Section 9-C, 14 & 15 of the CNS Act, 1997, with Police Station Airport, Rawalpindi.
It would be pertinent to mention here that on 14.3.2001 a consignment, comprised of three cartons, containing knitting needles, were booked in the name of Hussain Bititmar, P.O. Box No. 12061, Nairobi, Kenya, through Customs Clearing Agent Atif Hussain, proprietor of Atlantic Cargo. The said Cartons were checked by the Customs Authorities. On opening of these cartons it was found that the needles were wrapped in brown paper which was found sprinkled with powder substance of white colour. The wrapping paper weighing 2800 grams in all was seized and sealed at the spot. Samples were also taken out for sending to the chemical examiner.
Sardar Muhammad Latif Khan Khosa, learned ASC, appearing on behalf of the petitioner has submitted that as per earlier report, though the allegedly recovered material contained heroin yet as per detailed report (Ex. D/A) dated 30.4.2007 furnished by Pakistan council of scientific and Industrial Research, the paper and the coating material both did not contain heroin or any narcotic material. He maintained that in case of two conflicting Reports a case of further inquiry, in favour of the petitioner was made out. It is further his case that as per said report since the total quantity of the contraband material was 2% in case of brown paper with mild coating and 6% in case of brown with white coating of the total recovered material and the petitioners are in jail since 21.3.2001, i.e. from the time of their arrest, their appeal is also pending since 24.4.2007 and there is no likelihood of the same being heard in near future, therefore the petitioners may be released on bail.
Mr. Muhammad Siddique Khan, learned Deputy Prosecutor General, Punjab, while controverting the contentions raised by the learned counsel for the petitioner has submitted that since guilt of the petitioners was fully brought home, at the trial and it was proved by the prosecution through independent and reliable evidence that the petitioners were involved in transportation of contraband material therefore, they were rightly convicted for the offence and thus were not entitled for the grant of bail. He has however, not controverted that total quantity of the recovered paper was 2800 grams, and there were conflicting reports.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also gone through the available record with their assistance, carefully. It would be pertinent to mention here that learned Judges in the High Court while rejecting bail application have not touched merits of the case but have rejected the same by simply saying that since on conviction of the petitioners the initial presumption of innocence available to them was dislodged and the contentions raised require deeper appreciation of evidence hence, the application was liable to rejection. Observations made in para 5 of the impugned order are explicit in this regard. We are also not inclined to comment on merits of the case lest it may prejudice the case of either of the parties before the appellate Court yet, since both the parties have admitted that the petitioners are in jail since 21.3.2001, there is no likelihood of their appeal being heard in the near future, the material sprinkled on the paper was only 2% of the paper in case of brown with mild coating and 6% in the case of brown with white coating which if calculated would come only to 5.6 and 16.8 grams only, which is quite a small amount, as per report furnished by the Pakistan Council of Scientific & Industrial Research, the recovered material including the coating material did not contain "heroin" and there are two conflicting reports therefore, in our view the petitioners have made out a case for suspension of their sentences. Accordingly this petition is converted into appeal and allowed. The petitioners Khalid Mehmood Butt son of Muhammad Siddique Butt and Rauf Ahmad Qureshi son of Zahoor Ahmad Qureshi are allowed bail in the sum of Rs.200,000/- (Rupees two lac each) and P.R. Bonds in the like amount to the satisfaction of the Additional Registrar of the Lahore High Court, Rawalpindi Bench, Rawalpindi.
These are the reasons of our short order of even date announced in open Court.
(A.A.) Bail allowed.
PLJ 2008 SC 324
[Appellate Jurisdiction]
Present : Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan & Zawwar Hussain Jaffery, JJ.
MUHAMMAD RAFIQUE--Petitioner
versus
MOHABBAT KHAN & others--Respondents
Crl. P. No. 83 of 2007, decided on 16.1.2008.
(Against the judgment dated 25.1.2007, passed by the Lahore High Court, Rawalpindi Bench, in Criminal Appeal No. 191/1995).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 148 & 149--Constitution of Pakistan (1973), Art. 185(3)--Concurrent findings of two Courts, regarding acquittal of respondents from charge of murder, assailed--Examination of record in detail would not suggest that concurrent findings of two Courts regarding acquittal of respondents suffered from serious factual or legal infirmity or were perverse, calling for interference--Supreme Court, would not interfere in judgment of acquittal unless, very strong reasons appeared on record regarding perversity of judgment--Mere fact that witnesses were natural and occurrence took place in day-light would not be sufficient to believe or disbelieve evidence--Real test would be whether witnesses were truthful and confidence inspiring in the particular fact, of case to be relied upon for conviction--Prosecution evidence however, did not fulfil such test to the satisfaction of two Courts--No reasons were pointed out to differ with the judgment of High Court--Leave to appeal was refused.
[P. 328] A
Khawaja Sultan Ahmad, Sr. ASC and Haji Muhammad Rafi Siddiqui, AOR for Petitioner.
Sardar Muhammad Ishaq Khan, Sr. ASC for Respondents.
Date of hearing : 16.1.2008.
Judgment
Muhammad Nawaz Abbasi, J.--This petition has been directed against the judgment dated 10.01.2007, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby a criminal appeal filed by the petitioner against the acquittal of Respondent Nos. 1 to 5, by the learned Sessions Judge, Jhelum, in a case under Section 302/148/149 PPC, was dismissed.
The accused were challaned to face the trial and on their pleading non guilty to the charge, the prosecution produced its evidence. The eye-witnesses account was furnished by Muhammad Hanif complainant (PW-7), real brother and Ghulam Hussain (PW-8) paternal cousin of deceased. Dr. Muhammad Arshad, Medical Officer, DHQ, Hospital, Jhelum, appeared as PW-5 and deposed that on 19.8.1992 at 9.00 a.m., on the written request of local police, he conducted the postmortem examination of the dead body of Muhammad Sharif, deceased. The probable time between injuries and death was about 2 hours and between death and postmortem examination about 24 hours. Muhammad Azam, Head Constable (PW-9) has verified the hand writing and signatures of Muhammad Ali, ASI and Raja Muhammad Sarwar, Inspector, who died before the commencement of trial. Khushi Muhammad (PW-4) has proved the recovery of hatchet. Muhammad Bashir and Muhammad Yaqoob, Constable, were examined as CWs. The learned trial Judge on conclusion of trial having formed the opinion that prosecution has not been able to prove the case against the respondents beyond all reasonable doubts, acquitted them from the charge vide judgment dated 17.9.1995 which was further maintained by the High Court vide impugned judgment in a criminal appeal filed by the State against the acquittal of accused.
(1) The acquittal of the respondents was the result of misreading and non-reading of evidence which caused grave miscarriage of justice.
(2) The presumption that three accused being employed in Pak Army and posted at different stations, may not have participated in evidence, was unfounded as neither such plea was raised by the defence nor any evidence was brought on record to suggest that they have not participated in the occurrence or that they were not on leave on the fateful day.
(3) The assailants were nominated in the FIR with specific attribution and role assigned to each one of them, was proved beyond doubt through the independent evidence.
(4) In view of the explanation given by the prosecution, the delay in lodging the report and the autopsy of deceased was of no consequence, to have an adverse effect on the prosecution case.
(5) The contradiction of ocular account with medical evidence was also of no significance as in the circumstances of the case, the eye-witnesses were not expected to give each detail of injuries caused to the deceased and the view taken by the High Court in this behalf was perverse.
We have heard the learned counsel for the petitioner and also carefully perused the record with his assistance. The learned trial Court as well as the High Court having made detail scrutiny of the evidence concurrently held that prosecution evidence was not truthful and confidence inspiring to be relied upon. In view of the distance of about 18 kilometers of police station from the place of occurrence, the delay of 5/6 hours may not be fatal in the normal circumstances but as per medical evidence, deceased died within 2 hours of sustaining injuries, whereas according to the FIR as well as the evidence of eye-witnesses, deceased lost his breath at about 11.00 a.m. when they alongwith deceased in injured condition reached outside the police station. This contradiction would lead to suggest that the witnesses have withheld the truth regarding the time of death to cover the delay in lodging the report and natural inference would be that report was lodged after due deliberation and consultation which would lead to the conclusion of false implication. The place of occurrence is situated outside "aabadi" and in the normal circumstances presence of witnesses at their dera may not be objectionable but in the light of the facts of the present case, a reasonable suspicion would arise in the mind that witnesses probably reached at the spot after happening the fateful occurrence and neither could see the actual occurrence nor have identified the assailants. The examination of the record in detail would not suggest that the concurrent findings of the two Courts regarding acquittal of respondents from the charge were suffering from a serious factual or legal infirmity or were perverse, calling for interference of this Court. Learned counsel for the petitioner has not been able to satisfy us that in the facts of present case, the acquittal of respondent offended the principle of safe administration of criminal justice and would not create double presumption of innocence in favour of accused. This Court is not supposed to interfere in the judgment of acquittal unless, very strong reasons appeared on record regarding the perversity of the judgment. The mere fact that witnesses were natural and occurrence took place in the day light would not be sufficient to believe or disbelieve the evidence rather the real test is whether the witnesses were truthful and confidence inspiring in the peculiar facts of the case to be relied upon for conviction. In the present case, the prosecution evidence did not fulfill the above test to the satisfaction of the two Courts and we also do not find any good reason to differ with the High Court.
In the light of foregoing reasons, we do not find any substance in this petition, which is accordingly dismissed and leave is refused.
(A.A.) Leave refused.
PLJ 2008 SC 328
[Appellate Jurisdiction]
Present : Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir & Syed Sakhi Hussain Bukhari, JJ.
AGA DINAL KHAN--Appellant
versus
SAFFAR etc.--Respondents
Crl. A. No. 225 of 2000, decided on 22.1.2008.
(On appeal from the judgment of the High Court of Sindh at Karachi dated 4.6.1998 passed in Conf. Case No. 11 of 1992 and Cr. A. No. 98 of 1992).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Constitution of Pakistan (1973), Art. 185--Conversion of sentence of death awarded to respondent into imprisonment for life by the High Court, assailed--Admittedly after commutation of death sentence of respondents for life by the High Court, respondents might have acquired "expectancy of life" for the last ten years, when judgment of High Court in-question was announced--Thus, after so much lapse of time, imposition of death sentence was not considered appropriate. [P. 332] A
PLD 1974 SC 87; PLD 1975 SC 174; PLD 1976 SC 452; 1977 SCMR 159; NLR 1982 Crl. 345 & 1984 SCMR 837, ref.
Mr. M. Afzal Siddiqui, ASC for the Appellant.
Mr. Qasim Mirjet, AAG for the State.
Date of hearing : 22.1.2008.
Judgment
Muhammad Akhtar Shabbir, J.--This criminal appeal by leave of the Court is directed against the judgment dated 04.06.1998 passed by a learned Division Bench of the High Court of Sindh at Karachi, whereby criminal appeal filed by the respondents against their conviction and sentence of death awarded to them for the murder of Aftab Ahmad and Agha Ziauddin by the learned Ilnd Additional Sessions Judge, Jacobabad, vide judgment dated 25.04.1992, was partly accepted and the conviction and sentence of death awarded to the respondents was converted into imprisonment for life and murder reference sent by the trial Court was rejected. Hence, the complainant-appellant preferred Cr. Petition for Leave to Appeal No. 114 of 1998 before this Court out of which the instant appeal has arisen.
Briefly stated the facts of the case, as narrated by complainant Agha Dinal Khan (PW-1), are to the effect that the deceased Agha Ziauddin was his cousin. They both had adjacent lands. On the day of occurrence (03.07.1988), the complainant along with Agha Ziauddin and his son Aftab Ahmed Khan (both deceased) and two Haris of complainant namely Shahbazi and Huzoor Bux proceeded towards Deh Jalal where Agha Ziauddin had to settle the problem of supply of water to complainant's lands as also a dispute between his two Haris namely Saffar and Majeed regarding the ownership of a goat. Having reached there, the deceased Agha Ziauddin took the matter of goat and decided against Saffar. Saffar got annoyed and there occurred exchange of harsh words between the two. Saffar went away in utter fury. Thereafter, the deceased Agha Ziauddin also settled the problem of supply of water to the lands of the complainant and all of them started their journey back. The complainant, Shahbazi and Huzoor Bux were sitting on the rear seats of the jeep whereas Aftab Ahmed Khan was driving and Agha Ziauddin was sitting next to him on the front. Having covered some distance, they found their way blocked with stones and bushes. Aftab Ahmed stepped down from the jeep when Saffar and Majeed, Elahi Bux, Niazu and Imdad emerged from the bushes with hatchets in their hands. Saffar and Elahi Bux started giving hatchet blows to Aftab Ahmed. When Agha Ziauddin got down from the jeep in order to save Aftab Ahmed, Niazu and Majeed attacked him too. According to complainant, when he tried to interfere, he was also threatened to death. The accused gave a series of blows to both Agha Ziauddin and Aftab Ahmed who fell down on the ground. Thereafter, the accused went away raising lalkaras. Both the deceased got severe injuries on their head, neck and face and due to excessive loss of blood, they died at the spot.
Leaving Hazoor Bux and Shahbazi near the dead bodies, the complainant-appellant went to P.S. Thul, District Jacobabad and reported the incident on the basis of which FIR No. 006949 (Ex.13) dated 03.07.1988 under Section 302/147/148 PPC was recorded by Shoukat Ali, SHO (PW-8). The accused were arrested by the police on 19.07.1988.
The prosecution to establish its case against the accused-respondents produced 08 witnesses including the doctor and the investigating officer. The ocular account of the occurrence was furnished by complainant Agha Dinal Khan (PW. 1), Hazoor Bux (PW.2) and Shahbazi (PW-5). The medical evidence was furnished by Dr. Allah Warayo (PW.3) who conducted the postmortem examination of the deceased. PW-8 Shaukat Ali was the investigating officer. The respondents when examined under Section 342 Cr.P.C. denied the prosecution story and pleaded not guilty, hence claimed trial. They however, declined to lead any defence and did not make statements on oath either. It is pertinent to mention that during trial one of the nominated accused Niazoo died.
Learned counsel for the appellant, at the very outset, questioned the conversion of death penalty awarded to the respondents by the trial Court to imprisonment for life by the learned High Court contending that there were no mitigating or extenuating circumstances justifying the claim of reduction of sentence.
We have heard the learned counsel for the appellant and have perused the record with his assistance.
The High Court of Sindh at Karachi reduced the punishment of the respondents observing that they found no mitigating circumstances except the fact that the case was almost ten years old. Admittedly, the FIR has been registered on 03.07.1988 at P.S. Thul, District Jacobabad and the trial Court after proceedings of four years passed the final judgment on 25.04.1992. The High Court in Criminal Appeal No. 98 of 1992 filed by the respondents, vide its judgment dated 04.06.1998, reduced the sentence of death awarded to the respondents to imprisonment for life and this appeal came up for final hearing today on 22.01.2008. In a such like case titled as The State v. Rab Nawaz & another (PLD 1974 SC 87), this Court did not restore the sentence of death to the accused Rab Nawaz rather it upheld the sentence of rigorous imprisonment for life reduced by the High Court. In another case titled as Mst. Nooran v. Noora and another (PLD 1975 SC 174), this Court maintained the conviction of respondent Mst. Nooran, whereby her death penalty was reduced to transportation for life on the consideration that the offence had been committed four years ago and in the interval for not less than two years and ten months, the convict was given a "full expectation of life".
In this regard another case titled as Muhammad Sharif v. Muhammad Javed @ Jeda Tedi and 5 others (PLD 1976 SC 452) can also be referred, wherein the accused persons whose death sentence was commuted to imprisonment for life by the High Court were released after passage of their sentence. This Court refused to enhance the sentence. In the case of Niaz Ahmad v. Naeem Akhtar (1977 SCMR 159), dealing with the question of quantum of sentence of the accused in a case under Section 302 PPC, the Hon'ble Chief Justice Mr. Justice Hamoodur Rahman (the then he was) observed as under:--
"It has been the consistent practice of this Court not to inflict the maximum penalty under Section 302, P.P.C. where such lapse of time has taken place even when in an appeal this Court has altered the conviction recorded by the High Court under Section 304, P.P.C. to one under Section 302, P.P.C. Thus, in the case of Ghulam Hussain v. Zainullah (2) the Court, after coming to the conclusion that the act of the respondent clearly fell to be punished under Section 302, P.P.C, did not impose the capital sentence, in view of the length of time which had elapsed since the occurrence and the intervening incident, in particular as a result of the decision of the High Court which had given the respondent Zainullah "a full expectation of life". Similarly, in the case of Ghulam Muhammad v. Muhammad Sharif (1), where this Court, after setting aside an order of acquittal passed by the trial Court and maintained by the High Court by dismissing an appeal against acquittal under Section 417, Cr.P.C. in limine, convicted the respondent under Section 302, P.P.C. on the 6th of June 1969, the sentence of death was not imposed, because, the respondent "was given expectation of life as far back as 12.5.1966 when the trial Judge passed the order of acquittal."
"We accordingly following the rule laid down in Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others (PLD 1976 SC 452), in the circumstances afore-noted, refrain from awarding the sentence of death to the respondent, although he deserved it; and, instead impose a fine of Rs. 25,000/- as enhancement of sentence."
Similarly, in the case of Muhammad Makhdoom and another v. the State (1984 SCMR 837), this Court, while maintaining the conviction of accused Muhammad Munir under Section 302 PPC on three counts, set aside the sentence of death and instead awarded him sentence of imprisonment for life on all the three counts.
There is no denial to the fact that after commutation of death sentence of respondents to imprisonment for life by the learned High Court, the respondents might have acquired an "expectancy of life" for the last about ten years when the judgment of the High Court was announced. It is in these circumstances, particularly after so much lapse of time, and in view of the dictum laid down by this Court in the cases referred to above, we do not find it appropriate to impose the death penalty on the respondents.
For the foregoing reasons, this appeal being devoid of merit is accordingly dismissed.
(A.A.) Appeal dismissed.
PLJ 2008 SC 332
[Appellate Jurisdiction]
Present : Ijaz-ul-Hassan & Mian Hamid Farooq, JJ.
SOHAIL HAMEED BUTT--Petitioner
versus
Mst. NUDRAT NAFEES--Respondent
Civil Petition No. 616 of 2007, decided on 17.1.2008.
(On appeal from the judgment dated 19.6.2007 of the Lahore High Court, Lahore passed in FAO No. 172/2007).
Cantonment Rent Restriction Act
, 1963 (XI of 1963)--
----S. 24(3)--Constitution of Pakistan (1973), Art. 185(3)--Petition for leave to appeal--Non-service of notice and non-summoning of record by the High Court alleged--Admittedly certified copies of record were annexed with appeal and those were duly examined by the High Court at the time of deciding appeal--Provisions of S. 24(3) of Cantonments Rent Restriction Act, 1963 were thus, sufficiently complied with in letter and spirit--Besides petitioner was served through all the modes of service provided under the law--Petitioners allegations were thus devoid of force--Leave to appeal was refused.
[P. 334 & 335] A & B
PLD 2002 SC 720; PLD 2004 SC 10 & 2006 SCMR 895, ref.
Mr. Ihsan-ul-Haq Chaudhry, ASC for Petitioner.
Mr. Ali Akbar Qureshi, ASC with Mr. Arshad Ali Chaudhry, AOR for Respondent.
Date of hearing : 17.1.2008.
Judgment
Mian Hamid Farooq, J.--Sohail Hameed Butt, the petitioner, through the present petition, seeks leave to appeal against the order dated 19.6.2007, whereby, learned single Judge of the Lahore High Court at Lahore dismissed petitioner's appeal (FAO No. 172/2007) and affirmed the order dated 5.6.2007 passed by the learned Additional Rent Controller, Walton Cantt., Lahore (Rent Controller).
The respondent filed the petition under Section 17 of Cantonment Rent Restriction Act, 1963 (hereinafter called as Act) before the learned Rent Controller, seeking eviction of the petitioner from the disputed house on the grounds of default in payment of rent since April, 2004, at the rate of Rs. 30,000/- per month, and for her personal bona-fide use and occupation. The learned Rent Controller issued notice to the petitioner for 12.12.2006, which could not be served due to non-availability of the petitioner on the address given in the ejectment petition. On 12.12.2006 notices were ordered to be issued through substituted service by way of affixation, registered AD and through publication in the newspapers. Despite resorting to various methods of service, as noted above, the petitioner remained absent and resultantly, the learned Rent Controller after finding that the petitioner has been served through notice by affixation, registered post AD and publication in the newspaper i.e. Nawa-i-Waqt, of its print dated 22.12.2006, proceeded to pass ex parte order against the petitioner vide order dated 9.1.2007. Whereafter the ex parte evidence of the respondent comprising of Mazhar Yousaf, (PW-1) and Muhammad Khalid (PW-2) was recorded and ultimately the ejectment petition was accepted by the learned Rent Controller vide order dated 8.2.2007 directing the petitioner to handover the possession of the disputed house to the respondent within 30 days. The petitioner, on 7.3.2007, filed the application under Order 9, Rule 13 read with Section 151 CPC for setting aside the ejectment order dated 8.2.2007, inter alia, pleading that he was never served in the ejectment petition; the report on notices is fictitious and illegal; and that he got the knowledge of ex parte order on 13.2.2007 from his cousin. The respondent resisted the said application through reply and the learned Rent Controller after coming to the conclusion that the notices were properly served upon the petitioner, he was in the knowledge of pendency of the ejectment proceedings and he deliberately failed to appear before the Court proceeded to dismiss the application, vide order dated 5.6.2007. The petitioner assailed the said decision before the Lahore High Court at Lahore through the appeal under Section 24 of the Act, which was, however, dismissed in limine by the learned single Judge in Chamber, vide order dated 19.6.2007, hence the present petition.
Learned counsel has vociferously contended that the learned High Court has committed grave legal error, while dismissing the first appeal in limine without summoning record of the learned Rent Controller; no notice was served upon the petitioner; the respondent committed fraud and forgery in serving the notice upon a fictitious person and that the signature of the petitioner on acknowledgement due were forged and fabricated. Learned counsel for the respondent, while supporting both the orders, has stated that the petitioner was served through, notice which was affixed at his place of abode, notice through registered post was received by him and in any case, the petitioner deemed to have been served through publication in the newspaper. He has added that now the petitioner is no more in possession of the disputed house.
We have heard the learned counsel on either side and examined the record of the case. It is true that Section 24(3) of the Act, does provide that "the High Court shall, after perusing the record of the case and giving opportunity of hearing to parties" make an appropriate order but it is equally true that it has nowhere been even briefly remarked in the Act that the High Court, while embarking on an appeal, filed under Section 24 of the Act, is necessarily required to summon record of the learned Rent Controller. It has been held by this Court in various judgments that even Regular First Appeal, could be dismissed in limine. Refer to the cases of Muhammad Ibrahim v. Mst. Irshad Begum (PLD 2002 SC 720), Ashiq Ali and others v. Mst. Zamir Fatima and others (PLD 2004 SC 10) and Hameed Ahmad v. Ghulab Khan (2006 SCMR 895). Besides, we find from the judgment of the High Court that the petitioner annexed certified copies of the record with the appeal, which were duly examined by the High Court at the time of deciding the appeal. It appears that the learned single Judge being conscious of the said requirement of "perusing the record", envisaged in Section 24(3) of the Act, made it a point to note in his judgment that "learned counsel has annexed the certified copies of the record with this FAO which have examined with his assistance". Learned counsel for the petitioner has not denied that the petitioner did not annex the copies of the record with the appeal. Admittedly, when the petitioner annexed certified copies of the record alongwith the appeal and those were duly examined by the learned Judge in Chamber, as noted in the judgment, at the time of deciding the appeal, then to our mind the provisions of Section 24(3) of the Act were sufficiently complied with in letter and spirit. Under the circumstances, we feel that the High Court by not summoning the record of the learned Rent Controller has neither committed any illegality nor any prejudice was caused to the petitioner. Thus, first contention of the learned counsel has no force and stands repelled.
Learned counsel for the petitioner has not been able to demonstrate from the available record that how and in which manner fraud or forgery was committed by the respondent in effecting service upon the petitioner except to state that registered notice issued on 18.1.2007 could not be served on 19.1.2007. We find from the record that the learned Rent Controller after entertaining the ejectment petition issued notice to the petitioner for 12.12.2006, however, it was reported by the Process Server that the daughter of the petitioner refused to receive the notice on the pretext that the petitioner is away to Islamabad. Thereafter, on 12.12.2006, the learned Rent Controller directed that notices be issued through substituted service by way of affixation, registered AD and through publication in two newspapers. According to the report of Process Server a copy of notice was affixed on the abode of the petitioner. It may be noted that the petitioner has not disputed that the address furnished by the respondent in the ejectment petition was not correct or notices were sent on wrong addresses. All the notices through ordinary process, by registered post and through publication were sent on the same address i.e. 271-A, Street No.6, Cavalry Ground, Walton Lahore Cantt. Thus, the petitioner was served through all the modes of service provided under the law and orders dated 9.1.2007, whereby the petitioner was proceeded ex parte, and 5.6.2007, through which petitioner's application for setting aside order dated 9.1.2007 was dismissed, are not open to any exception.
The learned single Judge has rightly held that the copy of postal Receipt No. 593 shows that the notice was issued to the petitioner and the AD receipt is available on record. Additionally, the publication was made in the newspaper Nawa-i-Waqt, of its print dated 22.12.2006, which newspaper undoubtedly has a nationwide circulation. Thus, to our mind the petitioner was properly and legally served through all the possible ways of service provided under the law and no fraud or forgery was committed by the respondent. Moreover, petitioner's plea about knowledge of ex parte order through his cousin as narrated in the application also does not sound to any reason.
In the above perspective, we have examined the order dated 19.6.2007 and are of the firm view that the learned Judge in Chamber did not commit any legal error while rendering the order in-question. Rather, petitioner's appeal was rightly decided after taking into consideration all the relevant aspects of the case.
For foregoing reasons, the present petition is devoid of any merits, thus stands dismissed and leave to appeal refused.
(A.A.) Leave refused.
PLJ 2008 SC 336
[Appellate Jurisdiction]
Present : Abdul Hameed Dogar, HCJ; Muhammad Nawaz Abbasi & Mian Hamid Farooq, JJ.
JALAL-UR-REHMAN--Petitioner
versus
Mrs. SALAL AKBAR BUGTI & others--Respondents
Constitution Petition No. 27 of 2006, decided on 18.12.2007.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 147, 148, 149, 120-B & 34--Constitution of Pakistan (1973), Art. 186-A--Transfer of constitutional petition from High Court of Balochistan to Lahore High Court--Grounds for transfer of petition being that petitioner was in constant danger of being attacked by contesting respondents and that no counsel from the province was ready to appear on behalf of petitioner and defend him in present petition and that counsel of petitioner from the other province was attacked and seriously injured--Respondent Government of Province has no objection to the transfer of case from the High Court, of the Province to any other High Court of Pakistan--Respondent having sought enhancement of sentence of petitioner, interest of justice would be to transfer petition in-question, from the High Court of Balochistan to the High Court of Sindh at Karachi for its disposal in accordance with law. [Pp. 338 & 339] A
Mr. Zahid Saleem, ASC and Mr. Mehr Khan Malik, AOR for Petitioner.
Nemo for Respondents.
Date of hearing : 18.12.2007.
Order
Abdul Hameed Dogar, HCJ.--This Constitution Petition has been filed by Jalal-ur-Rehman, petitioner, under Article 186-A of the Constitution of Islamic Republic of Pakistan for transfer of Constitution Petition No. 654/2000 filed by Mrs. Salal Akbar Bugti, Respondent No. 1 in the present petition from the High Court of Balochistan, Quetta, to the Lahore High Court.
Briefly stated the facts leading to the filing of this petition are that petitioner along with his co-accused was tried by the learned Additional Sessions Judge-V/Special Judge STA, Court at Quetta in absentia in a case registered against him under Sections 302/147/148/149/120-B/34 PPC on the report lodged by complainant Khursheed Alam for murder of Salal Akbar Bugti at Civil Lines Police Station Quetta. The learned trial Judge on the conclusion of trial, vide judgment dated 31.7.2000 convicted and sentenced the petitioner and his co-accused as under:--
Under Section 302(B) Qisas and Diyat R/w 147/148/149/34 PPC to suffer imprisonment for life each in their absentia.
Under Section 324 Qisas and Diyat Ordinance to suffer R.I. for seven years with fine of Rs. 10,000/- or in default thereof to suffer S.I. for 6 months.
The petitioner did not file any appeal against his conviction and sentence whereas Mrs. Salal Akbar Bugti widow of deceased filed Constitution Petition No. 654/2000 before the High Court of Balochistan, Quetta, for enhancement of sentence of petitioner and his co-accused in which non-bailable warrants of the petitioner have been issued.
It is stated that petitioner was arrested in the murder case of Salal Akbar Bugti on 7.1.1998 by Police Station Satellite Town, Sargodha and his custody was sought by the police at Quetta through Home Department, Government of Balochistan. The requisition of the petitioner was challenged before Lahore High Court, Lahore in a Constitution Petition which was dismissed on 11.3.1998 and the above order of the High Court was also maintained by this Court vide order dated 28.5.1998 passed in Civil Petition No. 265/1998. It is stated that the Government of Balochistan, thereafter, did not take any step for transfer of the petitioner from Central Jail, Sargodha, to Quetta, as there was immediate threat to his life. Later, in a Constitution Petition filed by the petitioner in the Lahore High Court, he was allowed bail vide order dated 18.1.1999 and meanwhile the trial against the petitioner before the ATA Court at Quetta was concluded in absentia in which he alongwith his co-accused was convicted and sentenced as stated above.
The notice was issued in the instant petition on 12.2.2007 to the Advocate General Balochistan as well as to the Respondent No. 1 and petitioner was also given an interim protective bail subject to the furnishing of solvent surety in the sum of Rs. 100,000/- with PR bond of the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court. Thereafter, the case was adjourned twice for want of service of the respondents and lastly on 5.6.2007 before a Bench consisting of Rana Bhagwandas, the then ACJ and Sardar Muhammad Raza Khan, J. but in view of the difference of opinion of the learned Judges, the matter was referred, to me as a third learned Judge for opinion. The view of his lordship Rana Bhagwandas, the then ACJ was that notice to Respondent Nos. 2, 3, 5 & 6 and Advocate General, Balochistan who were not properly served should be repeated with continuation of interim bail whereas Sardar Muhammad Raza Khan, J. was of the view that the bail granted to the petitioner by this Court on 12.2.2007 was ought to be recalled.
The matter was placed before me on 15.9.2007 when learned Additional Advocate General, Balochistan, placed on record application on behalf of Advocate General, Balochistan wherein he consented for transfer of case from Balochistan to any other province. Accordingly, while concurring with Rana Bhagwandas, the then ACJ, the interim protective bail granted to the petitioner was confirmed and notices were issued to the respondents as well as to Advocate General, Balochistan for an early date.
We have heard Mr. Zahid Saleem, learned ASC for the petitioner at length and also have gone through the record and proceedings of the Court in the case in minute particulars.
Learned counsel for the petitioner vehemently contended that due to animosity between two rival groups of Dera Bugti i.e. Nawab Akbar Bugti and Wadera Khan Muhammad, there is eminent threat to the life of the petitioner as the petitioner being grandson of Wadera Khan Muhammad is the sole surviving head of his tribe and is being chased by Nawab Akbar Bugti tribe. Learned counsel submitted that no counsel/Advocate at Quetta or any other station in the province is ready to appear on behalf of the petitioner and defend him in the case. He added that Mr. Talib Hussain Rizvi, an advocate of Lahore being counsel of the petitioner having been attacked at Quetta, was seriously injured and moreover in consequence to the similar tribal enmity Mr. Justice Muhammad Nawaz Mari was also done to death. Learned counsel contended that in view of the serious apprehension of death of the petitioner at the hand of his opponent, he has sought transfer of Writ Petition No. 654 of 2000 from High Court of Balochistan to any other High Court in Pakistan.
In pursuance of placing on record an application on behalf of Advocate General, Balochistan, by the learned Additional Advocate General, Balochistan, that Government of Balochistan has no objection to the transfer of case from Balochistan High Court to any other High Court of Pakistan and in view of the fact that in the Writ Petition, Respondent No. 1 has sought enhancement of sentence of petitioner, we are of the view that it would be in the interest of justice to transfer the writ petition in-question from High Court of Balochistan, Quetta, to the High Court of Sindh at Karachi for its disposal in accordance with law. This Constitution Petition stands disposed of accordingly.
(A.A.) Case trasferred.
PLJ 2008 SC 339
[Appellate Jurisdiction]
Present : Abdul Hameed Dogar, C.J. Muhammad Moosa K. Leghari & Ch. Ejaz Yousaf, JJ.
FAISAL BASHEER MEMON--Petitioner
versus
GOVERNMENT OF PAKISTAN through Secy. Establishment Div. & others--Respondents
Civil Petition No. 788 of 2007, decided on 16.1.2008.
(On appeal from the order 25.7.2007 in Const. Petition No. D-1228 of 2007 passed by the High Court of Sindh, Karachi)
Federal Public Service (Rules of Competitive Examination) Rules, 1997--
----R. 6(iii)(a) (as amended)--Constitution of Pakistan (1973), Art. 185--Petitioner's challenge to allocation of group on basis of domicile after passing of examination of C.S.S., dismissed by the High Court--Legality--Petitioner was allocated group in-question, on specified date, when previous rule i.e. R. 6(iii)(a), of Federal Public Service (Rules of Competitive Examination) Rules 1997, had already been struck down, while petitioner had completed having subsequently--Rule 6(iii)(a) having been amended before completion of petitioner's training, allocation of group on the basis of previous un-amended rule not warranted--Respondents were directed to consider case of petitioner as per amended Rule 6(iii)(a) of Federal Service (Rules of Competitive Examination) Rules 1997, on merits, in accordance with law. [Pp. 343 & 344] A
Mr. Abdul Hafeez Pirzada, Sr. ASC and Mr. Arshad Ali Chaudhry, AOR for Petitioner.
Raja Niaz Ahmad Rathor, DAG with Ch. Akhtar Ali, AOR and Mr. M. Nawaz Qureshi, Director (Legal) for Respondents.
Date of hearing : 16.1.2008.
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against judgment dated 25.7.2007 passed by a Division Bench of the High Court of Sindh, Karachi, whereby Constitutional Petition No. D-1228 of 2007 filed by the petitioner was dismissed.
It appears that, having cooled his heals, the petitioner did not agitate the matter immediately thereafter, but subsequently challenged the allocation of group by way of Constitutional Petition referred to herein above before the High Court of Sindh, Karachi, primarily on the ground that since pursuant to decision, dated 7.8.2000, of a learned Division Bench of the High Court of Sindh, Rule 6(iii)(a) of the Federal Public Service (Rules of Competitive Examination) Rules, 1997 (hereinafter referred to as the "said Rules, 1997") was declared to be ultra vires the Constitution, and was accordingly amended and it was provided that seats earmarked for provincial/regional quota shall be allocated to the candidates on the basis of domicile certificate issued by the competent authority in accordance with law and rules, therefore action of the respondents in refusing to accept the domicile of the petitioner as Hyderabad Sindh (Urban) was illegal. The petition contained the following prayer:--
(a) To declare that the actions of the Respondents in refusing to accept the domicile of the petitioner as that of Hyderabad Sindh (Urban) and instead allocating to the petitioner domicile of his father's place of birth is unconstitutional, illegal, malafide and violative of the fundamental rights and principles of natural justice;
(b) Direct the Respondents to forthwith allocate the petitioner his due position on the basis of Domicile and PRC of Hyderabad, Sindh (Urban) and not on the basis of the place of birth/origin of his father and thereby allocate the petitioner to the Police Service of Pakistan with the same seniority as he is entitled to for the 28th common CSS 1999, which is in consonance and conformity with the judgment of superior Courts."
The petition was dismissed vide order dated 25.7.2007, inter-alia, on the ground that since the rule, 6(iii)(a) of the said Rules, 1997, came up for consideration before the Supreme Court in the case of Federal Public Service Commission & others v. Khan Faisal and others (Civil Appeal Nos. 1318 to 1327 of 2002) and it was laid down therein that cases of those candidates who had appeared in Competitive Examination held in the year 2000, joined course and completed training, their cases had to be treated as past and closed and the petitioner's case being at par with them, no useful purpose would be served in allowing him to change the cadre at the belated stage.
"7. The crucial question that falls for determination is as to which rule would govern the candidate who had appeared in 2001 Examination. Obviously, they cannot be governed by the rule which has been struck down by the Sindh High Court and we are of the considered view that those who took examination in 2001 shall be governed by subsequent amended holding the field in year 2002.
Being aggrieved, the petitioner has challenged the impugned judgment through the instant petition.
Mr. Abdul Hafeez Prizada, learned Senior ASC, for the petitioner, has contended that learned Division Bench of the High Court has gravely erred in law by treating the case of the petitioner as past and closed transaction because the petitioner had though participated in the CSS exam lastly in the year 1999, yet the group was allocated to him on 15.11.2000 and by that time Rule 6(iii)(a) of the said Rules, 1997 was already declared as ultra vires the constitution by the Sindh High Court, therefore, case of the petitioner was to be governed by the amended rule. He added that since the above judgment of the High Court having been upheld by the Supreme Court, had attained finality, and the relevant rule was also amended in pursuance thereof, therefore cases of all the candidates including the petitioner, who had not completed training by that time had to be governed by the amended rule and the petitioner as such was entitled to be treated as domicile of Sindh Urban instead of Sindh Rural and should have been allocated the Police Service of Pakistan which was his choice as indicated in the CSS form. He strenuously urged that petitioner's case could not have been treated as past and closed transaction on the touchstone of the observations made in the case of Federal Public Service Commission vs. Khan Faisal and another (supra), because therein cases of those candidates were treated as past and closed who were allocated groups and had completed their training and since the petitioner had completed his training somewhere in January 2003, whereas judgment of the High Court striking down Rule 6(iii)(a) of the said Rules, 1997 was holding the field since June, 2002, therefore, his case, in all probabilities, had to be governed by the amended rule.
Raja Niaz Ahmad Rathor, learned DAG, appearing for the respondents, while controverting the contentions of learned counsel for the petitioner has submitted that since petitioner appeared in the competitive examination, lastly in the year, 1999 and at the relevant time Rule 6(iii)(a) of the said Rules, 1997, in its unamended form, was holding the field, therefore, case of the petitioner had to be governed by the said rule, particularly when it was categorically observed by the Supreme Court in the case of Khan Faisal (supra), that the cases of only those candidates who had appeared in 2001 examination were to be governed by subsequently amended rule and with regard to the cases of those candidates who had appeared in the year 2000, it was observed that their cases had to be treated as past and closed. Learned counsel has, however, not controverted that allocation of group to the petitioner was made on 15.11.2000 and that he had completed his training somewhere in 2003.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case with their assistance, minutely. This is an admitted position that old Rule 6(iii)(a) was struck down by a learned Division Bench of the High Court, on 7th August, 2000 and the said judgment was upheld by the Supreme Court in the case of Khan Faisal (Supra) and in pursuance of the above judgment the said rule was amended. Dispute is only with regard to application of the amended rule. It would be advantageous to reproduce herein below paras 6 & 7 from the above decision of the Supreme Court which read as under:--
"6. The comparison of both the rules reproduced above, shows that under the subsequent rule, allocation of seats shall be made on the basis of domicile certificate issued by the competent authority in accordance with law and the rules. As far as the candidates who had appeared in Competitive Examination held in year 2000, we are informed, that they have already been allocated the groups and one of them has also completed the training, and as rightly pointed out, appeals to their extent have become infructuous, because the rule has already been implemented and the matter has become past and closed.
The crucial question that falls for determination is as to which rule would govern the candidate who had appeared in 2001 examination. Obviously, they cannot be governed by the rule which has been struck down by the Sindh High Court and we are of the considered view that those who took examination in 2001 shall be governed by subsequent amended holding the field in year 2002."
No doubt in the above cited case, it was held by this Court that the cases of those candidates who had appeared in the competitive examination held in 2000 had to be treated as past and closed, yet the relevant observations made in view of the fact that the Court was informed that the said candidates had already been allocated groups and one of them had also completed his training. A perusal of impugned judgment as well as the one delivered in C.P. No.D-393 of 2000 by the Sindh High Court, indicate that while referring to the above observations of this Court it has escaped from notice of the learned Judges in the High Court that cases of only those candidates were treated as past and closed by this Court who while appearing in 2000 exam, had completed their training or at least were allocated groups. It is an admitted fact that the petitioner was allocated Customs and Excise group on 15.11.2000, when the rule in-question had already been struck down and he completed training in the year 2003, thus his case was clearly distinguishable from those candidates whose cases were treated as "past and closed" by this Court in the case of Khan Faisal (supra). It would be pertinent to mention here that in petitioner's case the crucial date was 15.11.2000, when group was allocated to him and, therefore, the events which took place subsequently were immaterial and irrelevant.
Upshot of the above discussion is that this petition is converted into appeal and allowed. Impugned judgment dated 25.7.2007 passed by Division Bench of the High Court of Sindh, Karachi in Const. Petition No. D-1228 of 2007 is set-aside and the respondents are directed to consider the case of the petitioner as per amended Rule 6(iii)(a) of the Federal Public Service (Rules of Competitive Examination) Rules, 1997, on merits, in accordance with law.
(A.A.) Appeal accepted.
PLJ 2008 SC 344
[Appellate Jurisdiction]
Present : Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan, Ch. Ejaz Yousaf & Sh. Hakim Ali, JJ.
MANZOOR HUSSAIN SHAHANI--Petitioner
versus
NATIONAL ACCOUNTABILITY BUREAU and another--Respondents
Civil Petition No. 4-K of 2008, decided on 8.2.2008.
(On appeal from the judgment of High Court of Sindh at Karachi 11.12.2007 passed in C.P. No. 2116 of 2007 and C.P. D-2141/07).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Bail, grant of--Reference against the officer of National Bank regarding fraud, misappropriation and embezzlement of case--Held : Case is at initial stage and a specific amount has been deposited by the accused through cheques under plea bargain with require some time, on completion whereof the petitioner in any case would have to be released--Case of grant of bail is made out in favour of the accused--Bail allowed. [P. 345] A
Mr. Farooq H. Naek, ASC for Petitioner.
Dr. Danishwar Malik, Prosecutor General for State.
Dr. Asghar Rana, Addl. Prosecutor for NAB.
Date of hearing : 8.2.2008.
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against judgment dated 27.11.2007 passed by a learned Division Bench of the High Court of Sindh at Karachi, whereby application filed by the petitioner for grant of bail was dismissed.
Facts of the case, in brief are that a Reference was filed by the National Accountability Bureau (hereinafter referred to as the "NAB") against the officers of the National Bank of Pakistan, Sehwan Branch, District Jamshoro, regarding fraud, misappropriation and embezzlement of cash. The case was detected in July, 2005, wherein the present petitioner and one Ahmed Ali Otho were involved. It was alleged that the petitioner while posted in the said Branch as Operation Manager, from 24th December, 1997 to 20th April, 2005, was joint custodian of cash which was found deficient as per audit report. It was further alleged that a total sum of Rs.452,870/- was embezzled by the petitioner.
It has been contended by the learned counsel for the petitioner that since a sum of Rs. 6,32,870/- has been paid through cheques by the petitioner to the NAB Authorities as against the alleged defaulcated amount of Rs. 4,52,870/- and on acceptance of the plea bargain the petitioner would be required to be released or otherwise the charge would have to be substantiated at the trial through evidence by the prosecution which would take a considerable time, therefore, pending proceedings in the case the petitioner deserves to be released on bail as his further custody will serve no useful purpose. He has added that the petitioner has already suffered a lot as his services have been terminated by the bank on account of the alleged defaulcation.
Learned counsel for the respondent/NAB, on the other hand, has urged that since as per audit report the petitioner was involved in misappropriation of money, therefore the learned High Court was justified in not allowing bail to him. He has not controverted that a sum of Rs.6,32,870/- has been paid by the petitioner to the NAB authorities, through cheques under the plea bargain, however started that the deal has not yet, been finalized. He has also not denied that custody of the petitioner is no more required for the purpose of recovery and that the case before the trial Court is at its initial stage.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the available record with their assistance. It has not been denied by the learned counsel for the respondents that the case is at initial stage and a sum of Rs. 6,32,870/- has been deposited by the petitioner through cheques under the plea bargain with the NAB authorities, which is more than the allegedly misappropriated amount of Rs. 4,52,870/-, and finalization of the proceedings under the plea bargain, would require some time, on completion whereof the petitioner in any case would have to be released, therefore, in our view, a case of grant of bail is made out in favour of the petitioner. Resultantly this petition is converted into appeal and allowed. The appellant, Manzoor Hussain Shahani son of Haji Lahno, is allowed bail subject to his furnishing surety in the sum of Rs. 200,000/- (Rs. Two lac) with P.R. Bond in the like amount to the satisfaction of the trial Court.
These are the reasons of our short order of even date announced in open Court.
(R.A.) Bail allowed.
PLJ 2008 SC 346
[Appellate Jurisdiction]
Present : Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir & Syed Sakhi Hussain Bukhari, JJ.
AALA MUHAMMAD & another--Petitioners
versus
STATE--Respondent
Jail Petition No. 510 of 2006 & Cr.P. No. 96-P of 2006, decided on 16.1.2008.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----Ss. 9 & 25--Criminal Procedure Code, (V of 1898), Ss. 342 & 340(2)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence--Challenge to--Leave to appeal--Recovery of charas--Appreciation of evidence--Presence of witness at the place was natural--PWs were present at the place of recovery of "Charas" from vehicle under control being driven by the petitioner, were the police employees--They were the competent witnesses like any other independent witness and their evidence cannot be discarded merely for the reason that they were the police employees--Petitioners had not produced any evidence in support of their defence version--Counsel for petitioners had failed to point out any malafide of the police employees qua the petitioners--Defence plea of the petitioners that they had no knowledge about the charas concealed beneath the front and rear seats of the car has no force--They could not explain their travelling in the car nor their destination--Held: Use of car in the commission of offence was not denied but where they were going was unexplained and it remained under mystry--Prosecution had been successful to establish the guilt of the petitioners to the hilt by proceeding the evidence--Counsel for the petitioners had not been able to point out any error or illegality, misreading or non-reading of evidence in the impugned judgment of High Court--Leave to appeal refused. [Pp. 349 & 350] A, C, D, E, F & G
Retracted Confession--
----Rule of prudence--The "Retracted confession" may be treated to be sufficient to sustain conviction for the offence if the same is found to be voluntary and true but as a rule of prudence, the same should not be acted upon unless corroborated by some other reliable evidence.
[P. 350] B
Mr. F.K. Butt, ASC for Petitioner (in J.P. No. 510 of 2006).
Mr. Asad Ullah Khan Chamkani, ASC for Petitioner (in Cr.P. No. 96-P of 2006)
Qari Abdur Rashid, ASC for State (in both cases).
Date of hearing: 16.1.2008.
Order
Muhammad Akhtar Shabbir, J.--This single judgment shall dispose of Jail Petition No. 510 of 2006 and Criminal Petition No. 96-P of 2006 as both of them have arisen out of the same consolidated judgment of the Peshawar High Court, Peshawar, dated 21.09.2006 in Crl. Appeals No. 403 & 412 of 2005 filed by the convict-petitioners Aala Muhammad and Mehboob-ur-Rehman.
Both the convict-petitioners seek leave to appeal against the judgment of the Peshawar High Court, Peshawar, whereby their respective appeals aforesaid were dismissed and their conviction under Section 9 of the Control of Narcotic Substances Act, 1997 and sentence of life imprisonment as also fine of Rs. 100,000/- each or in default of payment of fine to suffer further 5 years R.I. awarded to them by the learned Sessions Judge/Special Court, Swat, was upheld.
Briefly stated the facts of the case are to the effect that on 04.04.2004 at 11.00 a.m. Yousaf Ali Khan, S.I. (PW-4) along with a police party intercepted a Car No. 333-BRC at Check Post Gora for purpose of checking on suspicion. Five persons namely Muhammad Sajid, Tariq Ali, Sadiq Shah, Adnan and Mehboob-ur-Rehman along with Driver Aala Muhammad were sitting in the car. They were searched but nothing illegal was recovered from them. Thereafter, the police carried out a thorough search of the car and recovered 18500 grams of Charas packed in 17 bags from the front and rear seats of the car. The same were taken into possession and four grams of Charas was separated from each bag and was sealed into separate parcels (Ex.PA.I) for chemical examination. The accused were sent to P.S. Ghalegi where case FIR No. 261 was registered against them.
During the course of investigation, the four inmates of the car namely Muhammad Sajjad, Sadiq Shah, Tariq Ali and Irfan had been successful in proving their innocence, and were recommended to be discharged by the investigating agency and hence they got clean `chit', vide order of the Illaqa Magistrate dated 22.04.2004. It is pertinent to mention here that the two convict-petitioners made confessional statements before Judicial Magistrate (PW-2) and blamed each other for the commission of crime.
After completion of investigation, the petitioners were challaned to the Court for trial. The prosecution to establish its case against the petitioners-accused produced 05 witnesses out of whom PW2 is the Judicial Magistrate who recorded confessional statements of the accused. Jehanzeb Khan (PW-3) is the marginal witness to recovery memo (Ex.P.2). The I.O. Yousaf Ali Khan appeared as PW-4 and Abdul Aziz was examined as PW-5. The accused-petitioners were charge sheeted and when examined under Section 342 Cr.P.C., they denied the charge and claimed trial. They however, showed ignorance as to whom the Charas belonged.
Learned counsel for the petitioners argued that the prosecution has failed to prove the allegation against the petitioners; no independent witness at the time of alleged recovery of narcotics has been associated by the police; the prosecution produced only police employees to establish its case; both the petitioners had resiled from their judicial confessions and they could not have been convicted, on the basis of their such retracted statements. They had no knowledge of the concealment of the Charas.
We have heard the learned counsel for the petitioners and have examined the record with his assistance.
The prosecution to bring home the guilt of the accused-petitioners produced five witnesses and report of the chemical examiner. The testimony of PW-2 to PW-4 is most important in this case. PW-2 Qazi Atta Ullah, Judicial Magistrate, had recorded the judicial confessions of the petitioners and he supported the recording of their statements. The defence has not pointed out any materially legal defect in the procedure of recording their statements. Before the said witness, both the accused-petitioners had not denied to be the passengers of the intercepted vehicle (Car No. 333-BRC) which was used for transportation of the recovered narcotic material. Petitioner Aala Muhammad in his confessional statement had admitted the possession of 8 kilograms of charas.
PW-3 Jehanzeb, A.S.I, and PW-4 Yousaf Ali, S.I. proved the recovery of 18500 grams of Charas vide recovery memo PW-3/I. These PWs deposed in line with each other and no material contradiction or discrepancy has emerged in their statements despite they have gone under lengthy cross-examination by the defence side.
It was a case of Nakabandi/checking and the prosecution witnesses were members of the checking party. Thus, their presence at the place was natural. The PWs present at the place of recovery of "Charas" from vehicle under control/being driven by the petitioner Aala Muhammad were the police employees. They were the competent witnesses like any other independent witness and their evidence cannot be discarded merely for the reason that they were the police employees. Reference in this context can be made to the case of Naseer Ahmad v. The State (2004 SCMR 1361), Riaz Ahmad v. The State (2004 SCMR 988), Fida Jan v. The State (2001 SCMR 36) and Muhammad Azam v. The State (PLD 1996 SC 67).
As to the objection of non-joining the private witnesses, suffice it to observe that Section 25 of the Control of Narcotic Substances Act, 1997, has excluded the application of Section 103 Cr.P.C. which reads as under :--
"Mode of making searches and arrest.--The provision of the Code of Criminal Procedure, 1898, except those of Section 103, shall mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of Sections 20, 21, 22 and 23 to all warrants issued and searches made under these Sections."
Moreover, the testimony of PW-3 and PW-4 has been corroborated by the report of the chemical analyst which is positive.
The petitioners during trial had resiled from their judicial confessions. The "retracted confession" may be treated to be sufficient to sustain conviction for the offence if the same is found to be voluntary and true but as a rule of prudence, the same should not be acted upon unless corroborated by some other reliable evidence. Reliance in this context can be placed to the cases of Arabistan and others v. The State (1992 SCMR 754) and Ch. Muhammad Yaqoob and others v. The State (1992 SCMR 1983). Be that as it may, there is other sufficient, independent, convincing oral and documentary evidence (statements of PW-2 to PW-4 and report of the chemical examiner Ex.PZ) on the file of the case to prove the prosecution story. The petitioners had denied the allegation with a specific stance that the concerned police had illegally involved them in the case by planting such huge quantity of narcotic material. No justification existed on the record to falsely involve them in such like case. So much so, the petitioners had not produced any evidence in support of their defence version. They even did not opt to appear in their defence under Section 340(2) Cr.P.C. The learned counsel for the petitioners has failed to point out any mala fide of the police employees qua the petitioners.
The defence plea of the petitioners that they had no knowledge about the Charas concealed beneath the front and rear seats of the car has no force. They could not explain their traveling in the car nor their destination in their statement under Section 342 Cr.P.C. This argument is further strengthened by judgment of this Court in the case of Shehzad Muhammad v. The State (2005 SCMR 859) wherein it is stated that the petitioner had no knowledge of the narcotics concealed inside the layer of the bag is devoid of any force mainly for the reason that the petitioner took the bag from co-convict at the airport. In the present case, the use of the car in the commission of offence is not denied but where they were going is unexplained and it remained under mystery.
The prosecution has been successful to establish the guilt of the petitioners to the hilt by producing the above-referred evidence. Learned counsel for the petitioners has not been able to point out any error or illegality, misreading or non-reading of evidence in the impugned judgment of the High Court.
For the foregoing reasons, we do not find any substance in these petitions which are dismissed and leave to appeal is refused.
(A.S.) Leave refused.
PLJ 2008 SC 351
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ; Ijaz-ul-Hassan and Ch. Ejaz Yousaf, JJ.
MUHAMMAD RAMZAN--Applicant
versus
STATE and others--Respondents
C.M.A. Nos. 591 of 2008 & 5743 of 2005 in Civil Appeal No. 1938 of 2002.
Expungment of Remarks--
----Remarks be treated as deleted--Plaintiff a prominent Lawyer of Supreme Court--High Court while exercising suo moto revisional jurisdiction has passed serious observation/remarks against appellant in Para 10 of the case of State v. Muhammad Ramzan and 5 others (PLJ 2002 Lahore 1142 and 2002 YLR 2461)--CMA was filed by petitioner--Held: Plaintiff, a prominent Lawyer of Supreme Court rather a leader of the Lawyers Community--Remarks passed by High Court against petitioner are expunged to be treated as deleted and should not be considered as part of impugned judgment. [P. 352] A
Malik Amjad Pervaiz, ASC for Applicant.
Ch. Attaullah, ASC and Sh. Riazul Haq, ASC for Respondent 5.
Nemo for Respondent No. 8.
In person for Applicant (in CMA 4743/05).
Date of hearing: 26.3.2008.
Order
An application for adjournment has been preferred by Mr. Mehr Khan Malik, learned AOR stating that Syed Sharifuddin Pirzada, learned Sr.ASC is on general adjournment and unable to attend this Court, to which Malik Amjad Pervaiz, learned ASC for the appellant has no objection but urged that CMA 591 of 2008 filed by appellant which has nothing with the merits of the case be heard. Accordingly, main appeal and CMA No.5743 of 2005 are adjourned to a date in office.
As regards CMA No.591/08 learned counsel for the appellant emphasized that leaned Single Judge of Lahore High Court while exercising suo moto revisional jurisdiction has passed serious observations/remarks against appellant, the senior counsel of this Court in para 10 of the impugned judgment and urged for expungment of the said remarks. He contended that said observations were passed without notice to the appellant and are highly unwarranted and uncalled for mainly for the reason that bargain of the land in-question was initiated at the time when appellant was not even an advocate, thus the remarks that appellant being prominent lawyer of High Court and leader of legal fraternity in collusion with the then Civil Judge (K. M. Sohail) his brother and father in law Ch. Gulab Din (Respondent No. 2) proceeded to usurp the property of mosque are baseless and unwarranted. According to him appellant is prominent and senior lawyer of Court, had earned un-impeachable reputation which is apparent from the fact that he remained Vice President of Lahore High Court Bar Association and presently he is a member of Pakistan Bar Council. According to him, the Civil Judge namely, Mr. Badar-uz-Zaman, who decreed the suit was neither his brother nor had any relationship with him.
M/s Ch. Attaullah and Sh. Riazul Haq, learned counsel appearing on behalf of Respondent No. 5 on instructions stated no objection to the expungment of the observation/remarks.
Accordingly, while allowing CMA No. 591/08 the observations/remarks passed in para 10 of the impugned judgment against appellant/plaintiff to the extent that "It is with some regret that I feel constrained to note here that as against the said position of Kazi vis-a-vis Waqf property, particularly the property of a mosque as stated by the Hon'ble Supreme Court of Pakistan in the said judgment, in the present case, the plaintiff a prominent lawyer of this Court rather a leader of his fraternity, in league with another Kazi, a Civil Judge stated to be the brother of Respondent No. 1 who lent the services of his father-in-law (Respondent No. 3) proceeded to usurp the property of the mosque vesting in Allah Almighty with the blessing of the Civil Judge who decreed the suit in the face of the evidence of the ownership of the mosque produced by Respondent No. 1 himself. This is an act of fraud and liable to be declared as such. The learned Civil Judge has proceeded to exercise the jurisdiction not vesting in him while decreeing the suit filed by Respondent No. 1 in the said circumstances" are expunged to be treated as deleted and should not be considered as part of the impugned judgment.
(W.I.) Order accordingly.
PLJ 2008 SC 353
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan & Muhammad Moosa K. Leghari, JJ.
ACCOUNTANT GENERAL FOR PAKISTAN (REVENUE) through Auditor General and another--Petitioners
versus
ZIA MOHY-UD-DIN & others--Respondents
Civil Petition Nos. 1382-L to 1385-L of 2007, decided on 26.11.2007.
(On appeal from the judgment dated 19.6.2007 of the Lahore High Court, Lahore passed in WP Nos. 19402 & 19643 of 2001, 19411 & 13600 of 2002).
Law Reforms Ordinance, 1972 (XII of 1972)--
----S. 3(2)--Constitution of Pakistan, 1973, Arts. 185(3) & 199--Intra Court Appeal--Maintainability--Constitutional petitions were dismissed by High Court--Assailed--Contention--An appeal shall lie to Bench of two or more Judges of a High Court from an order made by a Single Judge in exercise of its original civil jurisdiction--Held: Petitioners may be allowed to file Intra Court Appeals--If appeals are filed, High Court may consider the question of condonation of delay--Petitions disposed of. [Pp. 354 & 355] A
Syed Iftikhar Hussain Shah, DAG for Petitioners.
Kh. Saeed-uz-Zaffar, ASC for Respondents.
Date of hearing: 26.11.2007.
Order
Abdul Hameed Dogar, HCJ.--By this single order we propose to dispose of Civil Petition Nos. 1382-L, 1383-L, 1384-L and 1385-L of 2007 as they arose of common judgment dated 19.6.2007 passed by learned Single Judge of Lahore High Court, Lahore whereby Writ Petition Nos. 19402 & 19643 of 2001, 19411 & 13600 of 2002 filed by respondents were allowed.
At the very outset Kh. Saeed-uz-Zaman, learned counsel for the respondents raised objection as to the maintainability of petitions and urged that in view of Section 3(2) of the Law Reforms Ordinance, 1972 (hereinafter referred to as `the Ordinance') Intra Court Appeal was competent which remedy was not availed by the petitioners. According to him, learned Single Judge has decided writ petitions in exercise of its original jurisdiction as such impugned judgment should have been challenged by way of Intra Court Appeal in view of above provisions of law. Since above provisions has not been complied with as such petitions are not competently filed.
On the other hand Syed Iftikhar Hussain Shah, learned DAG contended that pension or pensionary benefits are in fact terms and conditions of service as such respondents should have approached learned Service Tribunal as required under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. As regard to the contention that Intra Court Appeal was competent it is urged that in view of above-mentioned provision of law an appeal shall lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge in exercise of its original civil jurisdiction as such no departure can be made. He have relied upon the case of Commissioner Income Tax and others Vs. M/s Media Network and others (PLD 2006 SC 787) wherein according to him this Court has held that in certain exceptional circumstances, this Court can entertain petitions or as the case may be direct appeals even where the remedy of Intra Court Appeal under Section 3 of the Ordinance has not been availed by a party.
We are not persuaded to agree with the contentions of learned DAG as it has been held in the case of Pakistan International Airlines Corporation through Chairman and others Vs. Samina Masood and others (PLD 2005 SC 831) as under:
"all orders passed under sub-Article (1) of Article 199 of the Constitution shall be appealable under Section 3(2) of Law Reforms Ordinance, 1972 before a Bench of two or more Judges of the same High Court provided that it is not an order of the nature of habeas corpus described in sub-paragraph (1) of paragraph (b) of the Article. The regulations challenged before the High Court in the instant case squarely fell under clause (1)(c) of Article 199 of the Constitution and, hence, was appealable through an Intra Court Appeal before two or more Judges of the same High Court. In view of Section 3 sub-section (2) of Ordinance, 1972, the instant appeals and petitions are not maintainable before this Court"
In view of above learned counsel for the petitioners requested that petitioners may be allowed to file Intra Court Appeals. If said appeals are filed learned High Court may consider the question of condonation of delay.
In the above terms, the petitions are disposed of.
(R.A.) Petitions disposed of.
PLJ 2008 SC 355
[Original Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, M. Javed Buttar, Ijaz-ul-Hassan, Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari & Ch. Ejaz Yousaf, JJ.
WAJIHUDDIN AHMED--Applicant
versus
CHIEF ELECTION COMMISSIONER & others--Respondents
CMA No. 2874 of 2007 in Constitution Petition No. 73 of 2007, decided on 6.11.2007.
(Application under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980)
Provisional Constitution Order, 2007 (1 of 2007)--
----Arts. 2 & 3--Proclamation of Emergency dated 3.11.2007, Paras 2 & 3--Oath of Office (Judges) Order, 2007, Preamble--Supreme Court Rules, 1980, O.XXXIII, R. 6 & O.XXIX--Civil Procedure Code, (V of 1908), O. XXVII-A--Application was filed by Attorney General with reference to a news item--Seven former Judges of Supreme Court, passed an order regarding P.C.O. 2007, Proclamation of Emergency dated 3.11.2007 and Oath of Office (Judges)--Principles of natural justice--Validity--Order was invalid as it was passed after Proclamation of Emergency of 3rd day of November, 2007 read with Provisional Constitution Order No. 1 of 2007, promulgated by the Chief of Army Staff and Oath of Office (Judges) Order, 2007 issued by President of Pakistan--Held: Order in-question is even otherwise not a valid order as it was passed without notice to the parties or to Attorney General under Order 27-A CPC r/w. O. 29 of Supreme Court Rules, 1980--Question of validity or otherwise of Proclamation of Emergency as well as Provisional Constitution Order and Oath of Office (Judges) was not as such examined and their operation was also not suspended--Further held: Supreme Court are also not called upon to express its opinion on such questions at that stage--In presence of Proclamation of Emergency and Provisional Constitution Order read with Oath of Office (Judges) Order, 2007 the order dated 3.11.2007 was nullity in law which was declared to be illegal and without jurisdiction and shall be deemed to have never been passed--Order accordingly. [Pp. 357, 359 & 360] A, B & C
Mr. Arshad Ali Ch. ASC/AOR for Applicant.
Malik Muhammad Qayyum, Attorney General for Pakistan on Court Call.
Date of hearing: 6.11.2007.
Order
Abdul Hameed Dogar, H.C.J.--This miscellaneous application has been moved by the Federation of Pakistan seeking clarification in respect of the order dated 3.11.2007 purportedly passed by this Court.
(i) Government of Pakistan, i.e. President and Prime Minister of Pakistan are restrained from undertaking any such action, which is contrary to Independence of Judiciary;
(ii) No Judge of the Supreme Court or the High Courts including Chief Justice(s) shall take oath under PCO or any other extra-Constitutional step;
(iii) Chief of Army Staff, Corps Commanders, Staff Officers and all concerned of the Civil and Military Authorities are hereby restrained from acting on PCO which has been issued or from administering fresh oath to Chief Justice of Pakistan or Judges of Supreme Court and Chief Justice or Judges of the Provincial High Courts;
(iv) They are also restrained to undertake any such action, which is contrary to independence of Judiciary, Any further appointment of the Chief Justice of Pakistan and Judges of the Supreme Court and Chief Justices of High Courts or Judges of Provinces under new development shall be unlawful and without jurisdiction;
(v) Put up before full Court on 5th November 2007."
According to the learned Attorney General, the above order was passed or purported to have been passed by this Court when the Judges of the superior Courts had already ceased to function and exercise judicial powers. He submitted while placing reliance on Federation of Pakistan v. Aitzaz Ahsan (PLD 1989 SC 61) decided by Full Supreme Court that unless a law was finally declared as ultra vires for any reason, the same would continue to have its normal operation, therefore, the action taken in pursuance of Proclamation of Emergency read with PCO and Oath of Office (Judges) Order, 2007, referred above, was valid and not questionable. Learned Attorney General submitted that notwithstanding the taking of extra-constitutional steps, martial law has not been imposed in the country and the Federal, the Provincial Governments, the Prime Minister of Pakistan with his Cabinet and the Chief Ministers in the Provinces with their Cabinets are performing their duties as usual. The Parliament (National Assembly and Senate) and the Provincial Assemblies have not been dissolved. The President as well as the Governors in the Provinces, continue to discharge their functions as before. He added that in the circumstances prevailing in the country and in the given situation, no exception could be taken to the measures adopted and since the order in question was passed without giving any notice or providing any opportunity of hearing to the Federation of Pakistan in utter disregard to the principle of natural justice, therefore, the same was otherwise not a legal order.
Having heard the learned Attorney General for Pakistan at some length and gone through the order purported to have been passed on 3.11.2007, we find that the said order was invalid as it was passed after Proclamation of Emergency of the 3rd day of November 2007 read with Provisional Constitution Order No. I of 2007, promulgated by the Chief of Army Staff and Oath of Office (Judges) Order, 2007 issued by the President of Pakistan. The Constitution of Islamic Republic of Pakistan was held in abeyance by virtue of Paragraphs 2 and 3 of Proclamation of Emergency dated 3.11.2007, therefore, without first taking oath under Oath of Office (Judges) Order 2007, the Judges of the Supreme Court and other Superior Courts could not perform their functions. The present position as explained in Articles 2 and 3 of Provisional Constitution Order 2007, is as under:--
"Article 2. (1) Notwithstanding the abeyance of the provisions of the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, Pakistan shall, subject to this Order and any other Order made by the President be governed, as nearly as may be, in accordance with the Constitution:
Provided that the President may, from time to time, by Order amend the Constitution, as is deemed expedient:
Provided further that the Fundamental Rights under Articles, 9, 10, 15, 16, 17, 19 and 25 shall remain suspended.
(2) Notwithstanding anything contained in the Proclamation of the 3rd day of November, 2007, or this Order or any other law for the time being in force, all provisions of the Constitution of the Islamic Republic of Pakistan embodying Islamic Injunctions including Articles 2, 2A, 31, 203A to 203J, 227 to 231 and 260(3)(a) and (b) shall continue to be in force.
(3) Subject to clause (1) above and the Oath of Office (Judges) Order, 2007, all Courts in existence immediately before the commencement of this Order shall continue to function and to exercise their respective powers and jurisdiction:
Provided that the Supreme Court or a High Court and any other Court shall not have the power to make any order against the President or the Prime Minister or any person exercising powers or jurisdiction under their authority.
(4) All persons who immediately before the commencement of this Order were in office as Judges of the Supreme Court, the Federal Shariat Court or a High Court, shall be governed by and be subject to the Oath of Office (Judges) Order, 2007, and such further Orders as the President may pass.
(5) Subject to clause (1) above, the Majlis-e-Shoora (Parliament) and the Provincial Assemblies shall continue to function.
(6) All persons who, immediately before the commencement of this Order, were holding any service, post or office in connection with the affairs of the Federation or of a Province, including an All Pakistan Service, Service in the Armed Forces and any other Service declared to be Service of Pakistan by or under Act of Majlis-e-Shoora (Parliament) or of a Provincial Assembly, or Chief Election Commission or Auditor General shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any, unless these are changed under Orders of the President.
Article 3. (1) No Court including the Supreme Court, the Federal Shariat Court, and the High Courts, and any tribunal or other authority shall call or permit to be called in question this Order, the Proclamation of Emergency of the 3rd day of November, 2007, the Oath of Office (Judges) Order, 2007 or any Order made in pursuance thereof.
(2) No judgment, decree, writ, order or process whatsoever shall be made or issued by any Court or tribunal against the President or the Prime Minister or any authority designated by the President."
In pursuance thereof, the Judges of the Supreme Court, the Federal Shariat Court and the High Courts including the Chief Justices of these Courts immediately on Promulgation of Emergency read with PCO and Oath of Office (Judges) Order, 2007, ceased to hold their respective offices and could not have performed their functions or exercise the judicial powers and consequently, the Chief Justice and Judges who have passed the order in question, could not have passed such an order as they ceased to be the Judges. The order in question is even otherwise not a valid order as it was passed without notice to the parties or to the Attorney General for Pakistan under Order 27-A CPC read with Order 29 of the Supreme Court Rules, 1980. The perusal of the impugned order prima facie shows that the question of validity or otherwise of Proclamation of Emergency as well as Provisional Constitution Order, 2007 and Oath of Office (Judges) Order, 2007, was not as such examined and their operation was also not suspended, therefore, we are also not called upon to express our opinion on these questions at this stage. In view of above discussion and in the light of observation made by this. Court in the case of Federation of Pakistan v. Aitzaz Ahsan (PLD 1989 SC 61), supra, we bold that in presence of Proclamation of Emergency and Provisional Constitution Order read with Oath of Office (Judges) Order, 2007, the order dated 3.11.2007 was nullity in law.
Consequently, the impugned order dated 3.11.2007 is hereby declared to be illegal and without jurisdiction. The same shall be deemed to have never been passed. The CMA is allowed accordingly.
(R.A.) C.M.A. allowed.
PLJ 2008 SC 360
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MUSA--Appellant
versus
STATE--Respondent
Crl. A. No. 115 of 2005, decided on 13.3.2008.
(On appeal from the judgment dated 25.10.2002 in Cr. As. 67 & 88/1999 passed by the Lahore High Court Multan Bench, Multan)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction & sentence of death--Appreciation of evidence--No delay in reporting of occurrence--Prosecution case rested on statements of eye-witnesses supported by medical evidence--Medical evidence, in no way was inconsistent with prosecution story--According to the report of Forensic Science Laboratory, crime empties had matched with the Kalashnikov recovered from the accused--Appeal dismissed. [Pp. 362 & 363] A & C
Motive--
----Scope--In presence of ocular evidence, motive is immaterial--Murder may be committed with no motive even or on a minor pretext--Where the motive was shrouded in mystery or was not alleged, conviction was maintainable and its absence could not be taken as a mitigating circumstance. [P. 363] B
PLD 1975 SC 160; 1975 SCMR 289; PLD 2004 SC 563; 2004 SCMR 1676; PLD 2006 SC 354; PLD 2007 SC 453 & 2007 SCMR 641, ref.
Sardar Muhammad Siddique Khan, ASC for Appellant.
Ch. Munir Sadiq, D.P.G. Punjab for Respondent.
Date of hearing: 13.3.2008.
Judgment
Ch. Ejaz Yousaf, J.--This appeal with leave of the Court is directed against judgment dated 25.10.2002 passed by a learned Division Bench of the Lahore High Court, Multan Bench Multan, whereby conviction and sentence of death recorded against the appellant under Section 302(b) PPC were upheld and Criminal Appeal Bearing No. 88 of 1999 filed by the complainant against acquittal of the accused persons, namely, Karim Bakhsh and Rahim Bakhsh was dismissed.
Facts of the case as gathered from the available record are that on 16.2.1997, in the evening the complainant along with Imam Bakhsh and Amin was on his way from Pucca road to Chak Kaura Khan, on motorcycle. The complainant and others were ahead of the deceased Nabi Bakhsh. When they reached near Primary School Kot Gujri, the present appellant Musa armed with a Kalashinkov and acquitted accused Karim Bakhsh allegedly armed with a China rifle crossed them on another motorcycle. The accused raised lalkara to Nabi Bakhsh that he would not be spared for having illicit relations with wife of Rahim Bakhsh. The complainant and others stopped their motorcycles and within their sight appellant Musa fired a burst with his kalashnikov at Nabi Bakhsh. Kareem Bakhsh also fired two shots which landed on the chest and arm of Nabi Bakhsh who fell down and succumbed to the injuries, instantly. Motive alleged was that Rahim Bakhsh had suspected illicit relations of his wife with Nabi Bakhsh. At the trial, the prosecution, in order to prove the charge and substantiate the allegation leveled against the accused persons produced nine witnesses in all, whereafter, the appellant/accused was examined under Section 342 Cr.P.C. In his above statement, appellant denied the charge and pleaded innocence. On conclusion of the trial, the appellant was convicted by the Court and sentenced to the punishment as mentioned in the opening para hereof whereas co-accused persons, namely, Karim Bakhsh and Rahim Bakhsh were acquitted of the charge, for want of proof.
Sardar Muhammad Siddique Khan, learned counsel for the appellant has contended that since motive in the instant case was not believed by the High Court, therefore, conviction could not have been recorded on the basis of the evidence produced by the prosecution because it had cast doubt on the prosecution story. It is further his case that since corroboration to the statements of eyewitnesses was not available from any independent source, therefore, the medical evidence as well as the report of Forensic Expert were not sufficient to bring home charge against the appellant. Lastly, it was pleaded that since the motive was shrouded in mystery, therefore extreme penalty of death could not have been inflicted on the appellant.
Ch. Munir Sadiq, learned Deputy Prosecutor General, Punjab, on the other hand, while controverting the contentions raised by the learned counsel for the appellant submitted that since it was a broad day light murder and ocular account was fully corroborated by the medical as well as other evidence, therefore, the appellant was rightly convicted for the offence.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case, minutely with their assistance.
It would be pertinent to mention here that in the instant case occurrence took place on 16.2.1997 in the afternoon and the FIR was lodged at the police station, which was seven kilometers away from the place of occurrence, at 3.00 p.m. on the same day, hence there was no delay in reporting the occurrence. Prosecution case rests on the statements of eye witnesses, namely, Pir Bakhsh, PW-6 and Amin PW-7. Though PW Amin was given up by the ADA to the extent of recoveries yet, with regard to murder he fully corroborates the testimony of PW-6. Record reveals that both the above witnesses, at the trial, were cross-examined at length but nothing favourable to the accused and damaging to the prosecution was elicited from them. Statements of both the eye-witnesses find support from the medical evidence, account whereof, at the trial, was furnished by PW-8 Dr. Muhammad Fakhar-ud-Din Hashmi, who had conducted postmortem examination on the dead body of the deceased. It would be pertinent to mention here that as many as fifteen injuries were found at the dead body, and the recovery of fifteen empties from the place of occurrence, implies that the medical evidence in no way was inconsistent with the prosecution story. Further, the kalashinkov allegedly used in the crime was also got recovered by the accused and as per Forensic Science Laboratory report, i.e. Ex. PN, the empties recovered from the place of occurrence were found to have been fired from the said kalashinkov. It would be pertinent to mention here that crime empties, as per record, were taken into possession and sealed at the spot on the same day, and had reached office of the Forensic Science Laboratory on 10.3.1997. Since recovery of kalashinkov was effected on 27.3.1997 and as per report dated 20.5.1997, of the Forensic Science Laboratory, the crime empties matched with the kalashinkov recovered from appellant Musa, therefore it not only excludes the possibility of implantation but leaves no room to disbelieve the prosecution story.
As to the contention raised by learned counsel for the appellant that since motive in the instant case was not believed by the High Court, therefore, conviction could not have been recorded on the basis of the evidence produced by the prosecution at the trial, it may be pointed out here that it is well settled that motive, proved or otherwise, is immaterial in presence of ocular evidence and murder may be committed for no motive even or on a minor pretext; what to speak of proving motive, in certain cases where the motive was shrouded in mystery or was not alleged, conviction was maintained and absence of motive was not taken, as a mitigating circumstance even. Reference in this regard may usefully be made to the cases reported as: (i) Syed Mushtaq Ahmad v. Siddiqullah and others (PLD 1975 SC 160), (ii) Wazir Gul v. The State (1975 SCMR 289), (iii) Mukhtar Ahmad & others v. The State (PLD 2004 SC 563), (iv) Federal Government Ministry of Defence v. Sepoy Liaqat Ali (2004 SCMR 1676), (v) Khurram Malik & others v. The State & others (PLD 2006 SC 354), (vi) Mst. Nazakat v. Hazrat Jamal & another (PLD 2007 SC 453) and (vii) Ashfaq Ahmed v. The State (2007 SCMR 641).
Upshot of the above discussion is that in our view, guilt of the appellant was fully brought home at the trial by the prosecution and the considerations which weighed with the learned trial Judge as well as the appellate Court fully conform to the requirements of law and do not call for interference by this Court. Resultantly, this appeal having been found without merits is hereby dismissed.
(J.R.) Appeal dismissed.
PLJ 2008 SC 364
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
ALAM CHAND alias ALOOMAL & others--Petitioners
versus
JAMIL AHMAD and another--Respondents
Criminal Petition No. 325 of 2007, decided on 10.3.2008.
(On appeal from the judgment dated 12.11.2007 in Cr. Misc. No. 116 of 2007 passed by the High Court of Sindh, Karachi).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(5)--Pakistan Penal Code, (XLV of 1860), Ss. 302, 114, 147, 148, 149, 504, 337-A(i), 337-F(i) & 341--Cancellation of Pre-arrest bail--Admittedly petitioners/accused were empty handed--According to post-mortem report, deceased was suffering from liver cirrhosis--Injuries i.e. abrasions on the knees were not sufficient to cause death in ordinary course of nature and that death occurred due to vaso-vagal shock as a result of testicular trama caused by hard & blunt weapon--No specific roles had been assigned to the accused person possibility that injuries on knees might have sustained by deceased at the time of falling on the grounds could not be ruled out--Impunged order for cancellation of bail set aside--Bail allowed.
[Pp. 366 & 367] A & C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pre-arrest bail--Requirements--Held: Pre-arrest bail may be granted when a case is based on enmity, malafide, registered for ulterior motive or where no offence is shown to have been committed on the basis of record because the object is to protect innocent persons from humiliation, harrasment and disrespect. [P. 267] B
Mr. Muhammad Ilyas Siddiqui, ASC with Ch. Muhammad Akram, AOR for Petitioners.
Mr. M. Qasim Khan, AAG Sindh with Raja Abdul Ghafoor, AOR for Respondents.
Date of hearing: 10.3.2008.
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against the judgment dated 12.11.2007 whereby bail before arrest granted to the petitioner by the Additional Sessions Judge Thatha, vide order dated 23.12.2006 was cancelled.
On the stated allegations formal FIR Bearing No. 65 dated 7.10.2006 was registered against the accused persons under Sections 302, 114, 147, 148, 149, 504, 337/A(i), 341, 337F(i) PPC. Resultantly, the petitioners approached the Sessions Judge for grant of pre-arrest bail which was allowed on 7.11.2006 by the Second Additional Sessions Judge and was later on confirmed by the 1st Additional Sessions Judge, Thatta, vide order dated, 23.12.2006. Against the said order complainant filed Cr.Misc. No.116 of 2007 for cancellation of bail before the High Court of Sindh at Karachi, which was allowed and the bail granted to the petitioners was cancelled vide the impugned judgment, hence this petition.
It is contended by the learned counsel for the petitioner that since as per initial as well as final postmortem reports dated 7.10.2006 and 3.1.2007, only two abrasions on the right and left knees of the deceased were found which as per report could not have, in the ordinary course of nature, cause death, he was also suffering from liver cirrhosis therefore, the petitioners were not liable for the offence of murder and their arrest on that count was unjustified, illegal and malafide because it was an admitted fact that there was previous hostility between the parties. He maintained that, in the circumstances, the impugned judgment was not sustainable because firstly, the false implication of the petitioners on account of enmity could not have been ruled out and secondly, if the allegation contained in the FIR in its entirety was believed, even then no non-bailable offence muchless the offence of murder was made out against the petitioners.
Mr. M. Qasim Khan Mirjat, learned AAG Sindh, Karachi, on the other hand while controverting the contentions raised by learned counsel for the petitioners submitted that since it was proved on record that the deceased was beaten by the accused persons including the petitioners and it was opined by the doctor, that death had occurred due to vaso-vagal shock as a result of testicular trama caused by hard and blunt substance, therefore the High Court was justified in canceling the bail allowed to the petitioners by the Additional Sessions Judge. He however, felt great difficulty in answering the question as to how the deceased suffered testicular trama? whether it was on account of any blow allegedly caused by any of the accused persons or it was due to falling of the deceased on the ground. He admitted that as per record the petitioners, at the time of occurrence, were empty handed.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused record of the case, minutely with their assistance. Admittedly, the petitioners at the time of occurrence were empty handed. The deceased was also suffering from liver cirrhosis. The final postmortem report dated 3.1.2007 is explicit in this regard. In the final postmortem report it has been categorically mentioned that the injuries shown in Column No. 13 & 14 (i.e. abrasions on the knees) of the initial postmortem report, were not sufficient to cause death in the ordinary course of nature and that the death occurred due to "vaso-vagal shock as a result of testicular trama caused by hard and blunt weapon". In the instant case six persons have been nominated by the complainant, out of which, names of three have not been mentioned in the F.I.R. even. Specific roles to the accused persons have also not been assigned. It is also not clear as to who, out of all the six accused persons, was responsible to cause injuries on the person of the deceased. Further, the possibility that the injuries, particularly the abrasions on both the knees, might have sustained by the deceased at the time of falling on the ground, can not be ruled out.
It would be pertinent to mention here that law with regard to exercise of jurisdiction for grant or otherwise of the pre-arrest bail is well settled. Pre-arrest bail may be granted when a case is based on enmity, malafide, registered for ulterior motive, or where no offence is shown to have been committed on the basis of the record because the object is to protect the innocent persons from humiliation, harassment and disrespect. This view receives support from the cases: (i) Ch. Waris Ali v. The State (2007 SCMR 1607), (ii) Lal Muhammad Kalhoro & others v. The State (2007 SCMR 843), (iii) Masood Ahmed alias Muhammad Masood & another v. The State (2006 SCMR 933), (iv) Syed Muhammad Firdaus & others v. The State (2005 SCMR 784), (v) Rais Wazir Ahmad v. The State (2004 SCMR 1167), (vi) Mst. Qudrat Bibi v. Muhammad Iqbal & another (2003 SCMR 68), (vii) Malik Zafar Abbas v. Agha Raza Abbas Qazilbash & another (PLD 2002 SC 529), (viii) Murad Khan v. Fazal-e-Subhan and another (PLD 1983 SC 82).
Upshot of the above discussion is that, in our view, petitioners have made out a case for grant of bail, hence the impugned order dated 12.11.2007 passed by the High Court of Sindh, Karachi, is set aside, the petition is converted into appeal and is allowed. Interim bail granted to the petitioners by this Court vide order dated 13.12.2007 is hereby confirmed.
Needless to point out that observations made in this order
are tentative in nature and shall not prejudice the case of either of
the parties before the trial or the appellate Court. The prosecution
shall be at liberty to move for cancellation of bail in case some
evidence, connecting the petitioners with murder on any other offence is collected and produced by the prosecution before the Court or is led at the trial.
(J.R.) Appeal allowed.
PLJ 2008 SC 368
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq & Muhammad Farrukh Mahmud, JJ.
MUHAMMAD ASHRAF & 2 others--Petitioners
versus
MUHAMMAD MALIK & 2 others--Respondents
Civil Petition No. 1240-L of 2007, decided on 13.3.2008.
(On appeal from the judgment dated 18.6.2007 of the Lahore High Court Lahore passed in Civil Revision No. 232/2006).
Power of Attorney--
----General Power of Attorney--Transfer of property--Liability of Attorney--Held: If an attorney intends to exercise right of sale/gift in his favour or in favour of next to consult the principal before exercising that right--If an attorney on the basis of even general power of attorney purchases the property for himself or for his own benefit, he should firstly obtain the consent and approval of the Principal after acquitting him with all the material circumstances.
[Pp. 369 & 370] A
PLD 1985 SC 341; 1994 SCMR 818 & 2004 SCMR 619, ref.
Mr. Abdul Wahid Chaudhry, ASC for Petitioners.
Nemo for Respondents.
Date of hearing: 13.3.2008.
Judgment
Mian Hamid Farooq, J.--The petitioners, through the present petition, seek leave to appeal against the judgment dated 18.6.2007, whereby, the learned single Judge in Chamber of Lahore High Court, Lahore dismissed petitioners' Revision Petition (C.R. No. 232/2006).
Muhammad Malik and Mst. Rasoolan Bibi, Respondents No. 1 & 2/plaintiffs, filed a suit against the petitioners and Respondents No. 3 claiming a decree for declaration that they are still the owners of the suit land, the power of attorney No. 376 dated 13.6.1989 favouring Petitioner No. 1 and consequent gift Mutation No. 102 dated 18.1.2000 are result of fraud and do not affect their rights qua the suit land. The defendants resisted the suit through the written statement pleading that the plaintiffs appointed Defendant No. 1 as their general attorney for pursuing the case pending against them; he had incurred expenses on the litigation, has paid some amount to the plaintiffs, and the gift in favour of Defendant No. 2 was accomplished with permission of the plaintiffs. The learned trial Court framed necessary issues, recorded evidence of the parties and ultimately dismissed the suit, vide judgment and decree dated 20.5.2005, however, the plaintiffs' appeal against the said judgment and decree was allowed by the Additional District Judge on 16.1.2006 and their suit was decreed. Revision Petition against the said judgment and decree was dismissed by the learned single Judge of the Lahore High Court at Lahore, vide impugned judgment dated 18.6.2007, hence the present petition.
Learned counsel for the petitioners submitted that both the Courts failed to appreciate that Petitioner No. 1 was appointed as attorney by Respondents No. 1 & 2 and the evidence on record was not properly appreciated. He has further submitted that Petitioner No. 1 prosecuted a case on behalf of the said respondents and bore all the expenses, thus the Petitioner No. 1 was competent to make gift on behalf of the respondents. He has added that the case of Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others (1994 SCMR 818) is not applicable in this case. He has referred to the judgment of Muhammad Khan v. Mst. Rasul Bibi (PLD 2003 SC 676).
We have heard the learned counsel for the petitioners and examined the available record of the case. The learned single Judge in Chamber after examining the evidence on record rightly concluded that execution of power of attorney was not proved. These findings are not open to exceptions and we are not persuaded to reverse those findings. Furthermore, the learned counsel could not demonstrate from the available record that at the time of execution of power of attorney, the contents of the said document were read over and explained to the plaintiffs, who are illiterate persons. Even if it be taken that power of attorney was validly executed, Petitioner No. 1 had no authority and he was not competent in law to gift or sell the suit land to his son-in-law namely, Muhammad Amin. There is no evidence on record to show that the attorney before making the gift in favour of his son-in-law ever obtained the consent and permission of the plaintiffs and sought any approval from the real owners of the property, who even according to the stance of the petitioners are his principals. lt is a settled law by now that if an attorney intends to exercise right of sale/gift in his favour or in favour of next of his kin, he/she had to consult the principal before exercising that right. The consistent view of this Court is that if an attorney on the basis of power of attorney, even if "general", purchases the property for himself or for his own benefit, he should firstly obtain the consent and approval of principal after acquainting him with all the material circumstances. Herein, the cases of Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and others (PLD 1985 SC 341), Mst. Shumal Begum v. Mst. Gulzar Begum and three others (1994 SCMR 818) and Nisar Ahmad and others v. Naveed-ud-din and others (2004 SCMR 619), can be referred, which are fully applicable to the case in hand. In view of the principle laid down in the aforesaid cases, the petitioners have no case and the learned High Court has rightly dismissed petitioners' revision petition.
Learned counsel for the petitioners has erroneously asserted that the case of Mst. Shumal Begum (ibid) is not applicable, while we after perusing the said judgment are of the firm view that case of Mst. Shumal Begum's case (ibid) is fully applicable in the present case. It may be noted that in the judgment of Mst. Shumal Begum, the case of Fida Muhammad (ibid) was referred and relied upon. As regards the case of Muhammad Khan's (ibid), suffice it to say that under the circumstances the said judgment is of no avail to the petitioners. No misreading or non-reading of evidence has been pointed out by the learned counsel.
In the above perspective, we have examined the judgment before us and find that the learned High Court did not commit any illegality, the judgment is perfectly legal and justified and we are not persuaded to reverse the judgments passed by both the Courts below.
For the foregoing reasons, the instant petition being devoid of any merits is hereby dismissed and leave to appeal is refused.
(J.R.) Leave refused.
PLJ 2008 SC 370
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq & Muhammad Farrukh Mahmud, JJ.
MUHAMMAD AYAZ KHAN--Appellant
versus
MURTAZA & etc.--Respondents
Crl. A. No. 92 of 2002, decided on 14.3.2008.
(On appeal from the judgment dated 2.7.2001 passed by Lahore High Court, Lahore, in Cr.A. No. 778/1995 with Murder Reference No. 515/1995/2002).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction & sentence--Reduction of death penalty into life imprisonment--Validity of--Appreciation of evidence--Motive set up by prosecution was not proved and the immediate cause for the occurrence was not unfolded--No doubt motive was not always an essential element of murder and weakness or absence of motive by itself might not be a valid reason for lesser punishment but the prosecution had not brought on record the material facts relating to the manner and the immediate cause of the occurrence, therefore apart from the motive, the mystery in the circumstances leading to the occurrence would create a sufficient mitigation in favour of accused for lesser punishment--Appeal dismissed. [P. 373] A & B
Kh. Sultan Ahmed, Sr. ASC for Appellant.
Sardar Muhammad Latif Khan Khosa, ASC and Muhammad Siddique Khan Baloch, DPG for Respondents.
Date of hearing: 14.3.2008.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court, has been directed against the judgment dated 2.7.2001 passed by the Lahore High Court, Lahore, in Criminal Appeal No. 778/1995 whereby the sentence of death awarded to Murtaza son of Ghulam Rasul, Respondent No. 1 herein, under Section 302(b) PPC was altered into imprisonment for life.
The facts of the case in small compass, leading to the filing of present appeal are that on 5.12.1994 at about 3.45 Muhammad Ayaz, complainant, alongwith his brother Liaquat Ali deceased, Asghar and Madad Khan PWs while taking tea were present at the Tea Stall of Shah Muhammad. Liaquat Ali, deceased after taking tea when proceeded to his shop adjacent to the tea stall, Murtaza, accused while armed with pistol, appearing at the scene, raised lalkara that deceased would be taught a lesson for not effecting the compromise in the murder case of Niaz Muhammad real brother of Liaquat Ali, deceased who was killed by one Muhammad Akram about seven years ago and said Muhammad Akram was awarded sentence of death. Murtaza, respondent, being a relative and friend of Muhammad Akram was putting pressure on Liaquat Ali, deceased for compromise but on his refusal, accused retaliated and opened firing at Liaquat Ali, deceased outside the tea stall of Shah Muhammad.
After registration of case on the statement of Ayaz Khan (PW-11) at police station Kamar Masani, Mianwali, the investigating officer proceeded to Mianwali Hospital and recorded statement of Liaquat Ali (deceased). The accused on completion of the investigation having been found involved in the murder of deceased was sent up to face the trial in the Court of Additional Sessions Judge, Mianwali. Dr. Muhib-ur-Rehman (PW-4) conducted the post mortem examination of the dead body and as per opinion expressed by him, the cause of death was the result of acute renal failure which was due to hemorrhage and shock caused by the injuries to the liver, stomach, spleen, and transverse colon. The injuries were caused with fire arm which were ante-mortem and sufficient to cause death in ordinary course of nature.
The accused in his statement under Section 342 Cr.P.C. denied the charge and pleaded not guilty. The trial Court, on the conclusion of trial having found the respondent guilty, convicted him under Section 302 (b) PPC and sentenced him to death. He was also directed to pay compensation amounting to Rs. 50,000/-under Section 544-A Cr.P.C. to the legal heirs of the deceased. In appeal, the sentence of death awarded to the respondent was reduced to life imprisonment by the High Court and complainant being aggrieved of the reduction of sentence of the accused, filed the present appeal before this Court in which leave was granted vide order dated 15.3.2002 to consider the question as to whether in the circumstances of the case, the High Court was justified to modify the sentence of Murtaza, Respondent No. 1 from death to imprisonment for life.
Learned counsel for the appellant has submitted that immediately after the occurrence, the injured was shifted to civil hospital which fact alone was sufficient to establish the presence of witnesses at the spot beyond doubt and the trial Court having appreciated the evidence in a befitting manner has rightly rejected the defence version being absurd. Learned counsel submitted that in absence of a strong mitigating circumstance the withholding of normal penalty of death on prove of the charge of murder provided under the law was not justified.
Learned counsel for the respondent-convict, on the other hand, opposed the present appeal with the contention that the motive set up by the prosecution was not proved whereas no other circumstance suggesting premeditated occurrence was brought on record and thus the facts leading to the fateful occurrence, would unambiguously show that something happened suddenly between the parties as a result of which retaliator took extreme step of firing at the deceased but none of the parties pleaded the immediate cause of sad incident. Learned counsel submitted that in any case, the respondent having completed full term of his sentence has already been released from jail, therefore, enhancement of sentence at this stage would be against the mandate of law and Constitution.
After hearing the learned counsel for the parties and perused the record with their assistance, we find that learned Judges in the High Court, have not committed any illegality in reducing the sentence of respondent from death to life imprisonment. The High Court having considered the circumstances leading to the occurrence modified the sentence with the consideration that motive set up by the prosecution was not proved and the immediate cause for the occurrence was also not unfolded. This is correct that motive is not always an essential element of murder and weakness or absence of motive by itself may not be a valid reason for lesser punishment but in the present case, the prosecution has not been able to bring on record the material facts relating to the manner of taking place the occurrence and the immediate cause of occurrence, therefore, apart from the motive, the mystery in the circumstances leading to the occurrence would create a sufficient mitigation in favour of the accused for lesser punishment.
In the light of foregoing reasons, the learned counsel for the appellant has not been able to point out any material on record to persuade us for interference in the impugned judgment. Consequently, the appeal stands dismissed and the judgment of the High Court is maintained.
(J.R.) Appeal dismissed.
PLJ 2008 SC 373
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan & Zia Pervez, JJ.
AMANAT ALI & 2 others--Appellants
versus
STATE--Respondent
Crl. A. No. 432 of 2005, decided on 13.2.2008.
(On appeal from the judgment dated 27.4.2005 passed by Lahore High Court, Rawalpindi Bench in Cr.A. 100/2003).
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Recovery of heroin--Conviction & sentence--Appreciation of evidence--Benefit of doubt--Vehicle was being run by accused as taxi was neither contradicted nor any evidence was brought on record to suggest that co-accused person being his associates in the crime, had the knowledge that heroin was kept in secret cavities of the vehicle--On the basis of benefit of doubt co-accused persons were acquitted from the charge. [P. 376] A
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c) & (b)--Recovery of heroin--Conviction and sentence--Appreciation of evidence--Accused being owner and driver of the vehicle in which 2« Kg heroin was recovered--Conviction was unexceptionable in the circumstances--However, as raiding party had sent very small quantity of heroin to the chemical examiner, instead of sending similar quantity from each 8 packets recovered--In such circumstances presumption would be that report would be read only to the extent of one packet of the approximate quantity of less than 1 kg, so the conviction u/S. 9(c) was bad under the law--Conviction was converted into that of S. 9(b) of the Act, 1997 and sentence was reduced from 10 year to the period already undergone by accused.
[Pp. 377 & 378] B, C & D
1997 SCMR 543 & PLD 2005 Kar. 128, ref.
Dr. Babar Awan, ASC for Appellants.
Mian Asif Mumtaz, DPG for State.
Date of hearing: 13.2.2008.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court has been directed against the judgment dated 27.4.2005, passed by a learned Division Bench of Lahore High Court, Rawalpindi Bench, whereby Criminal Appeal Bearing No. 100 of 2003, filed by the present appellants, against their conviction and sentence awarded to them under Section 9(c) of Control of Narcotic Substances Act, 1997, was dismissed.
The brief facts of the case in small compass are that a police party headed by Shakeel Ahmed, SI, while present at Excise Check Post, Mulla Mansoor, on receiving spy information that a Vehicle Bearing No. LOU-3233, Mehran Car, gray colour in which the appellants were carrying huge quantity of heroin was proceeding towards Punjab, started surveillance of the vehicle and at about 1.10 p.m., a car coming from Peshawar side being driven by Amanat Ali, appellant, while Muhammad Latif and Zafar Iqbal, appellants, were found sitting on the front and rear seat of the car, was stopped at the check-post and on search of the car, the raiding party recovered six small and two big packets of heroin weighing 2« kg kept in secret cavity made in the dashboard of the car. The raiding party having taken a small quantity from each packet prepared a sealed parcel of one gram of heroin, which was sent to chemical examiner for analysis whereas remaining heroin was taken into possession in a separate parcel as case property. The accused were taken into custody and on completion of formal investigation were challaned to face the trial before the special Court established under Control of Narcotic Substances Act, 1997.
The prosecution on denial of the charge by the appellant, examined five witnesses namely Hazer Khan, ASI (PW-1), Muhammad Nawaz No. 176-C, (PW-2), Anjum Naheed No. 348-C (PW-3), Raja Shakeel Ahmad, SI (PW-4) and Muhammad Nawaz (PW-2). The sealed parcels containing the heroin were kept in Malkhana in safe custody and subsequently, one sealed parcel was sent to the office of Chemical Examiner for expert opinion. Anjum Naheed (PW-3) and Raja Shakeel Ahmad, SI (PW-4) repeating the story of FIR, supported the prosecution version and also corroborated each other on each material point.
The accused in their statements under Section 342 Cr.P.C, denied the allegations but neither they appeared in the witness box in terms of Section 340(2) Cr.P.C nor have produced any evidence in their defence. The learned trial Judge on conclusion of trial, having found the appellants guilty of the charge, convicted them under Section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced them to RI for 10 years each with fine of Rs. 25,000/- each or in default thereof to undergo SI for six months each. The appellants were however, allowed the benefit of Section 382-B Cr.P.C.
The appeal filed by the appellants in the High Court against the conviction and sentence awarded to them by the trial Court was dismissed vide impugned judgment. Leave was granted in the present appeal vide order dated 10.11.2005 as under:--
Learned counsel for the petitioners contended that:--
(i) Shakil Ahmad; S.I., the complainant has investigated the case himself, thus he being interested in the prosecution should not have acted as Investigating Officer.
(ii) Out of 2« kilogram of heroin kept in eight packets, only one gram was sent for Chemical analysis.
(iii) All the three petitioners were said to be sitting inside the car, out of which the said heroin was recovered from its secret cavities. On search of the said car an open transfer letter was also secured, as such, none of them were the owners of the car, therefore, they had no exclusive knowledge about the presence of heroin.
In support of his contentions, he also placed reliance on the cases of Zahoor Ahmad Awan and another V. The State (1997 SCMR 543) and Taj Wali and 6 others V. The State (PLD 2005 Karachi 128).
Leave to appeal is granted, inter alia, to consider the above contentions for safe administration of criminal justice.
Learned counsel for the appellants has contended that the trial Court as well as the High Court have not properly appreciated the evidence and in consequence thereto a wrong conclusion qua the guilt of appellant was drawn. It is submitted that the defence plea that vehicle was owned by Amanat Ali which was being run by him as taxi and his co-accused, having hired the taxi were traveling in it as passenger duly supported by the prosecution evidence was proved on record beyond doubt, therefore, the case of Amanat Ali was distinguishable to that of his co-accused, who being stranger would have no knowledge of the heroin being kept by Amanat Ali in the secret cavities of the taxi car. He submitted that mere presence of a person as passenger in the taxi car is not as such an evidence of his participation in crime. The learned counsel placing reliance on the case of Zahoor Ahmed Awan and another Vs. The State (1997 SCMR 543) submitted that one gram of heroin out of 2« kg was too less a quantity to ascertain that all the eight packets contained heroin.
The prosecution case is that Amanat Ali, appellant, was driving the vehicle, the ownership of which was also claimed by him on the basis of open transfer letter in his possession. The fact that vehicle was being run by him as taxi, was neither contradicted nor any evidence was brought on record to suggest that co-accused of Amanat Ali being his associate in the crime had the knowledge of heroin being kept in the secret cavities of the vehicle. The careful examination of evidence would suggest that in the light of circumstances leading to the occurrence, the prosecution has not been able to prove the charge against Muhammad Latif and Zafar Iqbal beyond reasonable doubt. There was no evidence that they being companion of Amanat Ali in the crime have the conscious knowledge of heroin in the taxi car to treat them in joint possession of recovered heroin. In view of the doubt arising in the prosecution case to the extent of their participation in the crime, we while giving them the benefit of doubt acquit them from the charge and direct that if they are not required in any other case, they shall be forthwith released from jail.
The case of Amanat Ali, appellant, being driver and owner of vehicle, would stand on different footing as he being in the exclusive control of the vehicle in which heroin was kept in secret cavities, would be deemed to have been in the exclusive possession of the heroin recovered from the car, therefore, the charge against him stood proved beyond doubt. However, according to the prosecution only a small quantity of one gram of heroin was taken from all the eight packets in a separate sealed parcel for chemical examination, therefore, notwithstanding the fact that the report of the chemical examiner was positive, the crucial question for determination would be as to whether a quantity of one gram would be sufficient to ascertain the origin of the contents of all the eight packets. In the light of facts of the case apparently, the claim of the raiding party to have taken small quantity of heroin from each packet for chemical analysis appears to be misguiding rather the circumstances would show that one gram of heroin was taken from one packet and in that, report would be relevant only to that extent. Be that as it may, in the normal situation it was essential for the raiding party to prepare a separate parcel of at-least one gram from each packet for chemical analysis and same having been not done a serious doubt, would arise in respect of the origin of contents of all the packets. In consequence thereto, it would not be safe to bring the case within the ambit of Section 9 (c) of Control of Narcotic Substances Act, 1997, for the purpose of conviction and sentence rather a legitimate presumption would be that report of chemical examiner would be read only to the extent of one packet of the approximate quantity of less than one kg and in that the case would squarely fall within the ambit of Section 9(b) of Control of Narcotic Substances Act, 1997, therefore, the conviction of Amanat Ali, appellant under Section 9(c) of Control of Narcotic Substances Act, 1997 was bad in law. Learned counsel for the appellant has submitted that the appellant remained in jail throughout from the date of his arrest and has almost completed a period of about five years of his sentence, which may be considered sufficient sentence under Section 9(b) of CNS Act, 1997. In view of the position explained by the learned counsel for the appellant, we while converting the conviction of appellant under Section 9(c) of Control of Narcotic Substances Act, 1997, to Section 9(b) of the said Act reduced his sentence equal to the period already undergone by him with fine imposed upon him by the trial Court. The appellant shall be entitled to the benefit of Section 382-B Cr.P.C and shall be released from jail forthwith if not required in any other case. This appeal with the above modification in the conviction and sentence, stands party allowed.
(J.R.) Appeal partly allowed.
PLJ 2008 SC 378
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ; Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MUHAMMAD ISMAIL SHAHID & another--Appellants
versus
EXECUTIVE DISTRICT OFFICER (REVENUE), LAHORE and another--Respondents
C.As. No. 2140 and 2141 of 2006, decided on 12.2.2008.
(On appeal from the judgment dated 16.3.2006 passed by Punjab Service Tribunal, Lahore, in Appeal Nos. 2612 & 2656 of 2005).
Punjab Removal From Service (Special Powers) Ordinance, 2000 (VI of 2000)--
----S. 5(1)(a)--Constitution of Pakistan, 1973, Art. 212(3)--Appellant demanded illegal gratification through his Reader/co-appellant for attestation of mutation--Disciplinary proceedings were initiated and appellants were served with charge sheets--Replies having been found unsatisfactory and they were awarded penalty of reduction in ranks from post of Naib-Tehsildar to stenographer and from the post of Junior Clerk to Naib Qasib--Appeals were failed--Assailed--Validity--In absence of service of statements of allegations, required the proceedings were void and nullity in the eyes of law as appellants were not confronted--Evidence recorded prior to regular inquiry in the absence of appellants could not be treated as evidence of any value as right of cross-examining the witness has been denied to appellants, resulting in manifest injustice--Held: Inquiry was not conducted according to mandataory provisions of law so much so statements of allegations were not supplied to the appellants to meet the charge--Appeals were allowed. [P. 380] A
Sheikh Masood Akhtar, AOR for Appellants.
Raja Muhammad Saeed Akram, Assistant Advocate-General Punjab for Respondents.
Date of hearing: 12.2.2008.
Judgment
Ijaz-ul-Hassan, J.--The above captioned appeals, with the leave of this Court, filed by Muhammad Ismail Shahid and Muhammad Sharif, appellants, arise out of a common judgment dated 16.3.2006 passed by Punjab Service Tribunal, Lahore, dismissing service Appeal Nos. 2612 and 2656 of 2005 preferred by the appellants.
Relevant facts of the case are, that while posted as Naib Tehsildar Settlement, Cantt. Lahore, appellant Muhammad Ismail Shahid demanded illegal gratification through his Reader appellant Muhammad Sharif, from one Muhammad Hussain, complainant, for attestation of mutations of complainant's land. A complainant was made to District Co-ordination Officer, Lahore, in pursuance whereof disciplinary proceedings were initiated and appellants were served with charge sheets. The replies of the appellants, having been found unsatisfactory, they were awarded penalty of reduction in their ranks from the post of Naib Tehsildar to Stenographer and from the post of Junior Clerk to Naib Qasid, respectively. Appellants filed departmental appeals which did not succeed. Appeals of the appellants before the Tribunal also met the same fate necessitating the filing of instant appeals.
Leave was granted in both the cases by order dated 14-11-2006 to consider the contentions, inter-alia, that in the disciplinary proceedings carried out by the respondents the appellants were not given any opportunity to cross-examine the witnesses produced by the department and that adequate opportunity was also not afforded to the appellants to produce their evidence; that the statement of allegation was also not provided to them and that various contentions raised by the appellants were not attended to by the Tribunal.
Sheikh Masood Akhtar, Advocate representing the appellants, bitterly criticized the impugned judgment and attempted to argue that same has been recorded in a mechanical manner without application of independent judicious mind and in total disregard to the law on the point and that evidence recorded prior to the regular inquiry, in absence of the appellants, could not be treated as evidence of any worth, as a result whereof right of cross-examination has been denied to the appellants.
Raja M. Saeed Akram, learned Additional Advocate General, Punjab, representing the respondents, on the other hand, refuted the arguments of learned counsel for the appellants and supported the impugned judgment on the grounds more or less the same incorporated in the judgment itself.
Having heard the arguments from both sides in the light of the material on file, we find that submissions made by learned counsel for the appellants carry weight and must prevail. Learned Tribunal has erred in law and facts in dismissing the appeals of the appellants as in the absence of service of statements of allegations, required under Section 5(1)(a) of the Punjab Removal from Service (Special Powers) Ordinance, 2000, the proceedings were void and nullity in the eyes of law as appellants were not confronted with the same. Again the evidence recorded prior to the regular inquiry in the absence of appellants could not be treated as evidence of any value as right of cross-examining the witnesses has been denied to the appellants, resulting in manifest injustice. We also find that inquiry was not conducted according to the mandatory provisions of law so much so statements of allegations were not supplied to the appellants to meet the charges.
In view of the above, appeals are allowed, impugned judgment is set aside and appellants are directed to be reinstated to their positions with all back benefits. However, the department shall be at liberty to initiate fresh inquiry in the matter in accordance with law, if so advised. No order as to costs.
(J.R.) Appeal allowed.
PLJ 2008 SC 381
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J.; Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
M/s. SARHAD BEVERAGES (PVT.) LTD.--Petitioner
versus
SARHAD DEVELOPMENT AUTHORITY through Chairman and another--Respondents
C.P.L.A. No. 603 of 2007, decided on 29.1.2008.
(On appeal from the judgment dated 16.4.2007 in C.R. No. 255 of 2007 passed by the Peshawar High Court, Peshawar).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Plot was allotted to the petitioner and despite lapse of 28 years construction was not raised--Petitioner was reminded to do the needful but he turned a deaf ear--After cancellation of allotment another chance was given to petitioner company but that too, was not availed--Held: High Court while taking notice of all these facts has held that cancellation was justified and that the suit filed by the petitioner was rightly dismissed by civil Court--Reasons weighed with High Court in revision fully conforms to the requirement of law and does not call for interference by Supreme Court in exercise of Constitutional jurisdiction--Leave refused. [Pp. 383 & 384] A & B
Malik Muhammad Nawaz, ASC and Mr. Mehr Khan Malik, AOR for Petitioner.
Mr. Muhammadullah Khan, ASC and Mr. M. Ameen Manager (Industrial Estate), for Respondents.
Date of hearing: 29.1.2008.
Order
Ch. Ejaz Yousaf, J--This petition for leave to appeal is directed against judgment dated 16.4.2007 passed by a learned Single Bench of the Peshawar High Court, Peshawar, whereby civil revision filed by the petitioner against the judgment and decree dated 12.12.2006 passed by learned Additional District Judge, Peshawar, was dismissed.
Briefly stating the facts of the case as gathered from the record are that a plot measuring 3.50 acres in Industrial Estate Jamrud Road, Peshawar, was provisionally allotted to the petitioner company in the year 1983 but an area of 2.5 acres was cancelled on 21.2.1999 on the ground that the petitioner company had failed to raise construction and to establish factory over the said plot in violation of the allotment order. Cancellation was assailed by way of civil suit which was decreed on 5.12.1992 in favour of the petitioner by way of compromise, whereby the petitioner had undertaken to start construction of the industry within a period of one year. Record reveals that since construction was not raised up till 1996, therefore a fresh notice dated 15.4.1996 was issued on the ground that the petitioner had failed to deposit the outstanding dues. A part of the said amount was though deposited, yet construction was again not raised and thus allotment was ultimately cancelled on 27.8.1996. Cancellation was challenged in a suit instituted on 11.10.1999 but the same was dismissed against which appeal was filed which too did not bear fruit. Ultimately the Peshawar High Court was approached through civil revision which too was dismissed, hence this petition.
Learned counsel for the petitioner has strenuously urged that though in the allotment letter dated 21.11.1983, the petitioner was required to raise construction on the said plot within the stipulated period yet since in the lease deed dated 18.3.1986, there was no such clog, therefore all the Courts below have gravely erred in holding that action taken by the respondent was justified in the circumstances. It is further his case that subsequent to cancellation order dated 21.2.1999 the petitioner had undertaken to raise construction subject to the condition that loan is sanctioned in his favour by any financial institution and since needful was not done therefore, construction could not be raised.
Learned counsel for the respondents while vehemently controverting the contentions raised by learned counsel for the petitioner submitted that since clause 4 of the allotment order whereby the petitioner was required to raise construction on the plot in question within the stipulated period was flagrantly violated therefore, department was within its right to cancel the allotment. He pointed out that possession of the plot was never handed over to the petitioner and after cancellation it was bifurcated into three and now it has been allotted to three different industries, including, M/s. Jan Carpets and M/s. Sangeen Marbels, to whom one acre each has been given and they have raised construction thereon.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have perused record of the case minutely, with their assistance.
Record reveals that the plot in question was allotted to the petitioner in the year 1983 and despite lapse of about 28 years construction was not raised thereon. Time and again the petitioner was asked to do the needful but he turned a deaf ear. After cancellation of allotment on 21.2.1989 another chance was given to the petitioner company but that too, was not availed, therefore per force it was again cancelled. The learned Judge in the High Court while taking notice of all these facts has held that cancellation was justified and that suit filed by the petitioner was rightly dismissed by the Civil Court and upheld by the learned Additional Sessions Judge. Observations made in paras 4 & 5 of the impugned judgment are reproduced herein below for ready reference:--
"4. As stated herein before, the plot was allotted about a quarter of century ago for the establishment of an industry. The plaintiff-petitioner has failed to raise construction thereupon or to establish an industry. The earlier cancellation was withdrawn by extending the gesture of promoting industry and in the said compromise on behalf of respondent authority it has been mentioned that they had no objection to the restoration of the allotment if the plaintiffs "bonafidely intend to establish the industry viz beaurages on the plot allotted to them within one year". Thus the defendants/respondents had extended extra ordinary favour and concession to the plaintiff/petitioner to display their bona fide and to establish the factory as intended by them but they failed to do so and therefore defendant-respondents had no option but to cancel the plot.
6-A. Upshot of the above discussion is that the reasons weighed with the learned Single Judge of the Peshawar High Court in the above cited revision fully conforms to the requirement of law and does not call for interference by this Court in exercise of its constitutional jurisdiction. The petition being misconceived is hereby dismissed and leave refused.
( ) ??????
PLJ 2008 SC 385
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq & Muhammad Farrukh Mahmud, JJ.
ALLAH BACHAYA and another--Appellants
versus
STATE--Respondent
Crl. A. No. 313 of 2001, decided on 11.03.2008.
(On appeal from the judgment dated 17-12-1998 of the Lahore High Court, Multan Bench, Multan passed in Criminal Appeal No. 81 of 1991).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 34--Constitution of Pakistan, 1973, Art. 185--Conviction and sentence--Accused were convicted for life imprisonment--Appreciation of evidence--Medical evidence was not corroborated with the prosecution evidence except the cause of death--Recovery and motive not believable--Conviction and sentence recorded by Courts below were set aside and the appellants were acquitted.
[P. 388] A
Criminal Trial--
----Principle--Benefit to accused--Right not as concession--It is cardinal principle of criminal jurisprudence that any genuine doubt arising out of the circumstance of the case should be extended to the accused as of right and not as concession. [P. 389] C
FIR--
----FIRs which are not recorded at the police stations suffer from the inherent doubt that those were recorded at the spot after due deliberations. [P. 389] B
Mr. Muhammad Zaman Bhatti, ASC for Appellants.
Mr. M. Siddique Khan Baloch, DPG for State.
Date of hearing: 11.3.2008.
Order
Muhammad Farrukh Mahmud, J.--Allah Bachaya son of Ahmed Bakhsh appellant and Ramzan son of Allah Wasaya faced trial in case FIR No. 235 registered at Police Station Duniyapur on 30.8.1988 at 7.40 p.m. for offence under Section 302/34 PPC for causing the murder of Shah Muhammad son of Allah Wasaya. Vide judgment dated 5.3.1991, the learned trial Court convicted both the accused for offence under Section 302/34 PPC and sentenced them to undergo imprisonment for life, both the convicts were directed to pay fine of Rs. 10,000/- each and in default of payment whereof they were to suffer two years R.I. each. The convicts were also directed to pay compensation of Rs. 10,000/- each under Section 544-A Cr.P.C. which on realization was to be paid to the legal heirs of the deceased and in default of payment the convicts were to suffer six months S.I. each. Both the convicts challenged their conviction and sentence by filing appeals which were dismissed by the learned Judge in Chamber of Lahore High Court, Multan Bench, Multan on 17.12.1998. Thereafter both the convicts challenged their conviction and sentence through Jail Petition No. 237 of 1999. Vide order dated 23.8.2001, leave was granted in the following term:--
"5. As per para 15 of the judgment of trial Court, the deceased was two acres ahead of the complainant party when he was attacked. It is alleged that before attack the petitioners raised lalkara and avowed to take revenge of death of said Muhammad Iqbal. According to prosecution, after lalkara the deceased left his bicycle and started running, although he had better opportunity to escape from there on bicycle. Two eye-witnesses claimed that they witnessed the entire incident and also heard words uttered by the petitioners, inspite of being about two acres away from the deceased at the time of occurrence.
Hence the above captioned appeal.
During the pendency of jail petition Ramzan co-convict was released from jail on the basis of compromise recorded by the learned Sessions Judge Lodhran on 26.1.2000, so we are left with Allah Bachaya appellant.
While on his way to the police station Shah Muhammad complainant PW3 met Anwar Hussain SI PW1 while the latter was present at Adda Chak No. 307/W.B. in lieu of patrol duty. PW10 recorded the statement of Shah Muhammad Ex.PD and sent the same for registration of formal FIR to the police station through Akhtar Mahmood constable.
The relevant facts as given in Ex.PD are that Allah Bachaya appellant belonged to brotherhood of the complainant. His son Muhammad Iqbal died after suffering prolonged illness two months prior to the occurrence. Allah Bachaya suspected that Shah Muhammad deceased was behind the death of his son Muhammad Iqbal who lost his life due to amulets caused by Shah Muhammad deceased. Shah Muhammad deceased, who was married with sister of complainant, many a time explained that he was innocent and wanted to explain his position to Allah Bachaya. On the fateful day at about noon time complainant, Shah Muhammad deceased, Sardar Muhammad son of deceased and Khadim Hussain PW4 proceeded to the house of Allah Bachaya situated in Chak No. 279/W.B. to explain their position. Allah Bachaya was not present in his house. On their return, the deceased and the PWs stayed in the house of one Allah Bakhsh s/o Easa (not produced) and thereafter started towards their houses on foot. At about 6 p.m. they reached near High School Jhandeer. Shah Muhammad deceased was going two acres ahead of the PWs. Meanwhile Allah Bachaya appellant and Muhammad Ramzan (since acquitted) while armed with soota emerged from the school. They were raising lalkara, Shah Muhammad left his cycle and ran towards brick-kiln. Both the accused over-took the deceased and caused injuries to him with their sticks. The deceased lost his life on the spot. The accused made good their escape from the spot and could not be apprehended by the PWs as the accused threatened them with dire consequences.
In order to prove its case, prosecution produced ten witnesses. Shah Muhammad brother-in-law of the deceased PW3 and Khadim Hussain PW4 nephew of the deceased furnished the ocular account. They also stated about the motive. Their statements are in line with the story given in the FIR and need not be repeated. Dr. Altaf Ahmed Khan appeared as PW5 and stated that he conducted postmortem of the deceased on 31.8.1988 i.e. next day. He observed ten injuries on the person of the deceased which were caused by blunt weapon. In his opinion Injuries No. 1 and 2, which were on the head of the deceased, caused the death. According to him, the deceased lost his life immediately after receipt of injuries and the time elapsed between death and postmortem was about 15 to 20 hours. During cross examination he stated that he received dead body on 31.8.1988 at 9:15 a.m. He further stated that the deceased might have taken food 3/4 hours prior to his death. PW2 Allah Ditta nephew of the deceased stated about the arrest of Allah Bachaya and recovery of soota P4. Anwar Hussain SI PW10 stated about the investigation of the case. The rest of the witnesses are formal in nature. The prosecution closed its case after placing on record the report of chemical examiner Ex.PK and that of Serologist report Ex.PL. After the closure of the prosecution case, statement of Allah Bachaya was recorded under Section 342 Cr.P.C. who claimed to be innocent. However, neither he appeared as a witness of his defence under Section 340 (2) Cr.P.C. nor he adduced any defence evidence.
The learned counsel for the appellant has submitted that it was an un-witnesses occurrence and that both the eye witnesses were closely related to the deceased. They were chance witnesses and inimical towards the appellant and that their statements were not corroborated by any reliable evidence.
Conversely, the learned Deputy Prosecutor General Punjab has submitted that the accused were known to the PWs and that PWs had come out with a plausible explanation for their presence at the time of occurrence and that the ocular account was supported by the medical evidence and that failure to establish the motive would not effect the prosecution case.
We have heard the learned counsel for the parties and have also scanned the entire record of the case. The occurrence took place in front of Fazal High School near Jhandeer Wah. Neither the PWs nor the deceased lived nearby. Allegedly they were present there while they were going back to their houses. It may be mentioned here that the complainant lived at a distance of 7/8 miles from the place of occurrence while Sardar PW, Shah Muhammad deceased and Khadim Hussain PW lived at a distance of six miles. The complainant also admitted that his house was at a distance of three miles from the house of deceased. The sole explanation of the deceased and PWs being together was that they had assembled to go to the house of Allah Bachaya appellant in order to clarify the matter that Iqbal son of appellant did not lose his life due to amulets/taveez dhagha caused by Shah Muhammad deceased. During trial, the complainant and PW4 both admitted that Shah Muhammad deceased did not deal in any taveez dhagha and was a Zamindar. That cuts at the root of the prosecution case as in that case there was no occasion for Allah Bachaya appellant to suspect that Shah Muhammad deceased was behind the death of his son. No reason was mentioned in the FIR as to why the day of occurrence was selected for giving clarification to the appellant at his house. During trial the witnesses tried to improve their statements by mentioning that a Panchayat was to be convened. Neither any member of Panchayat was named/mentioned nor produced. It is also not in evidence that any member of Panchayat was available at the house of Allah Bachaya while he himself was absent. It is also not mentioned that any time of arrival was conveyed either to Allah Bachaya or any member of the Panchayat. According to PW4 they reached the house of Allah Bachaya at 3 p.m. and thereafter they went to the house of Allah Bakhsh on foot and reached there at 4 p.m. The whole party stayed in the house of Allah Bakhsh for about two hours. It is significant to note that Allah Bakhsh, who was not produced during trial, was not present in the house yet the deceased and the PWs spent two hours in his house. The deceased and the PWs left the house of Allah Bakhsh at about 6 p.m. and according to FIR they started towards their house on foot. It was not mentioned at all in the FIR as to why Shah Muhammad deceased was going two acres ahead of the rest of the party. Normally he would remain with the PWs. During trial the PWs made dishonest improvements in order to justify the going ahead of the deceased. It was rightly observed by this Court in the leave granting order that in ordinary circumstances sensing danger, the deceased would have preferred to escape by speeding up the bicycle rather than leaving it. It is also note worthy that the deceased and the PWs were four in number. All the PWs were closely related to the deceased. One of the PWs Sardar Muhammad was son of the deceased. The accused who were two in number were not armed with any fire arm weapon or hatchet. They were carrying the ordinary dhangs. In that case if the witnesses would have been present they would have certainly tried to save the lives of their near and dear one specially Sardar Muhammad, if present, being son of the deceased must have intervened. It was observed by this Court in the case of Arif Hussain and another versus the State (1983 SCMR 428) as follows:
"It does not appeal to reason that father and brother (of deceased) who reached the spot on the alarm of the deceased Ibrar Hussain would come out of their house without arming themselves properly, or on the spot they would not make any attempt to save the life of one of their dear ones. They could have atleast picked up stones from the spot and hit the appellants who were admittedly not armed with fire-arms".
In the instant case, the FIR was not recorded at the police station. It has been held time and again that FIRs which are not recorded at the police stations suffer from the inherent doubt that those were recorded at the spot after due deliberations.
As far as medical evidence is concerned, it supports the prosecution case only to the extent that the deceased lost his life due to injuries caused by blunt weapon and not beyond. According to doctor the deceased might have taken his last meal 3/4 hours prior to his death. On the contrary, the PWs insisted that they did not take any food during their unnecessary stay in the house of Allah Bakhsh. The motive and recovery has been disbelieved by the learned Courts for valid reasons and we need not discuss it.
For all what has been stated above, we are of the considered opinion that presence of the PWs at the time of occurrence was not free from doubt. It is cardinal principle of criminal jurisprudence that any genuine doubt arising out of the circumstances of the case should be extended to the accused as of right and not as concession. Hence, we below. The appellant is acquitted of all the charges and would be released forthwith if not required in any other criminal case.
(W.I.) Appeal accepted.
PLJ 2008 SC 390
[Appellate Jurisdiction]
Present: Saiyed Saeed Ashhad, Mian Hamid Farooq & Muhammad Farrukh Mahmud, JJ.
MUHAMMAD ASIF--Appellant
versus
STATE--Respondent
Crl. A. No. 162 of 2005, decided on 2-4-2008.
(On appeal from the judgment dated 06-02-2002 of the Lahore High Court, Lahore passed in Criminal Appeal No 54-J of 1997 and Murder Reference No. 305 of 1997.)
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) & 109--Constitution of Pakistan, 1973, Art. 185--Conviction and sentence to death recorded by trial Court and affirmed by High Court--Challenge to--Appreciation of evidence--No independence witness to prove the motive--Presence of star witness at the spot is no satisfactory--Statement was not corroborated by any inspiring evidence--Statement of other witnesses is also neither trustworthy nor confidence inspiring--Conviction and sentence recorded by Courts below were set aside and the appellant was acquitted. [P. 395] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 103--Recovery of pistol--Non-association of independent witness--Non--sending of weapon to expert for examination--Effect--Held: Evidence of recovery of pistol is of no consequence and cannot be used against the appellant. [P. 395] B
Administration of Justice--
----It is settled law that suspicion however strong it may be, cannot take the shape of proof. [P. 395] C
Mr. Arshad Ali Ch., ASC for Appellant.
Mr. M Siddique Khan Baloch, DPG for State.
Date of hearing: 21.2.2008.
Order
Muhammad Farrukh Mahmud, J.--Muhammad Asif appellant, aged, 18/19 years was booked in case FIR No. 86 dated 27.3.1996 (Ex-PA/1) under Section 302/109 PPC of Police Station City Jhang at the instance of Javed Iqbal Zafar (PW.7) whose statement (Ex-PA) was recorded by Abid Ghani, SI/SHO (PW.10) at 11.30 a.m. at Bab-e-Umar where PW.7 met him while he was going to the Police Station.
The appellant was convicted by the learned trial Court for offence under Section 302(b) PPC and sentenced to death vide judgment dated 13.11.1997, which on appeal (Cr.A.54-J/1997) was affirmed by the learned Division Bench of the Lahore High Court, Lahore answering the Murder Reference (M.R. No. 305/1997) in the affirmative vide impugned judgment dated 6.2.2002.
Against which the appellant preferred Jail Petition for Leave to Appeal No. 51 of 2005 which was granted on 17.6.2005, hence the captioned appeal. The leave granting order was as under:--
"leave to appeal is granted, inter alia, to re-evaluate evidence produced by the prosecution in the interest of justice."
Briefly, according to prosecution story Javed Iqbal Zafar, first informant PW.7 was an employee of Insurance Company while his brother Mazhar Hussain deceased used to ply Riksha. At about 9.30 a.m. on 27.3.1996 PW.7 was sitting in his office alongwith his cousin Ghulam Yasin (not produced). Safdar Ali (not produced) and Muhammad Bakhsh PW.8 reached there and informed him that a short while ago they were sitting at a tea stall near Ayub Chowk where Muhammad Shafi son of Labu Khan and Asif-appellant were also present and were talking with each other in low tones. Muhammad Shafi instigated Asif-appellant that he should murder Mazhar Hussain and take revenge of his insult as two days earlier an altercation took place between Mazhar Hussain-deceased and Muhammad Shafi and Asif. Thereafter complainant and other PWs left on motorcycle to inform Mazhar Hussain. They reached Ayub Chowk and were informed by a Riksha driver that Mazhar Hussain had taken a passenger in his Riksha towards Basti Gogaywali. The PW proceeded towards the Basti and spotted the Riksha on a Kacha Road. Riksha stopped at a short distance ahead of Bhatta of Malik Abdullah. Mazhar Hussain deceased and Asif-appellant alighted from the Riksha. Within the view of PWs, Asif fired twice with his pistol which hit on the left side of the face of Mazhar Hussain who fell down. The PWs tried to apprehend Asif who made good his escape while firing in the air. Mazhar Hussan was put on a cot but he lost his life before he could be taken to the hospital.
The motive behind the occurrence was that two days earlier to the occurrence, an altercation took place between Muhammad Shafi and Asif-accused and Mazhar Hussain deceased as the deceased refused to carry a lady passenger. Though the matter was patched-up between the parties but the accused kept the grudge in their heart. The prosecution produced Javed Iqbal PW.7 and Muhammad Bakhsh PW.8 in support of its story. Javed Iqbal PW.7 also stated about the motive. Their statements before the Court are in accordance with the story given in the FIR and need not be re-produced.
Dr. Atiq Ahmad appeared as PW.9 and stated that on 27.36.1996 at 4.50 p.m. he conducted postmortem examination on the dead body of Mazhar Hussain deceased. He found following injuries on the person of the deceased:--
"1. A fire arm wound of entrance with inverted margin 1.3 cm x 1.3 cm on left cheek, 1.5 cm lateral to left angle of mouth.
On examination of scalp, skull and vertebrae, there was fracture of left side of mandible.
There was fracture of left upper two teach (molar and pre molar)
There was fracture of hyoid bone.
On examination of embrances it was found intact and healthy spinal card was not opened.
On examination of thorax perforation at the right wall side of the pharynx. A metallic body (de shaped bullet was removed, sealed and handed over to police form right side of the neck. Ear was empty, left facial artery was perforated right external carotid was perforated other/visceras were intact and healthy."
In his opinion it was caused by haemorrhage and shock and Injuries No. 1 and 2 both were anti-mortem and caused by fire-arm. Injuries 1 and 2 were sufficient to cause the death in ordinary course of nature.
He further opined that the deceased lost his life within a few minutes of receipt of injuries while the postmortem was conducted within 6 or 7 hours after the death. During cross-examination he stated that he started postmortem examination immediately after the receipt of dead body. He also explained that the tattooing was possible from a distance of less than one yard.
Abid Ghani, S.I. PW.10 stated that Javed Iqbal complainant met him on the fateful day at 11.30 a.m. when he and other police officials were present at Bab-e-Umar Jhang city in lieu of patrol duty. After recording statement of Javed Iqbal, PW.10 proceeded to the spot and conducted the initial investigation. He also sent the dead body to the hospital for postmortem examination. He secured blood-stained earth from the spot and also took into possession the Riksha P-6 from the spot. On 20.5.1996, he arrested the appellant and recovered pistol P4 and 3 live cartridges from his possession vide memo Ex-PE. During cross-examination, he conceded that Ayub Chowk was big chowk from where different roads started for different cities and that traffic police remained present during the daytime. He further stated that the aabadi was at some distance from the place of occurrence, on questioning he explained that there were different houses at distance of half or one furlong from the place of occurrence and Basti Gogaywala was at the distance of about one and a half or two furlongs from the place of occurrence.
After completion of prosecution case, statement of Asif appellant was recorded under Section 342 Cr.P.C. He denied all the allegations leveled against him and claimed to be innocent: The appellant did not appear as a witness in his defence under Section 340(2) Cr.P.C. and also did not produce any defence evidence.
The learned counsel appearing on behalf of the appellant has submitted that PWs were chance witnesses and were not present at the time of occurrence, that it was an un-witnessed occurrence and the complainant came to know about the murder of his brother after 4 p.m. and thereafter the story was cooked-up, that the statements of chance witnesses were not corroborated by reliable independent evidence while on the other side it has been argued that it was a day light occurrence, the appellant was known to the PWs and that the PWs had no personal enmity against the appellant and that the statements of PWs were corroborated by the evidence of recovery of pistol and medical evidence.
Arguments have been heard and record has been perused.
Un-deniably, the occurrence took place near Basti Gogaywala which was quite at a distance from the office of the complainant. Ordinarily, there was no occasion for him to be present at the scene of occurrence. The sole reason for his proceeding to the scene of occurrence was the information furnished to him by Muhammad Bakhsh PW. 8 and Safdar Ali. Out of the two Safdar Ali was not produced. Muhammad Bakhsh admitted during cross-examination that he earned his living as carpenter and mason and usually left for his job at 8.00 a.m. but per chance he did not leave for his job on the fateful day and met Safdar Ali at Ayub Chowk. It was also a chance that he and Sardar went to the hotel where Shafi accused, who was not tried, and appellant were sitting and talking about the murder. In one breath, Muhammad Bakhsh stated that Shafi was not known to him and in the second breath, he stated that Shafi was known to him as a famous person of Jhang city previously. He admitted that there was a Chowk in front of the hotel where the police was normally present, he could not find out any reason as to why he did not inform the police about the conspiracy. It may be mentioned here that Shafi accused was never sent up to face trial and no complaint was filed against him, so the story of abetment falls on the ground. PW.7 stated before the Court that after receiving the information from Sardar Shah and Muhammad Bakhsh, he and other PWs went to Ayub Chowk and inquired about Mazhar deceased. One Riksha driver, who was not named, informed the PWs that the deceased had taken a passenger in his Riksha and proceeded towards Gogaywali Basti. It is not in the evidence that the Riksha driver had informed the PWs the name of the passenger hence there was no occasion to sense any danger and follow the Riksha. The statement of Zafar Iqbal was recorded at Bab-e-Umar at about 11.30 a.m. by Abid Ghani SHO who was per chance present there. The matter was not reported at the police station which according to FIR and inquest report, was at a distance of one and a half kilometer from the place of occurrence. PWs were on motorcycles and the matter could be reported to the police within five minutes yet there is a delay of about two hours which has not been explained. Similarly PW.7 stated during cross-examination that the police reached the spot at twelve noon and about half an hour was consumed in conducting inquest proceedings and thereafter the dead body was sent to the hospital. He further stated that he accompanied the dead body which was taken in a wagon to the hospital and that it took only 15 or 20 minutes in reaching the hospital. In that case the dead body would have been received at the hospital by 1.00 p.m. On the contrary, the Doctor, who is an independent witness, stated that he immediately started postmortem examination after the receipt of body and the time of postmortem given by him was 4.50 p.m. that means that the body remained at the spot for quite some time. The FIRs which are not recorded at the police station suffer from the inherent presumption that the same were recorded after due deliberations. The above noted circumstances reveal that the PWs failed to explain their presence near the place of occurrence in a satisfactory manner. It is also noteworthy that the appellant could easily take the life of deceased without getting him and the deceased out of the Riksha. The Statements of PW.7 and PW.8 are neither trustworthy nor confidence inspiring. It was observed by this Court in the case of ZAFAR HAYAT VS. THE STATE (1995 SCMR 896) as follows:--
"We have observed that PW.8 is a chance witness and the explanation offered by him is not at all convincing. PW.7 as discussed above could not be believed without any strong corroborated evidence."
As far as medical evidence is concerned, it supports the prosecution case to the extent that the deceased lost his life due to fire-arm injuries but not beyond.
Coming to motive, no independent witness was produced in whose presence the altercation had taken place between Shafi and appellant at one side and Mazhar Hussain deceased on the other side. Further more Shafi was never sent-up to face trial and no complaint was filed against him. It appears that motive was created after the occurrence.
A 30 bore pistol and 3 live cartridges were shown to have been recovered from the possession of the accused at the time of his arrest on 20.5.1996 but the evidence of recovery of pistol is of no consequence and cannot be used against the appellant for following reasons:--
No empty was recovered from the spot.
That the recovered pistol was never sent to any expert to ascertain whether it was in working order or not.
The recovery of pistol was shown to have been effected on 20.5.1996 after about seven weeks of the occurrence and not immediately after.
That the recovery memo reveals that the same was signed by two sub-ordinate police officers and no independent witness was associated.
The upshot of whole discussion is that it was highly doubtful that PW.7 and PW.8 were present at the time of occurrence. They failed to explain their presence in a satisfactory manner. Their statements are not corroborated by any confidence inspiring independent evidence. It appears that the appellant was roped in the case due to suspicion, however, it is settled law that the suspicions however strong it may be, cannot take the shape of proof.
The learned Courts failed to appreciate the above noted circumstances of the case. For all what has been said above, we are inclined to allow this appeal. The conviction and sentences recorded by the learned Courts below are set aside. The appellant is acquitted of all the charges and would be released forthwith if not required in any other criminal case.
(W.I.) Appeal accepted.
PLJ 2008 SC 396
[Appellate Jurisdiction]
Present: M. Javed Buttar, Mian Hamid Farooq & Sheikh Hakim Ali, JJ.
MUHAMMAD SAEED and 4 others--Appellants
versus
HAQ NAWAZ KHURRAM and 3 others--Respondents
Crl. A. Nos. 459 & 460 of 2002, decided on 4.3.2008.
(On appeal from the judgment dated 10-11-2001 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeals No. 300-T and 306 of 1999).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence to death recorded by trial Court--Appreciation of evidence--Medical evidence and the recoveries of the crime empties and the weapon of offence to connect the appellants with the commission of offence--Prosecution proved his case beyond shadow of doubt--Held: Judgment rendered by High Court did not suffer from any legal infirmity and it is perfectly justified and sustainable in law in view of evidence on record and law on the subject--Appeals dismissed. [Pp. 404 & 405] A & C
Motive--
----Lack of motive or inability of prosecution to prove it--Effect--Lack of motive or inability of prosecution to prove motive does not effect the imposition of normal penalty of death if the prosecution has been able to prove his case. [P. 405] B
Sardar Muhammad Ishaque Khan, Sr. ASC for Appellant (in Crl. A. No. 459 of 2002).
Mr. Shabbir Hussain Lali, Additional Prosecutor General Punjab for State (in both appeals).
Mian Aftab Farrukh, Sr. ASC with Raja Abdul Ghafoor, AOR for Appellants (in Crl. A. 460 of 2002).
Mr. Shabbir Hussain Lali, Additional Prosecutor General Punjab for State (in Crl. A. 460 of 2002)..
Date of hearing: 4.3.2008.
Judgment
Mian Hamid Farooq, J.--This single judgment shall decide both the appeals (Cr.A. 459/2002 out of Cr.P. 23/2002 and Cr. A. 460/2002 out of Cr.P. 36/2002), as identical questions of law are involved in both the appeals and they have arisen out of the single judgment.
Both the afore-noted appeals, by leave of the Court, proceed against the single judgment dated 11.10.2001, whereby, a learned Division Bench of the Lahore High Court, Lahore maintained the conviction and sentence of death awarded to Liaqat Ali and Shaukat Ali; death sentences of Haq Nawaz Khurram and Nadeem Ali were altered to life imprisonment; compensation awarded to the legal heirs was also maintained and the criminal appeal challenging the acquittal of Rehmat Ali was dismissed.
Facts of the case and necessary details, relevant thereto, comprehensively capitulated in the leave granting order dated 6.11.2002, are reproduced below:--
"2. The petitioners namely Liaqat Ali, Shaukat Ali, Haq Nawaz Khurram and Nadeem Ali in Criminal Petition Bearing No. 36 of 2002 were tried by learned Special Judge, Suppression of Terrorist Activities, Islamabad, under Sections 302, 148 and 149 PPC for committing the murder of Atif Mehboob and Rahim Dad and on conclusion whereof they all were convicted under Section 302(b) PPC and sentenced to death on two counts with direction to pay compensation in tune of Rs. 50,000/- each on each count under Section 544-A Cr.P.C. to the legal heirs of the deceased and in case of default to suffer SI for six months each on each count by means of judgment dated 14.12.1999. Co-accused namely Rehmat Ali son of Muhammad Jan was acquitted. Being aggrieved the above named petitioners preferred a joint Criminal Appeal Bearing No. 300-D/1999 assailing their conviction and sentence awarded by the learned Special Judge, Suppression of Terrorist Activities, Islamabad. Muhammad Saeed (complainant) also filed Criminal Appeal No. 306-T of 1999 under Section 417(2) Cr.P.C. against the acquittal of Rehmat Ali. The learned Division Bench vide judgment impugned maintained the conviction and sentence of death awarded to Liaqat Ali and Shaukat Ali whereas the death sentence awarded to Haq Nawaz Khurram and Nadeem Ali was altered to that of life imprisonment. The compensation awarded to the legal heirs of deceased was maintained. The criminal appeal challenging the acquittal of Rehmat Ali was dismissed.
Precisely stated the facts of the case, as contained in the FIR are that "Muhammad Saeed complainant resident of village Hamak in company of his brother Atif Mehboob shortly before the occurrence proceeded in Suzuki Bearing No. RIU 345 towards Swan Camp and while they were on their way, Rahim Dad friend of Atif joined them and when reached at Swan road, the complainant alighted from the Suzuki to go to his land whereas Atif and Raheem Dad went to the nearby service station for service of the vehicle. However after a short while the complainant also came to the service station on foot and when at about 4 p.m. he reached near Kariana shop, suddenly Liaqat, Shaukat and Haq Nawaz Khurram sons of Muhammad Jan and Nadeem Ali son of Inam Ali resident of village Hamak and armed with .30 bore pistol, appeared at the service station. Rehmat raised lalkara to learn the lesson to Atif for raising constructions and simultaneously Liaqat fired which hit Atif on right shoulder. The second shot fired by Liaqat hit on the back of Atif. Raheem Dad when interfered for the help of Atif, Khurram fired 3/4 successive shots with pistol at Raheem Dad as a result of which he sustained injuries on right hand arm and similarly Shaukat fired 3/4 successive shorts at Rahim Dad which hit on different parts of his body. Meanwhile, Liaqat and Shaukat fired from close range at Raheem Dad and Atif who succumbed to the injuries at the spot. The occurrence was witnesses by Ghazanfar Hussain and Ch. Ijaz Ahmad who were also present with their vehicle at the service station. The motive behind the occurrence was that the complainant having owned land on the GT road started construction and the accused claiming their possession of the land demanded the complainant party not to raise the construction". The petitioners were apprehended and sent up for trial, on conclusion whereof they were convicted and sentenced as per details mentioned hereinabove, hence this petition".
This Court on 6.11.2002 after hearing the learned counsel of both sides and recording their respective contentions granted leave to appeal to consider their contentions and to reappraise the entire evidence on record. Relevant portion of leave granting order reads as follow:--
"4. Mian Aftab Farrukh, learned Sr. ASC on behalf of petitioners while arguing the Criminal Petition for leave to Appeal Bearing No. 36 of 2002, inter alia, contended as follows :--
(i) The entire evidence has not been examined vigilantly and in its true perspective which resulted in serious miscarriage of justice.
(ii) The FIR was got lodged with delay for which no plausible justification could be furnished and, therefore, the possibility of deliberation, dishonest exaggeration and consultation cannot be ruled out but the learned Division Bench has failed to examine the factum of delay, benefit whereof should have been given to the petitioners.
(iii) Petitioner namely Haq Nawaz Khurram being not adult could not have been convicted and sentenced under Section 302 PPC whose case squarely falls within the ambit of provisions as contained in Section 308 PPC.
(iv) The learned Division Bench has erred while relying entirely on the statements of interested witnesses and ignoring the defence version completely which was to be kept in juxtaposition.
(v) In view of the conclusion of learned Division Bench that it was not a premeditated murder the sentence of death could not have been awarded which aspect of the matter escaped notice causing serious prejudice.
(vi) The plea of grave and sudden provocation should have been considered in the prevalent circumstances in view of the failure of the prosecution to prove the alleged motive.
(vii) Mian Aftab Faruukh, learned Sr. ASC has placed reliance on the following authorities:--
-- Ashiq v. The State (1993 SCMR 417).
-- Allah Wadhayo v. The State (2001 SCMR 25).
(a) The death sentence could not have been altered to that of life imprisonment in the absence of mitigating circumstances.
(b) The death sentence could not have been altered to that of life imprisonment as it was not a case of individual liability but vicarious liability which has been proved beyond the shadow doubt.
(c) The learned Division Bench has ignored the manner in which the occurrence had taken place as all the accused came from distant places duly armed with fire-arms and killed the deceased persons in merciless and brutal manner and in view of the prevalent circumstances of the case the question of individual liability does not arise.
(d) Rehmat Ali (co-accused) had played an active role and not only facilitate the commission of offence but also abetted which aspect of the matter escaped notice resulting his acquittal which is not justified as prosecution has established his case by producing cogent and concrete evidence.
(e) Sardar Muhammad Ishaq Khan, learned Sr. ASC has relied the following authorities:--
-- Shaheb Ali v. State (PLD 1970 SC 447).
-- Sarfraz v. State (2000 SCMR 1758).
-- Nawaz Ali v. State (2001 SCMR 726).
We have carefully examined the contentions as agitated on behalf of the complainant in the light of relevant provisions of law and record of the case. The entire evidence has been scanned with the eminent assistance of learned counsel. The above mentioned contentions need consideration which cannot be made without reappraisal of the entire evidence. We are, therefore, inclined to grant leave in Criminal Petition for leave to appeal Bearing No. 36 of 2002 and in Criminal petition for leave to appeal Bearing No. 23 of 2002 which are converted into appeal and to be fixed for hearing at some early date.
It is, however, to be noted at this juncture that the findings arrived at by the learned trial and appellate Courts regarding Rehmat Ali (co-accused) being well based and in accordance with settle norms of justice hardly calls for any interference and leave to appeal is refused upto his extent in Criminal Petition for leave to appeal Bearing No. 23 of 2002".
Mian Aftab Farrukh, learned Sr. ASC for the appellant (in Criminal Appeal No. 460 of 2002) has raised the following contentions:--
(i) Defence plea raised by Liaqat Ali was his first version and urged at the earliest opportunity as is evident from the statements of PW-4 (Ghulam Muhammad Baqir) and
PW-16 (Raja Muhammad Saeed) and supported by the notables of the locality.
(ii) Motive projected by the prosecution viz there was a dispute over a piece of land situated at G.T. Road between the complainant party, who started construction thereupon, and the accused, who forcefully wanted to occupy the same, was disbelieved by the High Court.
(iii) Learned High Court after disbelieving the defence version has erred in law while overlooking that the prosecution failed to prove the case against the appellant beyond any shadow of doubt.
(iv) Learned High Court has erred in law by not accepting the defence version in favour of the accused.
(v) Learned High Court has neither accepted the prosecution version nor rejected the defence version and did not appreciate that the very sight of the deceased at the place of accused in the above background would fall within the meaning of `grave and sudden provocation', therefore, nature of offence and the sentence should have been altered.
(vi) As regards the other appellants, learned counsel states that their sentences may be ordered to run concurrently.
(vii) Learned counsel has relied upon Ashiq Hussain v. The State (1993 SCMR 417), Ansar Ahmad Khan Barki v. The State and another (1993 SCMR 1660) and Muhammad Khan v. Muhammad Bashir (2003 SCMR 427).
Sardar Muhammad Ishaq, learned Sr. ASC for the appellant (in Criminal Appeal No. 459 of 2002) submits that defence plea of Liaqat Ali is not believable, provocation has not been proved through evidence on record and no report regarding teasing of his daughters was ever lodged. His further plea is that admittedly complainant side was not armed and, therefore, the plea of Liaqat Ali proved false. He has further submitted that fourteen empties were recovered from the spot, which were sent to Forensic Science Laboratory and according to its report three empties matched with the pistol of Haq Nawaz Khurram, three empties matched with the pistol of Nadeem Ali and four empties matched with the pistol of Liaqat Ali, while remaining four empties did not match with any of the arms of the accused as no pistol could be recovered from Shaukat Ali. His next contention is that FIR was promptly lodged, roles were specifically attributed to all the accused and they were named in the FIR. He has relied upon the cases of Shaheb Ali v. The State (PLD 1970 SC 447) and Nawaz Ali and another v. The State (2001 SCMR 726). He has further submitted that entire occurrence from the beginning to end is clear, nothing is shrouded in mystery and lack or disproving of motive is not a mitigating circumstance. He has relied upon Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others (2005 SCMR 427).
We have heard the learned counsel for the parties and examined the available record. Firstly, coming to the defence plea of Liaqat Ali recorded under Section 342 Cr.P.C. The answer to Question No. 13, in which Liaqat Ali pleaded dis defence, reads as follow:--
"Q.13. Why this case against you and why the PWs have deposed against you?
Ans: Note:--The accused wants to make the statement on oath of Holy Quran and he is holding a copy of Holy Quraan in his hand and has recited Kalma Tayyiba.
Order: The statement of the accused is being recorded under Section 342 Cr.P.C. and it is not the requirement of law that the accused should make the statement on the oath of Holy Quraan. This practice has been discouraged by the Superior Courts on many occasions. The accused is at liberty to make the statement which ever he likes.
Both Atif and Raheem Dad deceased persons of this case used to tease my daughters Saima and Saiqa. Prior to the occurrence on one occasion both the deceased persons had scaled over the wall of my house and I had put a barrier in the start of the street outside my house. On the day of occurrence both the deceased persons came together at my service station and both the deceased persons exhorted that they had come to tease me "Langra" a lesson for putting the barrier. I was having my licensed pistol with me. I fired at both Atif and Rahim Dad and they fell down. I reloaded the magazine of my pistol and fired one shot each on their temporal region. I then left for my home. No other accused was with me and I was alone at the time of occurrence".
Admittedly, the defence did not produce any witness in support of defence version of Liaqat Ali as noted above. It is true that PW-16 (Raja Muhammad Saleem) in his cross-examination has stated that" it is correct that Liaqat Ali accused made a statement before the first I.O. that he alone killed both the deceased as they used to tease his daughter" but it is equally true that his defence plea stands falsified on number of grounds; firstly, the sustaining of injuries by the deceased in the occurrence with the fire-arms is admitted and supported by medical evidence; secondly, although it has been stated by Liaqat Ali in his statement that prior to the occurrence both the deceased persons scaled over the wall of his house and he put a barrier in the start of the street outside his house, yet admittedly the alleged incident was neither reported to the police nor to any other agency and the defence did not lead any evidence to prove the said incident; thirdly, fourteen empties were recovered from the place of occurrence, out of which ten empties matched with the pistols recovered from Liaqat Ali, Haq Nawaz Khurram and Nadeem Ali, however, rest of the four empties could not be matched with any of the pistols as no pistol was recovered from Shaukat Ali; fourthly, recovery of pistols from Liaqat Ali, Haq Nawaz Khurram and Nadeem Ali, was established from direct evidence; fifthly, according to the version of Liaqat Ali, on the day of occurrence both the deceased persons came together at the service station and exhorted that they had come to teach a lesson for putting the barrier, however, even according to his stance the deceased were not armed with any weapon and they were empty handed, had there been any grudge and intention of attacking Liaqat Ali, they would have equipped with deadly weapons; sixthly, the recovery and matching of empties with three pistols recovered from Liaqat Ali, Haq Nawaz Khurram and Nadeem Ali, does not coincide with the later part of statement of Liaqat Ali, who stated that he singly fired at both Atif and Raheem Dad, they fell down, he reloaded the gun and fired one shot each on their temporal region; seventhly, the number and dimensions of injuries are different which tend to show that they were fired by more than one persons and with different weapons and not with the pistol of Liaqat Ali and lastly the report of Forensic Science Laboratory is in positive. Although the learned High Court has disbelieved the motive for the occurrence lodged by the prosecution i.e. the dispute of land and also defence version as projected by Liaqat Ali in his statement under Section 342 Cr.P.C. yet we feel that the findings of the learned High Court that the accused party because of grudge against the deceased on any of the two motives attacked Atif and Raheem Dad in presence of eye-witnesses namely, (Ch. Muhammad Saeed) PW-11 and (Ejaz Ahmed) PW-12 are apt to the circumstances of the case and supported by evidence on record. It appears appropriate to reproduce relevant portion of the judgment, which reads as follow:
"The perusal of defence version would show that Liaqat Ali appellant because of the conduct of the deceased having developed hatered against them was revengeful and decided to teach lesson to the deceased and in consequence thereto Liaqat Ali was the help of his co-accused with preparation attacked on the deceased at service station. The admission of Liaqat Ali through the defence version which as such is not permissible would confess the story of FIR and provide corroboration to the prosecution case. We therefore having scrutinized the evidence have found the view that prosecution as well as defence has not brought on record the true facts relating to the motive behind the occurrence and the immediate cause of the fateful incident. It appears that the accused party because of the grudge against the deceased either for their objectionable conduct or in connection with the dispute of land attacked on Atif deceased and Rahim Dad on intervention also sustained injury. The eye-witnesses namely Ch. Muhammad Saeed and Ijaz Ahmad although are related to the deceased but their presence at the service station on the G.T. road which is public place was neither objectionable nor they would be the chance witnesses".
Now adverting to the question as to whether the prosecution has been able to prove the case against the appellants. The prosecution produced sixteen witnesses including two eye-witnesses. During investigation the pistols were recovered at the pointation of Liaqat Ali from his house in the presence of witnesses, Safdar Hussain (PW-13) recovered .30 bore pistol from Kacha path in the area of Mohra Kalu at the instance of accused, which was taken into possession and similarly Nadeem Ali got recovered .30 bore pistol which was also taken into possession. Dr. Muhammad Arshad appeared as PW-10 and produced post-mortem reports of Atif and Raheem Dad giving the description of external and internal injuries. In his opinion the injuries were due to fire-arm, ante-mortem and are sufficient to cause death in ordinary course of nature. X-Rays were also taken during postmortem. Fourteen empties were recovered from the spot out of which, according to the report of Forensic Science Laboratory ten matched with the three pistols recovered from three accused. The eye-witnesses are reliable, their presence at the service station is not objectionable and they have sufficiently explained the purpose of their presence at the service station. They have supported the prosecution story and despite cross-examination their veracity could not be impeached. The learned High Court has rightly held that "there was ample evidence in the form of ocular account, the medical evidence and the recoveries of the crime empties and the weapon of offence to connect the appellants with the commission of offence". Thus, in view of the evidence on record, thoroughly examined by us with the able assistance of both the learned counsel, and overhauled by learned High Court we have no doubt in our mind that the prosecution has been able to prove his case beyond any shadow of doubt against the appellants.
Now reverting to the plea of the learned counsel regarding absence/disproving of motive. Suffice it to say that lack of motive or inability of prosecution to prove motive does not effect the imposition of normal penalty of death if the prosecution otherwise has been able to prove his case against the accused. Reference in this behalf can be made to Nawaz Ali and another (ibid). The view of this Court in the judgments reported as Ashfaq Ahmad v. The State (2007 SCMR 641), Federal Government Ministry of Defence v. Sepoy Liaqat Ali (2004 SCMR 1676), and Syed Hamid Mukhtar Shah (ibid) is that lenient view should not be taken merely on the ground that the motive had not been proved by the prosecution. In another recent judgment reported as Mst. Nazakat v. Hazrat Jamal and another (PLD 2007 SC 453), this Court has held that "motive shrouded in mystery" by itself is not a mitigating circumstance for awarding lesser sentence and this theory has been discarded. In the same context the cases of Mukhtar Ahmad and others v. The State (PLD 2004 SC 563), and Khurrm Malik and others v. The State and others (PLD 2006 SC 354) can be referred. In view of the enormous case law on the subject, the contention of the learned counsel is ill-founded.
Now coming to the case of Haq Nawaz Khurram and Nadeem Ali, about whom the complainant, through the connected appeal (Cr. A. 459/2002), has prayed for enhancement of their sentences. The learned High Court has rightly distinguished the cases of Haq Nawaz Khurram and Nadeem on the ground that the injuries attributed to them were not fatal individually and further they most probably being the son and nephew of Liaqat Ali acted at his instance and under his influence. We are not persuaded to take a contrary view than of the High Court. We feel that under the circumstances and in view of the findings of the learned High Court the sentences of Haq Nawaz Khurram and Nadeem Ali were rightly reduced from death sentences to life imprisonment. There is no legal ground to enhance their sentences, however, we are inclined to hold that the sentences awarded to them shall run concurrently.
In the above perspective, we are of the firm view that the judgment rendered by the learned High Court does not suffer from any legal infirmity and it is perfectly justified and sustainable in law in view of evidence on record and law on the subject. Thus the impugned judgment is maintained subject to modification that the sentences awarded to Haq Nawaz Khurram and Nadeem Ali shall run concurrently.
For the foregoing reasons, both the appeals are devoid of merits and stand dismissed subject to the modification as noted above.
(W.I.B) Appeals dismissed.
PLJ 2008 SC 406
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir & Syed Sakhi Hussain Bukhari, JJ.
FAROOQ KHAN--Appellant
versus
STATE--Respondent
Crl. A. No. 414 of 2007, decided on 20.2.2008.
(On appeal from the judgment of the Lahore High Court, Lahore dated 18.4.2006 passed in Crl. A. No. 537 of 2000 and M.R. No. 287 of 2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction & sentence of death--Appeal was dismissed by High Court--Challenge to--Appreciation of evidence--Broad day-light occurrence--Accused was specifically named in FIR, who had caused injuries to the person of deceased with churri--Presence of injured PWs at place of occurrence was intrinsic and could not be doubted as it was unchallenged--Recovery of blood-stained earth, report of chemical examiner & report of Serologist further proved the prosecution story--PWs had passed the test of lengthy cross-examination but no material discrepancies--Conviction & sentence maintained--Appeal was dismissed. [Pp. 408, 409 & 410] A, B, F & G
Criminal Trial--
----Solitary statement of interested witness--Conviction and sentence recorded against accused--Appreciation of evidence--Conviction in any murder case can be based on the testimony of a single witness if the Court is satisfied that the witness is reliable--Held: The emphasis is on the quality of evidence and not on its quantity.
[P. 409] C
1969 SCMR 76; 1971 SCMR 530 & 2001 SCMR 199 ref.
Criminal Trial--
----Solitary statement--Conviction and sentence recorded against accused--Held: Conviction can be awarded on the basis of solitary statement of a witness being worthy of credence dependable and consistent. [P. 409] D
Interested Witness--
----An interested witness is one who has motive, falsely implicates an accused or has previous enmity with the person involved--Statement of any interested witness can be taken into consideration for corroboration and mere relationship with the deceased is not sufficient to discredit the witness, particularly when there is no motive to falsely involve the accused. [P. 409] E
1969 SCMR 76; 1971 SCMR 530; 1971 SCMR 659 & 2001 SCMR 199, ref.
Mr. Javed Aziz Sindhu, ASC for Appellant.
Mian M. Asif Mumtaz, DPG for State.
Date of hearing: 20.2.2008.
Judgment
Muhammad Akhtar Shabbir, J.--This criminal appeal, by leave of the Court, is directed against the judgment dated 18.04.2006 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby criminal appeal filed by the appellant against his conviction and sentence of death awarded to him (for committing the murder of Zahir Khan deceased) by the learned Additional Sessions Judge, Lahore, vide judgment dated 20.04.2000, was dismissed. Hence, the appellant preferred Jail Petition No. 246 of 2006 before this Court out of which the instant appeal has arisen.
Briefly stated the facts of the case, as narrated by complainant Namoos Khan (PW-8) in the FIR (Ex.PH/1), are to the effect that on 19.02.1995 at 8.00 a.m., on account of an altercation between the complainant and Raza Khan accused 2/3 days ago, Aman Ullah Khan, Abdullah Khan, Raza Khan, Zahir Ullah Khan alias Zia Ullah Khan (all armed with iron rods) and Faroon Khan @ Muhammad Farooq (appellant) armed with a Churri came to the "Touri Tall" of the complainant where he was filling bags of touri (chaff) along with his brother Zahir Khan (deceased) and Taj Muhammad. Raza Khan accused caught hold of Zahir Khan deceased while Faroon Khan alias Muhammad Farooq caused injury with his "Churri" on his person hitting him on the left side of his chest. The accused also caused injuries on the person of Taj Muhammad and the complainant Namoos Khan. Zahir Khan deceased succumbed to the injuries while on the way to hospital.
The prosecution to establish its case against the appellant produced as many as 10 witnesses including the doctor and the investigating officer. The ocular account of the occurrence was furnished by complainant Namoos Khan (PW.8). The medical evidence was furnished by Dr. Muhammad Maqsood (PW-6) who conducted the postmortem examination on the dead body of the deceased. PW-9 Ghulam Rasool, Inspector/SHO was the investigating officer. The appellant when examined under Section 342 Cr.P.C. denied the prosecution story, pleaded not guilty and deposed as under:
"The only witness PW-8 had a minor quarrel with my cousin Raza Khan six months before the occurrence, this is why that he has falsely implicated him and I being cousin of Raza Khan was involved in this case. I along with others were nominated in the above case on the asking of the police to nominate some one although the case was of unseen occurrence during the night by some unknown persons."
The learned trial Court having found the case against the appellant proved beyond reasonable doubt, convicted him under Section 302(b) PPC and sentenced him to death. He was also directed to pay a sum of Rs. 100,000/- as compensation under Section 544-A Cr.P.C. to the legal heirs of the deceased, in default whereof to undergo five years S.I. The co-accused of the appellant were, however, acquitted of the charge.
Learned counsel for the appellant vehemently argued that the conviction of the appellant is based upon the solitary statement of PW-8 who is an interested witness, and no other ocular account was furnished by the prosecution to support the solitary statement of PW-8. He further contended that Muslim Khan nominated eye-witness who appeared as PW-5 has not responded in positive for the prosecution. Taj Muhammad another injured witness (also real brother of the deceased and the complainant) did not appear to support the prosecution case neither any independent witness of recovery of weapon of offence has been produced.
While on the other hand, Mian Asif Mumtaz, DPG, learned counsel for the respondent/State, vehemently opposed the arguments of the learned counsel for the appellant and supported the impugned judgment.
We have heard learned counsel for the parties and have perused the available record with their assistance. There is no denying the fact that it was a broad day-light occurrence. The deceased, Zahir Khan alongwith his real brothers Taj Muhammad and Namoos Khan (complainant) was present at the "Touri Tall" filling bags of chaff where at 8.00 a.m. the petitioner armed with churri alongwith his accompanied co-accused nominated in FIR (all armed with iron bars) came there and caused injuries on the person of Zahir Khan deceased, Taj Muhammad PW and the complainant. Farooq Khan, appellant injured the deceased with churri hitting him on the left side of his chest. The presence of the injured PWs at the place of occurrence is intrinsic and could not be doubted because it was unchallenged. Statement of PW-8 is consistent, straight forward and trustworthy with no cogent reason in evidence to disbelieve the same.
The defence has also not doubted or challenged the injuries sustained by the injured PW in cross-examination. The injuries sustained by PW-8 have been duly supported by medical evidence furnished by PW-10 Dr. Humayun Khan who ruled out that the injuries on person of Namoos Khan PW-8 were self inflicting injuries.
As to the argument of learned counsel for the appellant that the solitary statement of injured PW-8 was the basis of conviction, suffice it, to observe that the injured prosecution witness had given the number of injuries caused to the deceased in the incident by attributing the responsibility to the appellant. Evidence of ¦this witness has been supported by medical evidence furnished by Dr. Muhammad Maqsood PW-6 who conducted postmortem examination on the dead body of the deceased Zahir Khan. The evidence of injured witness is worthy of credence, independent and natural and there was no lawful justifiable cause to discard his evidence. The credence of statement of solitary witness has already been examined by this Court in a number of cases. In this context reference can be made to Mali versus The State (1969 SCMR 76), Muhammad Ashraf versus The State (1971 SCMR 530), Muhammad Siddique @ Ashraf @ Achhi and 3 others versus The State (1971 SCMR 659) and Muhammad Mansha versus The State (2001 SCMR 199). Moreover, conviction in any murder case can be based on the testimony of a single witness, if the Court is satisfied that the witness is reliable. In other words, the "emphasis" is on quality of evidence, and not on its quantity. In this behalf reliance can be placed on the case of Allah Bakhsh versus Shammi (PLD 1980 SC 225).
Having minutely examined the dictum as laid down in the above referred cases, the consensus of this Court seems to be that conviction can be awarded on the basis of solitary statement of witness being worthy of credence, dependable and consistent.
PW-8 complainant is real brother of the deceased who is a natural witness but not an interested witness. An interested witness is one who has motive, falsely implicates an accused or has previous enmity with the person involved. There is a rule that the statement of any interested witness can be taken into consideration for corroboration and mere relationship with the deceased is not "sufficient" to discredit the witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of interested witness are set out in Nazir versus The State (PLD 1962 SC 269) and Shehruddin versus Allahi Rakhio (1989 SCMR 1461). Further the ocular account of PW-8 Namoos Khan finds support from the deposition of Dr. Muhammad Maqsood PW-6 who conducted the postmortem examination of the deceased which is in line with the statement of PW-8.
The recovery of blood-stained earth secured through Memo (Exh:PM.), report of Chemical Examiner and report of Serologist (Exh.PQ) further prove the prosecution story. No inference can be drawn in favour of the appellant on account of the statement made by Muslim Khan, PW-5 who merely stated that he had no knowledge of the occurrence.
The prosecution witness has passed the test of lengthy cross examination by the defence but no material discrepancies have been credited by the defence counsel in favour of the appellant. The prosecution has been successful in establishing the guilt of the accused- appellant by producing ocular account, medical evidence, blood stained earth and report of chemical examiner. The learned counsel for the appellant has failed to point out any legal infirmity in the impugned judgment calling for interference by this Court.
For the foregoing reasons, this appeal being devoid of any merit is dismissed.
(J.R.) Appeal dismissed.
PLJ 2008 SC 410
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ; Ijaz-ul-Hassan & Muhammad Mossa K. Leghari, JJ.
Pir MAZHARUL HAQ--Appellant
versus
STATE--Respondent
Crl. A. No. 255 of 1998, decided on 10.12.2007.
(On appeal from the judgment and order of the High Court of Sindh, Karachi, dated 8.10.1998 passed in Ehtesab Reference No. 6 of 1997).
Ehtesab Act, 1997 (IX of 1997)--
----S. 4--Conviction & sentence--Appreciation of evidence--Nothing on record to show that accused obtained any material and pecuniary gain by the allotment in-question or that he acted with the intention to achieve wrongful gain for himself or with purpose of causing loss to the National exchequer--Nothing on record to show that any of the PWs had implicated the accused--Co-accused in whose favour the plot was allotted, had been acquitted by trial Court--No loss was caused to the exchequer as the allotment order had been surrendered by other co-accused--Conviction & sentence was not maintainable.
[Pp. 413 & 414] A & B
PLD 2005 SC 63; PLD 2003 SC 46; 2005 SCMR 648; 2004 SCMR 1178 & 1969 SCMR 457, ref.
Raja Muhammad Ibrahim Satti, ASC with Mr. Mehr Khan Malik, AOR for Appellant.
Ch. Naseer Ahmad, ASC with Mr. M. Asghar Rana, A.D.P.G. (NAB) for Respondent.
Sardar Muhammad Ghazi, Dy. A.G. on Court notice.
Date of hearing: 10.12.2007.
Judgment
Muhammad Moosa K. Leghari, J.--This statutory appeal is directed against the judgment dated 05.11.1998 passed by Sindh High Court Ehtesab Bench in Ehtesab Reference No. 6 of 1997, whereby the appellant was convicted under Section 4 of the Ehtesab Act, 1997 to under go R.I. for two years plus fine of Rs. 10,00000/- (Rupees Ten Lacs). In case of default in payment of fine the appellant was to suffer R.I. for six months more.
Briefly stated the facts forming the background of the case are that while holding the public office as Minister for Housing and Town Planning, Sindh, the appellant recorded minutes on a summary moved on the application of co-accused Tariq Qazi with regard to allotment of a Plot Bearing No. ST-4, Sector 15-A4, Buffer Zone, North Karachi Township, reserved for petrol pump. On the basis of an enquiry conducted by Enquiries and Anti-corruption Establishment Government of Sindh a reference dated on 20th January, 1997 was submitted by Chief Ehtesab Commissioner in the High Court of Sindh, whereupon proceedings were initiated against the appellant alongwith co-accused Syed Abdullah Shah and Tariq Qazi. Ultimately co-accused Syed Abdullah Shah was declared proclaimed offender and the case/proceedings against him were kept dormant, while the appellant and co-accused Tariq Qazi were charged for the offences punishable under Sections 3 & 4 of the Ehtesab Ordinance. Both the co-accused pleaded not guilty and claimed to be tried.
During trial, prosecution examined four witnesses viz: Masood Haider, Project Director, Ahmed Hussain, Ex-Director General, Karachi Development Authority, Rafique Ahmed, Director Karachi Development Authority and I.D.Magsi, the Investigation Officer. The appellant and co-accused Tariq Qazi recorded their statements under Section 342 Cr.P.C. in which they denied the allegations to be false and motivated.
On conclusion of the trial co-accused Tariq Qazi was acquitted whereas the appellant was convicted in the terms as stated above.
It was contended on behalf of the appellant that the reference against the appellant was motivated by malice. The appellant had no role in the allotment of the plot to co-accused. The element of mens rea on the part of the appellant was missing, and that the co-accused in whose favour the plot was allotted was acquitted by the trial Court. In any case neither any loss was caused to the State exchequer, nor the appellant did obtain any material gain from the said allotment. It was vehemently argued that the trial Court awarded the sentence to the appellant in a cursory manner ignoring all the settled principles of dispensation of Criminal Justice. It was contended that the judgment of the Ehtesab Bench of High Court was perverse and capricious being against evidence produced on the record as the prosecution has failed to prove the charges. As such the conviction was unsustainable in law. In support of above submissions learned counsel placed reliance on a number of citations, which include Pir Mazharul Haq and others. Vs. The State through Chief Ehtesab Commissioner, Islamabad (PLD 2005 Supreme Court 63), Mir Munawar Ali Talpur. Vs. State through Chief Ehtesab Commissioner, Islamabad and 2 others (PLD 2003 Supreme Court 46), Ramesh M. Udeshi. Vs. The State (2005 SCMR 648) and Shafi Muhammad Sehwani and another. Vs. The State (2004 SCMR 1178).
Conversely it was argued by learned Deputy Attorney General that the appellant failed in his duty to protect the interest of the Government. That the plot was allotted by co-accused Syed Abdullah Shah to co-accused Tariq Qazi at throw away price and in relaxation of ban imposed by the Government on the recommendation of the appellant which caused huge national loss as such the appellant was rightly convicted by the trial Court. It was strenuously argued that the decision of the trial Court was based upon appreciation of evidence and was not vitiated in any manner as such there was no reason for Supreme Court to interfere in the matter. Reliance was placed on Malik Mughal Khan Noor vs. The State (1969 SCMR 457).
We have considered the arguments advanced before us, examined the impugned judgment and with the assistance of learned counsel for the parties scanned the evidence produced by the prosecution.
It will be observed that Co-Accused No. 3, Tariq Qazi, moved an application to co-accused Syed Abdullah Shah, the then Chief Minister for allotment of a plot. On the said application the summary was floated by the Department concerned to the Chief Minister through proper channel. The appellant being the Minister for Housing and Town Planning said summary had to be routed through the appellant. The appellant made the following noting on the said summary:--
"The Chief Minister may like to relax the ban as due to ban people are facing hardship and relaxation the rule".
The Chief Minister on the said summary passed the following orders:--
"Please transfer the plot at the reserve price of Rs.300/- per square yard, in relaxation of ban on allotment".
Consequent upon above noted approval of the Chief Minister, the Housing, Town Planning and Environment Department vide letter dated 11.7.1994 directed Director General, Karachi Development Authority to allot the plot in question to Co-Accused No. 3 at the reserve price of Rs. 300/- per square yard, consequently a challan of Rs. 2,70,000/- was submitted and allotment order dated 22.8.1994 was issued. It will be noted that what the appellant observed in his note was to the extent that the Chief Minister may like to relax the ban as it was causing hardship to the people. The above noting was in general terms and not specifically meant for the plot in question. It was the Chief Minister who allotted the plot and also fixed the price of the land, which was in fact the reserve price. Nothing has been brought on record by the prosecution to show that the appellant obtained any material and pecuniary gain by the allotment in question. There is absolutely no evidence to disclose that the appellant acted with the intention to achieve wrongful gain for himself or with the purpose of causing loss to the national exchequer. On scrutiny of the evidence produced on the record nothing has surfaced to reveal that any of the prosecution witnesses has implicated the present appellant. The perusal of the impugned judgment reveals that co-accused Tariq Qazi in whose favour the plot was allotted was acquitted by the trial Court. The judgment of trial Court with regard to acquittal of co-accused Tariq Qazi attained finality, as the same was not challenged in appeal as confirmed by learned Deputy Attorney General. It is evidently obvious from the record that the allotment order of the plot was surrendered by Co-Accused No. 3 and thus it would be apparent that no loss was caused to the exchequer. The appellant was acquitted by this Court in a reference arising in a similar circumstance. The case is reported as Pir Mazharul Haq and others. Vs. The State through Chief Ehtesab Commissioner, Islamabad (PLD 2005 Supreme Court 63). The judgment of this Court in the case of Mir Munawar Ali Talpur. Vs. State through Chief Ehtesab Commissioner, Islamabad and 2 others (PLD 2003 Supreme Court 46) relied upon by the appellants counsel is fully applicable to the facts and circumstances of the instant case. In the case of Ramesh M. Udeshi. Vs. The State (2005 SCMR 648), it was observed that the conviction cannot be based on surmises and conjectures and that the Ehtesab Bench of the High Court failed to appreciate that no conclusive evidence had been produced to show any material gain or advantage obtained by the appellant. It was further observed that there is no evidence of illegal gratification and pecuniary benefit by the appellant. In the case of Shafi Muhammad Sehwani and another. Vs. The State (2004 SCMR 1178) the appellant was acquitted observing that the element of mens rea was missing in the said case.
Reverting to the case of Malik Mughal Khan Noor. (Supra) relied upon by learned Deputy Attorney General it must be observed that there is no cavil with the proposition that where a decision is based on proper appreciation of evidence and is not vitiated in any manner, no interference is warranted by the Supreme Court. However, it will be seen that in the case in hand, it was quite clear that the trial Court passed the judgment without properly appreciating the evidence available on record and proceeded to award the sentence on the basis of conjectural and hypothetical reasons. It was quite unfortunate to note that though the trial Court observed that it is correct that Accused No. 2/Appellant has not recommended any price on which the land was to be sold, yet he was held guilty as he recommended the relaxation of ban because the people were facing hardship, grossly ignoring the fact that a provision under Section 15 of the Ordinance, 1980 itself was made for relaxation of rules, coupled with the circumstance that there was no evidence at all to the effect, that such recommendation was tainted with malice or that the reason of hardship was concocted and/or beyond the scope of statute itself. The haste and shallowness displayed on the part of the trial Court, could well be noticed from the fact, that though the appellant, at the relevant time was holding the office of Minister Housing and Town Planning yet in the charge, he was indicted and mentioned as Minister Law and Parliamentary Affairs. In such situation it became inevitably unavoidable to interfere as no conviction of any sort was warranted in the circumstances of the case.
As a result of above discussion, we have arrived at a definite conclusion that the conviction awarded to the appellant is not sustainable and the judgment must be set-aside. We accordingly allow this appeal and set-aside the impugned judgment. The appellant is on bail, his bail bond shall stand discharged.
These are the detailed reasons for short order dated 10.12.2007.
(J.R.) Appeal accepted.
PLJ 2008 SC 414
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi; Muhammad Qaim Jan Khan & Muhammad Moosa K. Leghari, JJ.
ARSHAD MAHMOOD--Appellant
versus
STATE--Respondent
Crl. A. No. 313 of 2006, decided on 31.1.2008.
(On appeal from the judgment dated 11.5.2005 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi, in Cr. A. No. 482/2002).
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----Ss. 25, 20 & 21--Criminal Procedure Code, (V of 1898), Ss. 98 & 103--Constitution of Pakistan 1973, Art. 14--Raid without search warrants--Whether violative of Constitution--Held: The police or such other agencies do not enjoy unlimited powers to make search of the house of a person and disturb his privacy and dignity in violation of the Constitution--Member of concerned agencies, without satisfying the requirement of law cannot enter into residential premises without search warrant. [Pp. 421 & 422] A
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----Ss. 9(c) & 25--Recovery of charas--Conviction and sentence--Appreciation of evidence--Association of Magistrate alongwith raiding party--Validity--Raiding party despite having prior information did not bother to obtain search warrant from a competent Court and conducted raid at the house of appellant without showing any justification--Though Magistrate was in association with the raiding party yet his presence was not sufficient to bypass mandatory provision of law and the Constitution--No evidence on record that house was in exclusive possession of accused--The bag containing charas was found lying in the courtyard of house and his wife/co-accused who had been arrested at the spot, was subsequently acquitted from the charge--Conviction & sentence set aside.
[P. 422 & 423] B, C, D & E
Ch. Muhammad Akram, ASC for Appellant.
Mian Asif Mumtaz, D.P.G. for State.
Date of hearing: 31.1.2008.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court, has been filed against the judgment dated 11.05.2005, passed by a learned Division Bench of the Lahore High Court, Rawalpindi Bench, whereby a criminal appeal filed by the appellant against the conviction and sentence awarded to him under Section 9(c) of the Control of Narcotic Substances Act, 1997, by the learned trial Court vide judgment dated 24.07.2002, was dismissed.
The prosecution case as narrated in the FIR is that on 16.7.2000 at about 9.40 a.m., Muhammad Iqbal, SI (PW-8), alongwith Manzoor Nasir Magistrate, Yasin Farooq, ASP, Arshad Ali, ASI, Abdur Razzaq, LHC and other Police Constables, while present at Chirah Chowk, Islamabad, having received spy information that Arshad Mahmood and his wife, Mst. Sabiha resident of Dhoke Kasota, were keeping charas in their possession raided at their house. Arshad Mahmood on arrival of police party ran away from the spot and was subsequently declared proclaimed offender whereas Mst. Sabiha his wife while present in the courtyard of the house was arrested. The raiding party also took into possession a black colour bag lying on the ground by the side of Mst. Sabiha which contained twenty one packets and each packet was found to have contained 1050 grams of charas. The raiding party having separated 100 grams of charas from each packet, prepared 21 sealed parcels to be sent to the chemical examiner for examination whereas the remaining charas was sealed into separate parcels as case property. The investigating officer having prepared a complaint at the spot, sent it to the police station on the basis of which a case was registered against the accused under Section 9(c) of the Control of Narcotic Substances Act, 1997, and challan was accordingly submitted against them to face the trial before the Special Court established under the ibid Act.
The prosecution in support of the charge against the accused, examined 9 witnesses at the trial and accused in their statements under Section 342 Cr.P.C. denying the recovery of charas from their possession pleaded false implication. The learned trial Court on the conclusion of the trial, having formed the opinion that the appellant was guilty of the charge convicted and sentenced him to suffer imprisonment for life with a fine of Rs. 2,00,000/- and in default whereof to undergo SI for six months whereas Mst. Sabiha his co-accused was acquitted. On dismissal of appeal filed by the appellant in the High Court against the conviction and sentence awarded to him by the trial Court he has filed the present appeal before this Court.
Leave in this appeal was granted vide order dated 09.05.2006, to consider the following questions:--
(i) Whether the evidence which has come on record has been appreciated in accordance with settled norms of justice and the principles enunciated by this Court qua safe administration of justice in criminal cases?
(ii) What would be the import and impact of the statement of Mr. Manzoor Hussain Nasir (Magistrate) who remained associated with the raid and whose statement was got recorded by the police with an inordinate delay of one and a half month?
(iii) Whether the evidence qua factum of recovery has been examined vigilantly as admittedly recovery was effected from Sobia Bibi the wife of petitioner who according to the prosecution made his escaped good on seeing the police party?
(iv) Why no attempt could be made by the raiding party comprising of 250 personnel duly armed with sophisticated weapons to apprehend the petitioner and amazingly no hot pursuit was made when the petitioner was at a little distance ?
(v) Why no search warrant to conduct the search of the house of petitioner could be obtained from llaqa Magistrate pursuant to secret information received by the police well in time ?
(vi) Whether the grave contradictions floating in the statements of prosecution witnesses have been ignored without any rhyme and reason?
(1) The raid conducted at the house of the appellant on the basis of prior information without search warrant was without lawful authority.
(2) In view of the prosecution case that the bag containing charas was recovered from the courtyard of the house of appellant in his absence, the possession of charas lying in the premises of his house could not be attributed to him to raise a legitimate presumption of his guilt.
Learned counsel submitted that the evidence brought on record by the prosecution would have no nexus with the charge against the appellant.
Mian Asif Mumtaz, learned Deputy Prosecutor General, on the other hand, contended that recovery of charas from the courtyard of the house of appellant was proved through cogent and convincing evidence, therefore, the learned trial Judge rightly having raised a presumption of guilt of the appellant convicted him which was further affirmed by the High Court after detail discussion and scrutiny of the evidence. The learned DPG has submitted that the concurrent finding of two Courts regarding guilt of appellant being not suffering from any legal or factual infirmity may not call for interference of this Court.
In consequence to the raid conducted on the house of appellant on 16.7.2000, the. raiding party recovered a bag containing huge quantity of charas from the courtyard of the house. Mst. Sabiha wife of the appellant who was present at home at the relevant time was arrested whereas as per prosecution version appellant before arrival of raiding party slipped away from the spot. In view of the factual position narrated by the prosecution, the essential questions for determination would be (a) whether the raid at the residential house of a citizen in the normal circumstances without search warrant, is not violative of Article 14 of the Constitution which provides that privacy of the house subject to law and dignity of a person cannot be disturbed and in the light of the mandate of Constitution, whether a person including the members of law enforcement agencies is authorized to enter into the residential premises and disturb the privacy of others without the authority of law or permission of inmates, (b) whether entry into the dwelling house without the permission of law is not trespass or the law enforcement agencies enjoy unlimited power to enter into the residential houses of the people any time for the purpose of search without search warrants, (c) whether the presence of a magistrate with raiding party at the time of raid at the house of a person would dispense with the requirement of search warrants and magistrate is invariably authorized to have free access to enter into the residential premises and by his presence, there is no need of statutory requirement of search warrants under the law, the answer to the above question in the plain language of law and the mandate of Constitution is in the negative.
The requirement of search warrants under Sections 98 and 103 Cr.P.C is mandatory which can be dispensed with only in exceptional circumstances mentioned thereunder. The above provisions are reproduced hereunder for better appreciation of the intent of law:--
Search of house suspected to contain stolen property, forged documents, etc. (1) If a Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit or sale of manufacture of forged documents, false seals or counterfeit stamps, [bank notes, currency notes or coins, or instruments or materials for counterfeiting coins stamps, bank notes or currency notes] or for forging;
or that any forged documents, false seals or counterfeit stamps [bank notes, currency notes or coins or instruments or materials used for counterfeiting coins, stamps, bank notes or currency notes] or for forging, are kept or deposited in any place;
or for the deposit, sale, manufacture or production of any obscene objection such as is referred to in Section 292 of the Pakistan Penal Code or that any such obscene objects are kept or deposited in any place;
He may by his warrant authorize any police-officer above the rank of a constable:
(a) to enter, with such assistance as may be required, such place, and
(b) to search the same in manner specified in the warrant, and
(c) to take possession of any property, documents, seals, stamps, [bank notes, currency notes] or coins therein found which he reasonably suspects to be stolen, unlawfully obtained, forged, false or counterfeit, and also of any such instruments and materials or of any such obscene as aforesaid, and
(d) to convey such property, documents, seals, stamps, [bank notes, currency notes], coins, instruments, or materials or such obscene objections before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose thereof in some place of safety, and
(e) to take into custody and carry before a Magistrate every person founding such place who appears to have been privy to the deposit, sale of manufacture or keeping of any such property, documents seals, stamps, [bank notes, currency] notes coins, instruments or materials [or such obscene objects] knowing of having reasonable cause to suspect the said property to have been stolen or otherwise unlawfully obtained, or the said documents, seals, stamps, bank notes, currency notes, coins, instruments or materials, to have been forged, falsified or counterfeited, or the said instruments or materials to have been or to be intended to be used for counterfeiting coin or stamps, bank notes, or currency notes or for forging [or the said obscene objects to have been or to be intended to be sold, let to hire, distributed, publicly exhibited, circulated, imported or exported]
(2)
(2) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other persons and singed by such witnesses; but no person witnessing a search under this Section shall be required to attend the Court as a witness of the search unless specially summoned by it.
(3) Occupant of place searched may attend. The occupant of the place searched, or some persons in his behalf, shall, in every instance be permitted to attend during the search, and a copy of the list prepared under this Section, signed by the said witness, shall be delivered to such occupant or persons at his request.
(4) When any person is searched under Section 102, sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person at his request.
(5) Any person who, without reasonable cause, refuse or neglects to attend and witness a search under this Section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Pakistan Penal Code.
The exception created under Section 25 of CNS Act, 1997, in respect of Section 103 Cr.P.C. is as under:--
Sections 20 to 21 of CNS Act, 1997, provide as under:--
(2) The officer to whom a search warrant under sub-section (1) is addressed shall have all the powers of an officer acting under Section 22.
(a) enter into any such building, place, premises or conveyance;
(b) break open door and remove any other obstacle to such entry in case of resistance;
(c) seize such narcotic drugs, psychotropic substance and controlled substances and other materials used in the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under this Act, and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; and
(d) detain, search and, if he thinks proper, arrest any person whom he has reason to believe to have committed an offence punishable under this Act.
(2) Before or immediately after taking any action under section (1), the officer referred to in that sub-section shall record the grounds and basis of his information and proposed action and forthwith send a copy thereof to his immediate superior officer.
The plain reading of the above provision would show that the police or such other agencies do not enjoy unlimited powers to make search of the house of a person and disturb his privacy and dignity in violation of the mandate of the Constitution. The member of concerned agencies under the provision of Cr.P.C as well as under CNS Act, 1997, without satisfying the requirement of law cannot enter into the residential premises without search warrant.
In the present case, the raiding party despite having prior information did not bother to obtain search warrant from a competent-Court and conducted the raid at the house of appellant without showing circumstance to justify such raid without a search warrant. Section 25 of CNS Act, 1997, provided that provision of Section 103 Cr.P.C are not as such applicable to the cases under the ibid Act but this provision does not exempt the requirement of search warrant and prior permission for entry into the residential premises for the purpose of search, the special provision relating to search and arrest under CNS Act, 1997, are not as such inconsistent to the provisions of Code of Criminal Procedure or are above the Constitution. The special provision of Section 25 or Sections 20 to 21 of CNS Act, 1997, do not as such permit violation of Constitutional guarantee of privacy and dignity of a man. The public functionaries are obliged to strictly follow the law and observe the privacy of the houses of the citizen failing which they can be proceeded against both for criminal trespass and also for damages in their individual capacity. The association of a magistrate with the raiding party in a raid at a residential house, may not dispense with the requirement of search warrant and his presence is not sufficient to bypass the mandatory provision of law and violate the constitutional mandate. The purpose of search warrant is to maintain the privacy of the house, therefore, a Magistrate is not as such authorized to enter into the premises without due process of law or permission of inmates and is also not supposed to exercise his authority of law in any manner, he likes and since act of raiding the house of appellant in the present case was in utter disregard to the law and was a sheer violation of the fundamental right of privacy as envisages in Article 14 of the Constitution of Islamic Republic of Pakistan, therefore, the association, of Magistrate in the raid was immaterial.
The next question requiring examination would relate to the actual commission of offence. This is an admitted fact that appellant was not present at his house when the raid was conducted and no evidence was brought on record that house was in his exclusive possession and the bag of charas recovered from the Courtyard of his house in his absence would give rise to a legitimate presumption of his possession and guilt. The bag containing the charas was found lying in the courtyard of the house and Mst. Sabiha wife of appellant who was arrested while present in the courtyard was subsequently, acquitted from the charge, therefore, it is not understandable that in the given facts, on what basis and evidence the appellant was held guilty of the charge under Section 9(c) of CNS Act, 1997. It may be observed that notwithstanding the special provision of Section 25 of CNS Act, 1997, the prosecution was under heavy burden to prove the possession of the appellant through direct evidence and mere on the basis of presumption without fulfilling the essential requirement of law and the command of Constitution, no one can be subjected to the rigours of penal law.
The learned trial Judge as well as the learned Judges in the High Court in departure to the settled law of criminal administration of justice raised presumption of guilt of the appellant on the basis of hear say evidence and thereby committed gross error of law in awarding the conviction and sentence to the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997.
In the light of foregoing reasons, we allow this appeal, set aside the concurrent judgment of conviction and sentence awarded to the appellant by the two Courts and direct his immediate release from jail if not required in any other case. Appeal allowed.
(J.R.) Appeal accepted.
PLJ 2008 SC 423
[Appellate Jurisdiction]
Present: Muhammad Moosa K. Leghari & Syed Sakhi Hussain Bukhari, JJ.
ABDUL HAMEED--Petitioner
versus
MINISTRY OF HOUSING & WORKS, GOVT. OF PAKISTAN, ISLAMABAD through its Secretary etc.--Respondents
Civil Petition No. 279 of 2008, decided on 17.3.2008.
(On appeal from the judgment and order of the Federal Service Tribunal, Islamabad, dated 11.12.2007, passed in Appeal No. 641(R) CS of 2004).
Non-Selection Post--
----Service matter--Promotion--Vested right of civil servant--Seniority-cum-fitness--Validity--Promotion is made on basis of seniority-cum-fitness and no civil servant can ask for, or claim a promotion as a matter of right as it is within the exclusive domain of Government--Held: Neither the promotion could take place automatically, nor the seniority alone is the deciding factor, as number of factors constitute fitness for promotion. [P. 425] A
Constitution of Pakistan, 1973--
----Art. 212(3)--Service matter--Re-designation of post--Promotion--Dent of malice--Rectification of irregularity--Question of antedating the promotion--Civil servant had legitimate expected for such promotion being sole candidate having requisite eligibility--Ministry of concerned department was allocated to the office--Assailed--Any dent of malice on the part of respondents, so far as the re-designation of the post is concerned--An act of mere technical irregularity having been instantaneously rectified by respondents after being pointed out by Ministry of Finance per-se would not be sufficient to hold that such action has any dent of malice on the part of Ministry--After rectification of irregularity, the petitioner was allowed the charge of Director and after assuming the charge of higher post he was allowed pay--Held: Question of antedating the promotion would only arise, if the petitioner was already promoted, which was admittedly not the case of the petitioner. [Pp. 425 & 426] B & D
Pendency of Appeal--
----Promotion--During the pendency of his appeal the petitioner stood retired, as such could not be considered for promotion with retrospective effect. [P. 426] C
Sh. Iftikhar Ahmad, ASC with Mr. Ejaz M. Khan, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 17.3.2008.
Judgment
Muhammad Moosa K. Leghari, J.--Instant petition for leave to appeal is directed against the judgment dated 11.12.2007, passed by Federal Service Tribunal, Islamabad, whereby service appeal filed by the petitioner was dismissed.
The facts forming the background of this petition are that the petitioner was initially appointed as a Garden Supervisor in 1964 and was promoted as Sub-Divisional Officer (BS-16) and subsequently as, Assistant Executive Engineer (BS-17) in 1992. The petitioner was further promoted to the post of Executive Engineer/Deputy Director (BS-18) on 13.11.1995. In 1992 a new post of Director/Superintending Engineer (Horticulture) was notified on 25.4.1992, which was to be filled through promotion from Deputy Director (Horticulture) (BS-18) having 12 years service in (BS-17) and above or 7 years service in (BS-18). As claimed by the petitioner, he had legitimate expectation for such promotion being sole candidate having requisite eligibility. However, Ministry of Housing and Works converted/re-designated this post of Director (Horticulture) into that of Superintending Engineer (Planning and Design), which was allocated to the office of Chief Engineer, Central Zone vide letter dated 01.04.2004. Being aggrieved of the said conversion/re-designation, the petitioner approached the Federal Service Tribunal after rejection of his departmental appeal.
Learned ASC for the petitioner mainly contended that the conversion/re-designation was violative of law as it was objected to by the Ministry of Finance, resultantly, the said re-designation has to be withdrawn. It was argued that such re-designation of the post was tainted with malice in order to deprive the petitioner of his vested right of being promoted to the said post. Learned ASC contended that the petitioner was entitled to all the benefits of promotion after his retirement. In support of his contentions, learned ASC for the petitioner has placed reliance on 1997 PLC (CS) 77, 1998 SCMR 736, PLD 1991 S.C. 1118, 1998 PLC (C.S) 980, 1991 PLC (C.S) 587, 1985 SCMR 1158, FLD 1997 S.C 84, PLD 2003 S.C 110, 2007 S.C.J. 41, 1997 P.L.C (CS) 1210 and 2001 P.L.C. (C.S) 654.
Having considered the submissions made on behalf of the petitioner, we find the same to be without force. It goes without saying that promotion to a certain post has never been considered to be a vested right of a civil servant. It is well recognized principle of law that in case of non-selection post, the promotion is made on the basis of seniority-cum-fitness and no civil servant can ask for, or claim a promotion as a matter of right as it is within the exclusive domain of the Government. Neither the promotion could take place automatically, nor the seniority alone is the deciding factor, as number of factors constitute fitness for promotion. The learned ASC for the petitioner has not been able to show that there was any malice on the part of the respondents, so far as the conversation/re-designation of the post is concerned. An act of mere technical irregularity having been instantaneously rectified by the respondents after being pointed out by Ministry of Finance, per-se would not to be sufficient to hold that such action has any dent of malice on the part of respondent Ministry. The conversion of the post was notified on 1.4.2004 and it is not the case of the petitioner that he was denied the right of consideration for promotion before the said date. It appears that soon after the rectification of the irregularity on 12.11.2005, the petitioner was allowed the charge of Director (Horticulture) (BS-19) on 31.01.2006 and after assuming the charge of higher post he was allowed special pay also for the same. Subsequently, on 04.08.2006, the petitioner was notified to be promoted on the said higher post on regular basis.
It is an admitted fact that during the pendency of his appeal the petitioner stood retired, as such could not be considered for promotion with retrospective effect.
It may be noted that the question of antedating the promotion would only arise, in case if, the petitioner was already promoted, which was admittedly not the case of the petitioner. We have had the benefit of considering the case law relied upon by learned ASC for the petitioner, but it was found to be of no help to advance the case of the petitioner. The Federal Service Tribunal has dealt with the case of the petitioner strictly in accordance with settled principles of law. There is no illegality or perversity in the impugned judgment as such it requires no interference. The petition being without merit is therefore dismissed and leave declined.
(R.A.) Leave declined.
PLJ 2008 SC 426
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
M/s. SARHAD BEVERAGES (PVT.) LTD.--Petitioner
versus
SARHAD DEVELOPMENT AUTHORITY through Chairman & another--Respondents
C.P.L.A. No. 603 of 2007, decided on 29.1.2008.
(On appeal from the judgment dated 16.4.2007 in C.R. No. 255 of 2007 passed by the Peshawar High Court, Peshawar).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Plot was allotted to the petitioner and despite lapse of 28 years construction was not raised--Petitioner was reminded to do the needful but he turned a deaf ear--After cancellation of allotment another chance was given to petitioner/ company but that too, was not availed--Held: High Court while taking notice of all these facts has held that cancellation was justified and that the suit filed by the petitioner was rightly dismissed by civil Court--Reasons weighed with High Court in revision fully conforms to the requirement of law and does not call for interference by Supreme Court in exercise of Constitutional jurisdiction--Leave refused. [Pp. 428 & 429] A & B
Malik Muhammad Nawaz, ASC and Mr. Mehr Khan Malik, AOR for Petitioner.
Mr. Muhammadullah Khan, ASC and Mr. M. Ameen, Manager (Industrial Estate) for Respondents.
Date of hearing: 29.1.2008.
Order
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against judgment dated 16.4.2007 passed by a learned Single Bench of the Peshawar High Court, Peshawar, whereby civil revision filed by the petitioner against the judgment and decree dated 12.12.2006 passed by learned Additional District Judge, Peshawar, was dismissed.
Briefly stating the facts of the case as gathered from the record are that a plot measuring 3.50 acres in Industrial Estate Jamrud Road, Peshawar, was provisionally allotted to the petitioner company in the year 1983 but an area of 2.5 acres was cancelled on 21.2.1999 on the ground that the petitioner company had failed to raise construction and to establish factory over the said plot in violation of the allotment order. Cancellation was assailed by way of civil suit which was decreed on 5.12.1992 in favour of the petitioner by way of compromise, whereby the petitioner had undertaken to start construction of the industry within a period of one year. Record reveals that since construction was not raised uptill 1996, therefore a fresh notice dated 15.4.1996 was issued on the ground that the petitioner had failed to deposit the outstanding dues. A part of the said amount was though deposited, yet construction was again not raised and thus allotment was ultimately cancelled on 27.8.1996. Cancellation was challenged in a suit instituted on 11.10.1999 but the same was dismissed against which appeal was filed which too did not bear fruit. Ultimately the Peshawar High Court was approached through civil revision which too was dismissed, hence this petition.
Learned counsel for the petitioner has strenuously urged that though in the allotment letter dated 21.11.1983, the petitioner was required to raise construction on the said plot within the stipulated period yet since in the lease-deed dated 18.3.1986, there was no such clog, therefore all the Courts below have gravely erred in holding that action taken by the respondent was justified in the circumstances. It is further his case that subsequent to cancellation order dated 21.2.1999 the petitioner had undertaken to raise construction subject to the condition that loan is sanctioned in his favour by any financial institution and since needful was not done therefore, construction could not be raised.
Learned counsel for the respondents while vehemently controverting the contentions raised by learned counsel for the petitioner submitted that since clause 4 of the allotment order whereby the petitioner was required to raise construction on the plot in question within the stipulated period was flagrantly violated therefore, department was within its right to cancel the allotment. He pointed out that possession of the plot was never handed over to the petitioner and after cancellation it was bifurcated into three and now it has been allotted to three different industries, including, M/s. Jan Carpets and M/s. Sangeen Marbels, to whom one acre each has been given and they have raised construction thereon.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have perused record of the case minutely, with their assistance.
Record reveals that the plot in question was allotted to the petitioner in the year 1983 and despite lapse of about 28 years construction was not raised thereon. Time and again the petitioner was asked to do the needful but he turned a deaf ear. After cancellation of allotment on 21.2.1989 another chance was given to the petitioner company but that too, was not availed, therefore per force it was again cancelled. The learned Judge in the High Court while taking notice of all these facts has held that cancellation was justified and that suit filed by the petitioner was rightly dismissed by the Civil Court and upheld by the learned Additional Sessions Judge. Observations made in Paras 4 & 5 of the impugned judgment are reproduced herein below for ready reference:--
"4. As stated herein before, the plot was allotted about a quarter of century ago for the establishment of an industry. The plaintiff-petitioner has failed to raise construction thereupon or to establish an industry. The earlier cancellation was withdrawn by extending the gesture of promoting industry and in the said compromise on behalf of respondent authority it has been mentioned that they had no objection to the restoration of the allotment if the plaintiffs "bonafidely intend to establish the industry viz beverages on the plot allotted to them within one year". Thus the defendants/respondents had extended extra ordinary favour and concession to the plaintiff/petitioner to display their bona fide and to establish the factory as intended by them but they failed to do so and therefore defendants-respondents had no option but to cancel the plot.
The learned counsel for the petitioner vehemently argued that the construction of industrial building was conditional on the availability of finances from the financial institution but, due to various shortcomings, the said loan had not yet been sanctioned, therefore, the industry could not be established. This is no justice to further prolong the matter. Industrial Schemes are announced by the Government for the Industrialization of the country and plots are allotted on lease at nominal rates to encourage the investors and the potential industrialists. The allottees have neither any financial base of their own nor do they have experience of running such undertaking and, the case in hand is a unique example where the allottee of an industrial plot has not been able to take a single step for the establishment of a factory despite the lapse of more than two decades. D.F.I.'s cannot extend the facility of loan to such non-serious allottees of industrial plots. The allottee has to spend considerable amount to display his interest, capability and resources. Since the industrial loans are granted on 40:60 basis, therefore, the allottee has to furnish the proof of his investment to the extent of 40% of the required capital. In the case of failure to prove such investment, the Bank or other financial institution either do not sanction the loan or do not release the loan or the balance thereof. By failure to establish the industry, the plaintiff-petitioner has not only violated his commitment of industrialization but has also deprived any other potential investor. The allotment was never made on the condition of availability of loan. It was the responsibility of the allottee to arrange for finances. If the finances could not be arranged during such a long period and the petitioner has not been able to prove his seriousness by commencing the construction and installation of industry, the respondents/defendants were justified to cancel the plot and since the petitioner-plaintiff had no merits, therefore, the Courts were justified to dismiss the suit and the appeal accordingly."
Upshot of the above discussion is that the reasons weighed with the learned Single Judge of the Peshawar High Court in the above cited revision fully conforms to the requirement of law and does not call for interference by this Court in exercise of its constitutional jurisdiction. The petition being misconceived is hereby dismissed and leave refused.
(R.A.) Leave refused.
PLJ 2008 SC 430
[Appellate Jurisdiction]
Present: Muhammad Qaim Jan Khan & Muhammad Farrukh Mahmud, JJ.
AZIZ ULLAH--Petitioner
versus
STATE--Respondent
Jail Petition No. 346 of 2002, decided on 27.2.2008.
(On appeal from the judgment dated 11.6.2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No. 972 of 2000).
Versions--
----Principle--Both the versions are to be put in juxtaposition in order to ascertain which of the two was true or nearer to the truth. [P. 433] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(c) & 324--Conviction and sentence--Challenge to--Alteration of conviction--Two versions--Dispute relating to payment of some amount existed between the deceased and appellant--It was alleged that the appellant used to purchase diesel for his tractor on credit and that amount was due against him--Prosecution miserably failed to prove that appellant actually owned a tractor or used to purchase diesel from the agency of the deceased or that actually some dispute relating to payment of some amount--Version put forwarded by appellant was probable--Defence plea was plausible and borne out from the circumstances of the case, as there was no other reason available on the record to launch the assault--Held: Conviction altered of the appellant from offence u/S. 302(b) of PPC to offence u/S. 302(c), PPC and sentence reduced--Appeal partly allowed.
[P. 433] B, C & D
Qari Abdur Rasheed, ASC for Petitioner.
Mr. M. Siddique Khan Baloch, DPG for State.
Date of hearing: 27.2.2008.
Order
Muhammad Farrukh Mahmud, J.--Aziz Ullah petitioner, aged, 15/16 years alongwith his brothers Hayat Ullah and Hameed Ullah were sent to face trial in case FIR No. 92 (Ex-PS) registered at Police Station Isakhel on 11.8.1997 at 7.35 a.m. for offences under Section 302, 324/34 PPC. The learned trial Court, vide judgment dated 30.6.2000, while acquitting the other accused, convicted Aziz Ullah petitioner under Section 302(b) PPC for causing the murder of Qamar Raza Shah and sentenced him to death. He was also directed to pay fine amounting to Rs. 1,00,000/- (rupees one lakh) in default of payment whereof he was to suffer R.I. for one year. The amount of fine, if recovered, was to be given to the legal heirs of the deceased.
Aziz Ullah went in appeal (Cr. A. No. 972 of 2000). The learned Division Bench of the Lahore High Court, Lahore vide judgment dated 11.6.2002 while maintaining the conviction of Aziz Ullah under Section 302(b) PPC, converted the death sentence into imprisonment for life and instead of fine of Rs. 1,00,000/- (which was illegal) he was directed to pay Rs. 50,000/- (rupees fifty thousand) for compensation to the legal heirs of the deceased under Section 554-A Cr.P.C. in default whereof the petitioner was to undergo six months S.I. The learned High Court also convicted the petitioner for offence under Section 324 PPC for causing injury to Sana Ullah PW and sentenced him to R.I. for eight years. In addition to that fine of Rs. 25,000/- (rupees twenty five thousand) was also imposed in default of payment whereof the convict was to suffer S.I. for six months. The amount of fine, if recovered, was to be paid to Sana Ullah PW. Both, the sentences were ordered to run concurrently and benefit of Section 382-B Cr.P.C. was also extended.
Through Jail Petition No. 346 of 2002, the petitioner challenged his conviction and sentence. After hearing the learned counsel for the parties, leave is granted and the petition is converted into appeal.
The relevant facts as per FIR are that Qamar Raza Shah deceased, father of complainant Shafqat Raza Shah (PW.12) was running agency of diesel oil at Kundal. On the fateful day at about 5.30 a.m., Qamar Raza Shah deceased and Sana Ullah (PW.13) were taking tea in the room while complainant and Muzaffar Iqbal were sitting outside. Aziz Ullah appellant and his brothers Hayat Ullah and Hameed Ullah all equipped with Kalashnikovs reached there. Hayat Ullah and Hameed Ullah stood outside the agency while Aziz Ullah went towards the room where tea was being taken. While standing in the door he caused burst fire which hit Qamar Raza Shah and Sana Ullah thereafter accused ran away. The complainant observed that his father Qamar Raza Shah and Sana Ullah were lying injured, the father received injuries on his right thy, left leg and right arm while Sana Ullah had received injuries on his right and left legs. Both the injured were taken to the hospital, however, Qamar Raza Shah could not survive. The motive as narrated in the FIR was that Aziz Ullah used to purchase diesel for his tractor on credit. Three/four days prior to occurrence, an altercation took place between the deceased and the appellant over payment of amount. In order to prove its case, prosecution mainly relied on the ocular account furnished by Shafqat Raza Shah complainant and Sana Ullah who was injured during the occurrence. The statements of the PWs are inline with the story given in the FIR and need not be repeated.
Aziz Ullah did not deny the occurrence, however, he took the plea of grave and sudden provocation which is being reproduced for convenience:--
"I am innocent. In fact, on the night of occurrence, there was a marriage ceremony in village Kacha Kundal and I belong to a nearby village Wandha Shah Alam. I came from Wandha Shah Alam to attend this marriage ceremony. The marriage ceremony was over late in the evening. I went to Adda which is situated in front of a Diesel Agency of the deceased. I waited for the transport for at least one hour or two, but the transport was not available and I had no alternate but to stay at the diesel agency as the conductor, driver and other people came there and stayed at night in that agency. I know the owner of the diesel agency Qamar Raza Shah where he allowed me to stay at night at diesel agency. On the night of occurrence, I slept in the diesel agency. Early in the morning when it was still dark, I was sleeping on a cot in a room of agency, Qamar Raza Shah came there. He tried to attempt to commit sodomy upon me. He removed my Shalwar. I attempted to rescue myself from the clutches of the deceased. The deceased who was a man of ill-repute and infamous man, did not let me to go without allowing me to commit sodomy with me. I ultimately rescued myself from the accused. The deceased was having gun in the agency. To save my skin and feeling that deceased shall not let me off, I took the gun and fired at the deceased to save my honour and to evade the deceased not to commit sodomy upon me. In the meantime on the noise and alarm of mine, Sanaullah PW also arrived and I was at that time aiming gun upon the deceased and in that manner, the deceased as well as Sanaullah received the injuries at my hands on the non-vital part of the body. I had no intention to commit the murder or to injure Sanaullah. The deceased himself invited all the troubles. At the time of occurrence I was all alone. I was being a young man of 16/17 years of age ran away from the spot after the occurrence and hide myself under the different places of NWFP after this occurrence due to fear. My family came to know about this occurrence brought me in police station and produced me before the I.O. I never absconded nor any attempt was made by the local police or police station Isakhel to send warrant or summon for my arrest in my native village which is situated in NWFP. All the story of absconsion is false and fabricated by the collusion of the complainant party against me. None of my brother was present at the time of occurrence and was also declared innocent by the investigating agency. I alone committed this murder under grave, and sudden provocation to save my skin from the deceased. I am innocent."
The learned counsel for the appellant contended that the motive put forward by the prosecution was rightly rejected by the learned High Court and that the plea taken by the appellant was not only plausible but was also supported by the circumstances of the case and that, in the circumstances, the case of the appellant fell under Section 302(c) PPC and lastly he prayed for reduction in sentence. In view of the impugned judgment, the learned Deputy Prosecutor General did not seriously contest the proposition.
We have heard the learned counsel for the parties and have also gone through the record of the case. It is a case of two versions. It is settled law that both the versions are to be put in juxta position in order to ascertain which of the two was true or nearer to the truth. According to prosecution, the occurrence took place early in the morning in the background of existing hostility between the deceased and the appellant over payment of money, it was alleged that the appellant used to purchase diesel for his tractor on credit and that amount was due against him. However, after scanning the entire evidence on the point, the learned High Court observed that the prosecution failed miserably to prove that Aziz Ullah appellant actually owned a tractor or used to purchase diesel from the agency of the deceased or that actually some dispute relating to payment of some amount existed between the two.
In reaching to above conclusion, the learned High Court also took note of the fact that though according to PW.13 ledger of diesel agency was being maintained yet no ledger was produced before the Court to show that the appellant had been purchasing diesel on credit. According to the considered opinion of the learned Judges, the version put forward by Aziz Ullah was probable. The reasons advanced by the learned High Court are based on evidence available on record and it was for that reason that the learned Deputy Prosecutor General conceded. We also feel after scanning the whole evidence that the defence plea was plausible and borne out from the circumstances of the case; as there was no other reason available on the record to launch the assault.
In consideration of the above noted circumstances, we alter the conviction of the appellant from offence under Section 302(b) to offence under Section 302(c) PPC, his sentence is reduced to 10 years R.I. The order under Section 554-A Cr.P.C. is maintained.
The conviction and sentence of the appellant under Section 324 PPC are also maintained. The direction of the learned High Court that both the sentences would run concurrently and the benefit of
Section 382-B Cr.P.C. given to the convict, is also maintained. With the above noted modification, this appeal is partly allowed.
(A.S.) Appeal allowed.
PLJ 2008 SC 434
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan & Muhammad Moosa K. Leghari, JJ.
SECRETARY EDUCATION DEPARTMENT GOVT. OF NWFP, PESHAWAR & others--Petitioners
versus
ASFANDIAR KHAN--Respondent
Civil Petition No. 567-P of 2007, decided on 26.11.2007.
(On appeal from the judgment dated 10.9.2007 of the Peshawar High Court, Peshawar passed in CR No. 649 of 2007).
Limitation Act, 1908 (IX of 1908)--
----Arts. 164 & 181--Ex-parte decree--Limitation--Execution proceeding--Application for setting aside decree was mvoed belatedly--Petitioners initially entered appearance before the trial Court but later on remained absent--Got the knowledge when bailable warrants were issued in execution against them--Held: Art. 164 of limitation Act provides 30 days to file application for setting aside ex-parte decree because petitioners/defendant had participated in proceedings before the trial Court. [P. 436] A
2006 SCMR 631, fol.
Sardar Shaukat Hayat, Addl. AG NWFP for Petitioners.
Nemo for Respondent.
Date of hearing: 26.11.2007.
Order
Abdul Hameed Dogar, HCJ.--This petition is directed against judgment dated 10.9.2007 passed by learned Single Judge of Peshawar High Court, Peshawar whereby Civil Revision No.649 of 2007 filed by petitioner was dismissed and ex-parte order passed by learned trial Court was maintained.
Briefly stated facts leading to the filing of instant petition are that respondent Asfandiar Khan filed suit against petitioners and others for recovery of compensation of land measuring four kanals given by him to petitioners on the consideration that they would either provide him job in the education department or pay him compensation of the land. In pursuance of summons petitioners appeared at the initial stage but later on remained absent. However, private defendant filed written statement but later on his name was deleted from the array of respondents. Since petitioners remained absent as such ex-parte decree was passed on 23.12.2003 against them. Respondent filed application for execution of ex-parte decree on 28.10.2004 in which bailable warrants were issued and in response whereof petitioners appeared before the Court and filed application for setting aside ex-parte decree on 11.3.2005 but without filing application for condonation of delay. Said application was dismissed on 11.5.2005 and ex-parte decree passed earlier was maintained. The appellate Court while concurring with the findings of the trial Court observed that petitioners had knowledge of suit as such their case would be covered under Article 164 of the Limitation Act, 1908 and were thus required to file an application within 30 days. This order was maintained by the learned High Court in Civil Revision vide impugned judgment.
We have heard Sardar Shaukat Hayat Khan, learned Additional AG NWFP at length and have gone through the record and proceedings of the case in minute particulars.
Learned counsel for the petitioners admitted that Petitioner Nos. 1 to 6 initially entered appearance before the trial Court but later on remained absent and got the knowledge when bailable warrants were issued in execution proceedings against them. He contended that case of petitioner is covered under Section 181 of the Limitation Act and not under Article 164.
We are not persuaded to agree with learned counsel for the petitioner. Admittedly Petitioner Nos. 1, 4, 5 & 6 the official defendants appeared at the initial stage of the suit but did not participate in the proceedings as a result of which they were declared ex-parte on 22.10.2002 while Petitioner No. 3 was declared as such on 7.2.2003. It was only Defendant No. 7 who contested the suit but his name was also deleted from the array of respondents on the application of Respondent No. 1 Asfandiar Khan on 27.9.2003 whereafter ex-parte evidence was recorded on 12.12.2003 and ex-parte decree was passed on 23.12.2003. It was in the execution proceedings application for setting aside ex-parte decree was moved which was quite belatedly. Since it was well within the knowledge of petitioners that suit was pending against them and were declared ex-parte as such Article 164 of Limitation Act would be applicable in their case whereby period to move application for condonation of delay is 30 days. In the similar circumstances, it was held by this Court in the case of Shahid Pervaiz alias Shahid Hameed Vs. Muhammad Ahmad Ameen (2006 SCMR 631) that defendant joined proceedings before the Trial Court and afterwards on his absence an ex-parte decree was passed. Defendant after four months filed application for setting aside ex-parte decree which application was dismissed being time barred. Article 164 of Limitation Act provides 30 days to file application for setting aside ex-parte decree because petitioner/defendant had participated in the proceedings before the trial Court.
Accordingly, we do not find any reason to interfere with the concurrent findings of the Courts below. Resultantly, the petition being devoid of force is dismissed and leave to appeal refused.
(M.S.A.) Leave refused.
PLJ 2008 SC 436
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir & Syed Sakhi Hussain Bukhari, JJ.
KHALID SAIF ULLAH--Petitioner
versus
STATE--Respondent
Jail Petition No. 230 of 2007, decided on 10.1.2008.
(Against the judgment of the Lahore High Court Lahore dated 1.2.2007 passed in Crl. Appeal No. 151 of 2002).
Delay in FIR--
----Delay of five hours in registration of case deceased received serious injuries taken to hospital after operation the expired delay not fatal to prosecution. [P. 441] C
Defence version--
----When put to juxtaposition with the prosecution version and put to test on the touchstone of the principles laid down by the superior Courts, the edifice erected on the same will dash to the ground--Petitioner who has taken defence plea has not opted to appear as witness u/S. 340(2) of Cr.P.C.--No error of law misreading or non-reading of evidence--No exception can be taken--Leave refused.
[P. 441] D & E
Interested Wintess--
----Real culprit--Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits, for the murder of their relations let off by involving innocent persons. [P. 440] A
PLJ 1996 SC 758, ref.
Recovery of Weapon--
----Ocular account corroborated by medical evidence supported by the recovery of weapon of offence, blood-stained earth and the last worn clothes of the deceased are sufficient to infer that the prosecution has been successful to bring home the guilt of the accused to the hilt.
[Pp. 440 & 441] B
Mr. Arshad Ali Ch., ASC for Petitioner.
Mr. M. Siddique Khan Baloch, DPG for State.
Date of hearing: 10.1.2008.
Order
Muhammad Akhtar Shabbir, J.--This jail petition seeking leave to appeal is directed against judgment dated 01.02.2007 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby appeal filed by the petitioner against his conviction and sentence of death awarded to him for the murder of Mst. Shakila by the learned Additional Sessions Judge, Lahore, vide judgment dated 31.01.2001 was dismissed and murder reference sent by the trial Court was disposed of accordingly.
Briefly stated the facts of the case as narrated by Mirza Abbas Ali PW-1 brother-in-law of the deceased lady) are that on the fateful day and time (17.05.2000 at 12.00 noon), he was going towards his house when on the way he reached near the house of his father-in-law Ghulam Muhammad, he heard some noise. In order to satisfy his curiosity, he entered the house and saw Khalid Saif Ullah petitioner-convict giving churri blows to his wife Mst. Shakila which hit her on the left side of her mouth, on the right side of her neck and on the left side of her chest. Another blow given by him hit on the right hand of the deceased. On hearing the alarm Riaz Ahmad and Abdur Rehman (PW-2) also reached there. On seeing the PWs Khalid Saif Ullah tried to run away from the place of occurrence. In the street one Muhammad Ashfaq armed with a rifle raised a lalkara that he would kill if someone tried to apprehend Khalid Saif Ullah. Thereafter, both the accused ran away on a motorcycle alongwith another unknown person. Mst. Shakila was taken to hospital where she succumbed to injuries.
The motive behind the occurrence was stated to be the strained relations between Mst. Shakila (deceased) and her husband Khalid Saif Ullah convict-petitioner as a result of which she left him and started living with her parents in their house about 7/8 days ago.
The prosecution to establish its case against the petitioner-accused produced 12 witnesses including the doctor and the Investigating Officer. The ocular account of the occurrence was furnished by Mirza Abbas Ali (PW-1) and Abdul Rehman (PW-2). The medical evidence was furnished by Dr. Muhammad Shahid Akhtar (PW-7) who conducted the postmortem examination of the deceased. The petitioner/accused when examined under Section 342 Cr.P.C. denied the prosecution story and deposed as under:--
"My residential Phone No. is 5412292 before my marriage with Mst. Shakila deceased. PW Rashid Ahmad asked for the hand of Mst. Shakila for his son Chhaba, and Abdur Rehman PW asked for the hand of Mst. Shakila for his brother Tariq PW. While Munir Ahmad maternal uncle of Mst. Shakila deceased asked for her hand for his son Maqsood Ahmad. Mst. Hanifan and her all daughters married and unmarried refused them and Mst. Shakila was married with me. This marriage was love marriage. We were living happily. Muhammad Saleem elder brother of Mst. Shakila deceased who is residing in Dubai with his family come to my house and asked for the company of Mst. Shakila at her parents home. Because his departure was due after 3/4 days. It was also told by Muhammad Saleem PW that his mother Mst. Hanifan Bibi was not feeling well and after his departure his mother would fee loneliness and in presence of Mst. Shakila her feeling would not be hurted. Accordingly I allowed her happily to go with her brother Muhammad Saleem PW to her parents house. On 17th May 2000 I was informed telephonically at my house by Riaz PW that Mst. Shakila Bibi was murdered. On my inquiry it was informed that on the fateful day at about 10.00 a.m. Mst. Usba wife of Muhammad Naeem PW called her brother Chhaba who committed zina with Mst. Shakila in retaliation of not marrying with him. After committing zina by Chhaba, Mst. Shakila deceased told her sister-in-law (Mst. Usba) that now she will not spare her and she will ask her brother Muhammad Naeem PW to divorce her. At that time Mst. Usba provided a Chhuri to her brother Chhaba who injured Mst. Shakila who succumbed to the injuries. Mirza Abbas Ali complainant, Abdul Rehman and Riaz PWs along with Rashid Ahmad PW in retaliation of their revenge and after due deliberation, conspired with Rashid Ahmad PW who is police tout and got registered a fictitious case against me. They made me a scapegoat only to safe the life of Chhaba son of Rashid Ahmad PW. All the PWs are inter related, interested and inimical to me and due to the enmity stated above they have deposed against me falsely".
Learned counsel for the accused-petitioner vehemently argued that the presence of eye-witnesses at the place of occurrence is not free from doubt; that they are the planted witnesses because they were expected to be present at their business places at the time of occurrence which were at a distance of about 1 km; that no specific convincing reason of their presence at the spot at the time of incident has been advanced by the prosecution; that the petitioner has been malafidely involved in the present case while he had been contacted on telephone after the incident which is established from the detail of telephone calls made from the telephone installed at the place of occurrence i.e. the house of father of the deceased. These calls were made from the said telephone to the telephone number installed at the factory of the convict-petitioner. Further contended that on the day of recovery of the weapon of offence (Churri) which was lying in the bushes, the city was effected by rains and the said Churri could not be stained with blood; that the medical evidence contradicts the ocular account furnished by the eye-witnesses who are interested being related inter se and that the prosecution has failed to establish the guilt of the accused petitioner beyond any shadow of doubt.
We have heard the arguments of the learned counsel for the petitioner appointed at State expense and also examined the record with his assistance.
The occurrence took place in the broad day light at 12.00 noon which was reported by complainant Mirza Abbas Ali (PW-1) at 5.00 p.m. whose statement was recorded (Ex.P.A.) on the basis of which formal FIR (Ex.P.A./I) was registered. To establish the story, the prosecution produced complainant Mirza Abbas Ali, PW-1 (husband of sister of deceased who was resident of Raiwind in the same street-where the place of occurrence, the house of his father-in-law Ghulam Muhammad, is located) and Abdur Rehman PW-2 who was also residing in the same vicinity and his house was in front of the house of Ghulam Muhammad, father of the deceased. PW-1 Mirza Abbas Ali had explained his presence at the place of occurrence categorically stating that he used to take lunch from his house at that time. PW-2 Abdur Rehman has also justified his presence at the place of occurrence. As per the site-plan, the house of Ghulam Muhammad (the place of occurrence) is not situated in the bazaar, rather it is situated at the dead end of the street and the hue and cry, if raised, from that house could be heard in the street. The complainant/PW-1, being a close relative of Ghulam Muhammad, had the right to enter into the house in such circumstances and it was not unnatural or improbable. The house of Abdur Rehman PW-2 was in front of the door of Ghulam Muhammad (father of deceased). Both the eye-witnesses have fairly succeeded in proving their presence at the spot and witnessing the occurrence. They were subjected to lengthy cross-examination but the defence had failed to make cracks in their deposition and veracity of their statements.
The complainant being close relative (Humzulf of the petitioner) had no reason to falsely implicate the petitioner in the commission of the offence substituting him, letting off the real culprits. There is no such material available on record which would indicate substitution of the petitioner in the case with the real culprit. Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of Irshad Ahmad and others v. the State & others (PLJ 1996 SC 758). The petitioner has not been able to establish any animosity of the complainant or the police for his false involvement in the case.
The medical evidence produced by the prosecution in the case proved that the deceased had received injuries with short edged weapon on the vital parts of her body and was taken to hospital where she was operated but she succumbed to the injuries. The medical evidence fully supports the ocular account.
The recovery of weapon of offence (Churri) has been taken into possession on the pointation of the accused-petitioner while under custody from the bushes which was witnessed by PW-1 and the I.O. The said weapon (Churri) as per the report of the chemical examiner and the serologist was found stained with human blood. The stance taken by the petitioner that the city was effected with heavy rainfall and the Churri could not remain stained with blood, is not proved on the face of record. There is evidence on record that the Churri has been recovered from the bottom of bushes and it cannot be believed that due to rain, the blood on the Churri had been washed out. No independent evidence has been produced by the defence from the locality to prove that there was rainfall at the place of recovery. The certificate of the Meteorological Department, Lahore (Ex.P.L.) is not sufficient proof to establish the defence plea.
The ocular account corroborated by the medical evidence supported by the recovery of weapon of offence, blood stained earth and the last worn clothes of the deceased are sufficient to infer that the prosecution has been successful to bring home the guilt of the petitioner to the hilt.
As to the objection of the learned counsel for the petitioner that there is delay of five hours in registration of the case, suffice it to observe that the deceased had received serious injuries and was first taken to the hospital where after operation she expired and this delay is not fatal to the prosecution version. The learned counsel for the petitioner has not been able to point out any material contradiction and discrepancy which could benefit the defence version.
The motive of the incident set up by the prosecution that the deceased Mst. Shakila had left the house of her husband and went to the house of her parents due to strained relations between the two has not been rebutted by the petitioner rather the defence plea taken by him that one Chhaba who wanted the hand of the deceased for marriage firstly committed zina on her with the assistance of his sister Mst. Usba (wife of Muhammad Naeem) and thereafter murdered her in the house of her parents, does not appeal to a prudent mind.
The defence version when put to juxtaposition with the prosecution version and put to test on the touchstone of the principles laid down by the Superior Courts, the edifice erected on the same will dash to the ground like house of cards. It is further strengthened from the fact that petitioner who has taken defence plea has not opted to appear as his own witness under Section 340(2) Cr.P.C. except that he produced detail of the Telephone Calls No. 390054 (Ex.DD), details of telephone calls from Telephone No. 393300, admission slip of the deceased in the hospital and the record of rainfall. This defence evidence is not tenable in law to support the stand taken by the petitioner. The learned counsel for the petitioner has not pointed out any error of law, misreading or non-reading of evidence in the impugned judgment calling for interference by this Court. The impugned judgment of the Lahore High Court, Lahore, is unexceptionable to which no exception can be taken.
For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal refused.
(M.S.A.) Leave refused.
PLJ 2008 SC 442
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar & Muhammad Nawaz Abbasi, JJ.
ZAKIR HUSSAIN--Petitioner
versus
STATE--Respondent
Jail Petition No. 224 of 2006, decided on 24.7.2007.
(On appeal from the judgment dated 13.4.2006 passed Lahore High Court, Lahore in Crl. Appeal No. 1283/2000 & M.R. No. 522/2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against petitioner--Upheld by High Court--Challenge to--Appreciation of evidence--Detail examination of evidence would not as such lead to an inference that either the witnesses have not seen the occurrence or the prosecution by not producing any other person present at the spot suppressed the truth--Place of occurrence being situated close to the residential houses of the parties, the presence of eye witnesses at the barbar shop would not be challengeable--Unconcerned persons present at the seen of occurrence usually hesitate to become witnesses in such cases to avoid enmity, therefore, the non-production of the barbar or any other person present at the spot cannot be considered a circumstance adverse to the prosecution--No misreading or non-reading of evidence causing material defect in the conclusion drawn by High Court regarding the guilt of petitioner--Concurrent finding of the two Courts qua guilt of petitioner would not call for interference of Supreme Court--Leave refused. [P. 445] A & B
Syed Ali Hussain Gillani, ASC for Petitioner.
Ch. Munir Sadiq, DPG for Respondent.
Date of hearing: 24.7.2007.
Judgment
Muhammad Nawaz Abbasi, J.--This jail petition has been directed against the judgment dated 13.4.2006 passed by a Division Bench of the Lahore High Court, Lahore, whereby the criminal appeal filed by the petitioner alongwith the murder reference sent by Sessions Judge, Jhang, for confirmation of sentence of death awarded to the petitioner on the charge of murder under Section 302(b) PPC, has been disposed of.
The petitioner was tried for the charge that on 26.2.1998 at about 1.30 p.m. he armed with pistol fired successive shots at Zulfiqar Ahmed when he was sitting outside the Barber Shop of Mukhtar and caused his death. The motive behind the occurrence was that Ashiq Hussain, father of petitioner used to sell narcotics at Darbar Shah Malang and the deceased having got a case registered against him and his companions, turned them out of the premises of the Darbar. The local police after usual investigation of the case submitted challan against the petitioner to face the trial for the charge of murder before the District & Sessions Judge, Jhang and learned trial Judge at the conclusion of the trial having found the petitioner guilty of the charge, convicted and sentenced him to death, which was upheld by the High Court.
The post-mortem examination of the deceased conducted by Dr. Nasir Mehmood (PW-8) revealed six lacerated wounds on different parts of his body of the following descriptions:--
(1) (i) an inverted margin lacerated wound 0.6 cm x 0.5 cm on the upper most outer surface of left arm. Wound of entry.
(ii) A lacerated inverted margin wound 2.2 cm x 1.2 cm on the frontal face of upper left chest, 4 cm below the neck. Exit wound
(2) (i) A lacerated inverted margin wound 0.6 cm x 0.5 cm on the back of right shoulder. Wound of entry
(ii) An inverted margin lacerated wound 2 cm x 1 cm on the front upper surface of right chest, 7 cm above the right nipple. Wound of exit
(3) (i) An inverted margin lacerated wound 0.6 cm x 0.5 cm on the mid back of right chest near backbone. Wound of entry.
(ii) An everted margin lacerated wound 1.4 cm x 1 cm on the front face of mid right chest, 7 cm below the nipple. Wound of exit.
(4) (i) An inverted margin lacerated wound 1 cm x 0.6 cm on the left front of the neck. Wound of entry
(ii) An everted margin lacerated wound 1.5 cm x 1 cm on the right side front of the neck. Wound of entry.
(5) An abrasion 4 cm x 1.5 cm on the front surface of lowest part of arm, left side.
Ahmed Sher, ASI (PW-9) having prepared the injury statement and inquest report of the deceased, visited the place of occurrence and secured blood stained earth from the spot with five crime empties of .30 bore pistol. The petitioner after arrest on 21.3.1998 led to the recovery of unlicensed .30 bore pistol from his residential house and as per report of ballistic expert, the crime empties were found to have been fired from the pistol recovered from the accused.
The ocular account was furnished by Alamdar Hussain, complainant (PW-1), the real son of Zulfiqar Ahmed deceased and Talib Hussain (PW-2) not related to either party but had friendly relations with the deceased. The parties are resident of Mohallah Darkhana wala, Chiniot City and fateful occurrence took place at a distance of 200 yds from their residences, therefore, the presence of the witnesses near the shop in question at the relevant time was quite natural. The occurrence took place in the broad-day-light and there was no serious enmity between the parties either to implicate the petitioner in a false case or substitute him for an unknown culprit. In absence of any serious enmity or personal grudge it would not appeal to mind that the complainant and son of the deceased would make a false deposition against the petitioner and involve him in a case of capital punishment. The ocular account furnished by two natural eye-witnesses is fully supported by the medical evidence as well as other evidence on record and also seek corroboration from independent source.
Alamdar Hussain complainant undoubtedly is closely related to the deceased but relation itself may not be sufficient to discard his deposition unless it is proved that he has not been able to stand on the test of cross-examination and his evidence was not confidence inspiring. Talib Hussain (PW-2) was entirely an independent person who had no relationship with the complainant party except that he had friendly relations with the deceased and we have not been able to find out any good reason to exclude his statement from consideration.
The close scrutiny of the prosecution evidence would suggest that ocular account sought sufficient corroboration from other sources and the defense has not been able to create even a slight doubt qua the truthfulness of the evidence of eye-witnesses. The medical evidence and recovery of weapon of offence which was found matched with the crime empties recovered from the spot on the day of occurrence have provided an independent corroboration to the ocular account and motive part of the story would be another strong source of corroboration.
The learned counsel for the petitioner has contended that the prosecution story is highly doubtful as the circumstances leading to the fateful occurrence would evidently suggest that deceased was killed as a result of sectarian clash but truth has been suppressed by implicating the petitioner in the false case. The learned counsel with reference to the statement of the petitioner under Section 342 Cr.P.C submitted that petitioner has been substituted for the real culprit at the instance of Syed Rafaqat Shah, president, Tehreek-e-Nafaz-e-Fiqa-e-Jafaria, but he has neither been able to substantiate the plea of false implication or substitution by any evidence direct or circumstantial nor could point out any material contradiction or discrepancy in the prosecution evidence to create any doubt in the correctness of the prosecution version. The mere assertion that the petitioner belonged to Shia sect and the president, Tehreek-e-Nafaz-e-Fiqa-e-Jafaria with a view to save the skin of Maulana Manzoor Ahmed Chinioti who was responsible for the murder of deceased was made scape goat would not be believable to discard the prosecution story and doubt the credibility of eye-witnesses. The occurrence certainly took place in the front of Barber Shop in the Bazar and no other person including the shopkeeper present at the spot, was produced and similarly as pointed out by the learned counsel for the petitioner, the medical evidence would show that deceased also sustained injuries on his back whereas according to the prosecution story he was attacked from the front side and thus the above contradiction in the prosecution evidence may create a doubt qua the truthfulness of the eye-witnesses but detail examination of evidence would not as such lead to an inference that either the witnesses have not seen the occurrence or the prosecution by not producing any other person present at the spot, suppressed the truth. The place of occurrence being situated close to the residential houses of the parties, the presence of the eye-witnesses at the barber shop would not be challengeable and in any case the unconcerned persons present at the seen of occurrence usually hesitate to become witnesses in such cases to avoid enmity, therefore, the non-production of the barber or any other person present at the spot is quite understandable and cannot be considered a circumstance adverse to the prosecution.
The learned counsel has not been able to point out any misreading or non-reading of the evidence causing material defect in the conclusion drawn by the High Court regarding the guilt of the petitioner leading to the result of acquittal and consequently, concurrent finding of the two Courts qua guilt of the petitioner would not call for interference of this Court. The learned counsel has also not been able to point out any mitigating circumstance for lessor punishment as the petitioner armed with pistol repeatedly fired at the deceased with the intention to kill on account of the grudge of expulsion of his father from Darbar Malang Shah by the deceased who restrained him from selling narcotics in the area of Darbar.
In the light of foregoing reasons, this petition being without any substance is hereby dismissed. Leave is refused.
(M.S.A.) Leave refused.
PLJ 2008 SC 446
[Original Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan, Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari, Ch. Ejaz Yousaf, Muhammad Akhtar Shabbir & Zia Perwez, JJ.
TIKA IQBAL MUHAMMAD KHAN & others--Petitioners
versus
GENERAL PERVEZ MUSHARAF CHIEF OF ARMY STAFF
& others--Respondents
Constitution Petition Nos. 87 & 88 of 2007, decided on 23.11.2007.
Provisional Constitution Order No. 1 of 2007--
----Proclamation of Emergency dated 3.11.2007--Scope--Preamble--Constitution of Pakistan, 1973, Art. 184(3)--Extra Constitutional measure by the Chief of Army Staff and the President--Vires of Proclamation of Emergency order--Supreme Court, after recording findings on the situation obtaining in recent past in the country and pointing out the transgression of constitutional limits by some members of the superior judiciary by way of judicial activism ignoring the well entrenched principles of judicial restraint, disposed of constitutional and passed order and issued directions--Held: Constitution remained supreme law certain parts held in abeyance--Provisional Constitution Order No. 1 of 2007, Provisional Constitution (Amendment) Order, 2007 the Oath of Office (Judges) Order, 2007 and the President's Order No. 5 of 2007--Declared to have been validly made by the Chief of Army Staff/President Chief of Army Staff/President in pursuance of the Proclamation of Emergency of the 3rd day of November 2007 under the principle of salus populi suprema lex, may perform:-
(a) All acts or legislative measures which are or could have been made under the Constitution 1973, including the power to amend it.
(b) All acts for good of the people.
(c) All acts required for ordinary orderly running of State--Further held.
(i) It is a case of constitutional deviation for a limited transitional period.
(ii) Constitutional amendments can be resorted to without affecting the salient features of Constitution.
(iii) Holding of fair, free and transparent elections as required Constitution and the law.
(iv) Superior Courts continue to have the power of judicial review.
(v) Judges of superior Courts are subject to accountability only before Supreme Judicial Council u/Art. 209 of Constitution.
(vi) Chief Justices, Judges of superior Courts, who have not made oath under the Oath of Office Judges, Order, 2007, have ceased to hold their respective offices on the 3rd of November 2007--Their cases are past and closed transactions.
(vii) Proclamation of Emergency of 3rd of November 2007 shall be revoked by the President and/or the Chief of Army Staff at the earliest--Petitions disposed of. [Pp. 449, 450 & 451] A
PLD 1977 SC 657, PLD 2000 SC 869, foll.
Mr. Irfan Qadir, ASC and Mr. Arshad Ali Ch., AOR for Petitioner (in C.P. No. 87 of 2007).
Syed Sharifuddin Pirzada, Sr. ASC, Raja M. Ibrahim Satti, ASC and Mr. Ejaz Muhammad Khan, AOR for Respondent No. 1 (in C.P. No. 87 of 2007).
Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, DAG, Sardar Muhammad Ghazi, DAG, Raja Niaz Ahmed Rathore, DAG, Haji M. Rafi Siddiqui, ASC, Mr. M. Aslam Nagi, ASC and Ch. Naseer Ahmad, ASC for Respondent Nos. 2 & 3 (in C.P. No. 87 of 2007).
Barrister Zafar Ullah Khan, ASC and Mr. G.N. Gohar, ASC for Petitioner (in C.P. No. 88 of 2007).
Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, DAG, Sardar Muhammad Ghazi, DAG, Raja Niaz Ahmed Rathore, DAG, Haji M. Rafi Siddiqui, ASC, Mr. M. Aslam Nagi, ASC and Ch. Naseer Ahmad, ASC for Respondent Nos. 1 & 3 (in C.P. No. 88 of 2007).
Syed Sharifuddin Pirzada, Sr. ASC, Raja M. Ibrahim Satti, ASC & Mr. Ejaz Muhammad Khan, AOR for Respondents No. 2 & 4 (in C.P. No. 88 of 2007).
Dates of hearing: 19, 20, 21, 22 & 23.11.2007.
Order
The above Constitution Petitions are directed against the Proclamation of Emergency of the 3rd day of November 2007 and the Provisional Constitution Order No. 1 of 2007 issued by the Chief of Army Staff, as also the Oath of Office (Judges) Order, 2007 made and promulgated by the President of Pakistan.
(i) In the recent past the whole of Pakistan was afflicted with extremism, terrorism and suicide attacks using bombs, hand grenades, missiles, mines, including similar attacks on the armed forces and law enforcing agencies, which reached climax on 18th of October 2007 when in a similar attack on a public rally, at least 150 people were killed and more than 500 seriously injured. The extremists/terrorists resorted to abduction of foreigners, which badly impaired the image of Pakistan in the comity of nations, and adversely affected its economic growth. The situation in Islamabad and various places in NWFP, Balochistan and tribal areas was analogous to "a state within the state". Unfortunately, no effort by the government succeeded in curbing extremism, terrorism and suicide attacks. The Prime Minister apprised the President of the situation through his letter of the 3rd of November 2007;
(ii) The Constitution of Pakistan is based on the principle of trichotomy of powers. All the three organs of the State, namely, the legislature, the executive and the judiciary are required to perform their functions and exercise their powers within their specified sphere. Unfortunately, some members of the superior judiciary by way of judicial activism transgressed the constitutional limits and ignored the well-entrenched principle of judicial restraint. Thousands of applications involving individual grievances were being processed as suo moto cases ostensibly in the exercise of power under Article 184(3) of the Constitution, which provision is resorted to the enforcement of fundamental rights involving questions of law of general public importance. Instances of transgression of judicial authority at large scale may be found in the cases of determination of prices of fruits, vegetables and other edibles, suspension and transfers of government officials, frequent directions to enact particular laws, stoppage of various development projects, such as New Murree City, Islamabad Chalets, Lahore Canal Road and many more. They rendered the state machinery, particularly legislative and executive branches of the government paralyzed and nugatory. They made ineffective the institution of the Supreme Judicial Council set up under the Constitution for the accountability of the members of the superior judiciary;
(iii) The sum total of the circumstances led to a situation where the running of the government in accordance with the provisions of the Constitution became impossible for which the Constitution provided no remedy or satisfactory solution. There was a strong apprehension of disastrous consequences that would have followed in case the action of the 3rd day of November 2007 was not taken by the Chief of Army Staff/President;
(iv) The situation which led to the issuance of Proclamation of Emergency of the 3rd day of November 2007 as well as the other two Orders, referred to above, was similar to the situation which prevailed in the country on the 5th of July 1977 and the 12th of October 1999 warranting the extra-constitutional steps, which had been validated by the Supreme Court of Pakistan in Begum Nusrat Bhutto V. Chief of the Army Staff (PLD 1977 SC 657) and Syed Zafar Ali Shah V. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) in the interest of the State and for the welfare of the people, as also the fact that the Constitution was not abrogated, but merely held in abeyance;
Sufficient corroborative material has been produced by the respondents, which justifies the taking of the extra-constitutional measures by the Chief of Army Staff and the President.
(i) the Constitution of the Islamic Republic of Pakistan, 1973 still remains to be the supreme law of the land albeit certain parts thereof have been held in abeyance in the larger interest of the country and the people of Pakistan;
(ii) The extra-constitutional steps of Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitution Order No. 1 of 2007, the Provisional Constitution (Amendment) Order, 2007, the Oath of Office (Judges) Order, 2007 and the President's Order No. 5 of 2007 are hereby declared to have been validly made by the Chief of Army Staff/President subject to the condition that the country shall be governed, as nearly as may be, in accordance with the Constitution. All acts and actions taken for the orderly running of the State and for the advancement and good of the people are also validated. In absence of the Parliament, General Pervez Musharraf, Chief of Army Staff/President, in pursuance of the Proclamation of Emergency of the 3rd day of November 2007 may, in the larger public interest and the safety, security and integrity of Pakistan, under the principle of salus populi suprema lex, may perform--
(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;
(b) All acts which tend to advance or promote the good of the people; and
(c) All acts required to be done for the ordinary orderly running of the State.
(i) The old Legal Order has not been completely suppressed or destroyed, but it is a case of constitutional deviation for a limited transitional period;
(ii) Constitutional amendments can be resorted to only if the Constitution fails to provide a solution for the attainment of the declared objectives of the Chief of Army Staff/President, but without affecting the salient features of the Constitution, i.e. independence of Judiciary, federalism, parliamentary form of Government blended with Islamic provisions;
(iii) The President, the Federal Government and the Election Commission of Pakistan shall ensure the holding of fair, free and transparent elections as required by the Constitution and the law;
(iv) The Superior Courts continue to have the power of judicial review, to judge the validity of any act or action of the Chief of Army Staff, or the President notwithstanding the ouster of their jurisdiction by the aforesaid extra-constitutional measurers;
(v) The Chief Justices and Judges of the superior Courts (Supreme Court of Pakistan, Federal Shariat Court and the High Courts) are subject to accountability only before the Supreme Judicial Council in accordance with the procedure laid down in Article 209 of the Constitution;
(vi) The learned Chief Justices and Judges of the superior Courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007 have ceased to hold their respective offices on the 3rd of November 2007. Their cases cannot be re-opened being hit by the doctrine of past and closed transaction; and
(vii) The Proclamation of Emergency of the 3rd day of November, 2007 shall be revoked by the President and/or the Chief of Army Staff at the earliest so that the period of constitutional deviation is brought to an end. However, this Court may, at any stage, re-examine the continuation of the Proclamation of Emergency if the circumstances so warrant.
(M.S.A.) Petitions disposed of.
PLJ 2008 SC 451
[Original Jurisdiction]
Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi & Ch. Ijaz Ahmad, JJ.
SHAHID ORAKZAI & another--Petitioners
versus
FEDERATION OF PAKISTAN--Respondent
Constitution Petitions No. 9 & 17 of 2007, decided on 13.7.2007.
Constitution of Pakistan, 1973--
----Arts. 184(3), 2, 2-A, 180 & 177--Constitutional petition--Appointment as Acting Chief Justice--Question of a non-Muslim as Chief Justice or Acting Chief Justice--Maintainability--Principle of equality before law--Legislature may in its domain subject to the constitution--A non-Muslim citizen cannot be appointed against a particular post but there is no prohibition in the Constitution or any law that a non-Muslim cannot be appointed as a Judge or Chief Justice in the superior Courts--Petition appears to have been filed with the motive to cause damage to dignity of a hgih Constitutional Office of Chief Justice or Acting Chief Justice and has not been brought before Supreme Court in good faith--Petitions being not maintainable.
[Pp. 453 & 454] A
Petitioner in person (in Constitution Petition 9 of 2007).
Petitioner in person (in Constitution Petition 17 of 2007).
Mr. Tariq Mehmood Khokhar, DAG for Respondent.
Date of hearing: 13.7.2007.
Judgment
Muhammad Nawaz Abbasi, J.--This Constitution Petition Bearing No. 9 of 2007 under Article 184(3) of the Constitution, has been filed by Mr. Shahid Orakzai challenging the appointment of Mr. Justice Rana Bhagwandas as Acting Chief Justice of Pakistan on the ground that an appointment under Articles 180 of the Constitution of Islamic Republic of Pakistan, 1973, is subject to Article 2 and 2-A of the Constitution and a non Muslim cannot be appointed as Chief Justice or Acting Chief Justice of Pakistan.
In the connected Constitution Petition filed by Maulvi Iqbal Haider Bearing No. 17 of 2007, a declaration has been sought that the appointment of a non-Muslim as a Judge or Acting Chief Justice of Pakistan or Chief Justice of Pakistan is not unconstitutional.
Notice was issued to the respondent vide order dated 2.4.2007 as under:--
"After having heard Mr. Shahid Orazkai (petitioner in person) at length we feel inclined to issue notice to the respondent on the point as to whether a Muslim Judge of the Supreme Court performing functions under Article 180 of the Constitution of Islamic Republic of Pakistan can be asked to hand over the office of the Chief Justice of Pakistan to a non-Muslim and whether various other functions which have been assigned under the Constitution to the Chief Justice of Pakistan can be performed by a non-Muslim Chief Justice. Besides that various other Articles such as Articles 177, 41, 178, 255, 196, 203, 217, 168 have been referred which require interpretation. Adjourned. To come up on 4.4.2007."
The petitioner in person, in support of this petition has contended that Pakistan is an Islamic State and notwithstanding the fact that no prohibition is contained in the Constitution of Islamic Republic of Pakistan to appoint a non-Muslim as Chief Justice or Acting Chief Justice of Pakistan in the light of Article 2 and 2A read with Articles 177, 41, 178, 255, 196, 203, 217 and 168 of the Constitution, a non Muslim cannot be appointed as a Judge or Chief Justice or Acting Chief Justice of Pakistan and as per mandate of the Constitution in absence of Chief Justice, presently the Court is not properly constituted. The petitioner on asking of the Court that what is his locus standi to maintain this petition, submitted that he being a Muslim citizen of Pakistan is under an obligation, by virtue of Article 5 of the Constitution to be loyal and obedient to the Constitution and he can competently challenge the constitutional appointment if not made in the spirit of the Constitution. The collateral grounds taken in support of this petition are (a) that the matter pertains to the enforcement of fundamental rights of Muslim citizen of Pakistan and the question involved therein was of great public importance and (b) without validly appointed Chief Justice of Pakistan or Acting Chief Justice of Pakistan, the Supreme Court cannot competently function under the Constitution.
The Chief Justice of Pakistan and Judges of Supreme Court are appointed under Article 177 of the Constitution, whereas Acting Chief Justice of Pakistan is appointed under Article 180 of the Constitution if at any time the office of Chief Justice of Pakistan is temporarily vacant for any reason or if he is unable to perform functions of his office due to any cause, it is the Constitutional obligation of the President to appoint the most senior Judge of the Supreme Court as Acting Chief Justice of Pakistan. Article 180 of the Constitution provides as under:--
"180. At any time when----
(a) the office of Chief Justice of Pakistan is vacant; or
(b) the Chief Justice of Pakistan is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint [the most senior of the other Judges of the Supreme Court] to act as Chief Justice of Pakistan."
In the present case, the appointment of Mr. Justice Rana Bhagwan Das, who is the senior most Judge of the Supreme Court of Pakistan, next to Chief Justice as Acting Chief Justice of Pakistan was made for the reason that the Chief Justice of Pakistan was unable to perform his functions due to the order passed by the President restraining him from functioning as Chief Justice of Pakistan. The petitioner has not been able to show us any bar in any of the Articles of Constitution including Article 2 & 2-A of the Constitution that a non-Muslim cannot be appointed as Chief Justice or Acting Chief Justice of Pakistan or a Judge of the Supreme Court. This is correct that a petition of the nature of quo warranto can be filed to question the appointment of a person as Judge of the Superior or Inferior Court if his appointment was not made in accordance with the law and Constitution but no such petition can be maintained against the appointment of Acting Chief Justice of Pakistan under Article 180 of the Constitution or Chief Justice of Pakistan under Article 177 of the Constitution on the ground that appointee was non Muslim. The legislature may in its domain subject to the Constitution and the principle of equality before law and equal treatment before law can make a law that a non Muslim citizen cannot be appointed against a particular post but there is no prohibition in the Constitution or any law that a non Muslim cannot be appointed as a Judge or Chief Justice in the superior Courts. This petition appears to have been filed with the motive to cause damage to the dignity of a high Constitutional Office of Chief Justice of Pakistan or Acting Chief Justice of Pakistan and has not been brought before this Court in good faith as the points raised therein may be in direct conflict to the concept of independence of judiciary and principle of equality before law. This petition instead of advancing a noble cause appears to have been filed with the purpose to malign the judiciary.
(M.S.A.) Petitions dismissed.
PLJ 2008 SC 454
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan & Ch. Ijaz Yousaf, JJ.
MUHAMMAD ANWAR--Appellant
versus
STATE--Respondent
Jail Petition No. 78 of 2006, decided on 26.02.2008.
(On appeal from the judgment dated 25-01-2006 in Cr.A. No 708 of 2001, M.R. No. 757 of 2001 passed by the Lahore High Court, Multan Bench Multan).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 345(6)--Pakistan Penal Code, (XLV of 1860), S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Compoundable offence--Leave to appeal--Conviction and sentence recorded against accused--Appeal was dismissed by High Court--Assailed--Compromise as mitigating circumstance--High Court declined to give permission to compound the offence--Challenge to--Petitioner has committed murder of his own father and that too in a brutal manner, without any cause, therefore Supreme Court was not inclined to allow application for acceptance of the compromise as otherwise its effect would be of acquittal--However, petitioner has two young sisters, the other male member of the family i.e--his brother is behind the bars in another case and the girls would be exposed to adversities of life--Appellate Court keeping in view the mitigating circumstances of the case allows the application and converted the sentence to death into life imprisonment. [P. 457] A
2003 SCMR 663; PLD 2003 SC 572; 2002 SCMR 1308 & 1997 SCMR 307 ref. PLD 1982 SC 139; PLD 1982 SC 277; 1982 SCMR 605; 1983 SCMR 557; 1983 SCMR 667; 1984 SCMR 1514; 1985 SCMR 172; 1985 SCMR 612; 1985 SCMR 780 and 1986 SCMR 1420 foll.
Ch. Muhammad Akram, ASC for Appellant.
Ch. Munir Sadiq, DPG for State.
Date of hearing: 26.2.2008.
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against the judgment dated 25.1.2006 passed by a Division Bench of the Lahore High Court, Multan Bench, Multan, whereby appeal filed by the petitioner against his conviction and sentence recorded under Section 302(b) PPC was dismissed and murder reference sent for conformation of death sentence was answered in the affirmative.
Facts of the case in brief are that the petitioner was tried by learned Sessions Judge, Lodhran, on the charge of murder of his father, namely, Allah Ditta. Petitioner was charged under Section 302(b) PPC to which he pleaded not guilty and claimed trial. At the trial, prosecution, in order to prove the charge and substantiate the allegation levelled against the petitioner, produced seven witnesses in all. Eye witness account of the occurrence was furnished by PW-5 Allah Bakhsh and PW-6 Rustam. PW-2 Dr. Altaf Ahmad Khan had conducted post-mortem examination on the dead body of the deceased. On completion of the prosecution evidence the petitioner was examined under Section 342 Cr.P.C. In his above statement, the petitioner denied the charge and pleaded innocence. He produced two DWs, however, did not opt to appear as his own witness in terms of Section 340(2) Cr.P.C.
On conclusion of the trial, the trial Judge convicted the petitioner under Section 302(b) PPC and sentenced him to punishment of "death" with the direction to pay a sum of Rs.50,000/- as compensation and in failure thereof to further undergo six months R.I. Being aggrieved, the petitioner approached the High Court by way of Criminal Appeal No. 708 of 2001. Murder Reference No. 757 of 2001 was also sent to the High Court for conformation of the death sentence. A Division Bench of the Lahore High Court, Multan Bench, Multan, dismissed the appeal. Conviction and sentence recorded against the petitioner were maintained and the murder reference was answered in the affirmative.
Learned counsel for the petitioner, at the very outset, has submitted that since the matter has been compromised between the parties and all the legal heirs of the deceased have forgiven the petitioner in the name of Allah, therefore, he may be acquitted of the charge or else the sentence inflicted on him may be reduced. He has added that earlier a similar request was also made before the appellate Court but it was not accepted, because it was found by the learned High Court that since diyat falling in the share of Mst. Perveen, minor sister of the deceased, was not deposited by that time, hence partial compromise was not possible. He has maintained that learned Division Bench of the High Court has gravely erred in making the above observation, because as per report forwarded by District & Sessions Judge, Lodhran, Allah Ditta, deceased, had left behind, in addition to the petitioner, only, Muhammad Asghar, son, Mst. Nasreen Bibi, daughter, and Mst. Bashiran Bibi, another daughter as his legal heirs, the offence was compound by all the three and none of them was a minor. He has further added that during pendency of the petition, Cr. Misc. No. 455 of 2006 was moved, wherein while clarifying the above position, it was prayed that since another brother of the petitioner was also in jail, in case FIR No. 483/1999, and there was no other male member of the family available to lookafter the two young daughters, and there was every likelihood that not only they would be exposed to the rigours of time but their property would also be usurped by their relatives, in case the petitioner was executed hence, compromise may be accepted.
Ch. Munir Sadiq, learned Deputy Prosecutor General, Punjab, appearing on behalf of the State, has though not disputed competence of the legal heirs of the deceased to compound the offence yet, has stated that since the petitioner has committed murder of his father, therefore, he does not deserve to be acquitted and adequate sentence of imprisonment should be inflicted on him, in case the sentence of death is commuted.
We have given our anxious consideration to the respective contentions of learned counsel for the parties and have also perused the available record, minutely, with their assistance.
Though an application for acceptance of compromise was also filed in the High Court, yet it was not accepted, as it was found by the learned Judges in the High Court that diyat amount falling in the share of "minor Perveen Bibi" was not deposited. It appears that proper assistance was perhaps not rendered to the Hon'ble Judges in the High Court and it was wrongly presumed that Perveen Bibi was minor sister of the deceased whereas the facts appear to be other way round.
It would be pertinent to mention here that pursuant to Cr. Misc. Application No. 455/2006, learned District & Sessions Judge concerned was directed to furnish report regarding genuineness or otherwise of the compromise and also to ascertain as to by whom the deceased was succeeded. In response to the query, learned District & Sessions Judge, Lodhran, vide Letter No. 1032, dated 24.9.2007 has reported that Allah Ditta had left behind, Mst. Pathani Mai, widow, Muhammad Anwar, (petitioner) and Muhammad Asghar, sons, Mst. Nasreen Mai and Mst. Bashiran Mai, daughters, as his legal heirs, out of whom Mst. Pathani Mai died on 20.8.1999. Statements of the rest of the legal heirs were recorded and they have confirmed that they have compounded the offence. He has through his Letter No. 1032, dated 24.9.2007 has also confirmed that none of the aforementioned legal heirs is minor and question of payment of diyat too, does not arise as all the legal heirs being major have stated that they have forgiven the petitioner in the name of Allah.
It would not be out of place to mention here that though the offence of Qatl-i-amd, punishable with sentence of death or imprisonment for life as Ta'azir, can be compounded by all the legal heirs of the deceased under sub-section (2) of Section 345, Cr.P.C. yet, its acceptance within the purview of above provision, is dependent upon permission of the Court which has to be accorded keeping in view attending circumstances of each case. Reference in this regard may usefully be made to the cases reported as (i) Ghulam Shabbir & others v. the State (2003 SCMR 663) (ii) Muhammad Saleem v. The State (PLD 2003 SC 512), (iii) Muhammad Younis v. The State (2002 SCMR 1308) (iv) Muhammad Aslam and another v. Shaukat Ali alias Shauka and others (1997 SCMR 1307).
Since in the instant case, the petitioner has committed murder of his own father and that too, in a brutal manner, without any cause, therefore we are not inclined to allow application for acceptance of the compromise as otherwise its effect would be of acquittal under Section 345(6) Cr.P.C. However, since the petitioner has two young sisters, the other male member of the family i.e. his brother is behind the bars in another case and it has been pleaded that the girls would be exposed to the adversities of life, in case the petitioner is executed, therefore, while taking the compromise as a mitigating circumstance, we order that the sentence of death inflicted on the petitioner be commuted with imprisonment for life. In this view we are fortified by the observations made in the following reported judgments:
(i) Muhammad Bashir v. The State (PLD 1982 SC 139).
(ii) Iftikhar Ahmad v. The State (PLD 1982 SC 277).
(iii) Muzaffar alias Zafar Ali v. The State (1982 SCMR 695).
(iv) Javed and another v. The State (1983 SCMR 557).
(v) Nazar Muhammad v. The State (1983 SCMR 631).
(vi) Nazar Muhammad v. The State (1983 SCMR 667).
(vii) Inayat Ullah and another v. The State (1984 SCMR 488).
(viii) Labah and another v. The State (1984 SCMR 1514).
(ix) Abdul Quddus v. The State (1985 SCMR 172).
(x) Muhammad Hanif v. The State (1985 SCMR 612).
(xi) Ejaz Ahmed alias Jhajja v. The State (1985 SCMR 780).
(xii) Muhammad Aqeel alias Billa v. The State (1986 SCMR 1420).
(xiii) Inayat and 5 others v. The State (1988 SCMR 148).
(xiv) Abdul Hameed and 4 others v. The State (1988 SCMR 1420).
Rs. 50,000/- under Section 544-A Cr.P.C. will remain intact. With the above modification in sentence, this petition is converted into appeal and partially allowed.
(W.I.B.) Appeal partially accepted.
PLJ 2008 SC 458
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq & Muhammad Farrukh Mahmud, JJ.
MUZAMMIL IQBAL--Appellant
versus
STATE--Respondent
Crl. A. No. 222 of 2003, decided on 17.3.2008.
(On appeal from the judgment dated 06-05-2002 of the Lahore High Court Lahore passed in Criminal Appeal No 68-J of 2002 and Murder Reference No. 24-T of 2002.).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) 452, 148 & 149--Conviction and sentence--High Court maintained and confirmed the sentence of death--Re-appraisal of evidence--No previous enmity or grudge existed between the parties so as to depose falsely against accused--Statement is supported by medical evidence and circumstances of the case--Evidence of eye witnesses is consistent and trust worthy account of the occurrence--Appellate Court refused to enter into microscopical re-appraisal of the ocular evidence of PW, especially after the scrutiny by Courts below. [P. 463] A & B
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b) 452, 148 & 149--Criminal Procedure Code, (V of 1898), S. 382-B--Conviction and sentence recorded against accused--Appeal was dismissed by High Court--Appreciation of evidence--Held: When guilt of several accused proved to be equal and indistinguishable then no distinction could be drawn while awarding sentence to each of them--Sentence of death was reduced to imprisonment for life and the benefit of 382-B, Cr.P.C. was provided. [P. 464] C & D
PLD 1970 SC 447 foll.
Mian Aftab Farrukh, Sr. ASC for Appellant.
M/s Yasmeen Sehgal, DPG Punjab for State
Date of hearing: 17.3.2008.
Order
Muhammad Farrukh Mahmud, J.--Muzammil Iqbal appellant has directed this Appeal No. 222 of 2003, by leave of the Court, against the judgment dated 6.5.2002 handed down by the learned Division Bench of Lahore High Court in case FIR No. 67 registered at Police Station Nikdar, District Sargodha on 16.8.1999 at 3:15 a.m. for offences under Sections 302, 452, 148, 149 PPC whereby the appeal was dismissed and the conviction and sentences recorded by the learned trial Court were confirmed. Muzammil Iqbal appellant alongwith Ehsanullah-co-convict, Ramzan s/o Allah Bakhsh, Aman Ullah and Irshadullah sons of Noor Muhammad faced trial for causing death of Muhammad Riaz at his Dera and deaths of Kabir, Ghulam Shabbir and Ghulam Fatima in their house. Vide judgment dated 27.3.2002, the learned trial Court while acquitting Ramzan, Amanullah and Irshadullah, convicted Muzammil Iqbal appellant and Ehsanullah co-convict in the following terms:
"1. MUZAMMIL IQBAL.
Death u/S. 302 (b) PPC, Rs. 1,00,000/- (one lac) compensation on each count for murder of Muhammad Riaz, Muhammad Kabir, Ghulam Shabbir and Mst. Ghulam Fatima in default 6 months S.I. on each count. The amount of compensation shall be recoverable as arrears of land revenue.
Under Section 302 (b) PPC read with Section 34 PPC life imprisonment on each count (4). To pay compensation of Rs. 20,000/- on each count in default 6 months S.I. on each count. The amount of compensation shall be recoverable as arrears of land revenue.
The sentences of imprisonment shall run concurrently except the sentences for payment of fine and compensation. The benefit of Section 382-B Cr.P.C. was also granted to both the convicts".
Muzammil Iqbal appellant and Ehsanullah challenged their convictions and sentences through separate appeals. Complainant Muhammad Nawaz PW11 also challenged the acquittal of three co-accused through Appeal No. 666 of 2002. Vide judgment dated 6.5.2002, the learned High Court dismissed the appeals filed by Muzammil Iqbal appellant and Ehsanullah co-convict. The death sentence inflicted upon Muzammil Iqbal was confirmed. Similarly, the acquittal of co-accused recorded by the trial Court was up-held and the appeal filed by the complainant was dismissed. Ehsanullah co-convict did not file any appeal before this Court against the judgment passed by the learned High Court.
The relevant facts un-folded in the FIR Ex.PU are that complainant Muhammad Nawaz PW11 who was resident of Mouza Rajhana District Jhang had gone to visit his cousins Muhammad Kabbir, Ghulam Shabbir to their house in Chak No. 154-north. During night of 15/16-8-1999, Ghulam Shabbir PW14, Mst. Kaneez Fatima widow of Muhammad Riaz deceased PW13 and Muhammad Riaz deceased were present at their Dera in lieu of turn of water. The lantern was burning. At about 1 a.m. Muhammad Ramzan-acquitted, Amanullah-acquitted, Irshadullah-acquitted, Asghar Ali-absconder, Muzammil appellant and Ehsanullah-co-convict all armed with .12 bore guns reached at the Dera of Muhammad Riaz. After raising lalkara, Muzammil fired at Muhammad Riaz which hit in between left eye and nose. Thereafter Muhammad Ramzan caused fire which hit on his chest. The rest of the accused continued raising lalkara. Muhammad Riaz died on the spot. Thereafter all the accused trespassed into the Haveli of Muhammad Kabir deceased. At that time complainant, Rabnawaz PW12, Muhammad Kabbir deceased, Ghulam Shabbir deceased, their mother Ghulam Fatima deceased and Zahoor Fatima wife of Ghulam Shabbir, while sitting in the compound of the house, were gossiping in the light of lantern. Muhammad Ramzan caused fire which hit Muhammad Kabbir deceased on the right side of chest. Thereafter Muzammil fired which hit on the left side of the deceased. Amanullah caused fire which hit on the right side of neck of Ghulam Shabbir. Irshadullah fired which also hit on the right side of neck of Ghulam Shabbir. Asghar Ali fired which hit on the left elbow of Ghulam Shabbir. The fire caused. Ehsanullah hit on the right arm-pit of Ghulam Fatima deceased. Muzammil also fired which hit on the left flank of Ghulam Fatima. Muhammad Ramzan also fired at Ghulam Fatima causing injury on the right thigh. All the injured died at the spot. Thereafter the accused left the scene of occurrence. PWs due to fear of life did not intervene and saw the occurrence while standing close to the walls. It was mentioned in the FIR that the incident of murder of Muhammad Riaz was reported to the complainant by Ghulam Shabbir and Kaneez Fatima.
The motive behind the occurrence was that Muhammad Kabbir deceased was married with Mst. Zarina sister of Muzammil appellant. Mst. Zarina was living with her parents for quite some time after quarrelling with her husband. The appellant sought divorce of Mst. Zarina from Muhammad Kabbir who refused.
During trial, in order to prove its case, the prosecution produced 20 witnesses. The ocular account was given by Muhammad Nawaz PW11, Rabnawaz PW12, Kaneez Fatima PW13 and Ghulam Shabbir PW14. Their statements are in-line with the story given in the FIR and need not be reproduced. Dr. Munawar All PW1 stated that he conducted post mortem examination on the dead body of Muhammad Riaz at 11:30 a.m. on 16.8.1999. He observed three injuries on the person of the deceased. Injuries No. 1 and 2 which were caused on cheek and chest, were entry wounds, while Injury No. 3 was exit wound. During post-mortem examination he recovered two pellets with cartridges from the chest cavity of the deceased which were handed over to the police in a scaled carton. According to his opinion, deceased lost his life immediately after the receipt of injuries and the time elapsed between death and post-mortem was between 6 to 24 hours. Dr. Khalid Javed Mahmood PW20 stated about the postmortem examination of Ghulam Shabbir, Mst. Ghulam Fatima and Muhammad Kabbir deceased on 16.8.1999. According to his observation, all the deceased had received fire arm injuries and lost their lives immediately. The postmortem examination was conducted on the dead bodies of the deceased within 10 to 15 hours. Shaukat Hayat ASI PW16 stated about the registration of FIR, necessary investigation conducted at the spot and thereafter. He also stated about the factum of recovery of .12 bore gun P 14 alongwith two cartridges P-15/1-2 on 12.11.1999 at the instance of Muzzamil appellant while he was in custody. Muhammad Nazir SI PW-17 stated that he arrested Muzammil appellant and Ehsanullah co-convict on 4.11.1999. He also stated about the recovery of weapon at the instance of appellant from his house. He further stated that on 12.11.99 he submitted challan against Muzammil and Ehsanullah whereas the other accused were found to be innocent by him. The rest of the witnesses are formal in nature and need not be reproduced. In his statement recorded under Section 342 Cr.P.C., the appellant claimed to be innocent and stated that PWs had deposed against him due to party-fiction in the village. Neither he appeared in his defence nor produced any defence witness during trial.
The learned counsel for the appellant after taking us through the entire evidence on record submitted that the occurrence took place in the dead of night when there was no source of light; that the story of burning of lanterns was false as the lanterns were not taken into possession; that the complainant was a chance witness who was living 40 miles away and had no business to be present at the time of occurrence; that the learned trial Court has rightly dis-believed Mst. Kaneez Fatima widow of Riaz deceased; that the rest of the eye-witnesses were related to the deceased and were also inimical towards appellant; that Ghulam Shabbir and Rabnawaz PWs were brothers who lived in a different house and the story brought forward about their presence was not trustworthy. After entry into deep analysis of medical evidence, the learned counsel submitted that the medical evidence was not in consonance with the statements of PWs and for that reason alone, it should be rejected; that the learned trial Court on the same evidence acquitted Ramzan, Amanullah and Irshadullah so the conviction could not be recorded against appellant in the absence of any independent, reliable and corroborative evidence against the appellant; that no independent witness was produced in support of motive and that in case the witnesses would have been present, the assailants would not have spared them.
Conversely, learned Deputy Prosecutor General Punjab has submitted that it was a case of sifting of grain from the chaff and the acquittal of three co-accused would not benefit the appellant and that PWs Ghulam Shabbir and Rubnawaz were related to the deceased and residents of same village so their presence was plausible; that the PWs had no personal enmity with the appellant; that the ocular account was supported by the medical evidence and corroborated by the evidence of motive and recovery.
We have heard the learned counsel for the parties at length and have perused the record. The time and place of occurrence has not been challenged. Undeniably Muhammad Nawaz and Ghulam Shabbir PWs lived at a distance of five acres from the house of deceased. They were related inter-se and their being together in the month of August alongwith deceased was not exceptional. Ghulam Shabbir was brother of Riaz deceased and he stated before the learned trial Court that "we had a turn of water on the said night". During cross examination nothing was brought on record to show that Riaz deceased had no turn of water on the fateful night. It would not be odd for Ghulam Shabbir to remain with his brother when the land was to be irrigated at late hours. Firstly, the accused murdered Riaz while he was present at the Dera and then they proceeded to the house of Kabir where they killed Kabbir, his brother Ghulam Shabbir and their mother Ghulam Fatima. Kaneez Fatima and Ghulam Shabbir were witnesses of the occurrence at the Dera of Riaz. The learned trial Court has held that Mst. Ghulam Fatima was not present at the time of occurrence. However, both the learned Courts, for cogent reasons, have believed presence of Ghulam Shabbir vis-a-vis the death of Riaz. No personal previous enmity or grudge existed between Ghulam Shabbir and the accused so as to depose falsely against them under oath. The name of Ghulam Shabbir is mentioned in the FIR which was lodged within two hours of the occurrence and his statement is supported by the medical evidence and circumstances of the case. Kabbir, his brother Ghulam Shabbir and Ghulam Fatima lost their lives inside their house while they were gossiping with Muhammad Nawaz PW11 and Rabnawaz PW12. Both the eye-witnesses have given consistent and trust-worthy account of the occurrence. They had no personal grudge against the appellant. The presence of Muhammad Nawaz complainant has been challenged for the reason that he lived at a distance of 40 miles and could not be present at the time of occurrence. This argument is devoid of force as the occurrence took place at about 1:00 a.m. during night while the matter was reported at the police station at 3:15 a.m. within two hour and fifteen minutes while the police station was at a distance of four kilometer. Four persons had lost their lives. All the accused were armed with deadly weapons. In that case the complainant would have left the spot to report the matter to the police after some time, as mentioned above, the FIR was registered within two hour and fifteen minutes. In case Muhammad Nawaz PW would not have been present then the matter could not be reported by him within two hours as it would have taken much longer time firstly to report the matter to Muhammad Nawaz who lived at a distance of 40 miles and then for Muhammad Nawaz to reach the police station within two hours. The FIR was lodged promptly which rules out the theory that Muhammad Nawaz was not present at the time of occurrence. The PWs, deceased and the accused knew one another very well, being relatives. The occurrence lasted for quite some time, assailants had been raising lalkara so it was not difficult for the PWs to definity the accused. It has been mentioned in the FIR by the PWs that the lanterns were burning at the time of occurrence. If the same were not taken into possession, it reflected upon the efficiency of the investigating officer and lapse on his part would not harm the prosecution case. Similarly, the acquittal of three co-accused would not benefit the appellant as the learned Courts below found their case distinguishable from those who were convicted.
The ocular account is supported by the medical evidence as all the deceased had lost their lives due to fire arm injuries. If was natural for the PWs to take some precautionary measures in order to save their lives. It was not expected out of them to give minute details relating to locale of injuries. We are not inclined to enter into microscopical re-appraisal of the ocular evidence of the PWs vis-a-vis the seat of injuries, especially after the scrutiny by the learned two Courts below. The prosecution has successfully proved the motive which was not seriously challenged. The accused murdered Kabbir who had refused to divorce Mst. Zarina sister of Muzammil appellant the factum that Mst. Zarina left the house of her husband Kabbir and living with her parents had not been challenged. Ghulam Shabbir deceased is brother of Muhammad Kabbir while Ghulam Fatima is mother of Muhammad Kabbir deceased. Similarly, Muhammad Riaz deceased was married with the sister of Muhammad Kabbir deceased. So the close relatives have been murdered. It was not necessary for the assailants to take lives of all those who were present.
As far as recovery of gun at the instance of appellant is concerned, in our opinion, that is of no consequence in the absence of empties taken from the spot. The nutshell of the whole discussion is that in our opinion, the prosecution has successfully proved its case against the appellant. Having come to this conclusion, we have given our anxious and considered thought to the quantum of sentence. It has been noticed by us that Ehsanullah co-convict (co-accused) who was assigned similar role was sentenced to imprisonment for life, he has not challenged his conviction and sentence. Similarly, neither the State nor the complainant has filed any petition seeking enhancement of his sentence. It is a settled law that when guilt of several accused proved to be equal and indistinguishable then no distinction could be drawn while awarding sentence to each of them. It was observed by this Court in the case of Shaheb Ali versus the State (PLD 1970 SC 447) as follows:
"when the guilt of several accused persons concerned in a murder crime is proved to be equal and indistinguishable, it would be wholly illogical to pick on just one person out of the lot to pay by his life for the murder of the deceased and to spare the others".
others (1989 SCMR 1461), the sentence of accused was converted into life imprisonment in view of the fact that it could not be ascertained as to whose gunshot had hit the deceased in the darkness.
(W.I.B.) Appeal partially accepted.
PLJ 2008 SC 465
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar & Muhammad Akhtar Shabbir, JJ.
MUHAMMAD MUSHTAQ and another--Petitioners
versus
STATE--Respondent
Jail Petition No. 474 of 2005, decided on 17.12.2007.
(On appeal from judgment of Peshawar High Court, Peshawar dated 16.11.2005 passed in Criminal Appeal No. 672 of 2004).
Confessional Statement--
----Record should contain full account of occurrence and showing the voluntariness of the confession because purpose behind recording of statement is not merely to satisfy the magistrate but also the Court who will decide the case--Neither record shows that accused petitioner were not given sufficient time to compose themselves.
[P. 467] A
1993 SCMR 1822, fol.
Appreciation of Evidence--
----Police Officials are also competent witnesses and their testimony could not be discarded merely for the reason that they are employees of force. [P. 468] B
2003 P.Cr.L.J. 324 and PLD 1996 SC 67 rel.
Recovery of Charas--
----Not challenged the nature of recovery substances being "Charas" and "Opium" before trial Court or High Court--They cannot now turn around that recovered material which was not produced at the time of trial in Court was other than narcotics. [P. 468] C
2003 SCMR 54, rel.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 25--Criminal Procedure Code, (V of 1898)--Non-compliance of--Application of S. 103, Cr.P.C. to the offence under the Control of Narcotic Substances Act, 1997 has been excluded by Section 25 of the Act--Leave refused. [P. 469] D
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 164 & 364--Confessional statements of accused--Essentials--Rule of caution and prudence--Requirements of recording confessional statements of accused as provided u/Ss. 164 and 364 of Cr.P.C.--Defect in recording the confessional statement of the accused is so vital that the evidence cannot be considered and on rule of caution and prudence, such piece of evidence must be ruled out of consideration. [P. 469] E
Witness--
----Look for evidence and material on record to determine the responsibility and guilt of accused--Validity--Recovery memo and report of Chemical Examiner has been successful to establish the guilt of accused to hilt--Evidence of prosecution witnesses is straight, natural and reliable which was not shaken in any was by defence.
[P. 469] F
Hafiz S.A. Rehman, Advocate for Petitioners.
Mr. Niar Ahmad Rathore, Deputy Attorney General for Pakistan and Qari Abdul Rashid, ASC for State.
Date of hearing: 17.12.2007.
Judgment
Muhammad Akhtar Shabbir, J.--Petitioners seek leave to appeal from the impugned judgment of the Peshawar High Court, Peshawar dated 16.11.2005 whereby the Criminal Appeals No. 672, 676 of 2004, filed by the petitioners were dismissed and conviction and sentence under Section 9(c) of the Control of Narcotics Substances Act, 1997 (hereinafter referred to as the Act, 1997) to life imprisonment with fine of Rs. Five lacs each or in default thereof further five years S.I with benefit of Section 382-B Cr.P.C passed by Judge, Special Court (CNS) Peshawar at Kohat Camp, was maintained.
Brief facts of the case as disclosed in the F.I.R are that Regional Director ANF Peshawar, Shahidullah Jan on receipt of spy information that huge quantity of narcotics material would be smuggled through the Suzuki Motor Car No. LHV-7361 to Punjab, constituted a Police party consisting of AD Rehmat Khan, Incharge Police Station ANF Kohat, including complaining inspector Zarin Khan and others to intercept the vehicle. The raiding party conducted nakabandi near Police Station Jarma, Kohat-Bannu Road. At about 18:30 hours a vehicle, Suzuki Motor Car No. LHV-7361, coming from Kohat side was stopped and checked. The Police party found two men and a women sitting in the car. On search of the vehicle 26 packets of charas and 10 packets of opium concealed in the secret cavities of the dickey of the car were recovered and on weightment charas was found 28 kgs and opium 12 kgs. Four grams from each packet was separated and secured into two sealed packets for onward transmission to the chemical examiner. On asking the Driver of the car disclosed his name as Muhammad Mushtaq son of Gul Rehman and person sitting with him on front seat introduced himself as Muhammad Saleem, women sitting in the car was Zuhra Bibi wife of Muhammad Shoaib. After completion of investigation of the case, AD Rehmat Khan, PW-2, sent report under Section 173 Cr.P.C and challaned the accused to the Court where charge sheet was framed against the accused-petitioners. They denied the charge and claimed the trial.
During the trial, the prosecution had produced six witnesses namely HC Nazir Azam, PW-1, AD Rehmat Khan, PW-2, Judicial Magistrate Muhammad Aslam Khan, PW-3, F.C Matti-ur-Rehman, PW-4, DFC Ghuncha Gul, PW-5 and Inspector Zarin Khan, PW-6. After close of the prosecution evidence, statements of the petitioners under Section 342 Cr.P.C were recorded where they claimed to be innocent and having been involved falsely. None of the petitioner appeared as his own witness in defence under Section 340(2) Cr.P.C. At the conclusion of the trial of the case, learned trial Judge appraised the evidence available on the file of the case, found the petitioners guilty of the offence and, thus, convicted them. However, the lady accused Mst. Zuhra Bibi was acquitted from the charge.
Learned counsel for the petitioners argued that the conviction had been passed on the basis of confessional statements of the petitioners and that these confessions were not made in accordance with the requirements of the law and thus have no evidentiary value. He further contended that the recovered narcotics material (the case property i.e. charas, opium and the motor car alleged to have been used in the commission of the crime) were not produced before the trial Court at the time of the trial. He also contended that at the time of alleged recovery of narcotics material, no public witness had been associated. Thus, the whole process of recovery was made in violation of Section 103 Cr. P.C. While on the other hand, Qari Abdul Rashid, learned ASC for the State vehemently opposed the arguments of the learned counsel for the petitioner and supported the judgment of the trial as well as the High Court.
We have heard the arguments of the learned counsel for the parties and perused the record with their assistance. Mr. Muhammad Aslam Khan, Civil Judge-I/Judicial Magistrate Kohat, PS-3, deposed that on 22.9.1999, he recorded confessional statements of petitioners-Muhammad Saleem and Muhammad Mushtaq. From perusal of the confessional statements of the petitioners recorded by PW-3, it reveals that no sufficient time was provided to the petitioners to think over before making such statements and there is no certificate of verification by the magistrate that they were asked to sit and think over the matter cool-mindedly as the statements can be used against them. It is settled principle by the superior Court that the record should contain full account of the occurrence and showing the voluntariness of the confession because the purpose behind the preliminary recording of statement is not merely to satisfy the Magistrate but also the Court who will hear and decide the case whereas in the instant case, neither the record nor the statement of the Magistrate PW-3 recorded in the Court shows that the accused-petitioners were given sufficient time to compose themselves. It has been held in State vs. Muhammad Naseer (1993 SCMR 1822) that where the record shows that the accused hardly had any time at his disposal to think over before recording his confessional statement, such confessional statement would not be held voluntary.
The prosecution alongwith confessional statement of the accused-petitioners to prove its case also produced PW-2-Rehmat Khan, AD, PS ANF Kohat, Matti-ur-Rehman, FC, PW-4, who is witnesses of recovery memo, PW-6-Zarin Khan, Inspector, in whose presence the vehicle used in the commission of the crime, Suzuki Car No. LHV-7361 was stopped, checked and narcotics material weighting 28 kgs charas and 12 kgs opium was recovered and taken into possession. These witnesses were subject to lengthy cross examinations and despite that they made consistent statements on material points. One of the co-accused-Muhammad Mushtaq, Driver of the vehicle being aware of the presence of charas and opium being transported on the car, failed to refute the allegation leveled against him. No enmity or grudge have been alleged against the recovery witnesses for falsely implicating the accused-petitioners in the case. Admittedly, prosecution witnesses have been cross-examined by the defence counsel but none have been elicited which could detract from their statements.
As to the arguments of the learned counsel for the petitioners that no public witnesses had been joined at the time of recovery of narcotics material, the answer would be that the Police officials are also competent witnesses and their testimony could not be discarded merely for the reason that they were employees of the force. Reliance in this context can be placed to case of Shoukat Khan v. State (2003 P.Cr.L.J 324), Muhammad Azam v. State (PLD 1996 SC 67).
So far as the objection of learned counsel for the petitioners that the case property, the remaining narcotics material i.e. charas and opium was not produced in the Court, the accused-petitioners had not challenged the nature of recovery substances being "charas" and "opium" before the trial Court or the High Court. They can not now turn around that the recovered material which was not produced at the time of trial of the case in the Court was other than the narcotics. The prosecution witnesses when examined at the trial were not even suggested by the petitioners to produce remaining case property in the Court. It was neither objected nor prayed before the Court that entire case property may be sent to the chemical examiner for report to challenge that it was not the narcotics substance. The objection can not be raised now at this stage before this Court. Reliance can be placed in this context to case of Ali Muhammad v. State (2003 SCMR 54). The argument of the learned counsel for the petitioners with regard to the non-compliance of provision of Section 103 Cr.P.C has also no force because application of Section 103 Cr.P.C to the offence under the Control of Narcotic Substances Act, 1997 has been excluded by Section 25 of the Act. The relevant provision is as under:--
"25. Mode of making searches and arrest:--The provisions of the Code of Criminal Procedure, 1898, except those of Section 103, shall, mutatis mutandis, apply to all searches and arrests insofar as they are no inconsistent with the provisions of Sections 20, 21, 22 and 23 to all warrants issued and arrest and searches made under these sections."
"The contention concerning violation of Section 103 Cr.P.C seems to be fallacious when examined in the light of provisions as contained in Section 25 of the Act which provides exclusion of Section 103, Cr.P.C. Even otherwise the reluctance of general public to become witness in such-like cases has be now become a judicially recognized fact and there is no option left but to consider the statement of an official witness as no legal bar has been imposed in this regard.
The Police officials are equally good witnesses and could be relied if their testimony remains unshattered during cross examination. In this regard reference can be made to Muhammad Naeem v. State (1992 SCMR 1617), Muhammad v. State (PLD 1981 SC 635)."
The Magistrate PW-3 failed to comply with the requirements of recording confessional statements of accused as provided under Section 164/364 Cr.P.C. the defect in recording the confessional statement of the accused-petitioner is so vital that this evidence can not be considered and on the rule of caution and prudence, in the circumstances, this piece of evidence must be ruled out of consideration.
After excluding the confessional statements of the petitioners, the Court has to look for other evidence and material on record to determine the responsibility and guilt of the accused-petitioners. The prosecution by producing other material witnesses on cross-examination, recovery memo and report of chemical examiner has been successful to establish the guilt of the accused-petitioners to the hilt. Evidence of the prosecution witnesses is straight, natural and reliable which was not shaken in any way by the defence. No ill will or animosity against the prosecution witnesses/Police employees before the occurrence has been pointed out or existed prior to the said occurrence.
Learned counsel for the petitioner has miserably failed to point out any error of law or misreading of evidence in the impugned judgment of Peshawar High Court which can result into miscarriage of justice.
For the foregoing facts, reasons and circumstances, we find not merit in this petition which is dismissed and leave to appeal is refused.
(M.S.A.) Leave refused.
PLJ 2008 SC 470
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ & Muhammad Nawaz Abbasi, J.
KAHYAL AHMED--Petitioner
versus
ELECTION TRIBUNAL PUNJAB, LAHORE & others--Respondents
CMA No. 3041 of 2007 & Civil Petition No. 976 of 2007, decided on 19.12.2007.
Representation of the People Act, 1976 (LXXV of 1976--
----Ss. 12(2) & 14(5)--Liabilities in the nomination papers filed by petitioner neither any liability has been shown nor decree for recovery of specific amount passed against petitioner--Requirements of Section 12(2) of the Representation of the People Act, 1976 have not been complied with by the petitioner, as such, his nomination papers were rightly rejected by all the forums below--Liability of guarantor/surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract as envisaged in Section 128 of the Contract Act, 1872--Leave refused. [Pp. 471 & 472] A
Mr. Muhammad Munir Peracha, ASC with Ch. Muhammad Akram, AOR for Petitioner.
Nemo for Respondents.
Date of hearing: 19.12.2007.
Order
Abdul Hameed Dogar, HCJ.--This petition is directed against order dated 13.12.2007 passed by learned Lahore High Court, Lahore whereby Writ Petition No. 11932 of 2007 filed by petitioner was dismissed and order of the learned Tribunal dated 07.12.2007 was maintained.
Briefly stated facts giving rise to the filing of instant petition are that petitioner filed nomination papers before Respondent No. 2, the Returning Officer for Provincial Assembly of Punjab PP-71 which were rejected on 03.12.2007. Feeling aggrieved, he filed an appeal under Section 14(5) of the Representation of People Act, 1976 before Election Tribunal, Punjab which was also dismissed vide order dated 07.12.2007. Feeling still not satisfied he filed Writ Petition No. 11932 of 2007 before learned Lahore High Court, Lahore which too was dismissed vide impugned order.
We have heard Mr. Muhammad Munir Peracha, learned counsel for the petitioner at length and have also gone through the record and proceedings of the case in minute particulars.
Learned counsel for the petitioner vehemently contended that learned High Court has misinterpreted provisions of Sections 12 of the Representation of People Act, 1976 (hereinafter referred to as the Act of 1976'). According to him under Section 12(2)(c) of the Act of 1976, the candidate has to give apart from other declarations that no loan for an amount of two million rupees or more obtained from any bank, financial institution, cooperative society or corporate body in his own name or in the name of his spouse or any of his dependents or any business concern mainly owned by him or the aforesaid stands unpaid for more than one year from the due date, or has got such loan written off. He urged that decree was passed against M/s Ahmad Straw Board Company wherein the share of petitioner was only Rs. 13,40,650/- which was paid and he ceased to be its director with effect from 30.6.2007. He further contended that petitioner stood only as guarantee for the finance obtained by the said company and there was no default on his part.
There is no denial to the fact that in the column regarding liabilities in the nomination papers filed by petitioner neither any liability has been shown nor decree for recovery of Rs. 69,51,598/- passed on 15.5.2007 against petitioner and others has been mentioned. Though at the time of filing of nomination papers execution application for the said decree filed by Respondent No. 4 (Crescent Leasing (Cres Lease) Leasing Corporation was pending. Thus requirements of Section 12(2) of the Act, 1976 have not been complied with by the petitioner, as such, his nomination papers were rightly rejected by all the forums below. Moreover, the liability of guarantor/surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract as envisaged in Section 128 of the Contract Act, 1872. They are jointly and severally liable to pay the outstanding amount to the creditor. A guarantor cannot shrink from the liabilities incurred by him. The learned counsel has failed to point out any question of law of public importance warranting interference by this Court in the impugned judgment, which is maintained. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused.
(M.S.A.) Leave refused.
PLJ 2008 SC 472
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Nasir-ul-Mulk, JJ.
Haji FAQIR HUSSAIN & 7 others--Petitioners
versus
SECRETARY PROVINCIAL BOARD OF REVENUE NWFP, PESHAWAR & 15 others--Respondents
Civil Petition No. 328-P of 2003, decided on 4.9.2007.
(On appeal from the judgment and decree dated 12.3.2003 passed by the Peshawar High Court, Peshawar in Civil Revision No. 627 of 2000).
West Pakistan Urban Immovable Property Tax Act, 1958 (V of 1958)--
----S. 3--NWFP Local Government Ordinance, 1979, S. 7(2)--Notification--Demanded property tax from residents--Question of--No property tax could be imposed on the residents of area in-question merely on the basis of notification issued by Local Government Department unless a specific notification is issued u/S. 3 of the Urban Immovable Property Tax Act, 1958--Appeal accepted.
[P. 474] A
Barrister Masood Kausar, ASC with Mr. Muhammad Zahoor Qureshi, AOR for Petitioners.
Haji M.A. Qayyum Mazhar, ASC assisted by Mr. Farman Ullah Khattak, Legal Advisor with Mr. M. Nazim, AETO and Mr. Arshad Javed, Inspector Excise Department for Respondents.
Date of hearing: 4.9.2007.
Judgment
Sardar Muhammad Raza Khan, J.--Haji Faqir Hussain and others seek leave to appeal from the judgment dated 12.3.2003 of Peshawar High Court, whereby, a learned Judge in Chambers has dismissed their revision against the judgment and decree dated 10.6.2000 of learned District Judge, Kohat who, while setting aside the decree dated 17.5.1998 of learned Civil Judge Kohat, had dismissed the petitioners' suit.
The petitioners/plaintiffs are the residents of a Town planned by Kohat Development Authority. Excise and Taxation Authorities of Kohat imposed and demanded property tax from the residents thereof. The stance of the Government is that vide Notification No. AO(LG)8(9)/80 dated 15.1.1984 issued by the Government North-West Frontier Province, Local Government, Elections and Rural Development Department, gazetted on 9th June 1984, the property having fallen into the urban area as well as Municipal Limits of Kohat had become amenable to taxation under the Urban Immovable Property Tax Act, 1958.
The trial Court was of the view that according to the areas mentioned in the aforesaid notification, compared with the site-plan, the properties did not fall within Municipal Limits. Hence, it decreed the suit. On the other hand, the learned District Judge and the learned High Court were of the view that on account of the aforesaid notification the property fell within Municipal Limits and thus within urban areas and hence, was liable to be taxed under the Act aforesaid.
An important legal aspect lost sight of all the three Courts that the notification aforesaid was issued by the Government of NWFP under Section 7(2) of the NWFP Local Government Ordinance, 1979 and hence, operated only to include the given areas into the Municipal Limits. No more and no less. Whereas, the un-escapable legal facet of the case is, that any area, in spite of having been included into urban area, cannot be subjected to the imposition of the property tax unless an independent notification under Section 3 of the Urban Immovable Property Tax Act, 1958 is issued by the Provincial Government. For facility of reference Section 3 of the Act is reproduced below:--
"3. Levy of tax: (1) Government may by notification specify urban areas where tax shall be levied under this Act:
Provided that one urban area may be divided into two or more rating areas or several urban areas may be grouped as one rating area.
(2) There shall be charged levied and paid a tax on the annual value of buildings and lands in a rating area at the rate of ten percent of such annual value:
Provided that where a building is occupied [for residential purposes by the owner himself], the tax shall be levied at the said rate on one-half of the annual value of such building, if the owner or any member of his family does not own any other property in that rating area:
Provided further that Government may, by notification, remit for reasons to be recorded in whole or in part, the payment of the tax by any class of persons in respect of any category of property.
Explanation: The annual value for the purposes of this section shall be the aggregate annual value of all buildings and lands owned by the same person in a rating area.
(3) The tax shall be due from the owner of buildings and lands."
A perusal of sub-section (1) of the above Section would indicate that the mandatory provision of levying of tax is subjected to the issuance of notification, which shall specify the urban areas. The Government may or may not issue a notification but the property tax shall be levied only if the urban areas are specified through a notification. We are of the firm view that no property tax could be imposed on the residents of the area in question merely on the basis of notification issued by Local Government Department unless a specific notification is issued under Section 3 of the Urban Immoveable Property Tax Act, 1958. It was on this principle that a Full Bench of this Court had accepted Civil Appeal No.437 of 1999 in favour of Government of NWFP in case of Government of NWFP vs. Haji Muhammad Afzal Zia, decided on 20.1.2004 (unreported).
While parting, we may remark that had the Government been vigilant and properly advised, it should have issued the required notification under Section 3 of the Act of 1958, the moment the instant suit was filed in Court on 12.1.1993. It is high time, the Government realized its obligation.
In view of what has been discussed above, the instant petition after conversion into appeal is accepted and the impugned judgment dated 12.3.2003 of the learned High Court is set aside, holding, that property tax cannot be levied in an urban area without a specification thereof through notification under Section 3 of the Urban Immovable Property Tax Act, 1958.
(M.S.A.) Appeal accepted.
PLJ 2008 SC 475
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
Raja SOHAIL JAVED and another--Petitioners
versus
Raja ATIQ-UR-REHMAN--Respondent
C.P. Nos. 801 & 802 of 2007, decided on 2.4.2008.
(On appeal from the order dated 7.6.2007 of the Lahore High Court, Lahore passed in SAO Nos. 64 & 65 of 2007).
West Pakistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--
----S. 13(6)--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Petitioners were directed to keep on depositing monthly rent till the final disposal of the petition--Failed to deposit rent due to sick--Validity--After the date and before the issues are framed, the Controller shall direct the tenant to deposit all the rent due from him, and also to deposit regularly till the final decision of the case, before [Fifteenth] day of each month the monthly rent due from him--If there is any dispute about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by tenant before a date to be fixed for the purpose--If the tenant makes default in compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is respondent his defence shall be struck off and landlord be put into possession of the property without taking any further proceedings in the case--Held: Being mandatory provision has neither been complied with by Rent Controller not attended to by High Court in impugned order--Petitions were converted into appeals and were allowed. [P. 476] A
Mr. Nazir Ahmed Bhutta, ASC and Ch. Muhammad Akram, AOR for Petitioners.
Raja Abdur Rehman, ASC and Ch. Akhtar Ali, AOR for Respondent.
Date of hearing: 2.4.2008.
Order
Abdul Hameed Dogar, HCJ.--Through this order we intend to dispose of Civil Petitions No. 801 and 802 of 2007 filed against common order dated 07.6.2007 passed by learned Single Judge of Lahore High Court, Lahore whereby SAO Nos. 64 and 65 of 2007 filed by petitioners were dismissed.
Briefly stated, facts leading to the filing of instant petitions are that learned Rent Controller vide order dated 04.9.2006 fixed tentative rent of the premises at the rate of Rs.4500/- per month and calculated the same from period of institution of petition i.e. May 2006 to July, 2006 thus past rent came to Rs. 13,500/- and petitioners were directed to pay the same before 05.8.2006. It was also mentioned that in case of default of the deposit by petitioners their defense shall be struck off. Petitioners were also directed to keep on depositing the monthly rent at the rate of Rs.4500/- till the final disposal of the petition. The petitioners could not deposit future rent on the ground that petitioners Raja Karamat Ullah became sick and was hospitalized; Raja Sohail Javed being his son was attending him in the hospital who ultimately expired.
It is mainly contended by Mr. Nazir Ahmed Bhutta, learned counsel for the petitioners that learned Rent Controller as well the learned High Court have failed to take into consideration the provisions of sub-section (6) of Section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 (hereinafter referred to as `the Ordinance') and did not fix date for payment of monthly rent which is mandatory as such petitioners were not at fault in non-depositing the rent in time. It is further contended that reasons submitted by petitioners for non-deposit of the rent in time were also not considered. According to him, however, entire rent has been deposited in compliance with the order dated 10.3.2008 of this Court and there is nothing due against petitioners.
On the other hand learned counsel appearing on behalf of respondent opposed the above contentions and submitted that learned Rent Controller had complied with the provisions of sub-section (6) of Section 13 of the Ordinance while passing tentative rent order.
We have gone through the order of the learned Rent controller which on the face of it is defective as the provisions of sub-section (6) of Section 13 of the Ordinance which stipulates that after the date and before the issues are framed, the Controller shall direct the tenant to deposit all the rent due from him, and also to deposit regularly till the final decision of the case, before the [fifteenth] day of each month the monthly rent due from him. If there is any dispute ¦ about the amount of rent due or the rate of rent, the Controller shall determine such amount approximately and direct that the same be deposited by the tenant before a date to be fixed for the purpose. If the tenant makes default in the compliance of such an order, then if he is the petitioner, his application shall be dismissed summarily and if he is the respondent his defence shall be struck off and the landlord be put into possession of the property without taking any further proceedings in the case. The above being mandatory provision has neither been complied with by learned Rent Controller nor attended to by learned High Court in the impugned order. Thus, both are not sustainable in law and are set aside. Moreover, petitioners have deposited rent due in pursuance of order dated 10.3.2008 of this Court, which may be paid to the respondent. Accordingly, both the petitions are converted into appeals and are allowed. The matter is remitted to the learned Rent Controller for decision afresh on merits and in accordance with law.
(R.A.) Appeals allowed.
PLJ 2008 SC 477
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
Malik HADI HUSSAIN and others--Appellants
versus
LAND ACQUISITION COLLECTOR and another--Respondents
Civil Appeal No. 2060 of 2006, decided on 13.3.2008.
(On appeal from the judgment dated 11.9.2006 passed by Lahore High Court, Lahore in RFA No. 420/2000).
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 4, 18 & 54--Acquisition of land--Computing sale price of the acquired land--National Highway Authority initiated proceedings for acquisition of land for constructing an additional carriage way--Notification u/S. 4 of Land Acquisition Act, 1894 was issued--Compulsory acquisition charges were awarded--Assailed--Reference made to Referee Court to determine the compensation to be awarded to respondents--Referee Court enhanced the amount of award--Quantum of damages was enhanced--Judgment of Referee Court was set aside by High Court--Validity--High Court has made basis of a single sale in the revenue record whereas Referee Court has taken into consideration the average sale price pertaining to sale of commercial land--Held: High Court has totally ignored the question of damages although acquisition department itself admitted the although acquisition department itself admitted the damages suffered by appellants but awarded meager damages as compared to actual loss assessed and granted by Referee Court--Appeal was allowed.
[P. 479] A
Sardar Abdul Majeed Dogar, ASC and Mr. Khan Muhammad Vehniwal, ASC for Appellants.
Mr. Jehanzaib Khan Bharwana, ASC for Respondents.
Date of hearing: 13.3.2008.
Judgment
Ijaz-ul-Hassan, J.--This appeal, under Section 54 of the Land Acquisition Act, 1894, is directed against the judgment dated 11.9.2006 passed by learned Division Bench of the Lahore High Court, Lahore, whereby judgment and decree dated 31-5-2000 of learned Senior Judge/Referee Court, Kasur, has been set aside, maintaining award of Land Acquisition Collector and reducing compensation of the land acquired.
Necessary facts for disposal of instant appeal are, that National Highway Authority initiated proceedings for acquisition of land for constructing an additional carriage way on a portion of the Multan Road. A notification under Section 4 of the Act ibid was issued on 12.1.1993. The total land acquired for said project was 18 kanals and 13 marlas in village Lakhankey, Teshil Pattoki, District Kasur. Respondents were owners of 4 kanals and 9 marlas out of the notified area. The Land Acquisition Collector rendered an award dated 18.8.1996 determining the price of the land as Rs.427.58 per marla. Compulsory acquisition charges were awarded at the rate of 15% together with 8% compound interest. Additional compensation amounting to Rs. 19,67,479/- by way of damages and Rs.2,02,996/- for loss of goodwill in respect of a petrol pump and service station constructed on the acquired land was also awarded. Being dissatisfied with the award, respondents initiated proceedings under Section 18 of the Act ibid resulting in a reference made to the Senior Civil Judge/Referee Court, Kasur, to determine the compensation to be awarded to the respondents. The referee Court enhanced the amount of award from Rs.427.58 to Rs.35,000/- per marlas. The quantum of damages was enhanced to Rs.38,26,639/- less the amount of Rs. 2,02,9960. Compulsory acquisition charges and compounded interest were maintained.
Feeling aggrieved, respondents filed Regular First Appeal before learned Lahore High Court, Lahore, whereby judgment of the referee Court was set aside by fixing compensation for the acquired land at the rate of Rs. 3,260.86 per marla.
M/s. Sardar Abdul Majeed Dogar, and Khan Muhammad Vehniwal, Advocates, appearing on behalf of appellants, attempted to argue that the impugned judgment is against the weight of evidence on record and amount of compensation has been reduced to Rs: 3,260.86 per marla without any justifiable reason and criteria and principle governing determination of compensation to be paid for the acquired land has not been kept in consideration and learned High Court has ignored the question of damages.
Mr. Jehanzaib Khan Bharwana, Advocate for respondents opposed the above contentions raised on behalf of the appellants and submitted that learned High Court has given valid reasons for reducing the rate of compensation which are based on correct appreciation of evidence and hardly require interference by this Court.
It needs no reiteration that while determining the amount of compensation, Court is to consider evidence brought on the record by the parties and further Land Acquisition Collector while determining compensation of acquired land has also to consider the potential and future prospective of land in addition to one year average. While determining the value of the land acquired by the Government and the price which willing purchaser would give to the willing seller, only the past sale should not be taken into account but the value of the land with all its potentiality may also be determined by examining other facts.
An assessment of the compensation payable for land acquired must take into account several factors, including the nature of the land, its present use and its capacity for a higher potential, its precise location in relation to adjoining land, the use to which neighbouring land has been put and the impact of such use on the land acquired, and so on having regard to all these factors.
After hearing learned counsel for the parties in the light of the material on file, we find that in computing the sale price of the acquired land, learned High Court has made basis of a single sale in the concerned revenue record whereas learned Referee Court has taken into consideration the average sale price of previous year pertaining to sale of commercial land. The learned High Court has totally ignored the question of damages altogether although acquisition department itself admitted the damages suffered by the appellants-affectees but awarded meager damages as compared to actual loss assessed and granted by learned Referee Court. The impugned judgment of learned Division Bench of the High Court as rightly contended is the result of non-reading and mis-reading of evidence and all other relevant record and as such cannot be allowed to remain intact.
Pursuant to above, this appeal is allowed, impugned judgment dated 11-9-2006 of learned Lahore High Court, Lahore, is set aside and judgment and decree dated 31-5-2000 of learned Senior Civil Judge/Referee Court, Kasur, is restored. We make no order as to costs.
(R.A.) Appeal allowed.
PLJ 2008 SC 480
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
CHAIRMAN C.B.R. and others--Petitioners
versus
Haji SULTAN AHMAD and others--Respondents
C.P.L.A. Nos. 48 to 186 of 2008, decided on 6.2.2008.
(On appeal from the judgment dated 23.11.2007 passed by the Lahore High Court, Lahore in W.Ps. No. 7781, 7823, 8155, 8176, 8397, 8563, 8790, 8791 to 8795, 8841 to 8844, 8876 to 8880, 8899 to 8901, 8917 to 8920, 8927, 8956, 8957, 8977, 8978, 8992 to 9000, 9002, 8929, 9032, 9068, 9069, 9101 to 9105, 9120 to 9153, 9210 to 9212, 9230, 9242, 10025, 10091 to 10093, 10137, 10145 to 10147, 10151 to 10159, 10173, 10174, 10179 to 10194, 10204, 10209, 10210, 10309, 10363, 11125, 11135, 11136, 11214, 11215, 11228, 11229, 11254 to 11257 & 11296 of 2007).
Sales Tax Act, 1990 (VII of 1990)--
----Ss. 3, 50 & 71--Special Procedure for collection and payment of sales tax--Payment of Sales Tax vide SRO 678(1)/2007 issued in exercise of powers u.S 71 of the Sales Tax Act, 1990 (Special Procedure for Collection and Payment of Sales Tax)--Constitutional petitions in Lahore High Court--Granted on the grounds, inter alia, that it was departure from the provisions of Section 50 of the Act--Leave to appeal granted to consider.
(i) Whether parameter given in PLD 2001 SC 600, PLD 2004 SC 694 & PLD 1993 SC 210 fol.
(ii) Whether in impugned judgment Court below has failed to point out how rules were ultra vires the Sales Tax Act, 1990.
(iii) Whether SRO 778(1)/87 relates to transparent regime for recovery of tax.
(iv) Whether linking a tax liability with consumption of electricity unit--Creating objective criterion for calculation of tax liability.
(v) Whether respondents were estopped to challenge the SRO 678(1)/2007 by their conduct.
(vi) Whether Lahore High Court has given restrictive interpretation to the language of SRO 678(1) of 2007 and of S.3 of Sales Tax Act, 1990--Leave granted.
[Pp. 481, 482 & 483] A & B
Mr. Ahmer Bilal, ASC for Petitioners (in all cases).
Nemo for Respondents (in all cases).
Date of hearing: 6.2.2008.
Order
Ch. Ejaz Yousaf, J.--Petitioners have sought leave to appeal against the common judgment dated 23.11.2007 passed by a learned Single Bench of the Lahore High Court Lahore, whereby writ petitions filed by the respondents were allowed and the Rules contained in Chapter XI of the SRO 687(1)/2007 dated 13.6.2007 issued by the Federal Government were declared to be ultra vires the Sales Tax Act, 1990, issued without lawful authority and of no legal effect.
Facts of the case lie in a small compass. The respondents who are engaged in the business of Steel Melting and Re-Rolling, used to pay sales tax on production i.e. that tax liability was determined on the hypothesis that whatever is produced will be supplied ultimately. Later on special procedure was introduced in the Federal Budget, 2004-2005 and notified vide SRO 484(I)/2004 for the payment of Sales Tax on ingots/billets and mild steel manufacturer. In this way minimum value addition for steel melters and re-rollers was fixed by working out that 800 units of electricity are required to met and produce one matric ton of steel, and for the purposes of taxable supply it was assumed that whatever is produced will be supplied ultimately and stock variation will not affect the taxable activity. The charge of sales tax through self declaration on the basis of electricity consumed was introduced through SRO 678(I)/2007, dated 6.7.2007. On the basis of above explained formula sales tax was decided to be collected through electricity providers in the monthly bills. Some of the registered persons challenged the Special Procedure for collection and payment of sales tax notified vide SRO 678(I)/2007 issued by the Federal Government in exercise of powers under Section 71 of the Sales Tax Act, 1990 and filed Constitutional Petitions in the Lahore High Court, on the grounds, inter-alia, that the new procedure introduced was departure from the mandatory provisions of the statute; that Federal Government had no such powers under Section 50 of the Act; that the Notification being unreasonable and exorbitant was liable to be struck down; that no tax could have been imposed on an imaginary product which was not even marketable; that to levy sales tax the only yardstick was taxable supply and rate under Section 3 of the Act of 1990 and the determination of tax liability which had no nexus with Section 3(1) of the Act was invalid, etc. The writ petitions were allowed through the consolidated judgment impugned herein and it was declared that the impugned Rules contained in Chapter XI of the SRO 678(I)/2007 are ultra vires and of no legal effect. It was further held that the respondents shall be liable to pay Sales tax at the rate of 15% on the basis of taxable supply and that the judgment shall not effect the tax already paid on record under the impugned rules, being past and closed transaction; hence this petition.
Mr. Ahmer Bilal Soofi, learned counsel for the petitioners has contended that the Court below has not considered that the SRO. 678(I)/2007 actually relates to a transparent regime for the recovery of tax in which the tax collector and the tax payer do not even interact and the discretion to collect tax is completely eliminated and there is an absolute willingness to voluntarily pay the tax by the tax payer. He added that the learned Court below has gravely erred in not appreciating the fact that linking a tax liability with consumption of electricity unit is in fact creating objective criterion for calculation of tax liability and such method of calculation eliminates discretion, corruption and ensures transparency in the tax collection process. It is further his case that the learned Single Judge in the High Court has given restrictive interpretation to the language of impugned SRO which had drawn powers from several provisions of the Sales Tax Act. It is also his grievance that the learned Single Judge in the High Court while declaring the rules ultra-vires has not followed the parameters laid down by this Court in the cases reported as (i) The Collector of Sales Tax & others v. Superior Textile Mills Ltd. & others (PLD 2001 SC 600), (ii) Khawaja Ahmad Hassan v. Govt. of Punjab & others (PLD 2004 SC 694), and (iii) Karachi Building Control Authority v. Hashwani Sales and Services Ltd. (PLD 1993 SC 210). He added that infact it was the respondents who had persuaded the Government and Federal Board of Revenue to evolve the special tax regime and therefore, they were estopped to challenge the same by their conduct.
After hearing learned counsel for the petitioners, we find that a case for grant of leave to appeal is made out to consider, inter-alia, the following:--
(i) Whether in the impugned judgment, the Court while declaring the rules ultra-vires has followed the parameters laid down by this Court in cases (i) The Collector of Sales Tax & others v. Superior Textile Mills Ltd. & others (PLD 2001 SC 600), (ii) Khawaja Ahmad Hassan v. Govt. of Punjab & others (PLD 2004 SC 694), and (iii) Karachi Building Control Authority v. Hashwani Sales and Services Ltd. (PLD 1993 SC 210).
(ii) Whether in the impugned judgment the learned Court below has failed to point out as to how the rules were ultra-vires the Sales Tax Act 1990 and whether the Court has properly considered the view taken by the Superior Courts that before declaring delegated legislation ultra vires, the Court must reconcile it with the main statute and liberal construction has to be placed on such rules?
(iii) Whether the Court below has failed to considered that the SRO 778(I)/87 actually relates to a transparent regime for the recovery of tax in which the tax collector and the tax payer do not even interact and the discretion to collect tax is completely eliminated and there is an absolute willingness to voluntarily pay the tax by the tax payer?
(iv) Whether the Court below has disregarded that linking a tax liability with consumption of electricity unit is in effect creating objective criterion for calculation of tax liability and such method of calculation eliminates discretion, corruption and ensures transparency in the tax collection process?
(v) Whether the Court below has erred in not examining the conduct of the respondents who were estopped to challenge the SRO 678(I)/2007, by their conduct as they had themselves persuaded the petitioners Government and Federal Board of Revenue to evolve the special tax/levy regime for the purpose of this section?
(vi) Whether learned Single Judge of the High Court has given a restrictive interpretation to the language of SRO 678(I) of 2007 as well as Section 3 of the Sales Tax Act, 1990?
(M.S.A.) Leave granted.
PLJ 2008 SC 484
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, C.J., Tassaduq Hussain Jillani and Karamat Nazir Bhandari, JJ.
DEPUTY COMMISSIONER OF INCOME TAX/WEALTH TAX, FAISALABAD and others--Petitioners
versus
Messrs PUNJAB BEVERAGE COMPANY (PVT.) LTD.--Respondent
Civil Petitions Nos. 956-L and 957-L of 2003, heard on 12.7.2006.
(On appeal from the Order dated 24-2-2003 passed by the Lahore High Court, Lahore in Writ Petitions Nos. 4408 and 4360 of 2002).
Income Tax Ordinance, 1979 (XXXI of 1979)--
----S. 66-A--Constitution of Pakistan (1973), Art. 199--Show-cause notice, asking petitioner as to why proposed action be not taken against him--Constitutional petition accepted by High Court--Validity--Tendency of bypassing remedy provided under law and resort to constitutional jurisdiction of High Court was deprecated--Petitioner had wrongly availed remedy of High Court instead of availing appropriate remedy under Income Tax Ordinance, 1979--Merely for purpose of convenience, availing remedy under Art. 199 of Constitution could not be appreciated--Appeal accepted. [P. 485] A
1993 SCMR 29 fol.
Mr. Muhammad Ilyas Khan, Advocate Supreme Court and Ch. Muhammad Aslam Chatha, Advocate-on-Record for Petitioners.
Siraj-ud-Din Khalid, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Respondent.
Date of hearing: 12.7.2006.
Order
Iftikhar Muhammad Chaudhry, C.J.--These petitions have been filed against the judgment dated 24-2-2003 passed by Lahore High Court, Lahore in Writ Petitions Nos. 4408 and 4360 of 2002.
Precisely stated facts of the case are that proposed show cause under Section 66A of Income Tax Ordinance, 1979, dated 6-3-2002 was issued to respondent who instead of contesting the proceeding before the forum directly filed writ petitions in the Lahore High Court. The High Court accepted the plea vide impugned judgments dated 24-2-2003.
Learned counsel for Department contended that as per language of the show-cause notice department had only asked as to why proposed action be not taken, the respondents could not have filed writ petitions in the High Court. They ought to have replied to the notice and contested the same within the Department. He in this behalf placed reliance on Al-Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1993 SCMR 29.
We have heard learned counsel and have gone through the reported judgment carefully wherein it has been held that tendency of bypassing the remedy provided under law, and resort to constitutional jurisdiction of High Court was deprecated. In view of the contents of the notice the Department only contemplates to take action against them. The petitioner instead of rushing to the High Court and consuming sufficient time should have submitted reply before invoking the jurisdiction of the High Court. We have held in the judgment that such practice is to be deprecated because if merely on the basis of show-cause notice proceedings are started then in such position department would never be in a position to proceed with the cases particularly the recovery of revenue etc. Thus keeping in view the circumstances of the case we are of the opinion that respondent, had wrongly availed remedy under Article 199 of the Constitution instead of availing appropriate remedy under Income Tax Ordinance, 1979. Therefore, merely for the purpose of convenience, availing the remedy of the High Court under Article 199 of the Constitution cannot be appreciated. Thus for the foregoing reasons petition is converted into appeal and allowed. The impugned judgment is set aside. No costs.
(R.A.) Appeal allowed.
PLJ 2008 SC 485
[Appellate Jurisdiction]
Present: Khalil-ur-Rehaman Ramday, Tassaduq Hussain Jillani & Ch. Ijaz Ahmad, JJ.
Haji MUHAMMAD LATIF--Petitioner
versus
MUHAMMAD WAHEED alias YASIR and another--Respondents
Crl. P. No. 727-L of 2003, decided on 17.10.2005.
(On appeal from the judgments, dated 2.10.2003 of the Lahore High Court, Lahore passed in Criminal Appeal No. 940 of 1998 and Murder Reference No. 447 of 1998).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Constitution of Pakistan (1973). Art. 185(3)--Leave to appeal was granted to consider--Whether the accused, who appeared to be a desparado standing in the "Chowks" at night, carrying fire-arms weapons and who get flared up to the extent of causing death of others on trivial matters and for petty reasons, would deserve any mercy and leniency, and whether the factum of non-repetition of the blow which used to be treated as a mitigating circumstance in the by-gone days, when the weapons used were "Dangs" and "Sotas", would be a valid consideration even today when the weapons used are automatic and semi-automatic guns and rifles. [Pp. 486 & 487] A & B
Mr. Rafique Javed Butt, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 17.10.2005.
Order
Khalil-ur-Rehman Ramday, J.--Waheed convict was beating up a "Faqeer" (a Beggar) in "Tarannum Chowk" at about 10-30 p.m. on 30-1-1995. The fault of the complainant and his deceased son was that they had rescued the said beggar from the respondent-convict and had asked the said convict not to do such-like things. He did not like it. He came across the deceased after some time and told the said deceased that they had interfered in his matters and that he would teach them a lesson for it. The deceased went home and informed his complainant father about these threats extended by the convict. The father, along with the deceased son, came to the convict to register his concern about the said threat. They were all unarmed. The convict was still standing in "Tarannum Chowk" and before the complainant party could even open their mouth, the convict fired a shot from his mouser which landed at the front chest of Farid deceased who consequently died paying the price from coming to the aid of a poor, helpless beggar.
Is this kind of person or kind of conduct which could invoke some sympathy justifying a lenient treatment for the killer? This question would require serious consideration.
The question would also be whether the factum of "non-repetition of the blow" which used to be treated as a mitigating circumstance in the by-gone days when the weapons used were "Dangs" and "Sotas" would be a valid consideration even today when the weapons used are automatic and semi-automatic guns and rifles?
Another question which would also require consideration would be whether a person who appeared to be a desparado standing in "Chowks" at night carrying fire-arm weapons and who get flared up to the extent of causing death of others on trivial things and for petty reasons would deserve any mercy and leniency?
To consider these questions and others, we allow this petition and grant leave in the matter.
In order to avoid any complications arising out of delay in the disposal of the appeal, we would direct that the appeal be set down for hearing within six months.
(R.A.) Leave granted.
PLJ 2008 SC 487
[Appellate Jurisdiction]
Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ.
MUHAMMAD ALI S. BUKHARI--Appellant
versus
FEDERATION OF PAKISTAN through Establishment Secretary, Islamabad and 2 others--Respondents
Civil Appeal No. 86 of 2005, decided on 28.8.2007.
(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 30.7.2004 passed in Service Appeal No. 554(K) (C.S.) of 2002).
Civil Servant Acts, 1973 (LXXI of 1973)--
----S. 18--Government Servants Efficiency and Discipline) Rules, 1973--Rr. 3(b) & 4(b)(i)(ii)(iii)--Constitution of Pakistan (1973), Art. 212(3)--Removal from service--Non-compliance of order of superiors and absence from duty without prior permission--Penalty was conversed into compulsory retirement by Service Tribunal--Plea was not supposed to accept special assignment without order in writing; and that he had availed medical leave on advice of doctor--Validity--In service discipline, oral order of superiors in relation to official business would be as good order as in writing--Civil servant could earn leave on his own right, but for its grant, he must have followed proper procedure provided under the Rules--Civil servant was not supposed to avail any kind of leave entirely in his discretion and choice in departure to the Rules and service discipline--Absence from duty without leave, even if not wilful, but same being an act of disorder in service would constitute misconduct--Availing of medical leave without permission could not be considered an act of gross misconduct entailing major penalty of dismissal from service--Charge against civil servant was not so grave as to propose any of such two penalties--Major penalty of compulsory retirement was harsh and did not commensurate with nature of charge--Supreme Court converted penalty of compulsory retirement into reduction of two steps in time scale for a period of two years in consequence to which civil servant would be deemed to have earned two increments for a period of two years. [Pp. 490 & 491] A, B, D, E & G
Civil Servants Act, 1973 (LXXI of 1973)--
----S. 18--Leave, right of--Scope--Civil servant would not be supposed to avail any kind of leave entirely in his discretion and choice in departure to the Rules and service discipline. [P. 490] B
Government Servants (Efficiency and Discipline) Rules, 1973--
----R. 3(b)--Civil Servants Act, (LXXI of 1973). S. 18--Constitution of Pakistan, 1973--Art. 212(3)--Misconduct--Absence from duty without leave, even if not wilful, but same being an act of disorder in service, would constitute `misconduct'. [P. 490] C
Service Matter--
----Disciplinary proceedings--Penalty, imposition of--Scope--Penalty in service matters would always be imposed in the light of charge against civil servant--Concept of major or minor penalty in service laws would be to determine quantum of punishment in the light of nature and gravity of charge. [Pp. 490 & 491] D & F
Appellant in person.
Mr. Rizwan Ahmed Siddiqui, Deputy Attorney-General for Pakistan.
Mr. A.S.K. Ghouri, Advocate-on-Record for Respondent No. 2.
Date of hearing: 28.8.2007.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court, has been directed against the judgment of Federal Service Tribunal, dated 30-7-2004 passed in Appeal No. 554(K)(C.S.) of 2002 whereby the penalty of removal from service awarded to the appellant was converted into compulsory retirement from service.
"It is inter alia, contended that the petitioner was subjected to discriminatory treatment in the matter of successive show-cause notices and inquiries; that the Inquiry Officer kept on consulting with the Director-General, Commercial Audit, who was unfavourably disposed and hostile towards the petitioner; that enquiry was not conducted according to law; that the charges of not submitting the project reports and unauthorized absence from duty were not established against him; that the statement of the petitioner was recorded in question-answer format which has caused miscarriage of justice and that despite the recommendation of the Authorized Officer for lesser penalty competent authority imposed major penalty or removal from service on the petitioner.
Leave to appeal is granted to consider the above questions which appear to be of public importance."
The short facts leading to the filing of this appeal are that appellant, a Grade-18 Officer of Audit and Account Service, while posted as Deputy Director Audit, Office of the Director-General Commercial Audit and Evaluation (South) Karachi, was served with a show-cause notice, dated 1-11-1997 by the Auditor-General for Pakistan to the effect that despite Director-General's repeated directions, he failed to submit audit report of Saindak Metals Ltd. and similarly he did not comply with the orders regarding special assignment of audit of Port Qasim Authority given to him and thereby he committed an act of insubordination. The appellant, on rejection of his application submitted on 25-9-1997 for grant of 15 days LFP, was directed to appear before the D.G. but he absented from duty, therefore, he was served with a Charge-sheet on 3-3-1998 containing the above charges. In view of the nature of allegations, successive inquiries were held against the appellant and he having been found guilty of the charges, was awarded major penalty of removal from service vide order, dated 8-8-2002. The appellant after availing the remedy of departmental appeal, approached the Federal Service Tribunal and the Tribunal with conversion of penalty of removal from service into compulsory retirement, disposed of his appeal and appellant being dissatisfied with the judgment of Tribunal has filed this appeal before this Court in which leave was granted as aforesaid.
The main charge against the appellant was that he having disobeyed the orders of his superiors in respect of the assignment of special audit given to him committed an act of insubordination and also was guilty of wilful absence from duty. The appellant giving an evasive reply to the show-cause notice stated that he was not given an order in writing for the special assignment and similarly the absence of the appellant from duty was not deliberate and wilful rather his failure to attend the duty, was due to his ailment and he availing the medical leave under the advice of the doctor, sent an intimation to the office therefore, he could not be treated absent from duty without permission. In nutshell submission of the appellant, was the departmental action against him was the result of mala fide of the Director-General and the forums below without giving due consideration to the circumstances leading to the departmental action, held him guilty of the charge in a perfunctory manner. The appellant when confronted that the departmental authorities namely the Inquiry Officer as well as the Authorized Officer and competent authority having found him guilty of the charge concurrently proposed major penalty of removal from service, he submitted that initially penalty of reduction in time scale was proposed but subsequently, he was imposed the penalty of removal from service and Tribunal converted the same into compulsory retirement from service.
Learned D.A.G., on the other hand, has submitted that the appellant being a senior member of Accounts Service, was not supposed to behave in the manner he acted and that the act of wilful absence from duty would be sufficient to constitute the misconduct and insubordination entailing major penalty of dismissal or removal from service and in view of the fact that Tribunal has converted the penalty of removal from service imposed upon the appellant into compulsory retirement, no further indulgence is required in the matter.
Having perused the record with the assistance of learned D.A.G. and the appellant in person, we have found that the charge regarding non-compliance of order of the superiors and absence from duty, without prior permission, stood established against the appellant who instead of repenting on his conduct and giving plausible explanation, has made an attempt to convince us that he was neither supposed to accept the special assignment without order in writing nor his absence from duty would be treated without permission as he availed the medical leave as per his entitlement. This may be seen that in the service discipline, the oral order of the superior in relation to the official business, is as good as order in writing and the mere fact that order passed by the Director-General on the file deputing the appellant to special audit assignment was not conveyed to him in writing, would not be sufficient to justify his conduct and he without denying the fact relating to the special assignment given to him and absence from duty, denied charges with unsatisfactory explanation.
The civil servant can avail earned leave in his own right but for grant of such right he must follow the proper procedure provided under the rules and is not supposed to avail any kind to leave entirely in his discretion and choice in departure to the rules and service discipline. The conduct of appellant was thus, unbecoming of a good officer and in the given circumstances, the absence of appellant from duty without leave even if was not wilful, it being an act of disorder in the service, would certainly constitute misconduct and consequently, no exception can be taken to the opinion expressed by the Tribunal. However, in service matters, the penalty is always imposed in the light of nature of charge and in the present case the charge against the appellant was not so grave to propose major penalty of removal from service or compulsory retirement.
The leave is right of a civil servant which can be availed in terms of the rules and mere fact that appellant did not obtain permission before proceeding on sick leave rather availed medical leave on the advice of doctor, may not be considered an act of gross misconduct entailing major penalty of dismissal from service. The concept of major and minor penalty in the service laws is to determine the question of punishment in the light of nature of gravity of the charge and we find that in the present case, concerned authorities without attending this aspect of the case, awarded major penalty to the appellant. In the light of facts and circumstances of the present case, we are of the view that major penalty of compulsory retirement is harsh and does not commensurate with the nature of charge, therefore, we while modifying the judgment of Tribunal, convert the penalty of compulsory retirement into reduction of two steps in time scale for a period of two years in consequence to which the appellant would be deemed not to have earned two increments for a period of two years.
In the light of foregoing reasons, this appeal, with the above modification in the penalty of appellant, is partly allowed with no order as to costs.
(R.A.) Appeal partly allowed.
PLJ 2008 SC 491
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
SECRETARY KASHMIR AFFAIRS & NORTHERN AREAS DIVISION, ISLAMABAD--Petitioner
versus
SAEED AKHTAR and another--Respondents
Civil Petition No. 305 of 2008, decided on 18.3.2008.
(Against the judgment dated 02.01.2008 Passed by the Federal Service Tribunal, Islamabad in A. No. 862 (R) CS/2003)
Removal From Services (Special Powers) Ordinance, 2000 (XVII of 2000)--
----Ss. 3(1) & 5(4) FR.29--Reduction to lower pay scale--Imposition of major penalty without regular inquiry--Dispensation of--Held: Proceeding carried out suffer from gross legal infirmities and violation of FR-29 whereby period for punishment was not specified and major penalty was imposed retrospectively--Undoubtedly reduction in rank constitute major penalty and requires full fledge inquiry. [Pp. 492 & 493] A & B
2005 SCMR 1225, Ref.
Ch Muhammad Ashraf, ASC for Petitioner.
Nemo for Respondent.
Date of hearing: 18.3.2008.
Judgment
Ijaz-ul-Hassan, J.--Secretary Kashmir Affairs & Northern Areas Division, Islamabad, petitioner, seeks leave to appeal against the judgment dated 2.1.2008 rendered by Federal Service Tribunal, Islamabad, setting aside order/Notification dated 24-4-2003 and restoring Saeed Akhtar, respondent, to his original position with all consequential benefits.
Facts necessary for disposal of instant petition are, that respondent was served with a charge sheet dated 3.7.2002 and a show-cause notice dated 1.2.2003 on the charge of misconduct on account of corrupt practices. Respondent was accused of having, while working as Deputy Administrator, Jammu and Kashmir State Property in Pakistan, demanded from Dr. Tariq Shahim Chaudhry, Chairman, Chaudhry Noor Hussain Foundation, Rawalpindi, a sum of Rs.2,50,00/- for facilitating allotment of a Flat in his name in Poonch House Complex, Rawalpindi. The respondent in his reply repudiated the allegations and claimed to have been falsely implicated in the case. The reply having been found unsatisfactory, the competent authority in exercise of powers under Section 3(1) of the Removal from Service (Special Powers) Ordinance 2000, imposed upon respondent penalty of reduction to a lower pay scale with effect from 16.4.2003 vide Notification dated 24.4.2003. The respondent made a representation to the Prime Minister, which remained un-responded. The respondent filed appeal before Federal Service Tribunal, Islamabad. The Tribunal vide its judgment impugned herein, accepted the appeal as stated and mentioned above.
Appearing on behalf of petitioner department, Ch. Muhammad Ashraf, Advocate, contended with vehemence that learned Tribunal has not appreciated facts of the case in its true perspective; that the impugned judgment suffers from vice of mis-reading and non-reading of the material on record and that the competent authority after perusal of the facts on record dispensed with the inquiry under Section 5(4) of the Ordinance 2000 and approved issuance of show-cause notice to the respondent requiring him to explain as to why the major penalty as recommended by the inquiry officer may not be imposed upon him.
After hearing arguments of learned counsel for the petitioner department in the light of the material on file, we find that the Tribunal has rightly observed that the proceedings carried out in this case suffer from gross legal infirmities such as violation of FR-29 whereby period for punishment was not specified and major penalty was imposed retrospectively and the Enquiry Officer certainly went beyond the scope to examine the real controversy. Undoubtedly, reduction in rank constitutes major penalty and requires full fledge inquiry. We fail to understand as to how inquiry could have been dispensed with in terms of Section 5(4) of the Ordinance 2000. In this regard we may refer to the judgment of this Court in Pakistan Telecommunication Company Limited v. Messrs Muhammad Saeed Wazir 2005 SCMR 1225) wherein it was observed:--
"We are afraid this argument would not hold the ground because the insertion of sub-clause (c) (iv) in sub-section (1) of Section 3 of the Ordinance merely makes an addition to the grounds for action from (a) to (e) and does not authorize the competent authority to pass any order without enquiry. The closing paragraph of Section 3 sub-section (1) clearly lays down that if conditions given under sub-clauses (a) to (e) are available, the competent authority, after inquiry by the Inquiry Officer or the Inquiry Committee appointed under Section 5, may dismiss or remove the civil servant from service or take any other action alluded to in the aforementioned para.
We are convinced that the issuance of show-cause notice and the holding of inquiry, in the given circumstances was necessary under Section 3 of Removal from Service (Special Powers) Ordinance, 2000. In the instant case, neither any show-cause notice was issued nor any inquiry was held and thus, Tribunal has rightly set aside the impugned order of dismissal. Regardless of whether the proceedings are taken under Government Servants (Efficiency & Discipline) Rules 1973 or under Removal from Service (Special Powers) Ordinance, 2000, a dismissal without notice and without inquiry could not be ordered in the circumstances of the present case."
(W.I.B.) Leave refused.
PLJ 2008 SC 494
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, H.C.J, Ijaz-ul-Hassan and Ch. Ejaz Yousaf, JJ.
INTESAR HUSSAIN BHATTI--Petitioner
versus
VICE CHANCELLOR, UNIVERSITY OF PUNJAB and others--Respondents
C.P. Nos. 2 to 5 of 2008, decided on 6.2.2008
(On appeal from the judgment dated 19.12.2007 of the Lahore High Court, Lahore passed in W.P. No. 11984; 11871; 11872 & 11920 of 2007).
Representation of the People Act, 1976 (LXXV of 1976)--
----Ss. 14 & 52--Constitution of Pakistan (1973), Art. 185(3)--Cancellation of petitioner's B.A. degree by vice chancellor of university--Order of cancellation of degree maintained by High Court--Legality--Entire record produced by university would show that petitioner had been attempting through unfair means to obtain Bachlor Degree but all in vain--No illegality or infirmity in well reasoned judgment of High Court was pointed out to warrant interference by Supreme Court--Judgment of High Court based on cogent grounds was maintained and leave to appeal was refused.
[Pp. 499 & 500] A
PLD 2005 SC 52; PLD 1989 SC 396; 2004 SCMR 1602; PLD 2002 SC 184; 2003 SCMR 204; 2001 SCMR 1991; 1994 SCMR 1299; PLD 1970 SC 98; PLD 2007 SC 52; 2006 SCMR 1356; 2007 SCMR 112; 1991 SCMR 2307; PLD 1987 SC 447; 1974 SCMR 530; PLD 1974 SC 139; PLD 1963 SC 704, ref.
Syed Sharif-ud-Din Prizada, Sr. ASC & Ch. Muhammad Akram, AOR for Petitioner (in C.P. No. 2/08).
Malik Muhammad Qayyum, ASC; Mr. Nazeer Ahmad Ghazi, ASC & Ch. Muhammad Akram, AOR for Petitioner (in C.P. 3-5/08).
Mr. Muhammad Arif Raja, Legal Advisor for Respondent No. 1.
Mr. Saiful Malook, ASC for Respondent No. 3.
Mr. Abid Saqi, ASC for Respondent No. 4 (in C.P. 2/08 and 3/08).
Date of hearing: 6.2.2008.
Judgment
Abdul Hameed Dogar, HCJ.--Through this judgment, we intend to dispose of Civil Petitions Nos.2 to 5 of 2008 filed against common judgment dated 19.12.2007 passed by learned Full Bench of Lahore High Court, Lahore whereby Writ Petition No. 11984 of 2007 filed by petitioner Intesar Hussain Bhatti was dismissed in limine whereas Writ Petition No. 11872/07 (filed by respondent Ch. Liaquat Abbass Bhatti), WP No. 11920/07 (filed by respondent Babar Sohail) and WP No. 11871/07 (filed by respondent Ch. Qamar Javed) were allowed.
Briefly, stated facts giving rise to the filing of instant petitions are that petitioner Intesar Hussain Bhatti filed nomination papers on 26.11.2007 to contest general election from constituency No.PP-107, Hafizabad. At the time of scrutiny respondents, namely, Ch. Qamar Javed, Sardar Babar Sohail and Ch. Liaquat Abbas Bhatti filed written objections alleging that in the previous general election held in the year 2002 the nomination papers of petitioner were rejected on the ground that Bachelor Degree obtained by him was found bogus which order was maintained upto this Court. However, the objection petitions were dismissed vide judgment dated 01.12.2007 and nomination papers of petitioner were accepted by the Returning Officer. Feeling aggrieved, Election Appeals Nos. 31-A, 32-A and 33-A of 2007 were filed by Ch. Liaqat Abbas Bhatti, Ch. Qamar Javed and Babar Sohail respectively before Election Tribunal, Lahore but the same were also dismissed vide judgment dated 08.12.2007. Feeling still not satisfied the respondents filed Writ Petitions before learned Lahore High Court which were allowed vide impugned judgment as stated above.
We have heard Syed Sharifuddin Pirzada, learned Sr.ASC for petitioner in Civil Petition No. 2 of 2008, Malik Muhammad Qayyum, learned ASC for petitioner in Civil Petitions Nos.3 to 5 of 2008, M/s Saiful Malook, learned ASC and Abid Saqi, learned ASC for private respondents and Mr. Arif Raja, learned ASC on behalf of University of Punjab at length and have gone through the record and proceedings of the case in minute particulars.
It is vehemently contended by Syed Sharifuddin Pirzada, learned Sr.ASC and Malik Muhammad Qayyum, learned ASC that impugned judgment is totally against law, facts and norms of justice. They further contended that undue haste on the part of the University Authorities in the matter of cancellation of the petitioner's degree on the complaint of a contesting candidate during election gives rise to numerous speculations, particularly when the candidate whose result is being quashed and cancelled is not even issued any notice. This act of the University is clear negation of the principles of natural justice. According to the learned counsel, it is an admitted fact that on the day of filing of nomination papers the degree obtained by petitioner was intact and not cancelled, therefore, learned Returning Officer was justified in accepting the nomination papers. It is also contended that University could not cancel or quash the degree of petitioner after four years of its issuance in view of Chapter VI of the Calendar of the University of the Punjab which provides that the order of quashing the result under paras (2) & (3), is issued not later then three years from the date of declaration of the result of the examination concerned. The learned counsel submitted that in the BA annual examination 2002 a case of unfair means was registered against the petitioner and University banned the petitioner to appear till the year 2005. Feeling aggrieved, petitioner filed appeal before Vice Chancellor, University of Punjab through Controller Examination with the request that in the year 2002 neither petitioner submitted his admission form nor his proper address or ID card was mentioned in the admission form, rather the same had been fabricated by his political rivals to keep petitioner away from the politics. It is stated that during the course of investigation of FIR No. 136/06 registered under Sections 419/420/428/371 PPC read with Section 31 of the University and Boards Act, petitioner was declared innocent. They also contended that in view of Article 225 of the Constitution learned High Court had no jurisdiction to interfere with the findings of the election authorities under Article 199 of the Constitution. In support, they referred to the case of Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan, Islamabad & another (PLD 2005 SC 52) wherein it was held that under Article 199, of the Constitution High Court had no power to interfere with the process of election of intermediate stage or to question the correctness of the decision of the Election Tribunal on any ground whatsoever upon an election petition filed to question the validity of the election. The provisions of Article 199 of the Constitution cannot be placed on any higher footing than those of Article 225 of the Constitution. Article 225 is expressed in the negative form to give exclusive jurisdiction to the Tribunals appointed by the Election Commission and thus to exclude or oust the jurisdiction of all Courts in regard to election matters. The Election Tribunals are final Judges of facts as well as of law, including the interpretation of law and, it would be incorrect to say that their determinations would be without lawful authority if the High Court did not agree with them. They also placed reliance on the cases of Election Commission of Pakistan v. Javaid Hashmi & others (PLD 1989 SC 396), and Muhammad Safdar Abbasi v. Aamir Yar Malik & others (2004 SCMR 1602). The learned counsel for the petitioner submitted that the petitioner may be allowed to contest the election and the respondents, if so desired, may avail remedy before Tribunal as envisaged by Section 52 of the Representation of the Peoples Act, 1976. In support, they referred to case of Ch. Nazir Ahmed & others v. Election Commissioner & others (PLD 2002 SC 184).
On the other hand, M/s Saiful Malook, learned ASC and Abid Saqi, learned ASC for private respondents controverted the above contentions and supported the impugned judgment. According to them, the bachelor's degree on the basis of which petitioner Intesar Hussain Bhatti wanted to contest election stood cancelled, as such he could not contest election. They referred to judgment of this Court reported as Intisar Hussain v. Akhtar Hussain (2003 SCMR 204) and contended that in the general elections 2002 the nominations papers of the petitioner were rejected by the authorities on the ground that the bachelor degree relied upon by the petitioner was found to be bogus. It is further contended that learned Election Tribunal while deciding the Election Appeals did not take into account the above aspect of the matter. It is also stated that petitioner was disqualified for appearing in any examination to be held by the University of the Punjab for a period of three years from 2002 but he managed to appear in First Annual Examination 2003 under Roll No. 116777 and obtained degree by adopting deceitful means which was subsequently cancelled by the University.
Mr. Arif Raja, learned ASC for Punjab University stated that petitioner submitted his admission form for BA Annual Examination, 2002 and Roll No. 26938 was issued to him. According to him on 26th April 2002 an impersonator was identified by the Superintendent of Examination Center and a case of unfair means was registered against him and he was disqualified for three years on 28.10.2002. He further contended that petitioner was not eligible to appear in any examination in the University till 2005 but he, through fraudulent means, changed the spellings of his name from Intsar' toIntesar' and appeared under Roll No. 116777 and passed BA examination. He submitted that on 29.11.2007 an application was moved by respondent Babar Sohail for cancellation of degree issued to petitioner and the matter was referred by
Controller of Examination to concerned Branch whereupon it transpired that the degree had been obtained fraudulently and with the concealment of facts. He further submitted that on the recommendations of Assistant Controller of
Examinations and Deputy Controller of Examinations the degree issued in favour of petitioner was quashed by Vice Chancellor on 7.12.2007. According to him, since he was not eligible, the fraud and forgery committed by the petitioner was patent on the face of record, which did not call for any inquiry or investigation.
It is pertinent to mention that in the case of Intesar Hussain (supra) a specific plea was taken by learned counsel appearing on behalf of petitioner that he had cleared Annual Examination, 1992 under Roll No. 18954 but due to inadvertence his result was shown as cancelled but subsequently, he was declared successful having obtained 286 marks and the notification was issued on 16.2.1993. On perusal of record, it is revealed that in the BA Annual Examination 1992 the said Roll No. 18954 was allotted to Miss Attiya Hameed Niazi and not to the petitioner. The petitioner appeared in BA Annual Examination 2002 under Roll No. 26938 and a case of unfair means of impersonation in Islamic Studies (Paper B) was registered against him on the report of Center Superintendent as a result of which he was disqualified and was not eligible to appear in any Examination till 2005. The contentions of the learned counsel for the petitioner that petitioner appeared in 2003 examination and qualified but the degree was issued in 2005, on the face of it, seems to be invalid. In the case of Tariq Mahmood v. District Returning Officer, Faisalabad and others (2001 SCMR 1991) this Court disqualified the candidate on the ground that he tried to mislead the authorities as he did not possess the basic qualification which could qualify him to contest the election. The contention of learned counsel for the petitioner that under Article 199 of the Constitution High Court has no jurisdiction to interfere in the election matter in view of bar of jurisdiction under Article 225 of the Constitution has no force as it was held by a larger Bench of this Court in the case of Ghulam Mustafa Jatoi v. Additional District & Sessions Judge/Returning Officer & others (1994 SCMR 1299) that High Court generally cannot interfere in the election process in the exercise of its Constitutional jurisdiction in view of bar of jurisdiction contained in Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can invoke Constitutional jurisdiction of the High Court. The view taken in the case of Javed Hashmi (supra) is not applicable in the present case. In the case of Ayatullah Dr. Imran Liaquat Hussain (supra) it was also held that legislature expects every statutory authority to act within the limits of the law and if any such authority steps out of these limits or refuses to function as the law requires him to function and he proceeds to make an order not within the limits of law; such order can be declared as without lawful authority and of no legal effect under Article 199. Therefore, orders passed even by election authorities which are outside the ambit of law, are not, immune from challenge before and correction by the High Court under Article 199. In the case of Lt. Col. Farzand Ali & others v. Province of West Pakistan (PLD 1970 SC 98), the issue related to pre-election disqualification of the candidate. It was held, inter-alia, that since the dispute raised was not a dispute relating to or arising in connection with an election but related to the right of the person concerned from being a member of assembly and disqualification of a candidate which was overlooked by the Authorities who were responsible for properly scrutinizing a person's right to be enrolled as a voter or his right to be validly nominated for election, the High Court was not debarred from exercising its jurisdiction. In the case of Hafiz Hamdullah v. Saifullah Khan and others (PLD 2007 SC 52), too the appellant was suffering from a pre-election disqualification which was challenged before the High Court through Constitution Petition under Article 199. It was contended that since the matter was required to be decided only by way of election petition under Section 52 of the Act, in view of the provision of Article 225 of the Constitution, therefore the writ petition was not maintainable. The contention was repelled and while relying on the case of Lt. Col. Farzand Ali (supra) it was held that since respondent was not a candidate in the election, therefore he could not have had a recourse to Sections 14 and 52 of the Representation of People Act 1976, nor any other remedy was available to him under any law except by way of filing a Constitution Petition. It was also held in the case of Ahad Sharif alias Muhammad Ahad v. Tariq Javed (2006 SCMR 1356) that if a statute prescribes a remedy, normally the same should be adhered to but it does not mean that in a case where the order of the election functionary is patently illegal, the High Court would be debarred to exercise its constitutional jurisdiction which is much higher than the jurisdiction available to a Tribunal under a subordinate legislation. In the wake of above it thus follows that when validity of election is not challenged and the matter primarily relates to the competency and qualification or otherwise of a person to be a candidate in the election, the bar contained in Article 225 would not be attracted and it would also not apply when the tribunal having jurisdiction has failed to exercise the same or it is improperly exercised and the person aggrieved is left without remedy at a later stage of the proceedings because a tribunal having jurisdiction cannot do it rightly or wrongly but is bound to do rightly as has been held by this Court in the cases of (i) Naik Muhammad v. Mazhar Ali & others (2007 SCMR 112), (ii) Riaz Hussain and others v. Board of Revenue and others (1991 SCMR 2307), (iii) Utility Store Corporation of Pakistan v. Punjab Labour Appellate Tribunal (PLD 1987 SC 447), (iv) Zulfikar Khan Awan v. The Secy. Industries and Mineral Development Government of Punjab (1974 SCMR 530) (v) Muhammad Hussain v. Sikandar (PLD 1974 SC 139), (vi) Bardul Haque Khan v. The Election Tribunal, Dacca (PLD 1963 SC 704). The case law cited by learned counsel for the petitioner is distinguishable.
The entire record produced by the University shows that petitioner has been attempting through unfair means to obtain bachelor degree but all in vain. Learned counsel though argued at length yet
could not point out any illegality or infirmity in the impugned judgment which being well reasoned and based on cogent grounds does not warrant interference by this Court.
(A.A.) Leave refused.
PLJ 2008 SC 500
[Original Jurisdiction]
Present: Abdul Hameed Dogar, H.C.J.; Ijaz-ul-Hassan; Muhammad Qaim Jan Khan; Muhammad Moosa K. Leghari; Ch. Ejaz Yousaf, Muhammad Akhtar Sabbir and Zia Perwez, JJ.
TIKA IQBAL MUHAMMAD KHAN and others--Petitioners
versus
GENERAL PERVEZ MUSHARRAF CHIEF OF ARMY STAFF, RAWALPINDI and others--Respondents
Const. Petition Nos. 87 and 88 of 2007, heard on 23.11.2007.
Proclamation of Emergency dated 3.11.2007--
----Provisional Constitution Order (1 of 2007), Preamble--Oath of Office (Judges) Order, 2007, Preamble-Constitution of Pakistan, 1973, Art. 184(3)--Constitutional petition-Maintainability--Held: Supreme Court is competent to examine the vires of the Proclamation of Emergency dated 3.11.2007, P.C.O. 2007 and Oath of Office (Judges) Order, 2007 until these measures are protected by making an amendment in the Constitution, so the Constitutional petitions u/Art. 184(3) of the Constitution were held maintainable.
[P. 521 & 522] A
Proclamation of Emergency dated 3.11.2007--
----Object & scope--Reasons behind--Held: Proclamation of Emergency is essentially founded on two main grounds viz. the security situation prevalent in the country and the erosion of trichotomy of powers in consequence of increased interference in the Govt. policies by some former Judges of the superior Courts, particularly the former C.J. Pak., which adversely affected the economic growth and the law and order situation in the country--By letter of 3.11.2007, on the subject of "national security situation", the Prime Minister apprised the President of Pakistan as to the magnitude of extremism, militancy and terrorism, which were going on the country and the widespread perception of overstepping the limits of judicial authority and taking over the executive functions--Alongwith the letter the P.M. enclosed details of law and order incidents during the period, April to October 2007 posing grave threat to internal security of the country. [P. 522] B
Constitution of Pakistan, 1973--
----Art. 209--Supreme Judicial Council-Reference against Judges of superior Court--Scope--Held: Direction cannot be issued to the S.J.C. to initiate proceedings of judicial misconduct against any judge of a Superior Court at the instance of a lawyer or a citizen--Supreme Court as also a High Court is prohibited to take upon themselves the exercise to record even tentative finding that a particular judge has committed misconduct warranting filing of a Reference against him u/Art. 209 of the Constitution--No direction could be issued to the S.J.C. to stay its hands off the Reference filed against the former C.J. what to speak of quashing it altogether. [P. 564] C
Administration of Justice--
----Judicial accountability-Held: Judicial accountability is a cardinal principle of the system of administration of justice and is essential to its successful working. [P. 564] D
Constitution of Pakistan, 1973--
----Art. 184(3)--Right of access to justice--Jurisdiction & power of Supreme Court--Scope and limitations discussed. [Pp. 568 & 569] E
Constitution of Pakistan, 1973--
----Art. 184(3)--Judicial activism & judicial restraint--Public interest litigation--Scope and limitations discussed.
[Pp. 569, 570, 571, 572, 573, 574] F & G
Constitution of Pakistan, 1973--
----Art. 184(3)--Constitutional jurisdiction of S.C.--Scope & extent--Judicial and Legislative act--Distinction--Constitutional jurisdiction of S.C. u/Art. 184(3) and that of High Court u/Art. 199 of the Constitution--Basic distinction & the criteria discussed.
[Pp. 574, 575, 576, 577, 578, 579, 580, 581, 582, 583 & 584] H, I, J, K, L, M, N, N, O, P & Q
Constitution of Pakistan, 1973--
----Art. 184(3)--Original Constitutional jurisdiction of Supreme Court--Redressal of individual grievances--Scope--Held: Jurisdiction of Supreme Court under Art. 184(3) of the Constitution can not be invoked for redress of individual grievances. [P. 584] R
Constitution of Pakistan, 1973--
----Preamble--Trichotomy of powers--Held: Pakistan has a Parliamentary system and the Constitution is based on the principle of trichotomy of powers, whereunder all the organs of the state namely legislative, executive & the judiciary are required to perform the functions & exercise their powers within the allotted spheres--Theory is the foundation of Constitutional scheme--Each organ is equally important and each has definite role to play--None is permitted to intrude into the domain of the other.
[Pp. 585 & 586] S & T
Proclamation of Emergency dated 3.11.2007--
----Provisional Constitution Order (1 of 2007), Preamble--Oath of Office (Judges) Order, 2007, Preamble--Constitution of Pakistan, 1973, Art. 184(3)--Jurisdiction of Supreme Court--Vires of the three Orders of 2007--Maxim: salus populi est suprema lex--Applicability--Held: Chief of Army Staff justifiably decided to take extra Constitutional step by means of Proclamation of Emergency as in the past the Constitutional deviations by the Chief of Army Staff/Armed Forces were validated by the Parliament in similar circumstances--If the actions of 3.11.2007 were not taken, there would have been chaos and anarchy in the country--Said actions were taken in the larger interest of the State and for the welfare of the people in consonance with the maxim, salus populi est suprema lex. [Pp. 588, 589 & 603] U, V & BB
Constitution of Pakistan, 1973--
---Art. 232--Proclamation of Emergency--Principle of derogation or deviation--Held: The principle of derogation or deviation is accepted even in international charters on protection of human rights--Need to have extra powers during emergency. [Pp. 593 & 594] W & X
Constitution of Pakistan, 1973--
----Art. 232--Proclamation of Emergency dated 3.11.2007--Doctrine of condonation a validation--Past & closed transaction--Criteria and applicability discussed.
[Pp. 596, 597, 598, 599, 600, 601, 602 & 603] Y & Z
Proclamation of Emergency dated 3.11.2007--
----Constitution of Pakistan, 1973; Art, 184(3)--Constitutional petition--Vires of proclamation--Held: Proclamation of emergency dated 3.11.2007 cannot be seen in isolation, but has to be examined in the context of the historical process of the country. [P. 603] AA
Constitution of Pakistan, 1973--
----Art. 184(3)--Proclamation of Emergency dated 3.112007--Provisional Constitution Order (1 of 2007), Oath of Office (Judges) Order, 2007--Constitutional petition--State necessity--Validation of action dated 3.11.2007--Held: There was an alarming situation in the country and unfortunately the concerned stakeholders in the judicial & the legal arena of the time never realized the implications of the situation to which the country had been driven--State functionaries were pushed against wall and no way out was left for them--Thus the action of 3.11.2007 had become inevitable, which was taken to save the country from chaos and anarchy--As the action was taken in the interest of state and for the welfare of the people, so it was accordingly declared by Supreme Court as validated--The action in respect of former C.J. and other Judges had attained finality and being a fait accompli, the same was even otherwise not reversible--Moreover, as the former C.J. and other Judges had ceased to hold office so any order passed or function performed by them was void, coram non judice of no legal effect or consequence.
[Pp. 607 & 609] CC, EE & FF
Proclamation of Emergency dated 3.11.2007--
----Effect--On 15th December, 2007, the Emergency was revoked Provisional Constitution Order, 2007 was repealed, the Constitution of Pakistan, 1973, with necessary amendment was revived and the C.J. and other Judges of Supreme Court, High Courts & Federal Shariat Court holding office at the time of revival of Constitution took oath under the Constitution--Revocation order also provided that it should not revive anything, not in force or existing at the time of the revocation or repeal or affect the previous operation of any law or anything done or purported to, or suffered to have been done under Proclamation of Emergency, the P.C.O. 2007 & the Oath of Office (Judges) Order, 2007--The revocation/repeal would also not affect any right, privilege, obligation or liability acquired, accrued or incurred under these orders. [P. 608] DD
Oath of Office (Judges) Order, 2007--
----Art. 3--Supreme Court Judges (Pensionary Benefit)--Order (9 of 2007), Preamble--High Court Judges (Pensionary Benefits) Order (8 of 2007), Preamble-Constitution of Pakistan, 1973, Art. 207(3)--Permanent Judges of Supreme Court and High Courts who had ceased to hold office in terms of Art. 3 of the Oath of Office (Judges) Order, 2007, were entitled to full pension and other retirement benefits admissible to a permanent judge--Thus former Judges would be at liberty to avail the pensionary benefits in terms of the Presidential Orders 8 & 9 of 2007. [P. 609] GG
Constitution of Pakistan, 1973--
----Arts. 270-AAA(3), 89(2) & 128(2)--Provisional Constitution Order (1 of 2007), Preamble--Proclamation of Emergency dated 3.11.2007--Ordinances in force at the time of, or promulgated during the P.C.O. & Proclamation of Emergency Orders, 2007--Held: Ordinances promulgated and legislative measures taken by the President or Governor, which were in force at the time of, or during the period for which Proclamation of Emergency, 2007 held the field, would continue to be in force by virtue of P.C.O. 2007 read with Art. 270AAA(3) of Constitution, until altered, repealed or amended by the appropriate legislature and there would be no question of expiry of these Ordinances in terms of Arts. 89(2) or 128(2) of the Constitution. [Pp. 612 & 613] HH
PLD 2000 SC 869; PLD 1964 SC 621; PLD 1998 SC 103; PLD 1993 SC 341; PLD 1980 SC 160; PLD 1975 SC 66; PLD 1988 SC 416; 1997 SCMR 160; 1998 SCMR 793; 1999 SCMR 319; PLD 2004 SC 583; PLD 2007 SC 642; PLD 1973 SC 49; PLD 1998 SC 1445; PLD 1955 FC 435; PLD 1953 Lah. 528; PLD 1958 SC 533; PLD 1972 SC 139; PLD 1977 SC 657; PLD 1997 SC 426; PLD 1961 (W.P.) Lah. 256; PLD 1963 SC 704; PLD 1964 Dacca 473; PLD 1968 Lah. 188; PLD 1971 Lah. 210 and 1980 SCMR 121 ref.
Mr. Irfan Qadir, ASC and Mr. Arshad Ali Ch., AOR for Petitioner (in C.P. No. 87/07).
Syed Sharifuddin Pirzada, Sr. ASC, Raja M. Ibrahim Satti, ASC and Mr. Ejaz Muhammad Khan, AOR for Respondent No. 1 (in C.P. No. 87/07).
Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, DAG, Sardar Muhammad Ghazi, DAG, Raja Niaz Ahmed Rathore, DAG, Mr. M. Aslam Nagi, ASC, Ch. Naseer Ahmad, ASC and Haji M. Rafi Siddiqui, ASC/AOR for Respondents No. 2 & 3 (in C.P. No. 87/07).
Barrister Zafar Ullah Khan, ASC and Mr. G.N. Gohar, ASC for Petitioner (in C.P. No. 88/07).
Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Elahi, DAG, Sardar Muhammad Ghazi, DAG, Raja Niaz Ahmed Rathore, DAG, Mr. M. Aslam Nagi, ASC, Ch. Naseer Ahmad, ASC and Haji M. Rafi Siddiqui, ASC/AOR for Respondents No. 1 & 3 (in C.P. No. 88/07).
Syed Sharifuddin Pirzada, Sr. ASC, Raja M. Ibrahim Satti, ASC and Mr. Ejaz Muhammad Khan, AOR for Respondents No. 2 & 4 (in C.P. No. 88/07).
Dates of hearing: 19, 20, 21, 22 & 23.11.2007.
Judgment
Abdul Hameed Dogar, H.C.J.--The petitioners, by means of these Constitution Petitions under Article 184(3) of the Constitution, have called in question the validity of the Proclamation of Emergency of the 3rd day of November 2007, the Provisional Constitution Order No. 1 of 2007 and the Oath of Office (Judges) Order 2007. They have also sought a direction that the deposed Judges of the superior Courts and the Fundamental Rights be restored, the general elections to the National Assembly and the Provincial Assemblies be held within the period as provided by the Constitution, the detenues held under preventive detention laws be released forthwith and restrictions on the media be withdrawn.
PROCLAMATION OF EMERGENCY
Whereas there is visible ascendancy in the activities of extremists and incidents of terrorist attacks, including suicide bombings, IED explosions, rocket firing and bomb explosions and the banding together of some militant groups have taken such activities to an unprecedented level of violent intensity posing a grave threat to the life and property of the citizens of Pakistan;
Whereas there has also been a spate of attacks on state infrastructure and on law enforcement agencies;
Whereas some members of the judiciary are working at cross purposes with the executive and legislature in the fight against terrorism and extremism thereby weakening the Government and the nation's resolve and diluting the efficacy of its actions to control this menace;
Whereas there has been increasing interference by some members of the judiciary in Government policy, adversely affecting economic growth, in particular;
Whereas constant interference in executive functions, including but not limited to the control of terrorist activity, economic policy, price controls, downsizing of corporations and urban planning, has weakened the writ of the Government; the police force has been completely demoralized and is fast losing its efficacy to fight terrorism and Intelligence Agencies have been thwarted in their activities and prevented from pursuing terrorists;
Whereas some hard core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated were ordered to be released. The persons so released have subsequently been involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law enforcement agencies subdued;
Whereas some judges by overstepping the limits of judicial authority have taken over the executive and legislative functions;
Whereas the Government is committed to the independence of the judiciary and the rule of law and holds the superior judiciary in high esteem, it is nonetheless of paramount importance that the honourable Judges confine the scope of their activity to the judicial function and not assume charge of administration;
Whereas an important constitutional institution, the Supreme Judicial Council, has been made entirely irrelevant and non est by a recent order and judges have, thus, made themselves immune from inquiry into their conduct and put themselves beyond accountability;
Whereas the humiliating treatment meted to Government officials by some members of the judiciary on a routine basis during Court proceedings has demoralized the civil bureaucracy and senior Government functionaries, to avoid being harassed, prefer inaction;
Whereas the law and order situation in the country as well as the economy have been adversely affected and trichotomy of powers eroded;
Whereas a situation has thus arisen where the Government of the country cannot be carried on in accordance with the Constitution and as the Constitution provides no solution for this situation, there is no way out except through emergent and extraordinary measures;
And whereas the situation has been reviewed in meetings with the Prime Minister, Governors of all four Provinces, and with Chairman Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and Corps Commanders of the Pakistan Army;
Now, therefore, in pursuance of the deliberations and decisions of the said meetings, I, General Pervez Musharraf, Chief of the Army Staff, proclaim emergency throughout Pakistan.
I hereby order and proclaim that the Constitution of the Islamic Republic of Pakistan shall remain in abeyance.
This Proclamation shall come into force at once.
PROVISIONAL CONSTITUTION ORDER NO. 1 OF 2007
In pursuance of the Proclamation of the 3rd day of November, 2007, and in exercise of all powers enabling him in that behalf, the Chief of Army Staff under the Proclamation of Emergency of the 3rd day of November, 2007, is pleased to make and promulgate the following Order:--
(2) It extends to the whole of Pakistan.
(3) It shall come into force at once.
Provided that the President may, from time to time, by Order amend the Constitution, as is deemed expedient:
Provided further that the Fundamental Rights under Articles 9, 10, 15, 16, 17, 19 and 25 shall remain suspended.
(2) Notwithstanding anything contained in the Proclamation of the 3rd day of November, 2007, or this Order or any other law for the time being in force, all provisions of the Constitution of the Islamic Republic of Pakistan embodying Islamic injunctions including Articles 2, 2A, 31, 203A to 203J, 227 to 231 and 260 (3) (a) and (b) shall continue to be in force.
(3) Subject to clause (1) above and the Oath of Office (Judges) Order, 2007, all Courts in existence immediately before the commencement of this Order shall continue to function and to exercise their respective powers and jurisdiction:
Provided that the Supreme Court or a High Court and any other Court shall not have the power to make any order against the President or the Prime Minister or any person exercising powers or jurisdiction under their authority.
(4) All persons who immediately before the commencement of this Order were in office as judges of the Supreme Court, the Federal Shariat Court or a High Court, shall be governed by and be subject to the Oath of Office (Judges) Order, 2007, and such further Orders as the President may pass.
(5) Subject to clause (1) above, the Majlis-i-Shoora (Parliament) and the Provincial Assemblies shall continue to function.
(6) All persons who, immediately before the commencement of this Order, were holding any service, post or office in connection with the affairs of the Federation or of a Province, including an All Pakistan Service, service in the Armed Forces and any other service declared to be a Service of Pakistan by or under Act of Majlis-i-Shoora (Parliament) or of a Provincial Assembly, or Chief Election Commissioner or Auditor General shall continue in the said service on the same terms and conditions and shall enjoy the same privileges, if any, unless these are changed under Orders of the President.
(2) No judgment, decree, writ, order or process whatsoever shall be made or issued by any Court or tribunal against the President or the Prime Minister or any authority designated by the President.
(1) Notwithstanding the abeyance of the provisions of the Constitution, but subject to the Orders of the President, all laws other than the Constitution, all Ordinances, Orders, Rules, Bye-laws, Regulations, Notifications and other legal instruments in force in any part of Pakistan, whether made by the President or the Governor of a Province, shall continue in force until altered, or repealed by the President or any authority designated by him.
(1) An Ordinance promulgated by the President or by the Governor of a Province shall not be subject to any limitations as to duration prescribed in the Constitution.
(2) The provisions of clause (1) shall also apply to an Ordinance issued by the President or by a Governor which was in force immediately before the commencement of the Proclamation of Emergency of the 3rd day of November, 2007.
OATH OF OFFICE (JUDGES) ORDER, 2007
WHEREAS in pursuance of the Proclamation of Emergency of the 3rd day of November, 2007, and the Provisional Constitution Order No. 1 of 2007, the Constitution of the Islamic Republic of Pakistan has been held in abeyance;
WHEREAS Pakistan is to be governed, as nearly as may be, in accordance with the Constitution and the President has, and shall be deemed always to have had, the power to amend the Constitution;
WHEREAS all Courts in existence immediately before the commencement of this Order will continue to function and to exercise their respective powers and jurisdiction, subject to the Proclamation of Emergency and the Provisional Constitution Order No. 1 of 2007;
AND WHEREAS to enable the judges of the Superior Courts to discharge their functions, it is necessary that they take Oath of their office;
NOW, THEREFORE, in pursuance of the aforesaid Proclamation and the Provisional Constitution Order No. 1 of 2007, and in exercise of all other powers enabling him in that behalf, the President is pleased to make and promulgate the following order:-
(2) It shall come into force at once.
Interpretation.--In this order, "Superior Court" means the Supreme Court of Pakistan, the Federal Shariat Court or a High Court and "Judge" includes Chief Justice.
Oath of Judges.--(1) A person holding office immediately before this Order as a Judge of the Supreme Court, the Federal Shariat Court or a High Court shall cease to hold that office with immediate effect:
Provided that a person who is given, and does make, Oath in the form set out in the Schedule, before the expiration of such time from such commencement as the President may determine or within such further time as may be allowed by the President shall be deemed to continue to hold the office of a Judge of the Supreme Court, the Federal Shariat Court or a High Court, as the case may be.
(2) A Judge of a Superior Court appointed after the commencement of this Order shall, before entering upon office, make Oath in the form set out in the Schedule.
(3) A person referred to in clauses (1) and (2) who has made oath as required by these clauses shall be bound by the provisions of this Order, the Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitution Order No. 1 of 2007, and, notwithstanding any judgment of any Court, shall not call in question or permit to be called in question the validity of any of the provisions thereof.
(4) A Judge of the Supreme Court or Federal Shariat Court shall make oath before the President or a person nominated by him and a judge of the High Court shall make oath before the Governor or a person nominated by him.
On 15th November 2007, by the Provisional Constitution (Amendment) Order, 2007 the Chief of Army Staff authorized the President to revoke the Proclamation of Emergency of the 3rd day of November, 2007 on such day as he may deem fit.
On 20th of November 2007, by the Constitution (Amendment) Order, 2007 (President's Order No. 5 of 2007) following amendments were made in the Constitution of 1973:--
Amendment of Article 175 of the Constitution:--
In the Constitution of the Islamic Republic of Pakistan, hereinafter referred to as the Constitution, in Article 175, in clause (1), after the word "Province" the words "and a High Court for the Islamabad Capital Territory" shall be inserted.
Explanation: The words "High Court" wherever occurring in the Constitution shall include the High Court for Islamabad Capital Territory.
Amendment of Article 186A of the Constitution:--
In the Constitution, Article 186A shall be renumbered as clause (1) thereof and in clause (1) renumbered as aforesaid, after the word "High Court" occurring at the end the words "or withdraw any case, appeal or other proceedings pending before a High Court to it and dispose of the same" shall be added.
Amendment of Article 198 of the Constitution:--
In the Constitution, in Article 198, after clause (1), the following new clause shall be inserted, namely:--
"(1A) The High Court for Islamabad Capital Territory shall have its Principal seat at Islamabad."
Amendment of Article 218 of the Constitution:--
In the Constitution, in Article 218, in clause (2), in sub-clause (b), for the word "Four" the word "Five" shall be substituted and after the word "Province" the words "and Islamabad Capital Territory" shall be inserted.
Addition of Article 270AAA to the Constitution.--
In the Constitution, after Article 270AA, the following new Article shall be added, namely:--
"270AAA. Validation and affirmation of laws etc.- (1) The Proclamation of Emergency of 3rd November, 2007, all President's Orders, Ordinances, Chief of Army Staff Orders, including the Provisional Constitution Order No. 1 of 2007, the Oath of Office (Judges) Order, 2007, the amendments made in the constitution through the Constitution (Amendment) Order, 2007 and all other laws made between the 3rd day of November, 2007 and the date on which the Proclamation of Emergency of the 3rd Day of November, 2007, is revoked (both days inclusive), are accordingly affirmed, adopted and declared to have been validly made by the competent authority and notwithstanding anything contained in the Constitution shall not be called in question in any Court or forum on any ground whatsoever.
(2) All orders made, proceedings taken, appointments made, including secondments and deputations, and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, on or after the 3rd day of November, 2007 in exercise of the powers derived from any Proclamation, Provisional Constitution Order No. 1 of 2007, President's Orders, Ordinances, enactments, including amendments in the Constitution, notifications, rules, orders, bye-laws, or in execution of or in compliance with any orders made or sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding anything contained in the Constitution or any judgment of any Court, be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court or forum on any ground whatsoever.
(3) All proclamations, President's Orders, Ordinances, Chief of Army Staff Orders, laws, regulations, enactments, including amendments in the Constitution, notifications, rules, orders or bye-laws in force immediately before the date on which the Proclamation of Emergency of the 3rd day of November, 2007 is revoked, shall continue in force until altered, repealed or amended by the competent authority.
Explanation.--In this clause, "competent authority" means,--
(a) in respect of President's Orders, Ordinances, Chief of Army Staff Orders and enactments, including amendments in the Constitution, the appropriate Legislature; and
(b) in respect of notifications, rules, orders and bye-laws, the authority in which the power to make, alter, repeal or amend the same vests under the law.
(4) No prosecution or any other legal proceedings, including but not limited to suits, constitutional petitions or complaints, shall, notwithstanding anything contained in the Constitution or any other law for the time being in force; lie in any Court, forum or authority against any person or authority on account of or in respect of issuance of any of the legal instruments referred to in clause (1) and on account of or in respect of any action taken by the Chief of Army Staff, the President or any other authority in exercise or purported exercise of the powers referred to in clause (2).
(5) For purpose of clauses (1), (2) and (4) all orders made, proceeding taken, appointments made, including secondments and deputation, acts done or purporting to be made, taken or done by any authority or person shall be deemed to have been made, taken or done in good faith and for the purpose intended to be served thereby.
Amendment of Article 270B of the Constitution:--
In the Constitution, in Article 270B, after the word "Assemblies" occurring for the second time, the comma, words and figure ", and the General Elections 2008 to the National Assembly and the Provincial Assemblies" shall be inserted.
Amendment of Article 270C of the Constitution:--
In the Constitution, in Article 270C, after the brackets, figures and words "(1 of 2000)", the words, brackets, figure and comma "or the Oath of Office (Judges) Order, 2007" shall be inserted and for the words "that Order" the words "the said Orders" shall be substituted.
(a) Under Article 245 of the Constitution, the Armed Forces may be required to act in aid of civil power but they have no power to impose emergency in the country. The present Proclamation of Emergency is tantamount to superseding relevant constitutional functionaries. In fact, the Armed Forces have taken over the civil administration of the country. In Liaquat Hussain v. Federation of Pakistan (PLD 1999 SC 504) it is laid down that under the 1973 Constitution the Armed Forces can only be called in aid of the civil power and have a limited role to play. There is nothing in the Constitution which makes the Armed Forces supreme authority. Under the present circumstances, the Constitution could not be held in abeyance on any ground including the law of State necessity.
(b) The Provisional Constitution Order No. 1 of 2007 is an extra-constitutional measure and is violative of the Constitution, particularly Articles 4, 8, 9, 10, 15, 16, 17, 19, 25, 47, 48, 90, 91, 209, 243, 244 and 245 thereof.
(c) The military takeover in October 1999 was validated by this Court in Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) under the principle of state necessity on account of widespread corruption, collapse of economy and one-man rule. After the 13th Amendment to the Constitution, the Prime Minister had become all powerful. Thus, a situation had arisen in which it had become impossible to run the country in accordance with the Constitution. The emergency in Zafar Ali Shah's case continued for three years. However, in the present case it is of temporary nature as general elections to the National Assembly and the Provincial Assemblies have been announced to be held on time.
(d) While validating the extra-constitutional measures this Court, in Zafar Ali Shah's case desired that the rule laid down therein was limited to the controversies involved therein and the Court did not want that it should be followed subsequently. It was a judgment in personam and not in rem.
(e) Assuming that the judgment in Zafar Ali Shah's case applies to the facts and circumstances of the present case and the law of necessity can be invoked, it can be done only if this Court comes to the conclusion that the welfare of the people necessitated the taking of extra-constitutional measures.
(f) In no other country emergency is imposed whatever the situation of law and order and terrorism may be. Even the United States did not impose emergency despite the tragic incident of 9/11.
(g) The letter of 3rd November 2007 of the Prime Minister showing concern over the security situation prevailing in the country was addressed to the President and not to the Chief of Army Staff.
(h) As to the ground of erosion of trichotomy of powers mentioned in the Proclamation of Emergency, the same suggests that for saving a limb the very life has been taken as the whole of the Constitution has been suspended. The Provisional Constitution Order does not serve to preserve the trichotomy of powers.
(j) Although the Constitution has been held in abeyance, yet unbridled powers, including the power to amend the Constitution have been given to the President. The action of 3rd November 2007 raises a further question whether the constitutional machinery was not sufficient to handle the situation.
(k) It is a well settled proposition that the fundamental rights cannot be suspended. Therefore, the action taken against lawyers' community, the media and the press is liable to be struck down as being unconstitutional.
(a) Notwithstanding the ouster of jurisdiction of the Courts by the provisions of the Provisional Constitution Order No. 1 of 2007, this Court would continue to exercise power of judicial review where the action or order is found to be mala fide, without jurisdiction and coram non judice. There can be no impediment for the Courts to do justice. The judges of superior Courts are the judges of their own jurisdiction who are quite competent to determine the limits and the extent of the ouster clauses contained in statutes.
(b) The situation prevailing on 3rd November 2007 was not akin to the one which existed at the time of Army takeover on 12th October 1999. The Respondent No. 2 had assumed the office of the President of the Islamic Republic of Pakistan under the Constitution by virtue of the 17th Amendment. Therefore, he could neither act in his own interest nor in breach of the oath of office. The President to Hold Another Office Act, 2004, is an Act of Parliament which stands on a pedestal lower than a constitutional provision. The Respondent No. 2 is just a ceremonial Chief of Army Staff but without the powers which he enjoyed in 1999. In his capacity as President, he is bound by the oath of that office. The Chief of Army Staff cannot delegate power to the President either to issue the Oath of Office (Judges) Order, 2007 or to amend the Constitution. Here it seems that the Chief of Army Staff is above the President, which is a paradoxical situation.
(c) Nowhere in the world is the Constitution held in abeyance, though Fundamental Rights can be suspended.
(d) The present dispensation is contradiction in terms. Through the Proclamation of Emergency and the Provisional Constitution Order the Constitution has been held in abeyance and the Fundamental Rights have been suspended. However, it is provided in the Provisional Constitution Order that notwithstanding the abeyance of the provisions of the Constitution, Pakistan shall be governed, as nearly as may be, in accordance with the Constitution.
(e) Under Article 89 of the Constitution an Ordinance promulgated by the President ceases to have effect after the expiry of four months unless it is disapproved by the Assembly or is withdrawn by the President earlier. However, an Ordinance in force on 3rd November, 2007 or issued by the President in pursuance of the Provisional Constitution Order No. 1 of 2007 is in the nature of a permanent statute, which is not required to be laid before the Parliament. Such a power of the President is alien to the Constitution.
(f) The grounds for the military takeover in October 1999 were the collapse of economy, humiliation of the institution of judiciary etc. This time, by taking a different position, the Respondent No. 2 says that the economy of the country is flourishing, huge foreign investments are coming in Pakistan, refineries are being established, mega projects such as Gwadar Port etc. are going on. On 12th October, 1999, the respondent was the Chief of Army Staff and became the Chief Executive. After taking oath as the President of Pakistan under the Constitution, he is holding only a titular position of Chief of Army Staff. The oath that he took as a member of the Armed Forces is different from the oath he has taken as the President of Pakistan. He cannot take orders from the Chief of Army Staff.
(g) The Proclamation of Emergency and the Provisional Constitution Order 2007 are ultra vires and mala fide. The Parliament (National Assembly and Senate), the Provincial Assemblies, the Federal and the Provincial Governments are still functioning under the Constitution, whereas the same had been dissolved/dismissed in October 1999. If the Respondent No. 2 wanted to act according to the Constitution, the proper course for him was to approach the Parliament for additional powers to him through an amendment of the Constitution. Instead, he took shelter under the umbrella of the office of Chief of Army Staff for taking extra-constitutional steps.
(h) The actions of the Respondent No. 2 such as the Proclamation of Emergency and the Provisional Constitution Order neither show loyalty to the state nor obedience to the Constitution and the law as required by Article 5 of the Constitution.
(i) Under the Constitution, one institution cannot encroach upon the powers or functions of any other institution. In the present case, the measures provided by the Constitution have not been adopted to deal with the situation. In order to combat terrorism, Armed Forces should have been called in aid of the civil power. For other matters the legislature should have played its role. If emergency was to be proclaimed, it could have been done by the National Assembly/President under Article 232 of the Constitution and not by the Chief of Army Staff.
(j) In the present circumstances, emergency could not be proclaimed throughout Pakistan. If cities like Karachi, Sargodha or Islamabad and certain parts of NWFP were stricken by terrorist activities, emergency could be proclaimed for those areas alone and the Constitution should not have been suspended by just one stroke of pen. The action is illegal, without jurisdiction and coram non judice. In the case of Muhammad Umar Khan v. Crown (PLD 1953 Lahore 528) local martial law imposed in Lahore City was upheld.
(k) Things have been done hurriedly and a lot of problems have been created. The President was required to apply his mind to determine whether in view of the given facts and circumstances emergency ought to have been proclaimed. In the instant case, the Prime Minister addressed a letter to the President on 3rd November, 2007 and the Proclamation of Emergency was issued by the Chief of Army Staff the same day. The situation was similar to the emergency imposed in 1973 when within four hours of signing of the 1973 Constitution, the then Prime Minister pulled a paper (emergency order) from his pocket and placed the same before the President, who signed it.
Syed Sharifuddin Pirzada, Sr. ASC appearing on behalf of the President of Pakistan/Chief of Army Staff stated that in a similar situation the action of the Armed Forces both in July 1977 as well as October 1999 was validated by this Court on the touchstone of state necessity, and later by the Parliament; the present emergency was temporary in character; the Government had announced the holding of general elections; whole of the country was already in a grip of terrorism, extremism and suicide attacks as a result whereof the image of Pakistan was being tarnished across the globe; Government's efforts to contain terrorism on the civil side bore no fruit; due to increased interference by some of the former Judges of the superior Courts, particularly, the former Chief Justice of Pakistan it had become impossible to run the affairs of the country in accordance with the provisions of the Constitution and resort to extra-constitutional measures had become imperative and last but not the least, indirectly not only the Constitution provided for emergencies but it also recognized emergencies in martial law times which was apparent from the provisions of Article 280 of the Constitution. The learned counsel closed his arguments with the prayer that the facts and circumstances of the case warranted the passing of an order analogous to paragraphs 6 to 18 (except the direction regarding holding of election within three years) of the Short Order passed in Zafar Ali Shah's case so as to validate the actions of 3rd November 2007 accordingly.
Malik Muhammad Qayyum, learned Attorney General for Pakistan appeared on Court notice and made lengthy submissions. The points covered by him, succinctly stated, are that the Proclamation of Emergency of 3rd November 2007, the Provisional Constitution Order No. 1 of 2007, as amended and the Oath of Office (Judges) Order, 2007 are extra-constitutional measures taken by the Chief of Army Staff/President of Pakistan in the larger interest of the state necessity and for the welfare of the people and to save the country from chaos and anarchy after having been satisfied that the state institutions were not working within the parameters of the Constitution and that the acts of terrorism had increased beyond the control of the Government; in contrast to the previous two occasions this time minimum deviation from the Constitution was made inasmuch as both the executive and legislative branches of the Government continued to function as before and only inevitable action vis-a-vis judiciary was taken; and finally the taking of oath by the Judges under the Provisional Constitution Order No. 1 of 2007 and the Oath of Judges (Office) Order, 2007 would not preclude the Judges from doing justice as held by this Court in Zafar Ali Shah's case.
In rebuttal, Mr. Irfan Qadir, ASC, learned counsel for the petitioner (in Constitution Petition No. 87 of 2007) made the following submissions:--
(a) Issue of extra-constitutional steps has been conceded by the respondents' side. It is also admitted that this is not a martial law, the present emergency is a temporary measure and it will be lifted very soon. Though jurisdiction of the superior Courts is ousted under the Provisional Constitution Order but in view of the case law, both Syed Sharifuddin Pirzada, learned Sr. ASC and Malik Muhammad Qayyum, learned Attorney General for Pakistan conceded that jurisdiction of the superior Courts had not been completely ousted. As for the doctrines of salus populi est supema lex and the state necessity, the correct legal position is that the Courts in Pakistan have validated extra-constitutional measures under the above doctrines, which are even otherwise recognized all over the world.
(b) The case boils down to one single question whether the Constitution provided any solution qua the facts and circumstances necessitating extra-constitutional measures. The answer to the above question is in the affirmative, in that, as far as the acts of terrorism are concerned, the Constitution provides a remedy in the form of action contemplated under Article 232 read with Article 245 of the Constitution. The Armed Forces can always be called in aid of the civil power to fight terrorism. The plea that the Provincial Government of NWFP was not willing to call the Armed Forces is not tenable, in that, the President could have done so or at the most limited emergency could have been imposed in the relevant areas and not throughout Pakistan. There is hardly any reason for such a drastic measure. Furthermore, emergency should have nexus with the object, which is sought to be achieved.
(c) In the sphere of trichotomy of powers, if one organ of the State is impinging upon the domain of another, it is the Parliament which can take notice of it. In the present case, however, the Parliament has passed a resolution endorsing the Proclamation of Emergency.
(d) The main reason given in the Proclamation of Emergency is that the Government of the country was not being run in accordance with the Constitution. It may be noted that the Government has also the power to legislate under Article 233 of the Constitution and the law so made is deemed to have been repealed on the expiry of the Proclamation of Emergency but such repeal does not revive anything not in force or existing at the time at which the repeal takes place. It is well settled that if a law provides that a certain thing should be done in a certain way, it has to be done in that way alone or not at all. The doctrine of past and closed transaction is also attracted in such situations.
(e) The oath of the office of President requires the incumbent, inter alia, to bear true faith and allegiance to Pakistan, which means that the President must take steps, including extra-constitutional measures in the best interests of Pakistan, whereas the oath of the members of the Armed Forces binds them to preserve and protect the Constitution. Of course, the President can take extra-constitutional measures in the interest of the State necessity and for the welfare of the people.
We have heard the learned counsel for the parties as well as the learned Attorney General for Pakistan at great length and have carefully considered the controversies involved in these petitions.
In their concise statement, the respondents raised preliminary objection as to the maintainability of these petitions on the ground that the original jurisdiction of this Court under Article 184(3) of the Constitution was explicitly barred. It was stated therein that Article 3 of the Provisional Constitution Order No. 1 of 2007 provided that no Court including the Supreme Court, the Federal Shariat Court and the High Courts and any tribunal or other authority was empowered to call or permit to be called in question the Proclamation of Emergency of 3rd November, 2007, the Provisional Constitution Order No. 1 of 2007 and the Oath of Office (Judges) Order, 2007 or any order made in pursuance thereof. A further plea was taken that since the Fundamental Rights contained in Articles 9, 10, 15, 16, 17, 19 & 25 of the Constitution had been suspended, therefore, the same were no more enforceable by this Court under Article 184(3). However, at the hearing of the petitions both Syed Sharifuddin Pirzada, Sr. ASC as well as Malik Muhammad Qayyum, learned Attorney General for Pakistan candidly conceded that in view of the law laid down in Begum Nusrat Bhutto's case (PLD 1977 SC 657) and Zafar Ali Shah's case (PLD 2000 SC 869), this Court would continue to exercise the power of judicial review to judge the validity of the Proclamation of Emergency and the other Orders issued by the President/Chief of Army Staff despite the non obstante clauses contained in the Provisional Constitution Order No. 1 of 2007. We have ourselves considered the question of ouster of jurisdiction of this Court. A somewhat similar objection was dealt with in the case of Zafar Ali Shah (supra) in which the following observations were made:-
"220. It seems quite clear that the Army takeover of 12th October, 1999 was extra-constitutional. The superior Courts of Pakistan have laid down that they retain the power of judicial review despite the ouster of jurisdiction which came either from within the Constitution, or by virtue of Martial Law Orders or by legislation. Even non obstante clauses in these cases had failed to prevent such objectives of the incumbent administrations.
Thus visualized, the purported ouster in the Proclamation and the PCO 1 of 1999 of the jurisdiction of the Superior Courts is an exercise in futility and the power of judicial review remains intact. Both under Islamic doctrines as well as under its constitutional/juridical personality, the Superior Courts would continue to exercise this power."
The relevant portion from the Short Order Zafar Ali Shah's case is reproduced below:
"Notwithstanding anything contained in the Proclamation of Emergency of the Fourteenth day of October, 1999, the Provisional Constitution Order No. 1 of 1999, as amended and the Oath of Office (Judges) Order No. 1 of 2000, all of which purportedly restrained this Court from calling in question or permitting to call in question the validity of any of the provisions thereof, this Court, in the exercise of its inherent powers of judicial review has the right to examine the validity of the aforesaid instruments. Additionally, submission of the Federation in response to the Court's notice concerning its own legitimacy also suggests that this Court has an inherent authority, arising from the submission of both the parties to its jurisdiction, notwithstanding the preliminary objection raised in the written statement as to the maintainability of the above petitions. In the exercise of its right to interpret the law, this Court has to decide the precise nature of the ouster clause in the above instruments and the extent to which the jurisdiction of the Courts has been ousted, in conformity with the well-established principles that the provisions seeking to oust the jurisdiction of the superior Courts are to be construed strictly with a pronounced leaning against ouster. The Constitution Petitions filed by the petitioners under Article 184(3) of the Constitution are, therefore, maintainable."
We would like to reaffirm the view taken by this Court in the aforesaid case of Zafar Ali Shah. This Court is competent to examine the vires of the Proclamation of Emergency of 3rd November 2007, the Provisional Constitution Order No. 1 of 2007 and the Oath of Office (Judges) Order, 2007 until these measures are protected by making an amendment in the Constitution. These petitions are, therefore, held maintainable under Article 184(3) of the Constitution.
The Proclamation of Emergency is essentially founded on two main grounds, viz., the security situation prevalent in the country and the erosion of trichotomy of powers in consequence of increased interference in the Government policies by some former Judges of the superior Courts, particularly the former Chief Justice of Pakistan, which adversely affected the economic growth and the law and order situation in the country. By letter of 3rd November, 2007, on the subject of "national security situation", the Prime Minister apprised the President of Pakistan as to the magnitude of extremism, militancy and terrorism, which were going on in the country and the widespread perception of overstepping the limits of judicial authority and taking over of executive functions. Along with the letter, the Prime Minister enclosed details of law and order incidents during the period from April to October 2007 posing grave threat to internal security of the country. For proper understanding of the situation prevailing on 3rd November 2007, it is advantageous to reproduce the letter of the Prime Minister in toto:-
"SUBJECT: NATIONAL SECURITY SITUATION
I am writing to you to share my thoughts on the current national security situation and the risks that it represents for the future of Pakistan.
The Government has made serious and sincere efforts to revive the economy, maintain law and order and to curb extremism and terrorism in the country. In the last few months, however, militancy, extremism and terrorist activities have been in ascendance, particularly in some districts of NWFP where the writ of the Government is being eroded and non-State militants are apparently gaining control. There have been a number of bomb blasts and suicide attacks in other parts of the country including the recent suicide attack on a political rally in Karachi on 18th October, 2007. During the last ten months, 1322 precious lives have been lost and 3183 persons have been injured. Details of such incidents between April - October, 2007 are enclosed. The executive measures taken against extremist elements to contain militancy and terrorist activities have, on a number of occasions, been called into question by some members of the judiciary making effective action impossible.
There has been increasing interference by some members of the judiciary in Government policy, adversely affecting economic growth, in particular. The corner stone of the economic policies of the Government is privatization, liberalization and deregulation which create economic growth and investment. Both local and foreign investment has been negatively affected.
It cannot be disputed that the legality of executive measures is open to judicial scrutiny. The wisdom or necessity of a policy or a measure is an executive function and not open to judicial review. However, in the recent past, some members of the judiciary have, nevertheless, departed from these norms. While we all are committed to the independency of the judiciary and the rule of law and hold the superior judiciary in high esteem, it is nonetheless of paramount importance that the Honourable Judges confine the scope of their activity to the judicial function. While judges must adjudicate they must neither legislate nor assume the charge of administration.
Most importantly, constant interference in executive functions, including but not limited to the control of terrorist activity, economic policy, price controls, downsizing of corporations and urban planning, has weakened the writ of the Government. This has increased the incidents of terrorist attacks thereby posing grave threat to the life and property of the citizens of Pakistan and negatively impacting the economy. Wide-ranging suo motu actions of the Courts negate the fundamentals of an adversarial system of justice. The police force has been completely demoralized and is fast losing its efficacy to fight terrorism. Intelligence Agencies have been thwarted in their activities and prevented from pursuing terrorists.
A large number of hard core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated have been released. The persons so released are reported to be involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law enforcement agencies subdued.
There is a widespread perception of overstepping the limits of judicial authority and taking over of executive functions. Privatization is at a standstill while domestic and foreign investors are being compelled to reconsider investment plans thus adversely affecting the economy.
On the other hand, an important constitutional institution, the Supreme Judicial Council, has been made entirely irrelevant by a recent order. Detailed reasons for this order are still awaited despite a lapse of three months. Judges have, thus, made themselves immune from inquiry into their conduct and are now beyond accountability.
The law and order condition in the country as well as the economy have been adversely affected and trichotomy of powers eroded. A situation has thus arisen where the routine and smooth functioning of Government machinery is becoming increasingly difficult and causing grave concern among ordinary citizens about their security. As evident from the attached list, there has been an unusual increase in security related incidents highlighting the gravity of the situation.
Mr. President, the contents of this letter reflect my views and public opinion about the current scenario. For any State to function, all the three pillars of State must act in harmony in the best national interest. Pakistan is a country that achieved independence after immense sacrifices and has tremendous potential to develop, prosper and be recognized among the comity of nations as a country with an exciting future.
DETAILS OF LAW AND ORDER INCIDENTS REPORTED FROM 1st APRIL TO 30th APRIL, 2007
1st April, 2007 . -------
2nd April, 2007 . 9 persons killed and 11 injured in clash between tribal lashkars in Bara.
3rd April, 2007 . An employee of WAPDA killed in land-mine explosion in Sibi.
4th April, 2007 . 1 person killed in mine blast near Sui.
5th April, 2007 . 7 Army officials and a civilian were injured due to exchange of fire between militants and LEAs in South Waziristan.
5th April, 2007 . 45 foreigners and 7 locals killed and four LEAs and four civilians were injured during clashed between militants and LEAs in South Waziristan.
. One person killed in land mine explosion in Sui.
6th April, 2007 . 28 persons killed, 24 injured during sectarian clashes in Kurram Agency.
7th April, 2007 . 1 killed and 3 injured in IED (Improvised Explosive Device) explosion at Landi Kotal.
. 8 killed during sectarian clash in Kurram Agency.
8th April, 2007 . Death toll rises to 38 persons killed and nearly 90 injured in a sectarian clash at Kurram Agency.
. LEAs officials injured in IED explosion at Tank.
9th April, 2007 . Death toll rises to 45/46 persons in Kurram Agency.
10th April, 2007 . 3 persons injured in mine explosion at Sui.
. 4 LEAs personnel killed and two injured in mine explosion in Sibi.
. 4 personnel killed and 2 injured when a landmine hit a vehicle at Kohlu.
11th April, 2007 . -------------------
12th April, 2007 . 1 woman killed in sectarian violence in Kurram Agency.
13th April, 2007 . 1 killed in IED explosion at Bannu.
. 3 LEAs officials killed in mine blast near Kohlu.
14th April, 2007 . ---------------
15th April, 2007 . ----------------
16th April, 2007 . 2 persons killed and 5 injured in a bomb explosion in Peshawar.
. In a separate incident one police official was killed.
17th April, 2007 . 2 WAPDA officials shot and injured at Quetta.
18th April, 2007 . -----------------
19th April, 2007 . 1 official injured in an explosion in Sibi.
20th April, 2007 . 1 person killed and one injured in mine explosion in Dera Bugti.
21st April, 2007 . ------------------
22nd April, 2007 . 3 persons killed in IED explosion in Mastung.
. 11 persons injured in violent protest of militants in Bara.
23rd April, 2007 . 4 killed and 10 injured in militants LEAs clash at Bara.
. 3 children killed when a hand grenade was lobbed at a house at Mastung.
24th April, 2007 . 2 persons injured in an explosion took place in main bazaar at Upper Dir.
25th April, 2007 . 2 persons killed in sectarian violence in D.I.Khan.
26th April, 2007 . -----------------
27th April, 2007 . -----------------
28th April, 2007 . 27 persons reported killed and 39 injured in a suicide bombing in Charsadda.
29th April, 2007 . ------------------
30th April, 2007 . 1 person killed in Dera Murad Jamali and 1 injured in Sui in mine explosions.
DETAILS OF LAW AND ORDER INCIDENTS FROM
1ST MAY TO MAY, 2007
1st May, 2007 . ----------------
2nd May, 2007 . One FC official shot and killed by unknown culprits in Orakzai Agency.
3rd May, 2007 . Two persons injured in IED explosion in Quetta.
4th May, 2007 . Seven Army officials injured in a grenade attack on their vehicle in North Waziristan.
. One Government official killed in an attack in Miranshah.
5th May, 2007 . Three persons killed and one injured in two separate incidents of sectarian violence in Layyah and D.I.Khan.
. One FC official injured in an attack by unknown miscreants in Dera Bugti.
6th May, 2007 . Five LEA personnel including two officers injured in a rocket attack in Kohlu.
. Ammunition Depot of Police Lines Kohat destroyed in a powerful explosion.
. PPPP leader Qamar Abbas killed along with his companion in an attack in Peshawar.
7th May, 2007 . Two FC officials injured in a landmine explosion in Dera Bugti.
8th May, 2007 . Eight oil tankers destroyed in an explosion in Khyber Agency.
9th May, 2007 . Two Police officials killed in an attack by unidentified miscreants in Karachi.
10th May, 2007 . Two IED explosions took place in Sui and Khuzdar and a rocket attack on one FC post in Dera Bugti with one person injured in Sui.
11th May, 2007 . ---------------
12th May, 2007 . 27 persons initially reported killed and 140 injured during CJP's visit to Karachi.
13th May, 2007 . Death toll in the Karachi violence reported as having risen to 38.
14th May, 2007 . Two dead bodies with gunshot wounds recovered from Karachi.
. Two LEA officials injured in incidents of violence in Karachi.
. Two persons killed and 15 including 4 LEA officials injured in grenade attacks in Tank.
15th May, 2007 . 26 persons killed and 24 injured in a suicide attack in a restaurant in Peshawar.
16th May, 2007 . Seven persons killed and 18 including 4 LEA officials injured in a grenade attack/exchange of fire in Tank.
. Three persons killed and 10 injured in operation in Jungle Pir Alizai Afghan refugee camp in Chaman.
17th May, 2007 . One FC official killed in an attack on FC post in Zhob.
. Three FC officials injured in a landmine explosion in Kohlu.
18th May, 2007 . One person injured in IED explosion in Quetta.
19th May, 2007 . Nine Government officials abducted in North Waziristan.
. Eight persons injured in sectarian violence in Kashmore.
20th May, 2007 . Five persons killed and one FC official injured in a clash between two militant groups in Bara.
. Four persons injured in a landmine explosion in Bajaur Agency.
21st May, 2007 . Two FC officials injured in grenade/rocket attack in Tank.
22nd May, 2007 . Four militants killed in a LEA operation in North Waziristan.
23rd May, 2007 . Two persons killed and two injured in an explosion near GEO TV office in Hub.
. Four persons including an LEA official abducted in Bannu.
24th May, 2007 . ---------------
25th May, 2007 . ---------------
26th May, 2007 . Two Army officials killed and seven injured in a remote controlled bomb explosion in Tank.
. Two Government doctors kidnapped in Lakki Marwat.
. 3 dead bodies found in Karachi.
27th May, 2007 . One person died and one injured in an IED explosion in Quetta.
28th May, 2007 . Three LEA officials killed and three injured in attack in Tank.
. Four miscreants killed and four including three Police officials killed in a clash in Bannu.
29th May, 2007 . One person killed and five injured in IED explosion in Peshawar.
. Four persons killed in a clash between Bugti tribesmen and LEAs in Dera Allahyar.
30th May, 2007 . Four killed and six including three LEA officials injured in a clash between tribesmen and LEAs in Jaffarabad.
31st May, 2007 . 13 persons killed and two injured in an attack on the house of the Political Agent, Khyber Agency.
. 11 persons killed and two injured in an attack on the house of SDO, C&W Deptt. in Tank.
DETAILS OF LAW AND ORDER INCIDENTS FROM 1ST JUNE TO 30th JUNE, 2007
1st June, 2007 . Assistant Manager, ZTBL, Serai Naurang got injured as a result of an IED explosion in his car on Bannu - D.I. Khan road, Bannu.
. A bomb exploded in the car of a Mobile Credit Officer, ADB in front of Agriculture University, injuring him and damaging the vehicle in Bannu.
2nd June, 2007 . 5 persons including the Tehsildar, a local journalist and a Levies official killed in IED explosion in Bajaur Agency.
. Two persons including one Sunni Tehrik worker killed in Karachi.
. Marri miscreants fired 2 rockets on FC post injuring one FC personnel in Kahan.
3rd June, 2007 . -----------------
4th June, 2007 . -----------------
5th June, 2007 . Unidentified culprits shot dead Syed Mehdi Hussain (Director, Information Department, NWFP) in Jhanda Bazaar area in Peshawar.
6th June, 2007 . Unidentified motor-cyclists shot dead Aftab Farooqi (clerk, Education Department) in Basti Ustrana area in D.I. Khan.
7th June, 2007 . Miscreants fired two rockets towards the city causing injuries to seven persons in Bannu.
8th June, 2007 . Two persons were killed in IED explosion near Juma Hotel at Hub Bazaar Swat.
. An IED explosion took place 200 meters short of Bugti Fort which resulted into injuries to two motorcyclists in Dera Bugti.
. 3 supporters of Lashkar-e-Islam were killed while 4 injured in Bara.
. Culprits shot and injured two persons including Sub-Inspector Nawab Khan in two separate incidents in Basin area in Gilgit.
. Miscreants opened fire on Levis injuring a Sepoy in Bolan.
. Miscreants fired two rockets on a restaurant causing minor injuries to eight persons in Bannu.
9th June, 2007 . An explosion took place in front of Juma Khan Hotel Main RCD highway/Hub, killing three persons and injuring six others in Lasbella.
10th June, 2007 . Unidentified persons shot/killed four persons and injured five other during marriage function of an army officer in Mianwali.
11th June, 2007 . Miscreants fired three rockets which landed near a hotel, resulting in injuries to five persons in Shikarpur.
12th June, 2007 . ----------------
13th June, 2007 . Motorcyclist shot and killed Wasif Aziz (President, Muttahida Tulaba Mohaz/active worker of IJT, Karachi).
. Miscreants lobbed hand grenade near a shop at Sariab road resulted into injuries to four persons including two policemen in Quetta.
. Unidentified assailants shot and injured Rana Javed Iqbal (DSP Security, CCPO) at Killi Shabo, Quetta.
. Miscreants hurled hand grenade at Golimar Chowk, which exploded causing injuries to five persons including two PCs.
14th June, 2007 . Miscreants opened fire on a vehicle on Zargoon Road Quetta, which resulted into killing of 9 and injuring 4 persons. The dead persons included 7 soldiers, 1 police constable.
15th June, 2007 . An IED explosion took place in a CD shop at Badaber area, Peshawar which resulted into injuring of two persons.
. One Nawab Khan fired/killed Police Constable Zubair Khan.
16th June, 2007 . An explosion took place in an internet Case on Kohat Road, Peshawar near Speen Jumat, injuring two persons.
17th June, 2007 . ---------------
18th June, 2007 . A remote controlled explosive device went off near Levies vehicle at Barkalay Khur which resulted into injuries to three persons including two Levies personnel in Bajaur Agency.
19th June, 2007 . Miscreants lobbed a hand grenade on Police post in areas PS Urmar in Peshawar which resulted into injuries to two persons including a police constable.
. On 18th June, miscreants exploded a remote controlled bomb near official vehicle of Political Agent, injuring three officials in Bajaur Agency.
. A jet plane dropped two bombs on suspected Mujahideen Training Camp at Saliri located in Tehsil Datta Khel in N.W. Agency. Resultantly, 17 persons were killed and ten injured.
20th June, 2007 . On June 19, one police constable and a watchman of a nearby market sustained injuries when unknown culprits hurled a hand grenade at Police check-post Shamshatu, in Peshawar.
21st June, 2007 . Three persons were killed when their tractor ran over an anti tank mine near an FC check post in Khapyanga area in Lower Kurram Agency.
. One Abdul Munan lobbed a hand-grenade towards a religious congregation being held at Tableeghi Markaz on Bannu Miranshah Road, in Bannu killing one and injuring 20 persons.
. Three sunnis were killed in a bomb blast, at village Khapyanga/Alizai, Khurram Agency.
22nd June, 2007 . Two motorcyclists lobbed a hand grenade in a barber shop which resulted into killing of one person and injuries to four others in Quetta.
. An IED explosion took place in Ganji Mandi, which resulted in injuries to one person in Chaman.
. One Shakir Muhammad hurled a hand grenade at Tableeghi Markaz which exploded, killing two persons including culprit and injured 19 others in Bannu.
. Beheaded body of an Afghan refugee was recovered in Bajaur Agency.
23rd June, 2007 . Detonation of a remote control IED targeting a vehicle conveying FC men, resulted in death of three and injuries to two officials in Mirali.
24th June, 2007 . On 23rd June, six persons were killed and three injured as a result of armed clashes between militant groups.
. Allied forces air strike leads to 20 deaths in Bajaur Agency.
25th June, 2007 . Police recovered dead body of Ghulam Rasool (ASI) near Jamrao canal and Syed Ghulab Shah (ASI) near Delipota Mainer, in Mirpur Khas/Naushero Feroze.
26th June, 2007 . Two persons killed and four injured in an armed clash between militants in Tirah.
. Two shot dead in an attack in Quetta.
27th June, 2007 . An IED explosion near Ghulam Jan Phatak resulted into killing of one child and injuries to another two in Parachanar.
28th June, 2007 . -----------------
29th June, 2007 . Culprits slaughtered one Tamash Khan (Afghan Refugee) and left a chit with the dead body declaring him a US Spy in Mohmand Agency.
. One person got injured due to explosion of anti-personnel mine in Bajaur Agency.
. An explosion occurred in a parked oil tanker near gasoline pump at Landikotal which engulfed nearby 14 oil tankers completely destroying all of them.
30th June, 2007 . ------------------
DETAILS OF LAW AND ORDER INCIDENTS FROM 1ST JULY TO 31ST JULY, 2007
1st July, 2007 . Two Afghan refuges killed when an explosive device was detonated in Peshawar.
. In a separate incident, three persons were injured when an explosion took place in a parked bus in Peshawar.
. Two persons killed in exchange of heavy fire between two groups in Khyber Agency.
2nd July, 2007 . ----------------
3rd July, 2007 . Nine persons including one Rangers official killed 136 injured in Lal Masjid incident in Islamabad.
. Four FC officials injured in mine-blast in Dera Bugti.
. An activist of MQM-H killed in Karachi.
4th July, 2007 . Eight persons including six LEA officials killed and 12 including eight LEA officials injured in a suicide attack in North Waziristan.
5th July, 2007 . Four Police officials killed and two injured when their police mobile was fired upon by unknown culprits in Peshawar.
. Three locals killed and SSP Swat and his driver sustained injuries in a bomb blast in Mingora.
. One police official killed after being attacked by miscreants in Swat.
6th July, 2007 . Four Army personnel killed in a remote controlled explosion in Malakand Agency.
. One Police official killed and five others including two Police officials injured when an IED fitted bicycle exploded in Jaffarabad.
7th July, 2007 . Unknown culprits fired anti-aircraft shell on VVIP airplane.
. Three Police officials including a DSP injured when their mobile was fired upon in Swat.
. Two locals and four kidnappers were killed and four persons were injured in an attempt to kidnap an Army Captain in North Waziristan.
8th July, 2007 . An Army officer killed and two Rangers personnel injured in Lal Masjid operation in Islamabad.
. Three Chinese businessmen killed and one injured in Peshawar.
. One Levies official killed and seven injured as a result of remote controlled explosion in Bajaur Agency.
. Four Levies personnel kidnapped in Bajaur Agency.
9th July, 2007 . One Police official killed and three injured in an ambush in Bannu.
10th July, 2007 . 68 persons initially reported killed and 32 injured in the Lal Masjid incident in Islamabad.
. 10 persons injured in two IED explosions in Lower Dir.
. Five persons injured in IED explosion in Bajaur.
11th July, 2007 . An army jawan killed in a grenade attack in Kohat.
12th July, 2007 . Four persons including three police officials killed in a car explosion in Swat.
. Three Government officials killed and three persons including two Government officials killed in a suicide attack in Miranshah.
. Nine FC Scouts injured when 20-22 rockets were fired on Bajaur Scouts HQs in Bajaur.
13th July, 2007 . Three police officials and two suicide attackers killed when an explosive fitted car was searched.
. Three Government officials killed and three injured in a suicide attack while a dead body was recovered in North Waziristan.
14th July, 2007 . 24 LEA personnel killed and 26 injured in a suicide attack in North Waziristan.
15th July, 2007 . 30 persons including 17 Police officials and one FC person killed and 52 injured in a suicide attack in D.I. Khan.
. 15 LEA personnel including 4 civil employees killed and 47 injured in suicide attacks in Swat.
. One FC personnel killed and five injured when fired upon by miscreants in Turbat.
16th July, 2007 . ------------------
17th July, 2007 . Three LEA personnel killed and three injured in suicide attack in North Waziristan
18th July, 2007 . 17 LEA personnel killed and 18 injured in incidents of firing and explosion in Miranshah.
. 17 persons killed and 72 injured in suicide attack in Islamabad.
19th July, 2007 . 18 persons killed and 32 injured in a suicide attack in a mosque in Kohat.
. 7 persons killed and 26 injured in a suicide attack on Police Training College in Hangu.
. 29 killed, 30 injured in a suicide attack on Chinese engineers in Hub.
20th July, 2007 . Two persons including one LEA person killed and five injured in a suicide attack in Miranshah.
21st July, 2007 . Four persons including two LEA personnel injured in mortar fire in Swat.
22nd July, 2007 . Nine LEA personnel injured in two incidents of IED explosions in North Waziristan.
23rd July, 2007 . Seven LEA personnel injured in separate incidents of firing and explosions by miscreants in North Waziristan.
24th July, 2007 . Two LEA officials kidnapped and later killed in Bajaur Agency.
. Two LEA personnel killed and eight injured in armed attack in North Waziristan.
. A Police official killed by unidentified miscreants in Lower Dir.
. Abdullah Mahsud killed in an LEA operation in Zhob.
25th July, 2007 . Eight persons killed and 41 including seven Police officials injured in a rocket attack on Bannu city by unknown assailants.
26th July, 2007 . 11 persons including 8 police officials injured in IED explosion in Timergarrah, Lower Dir.
27th July, 2007 . 14 persons including 7 Police officials died and 55 injured in a suicide attack in Islamabad.
. Mr. Raziq Bugti, spokesman for Government of Balochistan killed in a firing incident in Quetta.
. Three FC officials injured when their vehicle was hit by a remote controlled explosive device in Bajaur Agency.
28th July, 2007 . Unknown motorcyclists hurled a hand-grenade into a house, which exploded killing daughter of one Jabbar (settler) at Khuzdar.
. An anti personnel mine planted on shingle road went off killing one Sunni and injuring two others at Kurram Agency.
. Unidentified miscreants carried out small arms firing on police killing one police constable at Kohat.
29th July, 2007 . Two motorcyclists were injured in a landmine explosion at Killi Wadera at Kohlu.
. Four unidentified culprits shot/killed Police Constable on duty and fled away at Kohat.
30th July, 2007 . Unknown culprits fired two missiles on Tochi Scouts Fort, injuring four army sepoys at North Waziristan.
. An IED exploded near Thall picket causing injuries to seven paramilitary soldiers. 3 personnel of Tochi Scouts were martyred in an IED explosion in Tehsil Miranshah at North Waziristan.
31st July, 2007 . Assailants targeted FC vehicle with a remote-control bomb resultantly 06 fix personnel sustained injuries at Tank.
. 04 FC personnel were kidnapped/taken by unidentified miscreants. Later 01 abductee was killed at Bannu.
. Unidentified miscreants attacked a police mobile vehicle with a remote controlled explosive device causing injuries to 04 policemen including a Sub-Inspector at Swat.
DETAILS OF LAW AND ORDER INCIDENTS FROM 1ST AUGUST TO 31ST AUGUST, 2007
1st August, 2007 . A remote control bomb exploded near a police mobile. Resultantly, four police officials including SHO were injured and vehicle was damaged at Swat.
2nd August, 2007 . 1 killed and 5 injured in suicide attack at Swat.
. Suicide bomber and an ASI were killed while a constable sustained injuries in Police Training School, Sargodha.
. 5 police officials suffer injuries in an IED explosion at Gujranwala.
3rd August, 2007 . ----------------
4th August, 2007 . A suicide bomber rams his car into taxi stand at Parachinar, claiming 09 lives and injuring 40 others.
. 4 para-military soldiers martyred in NWA.
5th August, 2007 . --------------
6th August, 2007 . An IED went off when a PAF bus (carrying staff) in Peshawar was passing near it. 3 personnel were injured.
7th August, 2007 . Miscreants killed 1 and injured another FC official at Kohat.
8th August, 2007 . 1 soldier was martyred due to an IED explosion near Banda post/Miranshah.
9th August, 2007 . ----------------
10th August, 2007 . 16 FC personnel unaccounted for in South Waziristan.
. Assailants attacked convoy of Pak Army while it was on its way from Miranshah to Gharlamai/Datta Khel. 5 soldiers sustained injuries.
11th August, 2007 . Miscreants fired on police patrolling party on Hangu-Thall road. 3 police personnel were killed while 2 civilians were injured.
. An IED exploded injuring a sepoy. 2 civilians were killed and 4 others wounded.
. Militants opened fire on Gora Qabristan FC check post, injuring Lance Naik of Thall Scouts in NW.
12th August, 2007 . -----------------
13th August, 2007 . Unidentified culprits lobbed a hand grenade on police patrolling party causing injuries to 3 persons including 2 police officials in Quetta.
. A bomb blast in vehicle near Kalam killing/injuring several persons.
14th August, 2007 . 4 injured in two IED explosions at D.G. Khan.
. Beheaded body of a captive FC soldier recovered near SWS fort/Jandola, FR Tank.
. 3 Thall Scouts sustained injuries at Gora Qabristan post.
15th August, 2007 . Small arms firing on LEAs killed 2 personnel at Sui.
16th August, 2007 . 2 LEAs personnel killed in mine explosion at SWA.
. A joint convoy of Pak army and Thall Scouts was targeted by miscreants with an IED. 2 para-military soldiers were martyred and 1 injured in NWA.
17th August, 2007 . Assailants ambush security forces in different parts of South Waziristan/12 soldiers martyred.
18th August, 2007 . 1 policeman killed, 4 injured in grenade attack at Bannu. Unidentified miscreants lobbed a hand grenade at police post in Mandan area and escaped. I police constable was killed while four others got injured.
19th August, 2007 . Assailants martyred 2 LEAs personnel in North Waziristan.
20th August, 2007 . 3 LEAs personnel killed and 17 injured in suicide attack at Thall.
21st August, 2007 . ----------------
22nd August, 2007 . 5 persons injured in grenade attacks on houses/shop of 3 settlers in Quetta.
. 3 Frontier Constabulary personnel lay down their lives at Bannu.
. Army helicopter (MI-17) targeted by miscreants at South Waziristan/1 solider martyred in cross fire.
23rd August, 2007 . 1 miscreant killed, 3 FC troops injured at Hangu.
. 11 persons injured in an IED explosion in a shop at Quetta.
. 19 injured in two grenade attacks at Quetta.
. Unknown armed militants (200/250) attacked FC Fort at Navi Dhand 3 FC personnel sustained injuries in Hangu.
24th August, 2007 . 2 persons injured in IED explosion at Bajaur Agency.
. Suicide attack on a military convoy claims lives of 5 LEAs personnel/injures 29 at Mirali/North Waziristan.
25th August, 2007 . 3 LEAs persons injured due to firing of miscreants at Sibi.
. Lt. Col. Shahid, Subedar Younus Afridi and Sepoy Jehanzeb of Bajaur Scouts while coming from Tehsil compound to Scouts Fort, Laddah went missing in SWA.
26th August, 2007 . 4 policemen killed, 2 injured in suicide attack at Swat.
. 1 soldier was martyred and 3 others sustained injuries in NWA.
27th August, 2007 . -----------------
28th August, 2007 . 2 persons injured in mine explosion at Kohlu.
29th August, 2007 . 2 persons injured in rocket attack at Peshawar.
. 1 person killed, another injured in mine explosions at Dera Bugti and Bagh.
30th August, 2007 . -----------------
31st August, 2007 . 3 persons including 2 policemen injured in IED explosion at Charsada.
. 2 FC personnel killed, 6 injured in miscreants attack at Malakand Agency.
. 1 person killed, a constable injured in IED explosion at Malakand Agency.
. 211 army/FC personnel surrender to Taliban/militants without putting up a fight in South Waziristan.
DETAILS OF LAW AND ORDER INCIDENTS FROM 1ST SEPTEMBER TO 30TH SEPTEMBER, 2007
1st September, 2007 . 5 persons including 3 FC personnel killed, 6 injured in suicide attack at Bajaur Agency.
. 1 FC person killed, 4 injured in mine blast at Sui.
. A bridge collapsed near Sher Shah, Karachi resulting in death of five persons.
2nd September, 2007 . 10 personnel of Mohmand Rifles go missing at Tehsil Safi, Mohmand Agency.
3rd September, 2007 . ----------------
4th September, 2007 . Unidentified miscreants detonated an IED near a police post which resulted into injuries to a police constable in Dir.
. 2 bomb explosions at Rawalpindi claim 25 lives.
5th September, 2007 . Miscreants killed 3 persons including 2 FC men at Quetta.
6th September, 2007 . ----------------
7th September, 2007 . 48 shops damaged in IED explosion at Swat.
. A bomb explosion in Karachi injured 10 persons.
8th September, 2007 . 24 persons injured in IED explosion at Peshawar.
. 2 persons at LEAs killed, 3 injured in firing by miscreants at Kohistan.
. Car bomb explosion at Peshawar leaves 12 persons injured.
. Unidentified assailants fired three rockets on Sar Lara post of Bajaur Levies, Tehsil Khar. Two sepoys sustained injuries.
9th September, 2007 . Four army soldiers martyred in an ambush by militants at Kohistan.
10th September, 2007 . Armed culprits gun down a lawyer and injured an Inspector Rangers at Karachi.
. Subversive activities of Taliban/ militants continued in Waziristan and Malakand Agencies/13 soldiers injured, one martyred.
11th September, 2007 . 18 persons killed while 20 injured in suicide attack at Bannu.
. Suicide attack claims 17 lives/ leaves 12 injured at D.I.Khan.
. Skirmishes continue between LEAs and Taliban in tribal area/02 Shawal Rifles jawans kidnapped from NWA.
12th September, 2007 . Miscreants attacked a post/kidnapped 12 persons of LEAs at Bannu.
. Two LEAs personnel injured in an ambush by Taliban while 12 others go missing/feared abducted at Bannu.
. A police sub-inspector mercilessly shot/killed in Swat.
. Unknown culprits targeted Thall Scouts/Pak. Army convoy with and IED injuring 3 sepoy.
13th September, 2007 . 15 persons killed, 30 injured in explosion at Tarbela.
. 7 persons killed, 7 injured by miscreants firing on a bus at Karachi.
. 3 civilians killed in a landmine explosion at Sui/Dera Bugti.
. Military operation continues in Makeen, SW. Agency/militants suffers heavy losses/10 Scouts also martyred.
14th September, 2007 . ----------------
15th September, 2007 . 2 persons killed, 2 injured in IED explosion at Bajaur Agency.
16th September, 2007 . 1 killed in mine explosion at Dera Bugti.
17th September, 2007 . Miscreants killed 2 FC personnel near Sibi.
. 20 soldiers massacred by militants in Tehsil Shawal, N.W. Agency.
18th September, 2007 . ----------------
19th September, 2007 . 7 FC personnel kidnapped by miscreants at Hangu.
. 6 FC personnel injured in mine blast at Dera Bugti.
20th September, 2007 . -----------------
21st September, 2007 . -----------------
22nd September, 2007 . 2 killed and 9 injured in attacks on LEAs in Bajaur Agency.
. Supporters of Maulana Fazalullah ransack a police post at Swat, killing a PC and interning 02 others.
23rd September, 2007 . -----------------
24th September, 2007 . -----------------
25th September, 2007 . 3 persons injured in mine explosion at Bajaur Agency.
. IED explosions at Tank and Thal (2 killed, one injured).
26th September, 2007 . -----------------
27th September, 2007 . SP alongwith two security guards shot dead at Quetta.
28th September, 2007 . A soldier martyred and 13 others injured in an attack on army convoy at Tank.
29th September, 2007 . 53 persons injured during protests at Islamabad.
30th September, 2007 . ------------------
DETAILS OF LAW AND ORDER INCIDENTS REPORTED FROM 1ST OCTOBER TO 28th OCTOBER, 2007
1st October, 2007 . 15 persons killed and 31 injured in suicide bombing at Bannu.
. 02 persons killed and 10 injured in IED explosion at Kurram Agency.
2nd October, 2007 . 06 LEAs officials injured in attack on FC camp at Malakand.
. 03 LEAs personnel killed and 02 injured in attack at Hangu.
. 32 FC personnel kidnapped by armed Taliban from a picket in Bannu.
. Militants fired rockets and mortar shells on Goosh picket of security forces from village Spalga at Miranshah. Security forces retaliated, killing 01 girl and injuring 02 boys as a shell landed in a house.
3rd October, 2007 . 02 FC personnel killed and 05 injured in miscreants attack at NWA.
. 02 army personnel martyred in a rocket attack at Dandi Kach post NWA.
. 11 persons killed and 08 injured in IED explosion at NWA.
. 02 policemen killed and 02 injured in attack on police post at Kotki/Hangu.
4th October, 2007 . 13 tribesmen killed in an IED explosion at Touda Cheena Bridge, NWA.
. SHO, PS Ghazni Khel killed by unidentified miscreants at Lakki Marwat.
5th October, 2007 . 02 persons were injured due to IED explosion in Dinari Pat areas, at Sui.
6th October, 2007 . 02 persons were killed by unidentified culprits by opening fire on a vehicle near Tablighi Markaz at Hangu.
. 01 JCO and 19 officials of security forces were martyred in a unknown miscreants attack on a convoy at The Datta & Miranshah, NWA.
7th October, 2007 . 07 soldiers killed in an attack on Pak Army convoy in NWA by assailants and injuring several others.
8th October, 2007 . 01 FC personnel injured in a mine explosion in Kahan areas at Kohlu.
. 45 personnel of LEAs were martyred and 51 sustained injuries whereas 33 jawans were reportedly unaccounted for, in Khushali Tori Khel in NWA.
9th October, 2007 . ----------------
10th October, 2007 . Ex-Naib Nazim Kohlu killed by unknown motorcyclists at Quetta.
. 22 persons were injured due to a local made bomb blast at King Video Centre, Nishtarabad, Peshawar.
. 03 police officials sustained serious injuries when assailants exploded remoter-control bomb near police van at Building Chowk, Kohat.
. Gunship helicopter bombed Tehsil Mirali areas, killed 30/35 assailants including foreigners and 20 civilians injured at NWA.
. 01 army officer and a soldier killed while 04 sustained injuries in an IED explosion by unknown assailants at NWA.
11th October, 2007 . 01 person injured in IED attack on CD shop in Karak.
. 01 Levies man killed and 01 miscreant arrested in injured condition in cross-fire with miscreants at Malakand.
. Dead body of personnel of security forces was retrieved from battle zone while 02 missing jawans reached Mirali Fort safely. Number of martyred security personnel has risen to 58 while 03 jawans are still missing at NWA.
. A Niab Subedar injured and partial damage to Levies picket, Inayat Killi/The Khar by miscreants at Bajaur Agency.
12th October, 2007 . Unknown culprits blew up tractor-water tanker of OGDCL with remote-control IED near Pirkoh, injuring a boy at Dera Bugti.
13th October, 2007 . 06 captives beheaded by masked Taliban in open ground in front of several spectators in Mohmand Agency.
14th October, 2007 . -------------------
15th October, 2007 . Beheaded body of a Constable Zartalah of Mohmand Rifles was (kidnapped on 07) found in Pir Killi, The Miranshah by Political Administration.
16th October, 2007 . -------------------
17th October, 2007 . -------------------
18th October, 2007 . 02 bomb blasts in Mohtarma Benazir Bhutto's rally: 143 dead and about 350 injured in Karachi.
19th October, 2007 . 01 FC constable and 02 passerby sustained injuries when explosive material fitted with a bicycle went off near IB Zonal Office at D.I. Khan.
. An IED explosion took place in a car which resulted into injuries to one and caused damage to the vehicle at Peshawar.
20th October, 2007 . Three masked motorcyclist stopped a vehicle carrying passengers at Tehsil Khar dismounted one Malik Akhunzada, opened fire on him who succumbed to injuries, at Bajar Agency.
. Unknown masked men gunned down Maulvi Gul Sher (Agency Councilor) near Billot Khowar at Bajaur Agency.
. 05 persons killed and 26 got injured in an IED explosion at Dera Bugti.
21st October, 2007 . 01 culprit killed and 02 injured due to IED during its planting at Karak.
. Child injured in mine explosion at Bajaur Agency.
22nd October, 2007 . Unknown assailants attacked FC Thal picket at Esha-Razmak road, The Miranshah and killed FC official of Mohmand rifle at NWA.
23rd October, 2007 . Said Muhammad (Head Constable) shot dead by unknown miscreants at Gulshan Chowk, Mingora Swat.
23rd October, 2007 . Unknown armed men injured a police constable by opening fire on police mobile at Gujrat (Mardan).
. 01 army solider martyred and 02 sustained injuries due to an IED exploded at Norak/Tehsil Mirali while Pak army/FC convoy was on its way from Bannu to Miranshah. The convoy was again targeted with an IED near Chashma Pull/Miranshah, resultantly conductor sustained injuries.
. 2 Iranian guards/sepoys and 02 injured by unknown persons attacked on Iranian border post Nobandian, at Gawadar.
. Unidentified miscreants targeted a military truck at Chadara near Thanda which resulted into injuries to 05 personnel at Malakand Agency.
24th October, 2007 . A tractor trolly carrying farmers ran over a landmine at Talli Matt/Tehsil Sui, causing injuries to seven persons at Dera Bugti.
. Explosive material planted by culprits near Population Planning & Welfare centre at Doggar went injuring 02 persons at Buner.
. 05 FC personnel sustained injuries when an IED planted by unknown miscreants went off at Chakdarra at Lower Dir.
. 01 Khasadar was injured when unknown Taliban of Jani Khel Wazir opened fire on Khasadar check post.
. A Pak army convoy was hit by an IED at Boya/Datta Khel, resultantly 02 soldiers martyred and 03 sustained injuries.
. 01 person was killed and his motorcycle was destroyed when it hit a mine in areas Saghari at Sui.
25th October, 2007 . 18 persons including some FC personnel were killed while 34 others, 24 of them FC personnel sustained injuries in a powerful explosion in a FC truck carrying ammunition near Police Line Mingora, Swat.
. A woman got injured due to detonation of a toy bomb in Killi Almas at Quetta.
26th October, 2007 . 01 miscreant and a civilian were killed while 03 miscreants got injured in exchange of intense firing between LEAs and miscreants at Fizaghat heights and Imam Dheri areas after firing on any army helicopter at Swat.
. Shaheen Force of Maulana Fazal Ullah Kidnapped 03 FC personnel at Bareem Chowk at Matta. They also kidnapped a police official at Choprial, beheaded 4 persons out of whom 01 was retired army official while the other 03 civilians were killed on the charges of spying.
27th October, 2007 . Miscreants abducted 03 police personnel along with 03 SMGs from Tor Pul Check Post/PS Thall at Hangu.
. 01 Muhammad Qareeb displayed head of beheaded security personnel and warned that all spies would be treated in same manner at Swat.
. 02 Jawans of Pak Army were injured when miscreants attacked PTCL post of Miranshah, NWA.
. 02 women got injured due to detonation of anti-personnel mine in front of their residence in Tehsil Mamoond at Bajaur Agency.
. Miscreants beheaded 05 policemen including ASI Irshad and burnt the house of Jamal Nasir at Swat.
. Unidentified armed culprits kidnapped 03 police officials along with their official weapons from Torpull Check Post, Thall at Kohat.
28th October, 2007 . As a result of firing by personnel of an army convoy on its way from Bannu to Miranshah at Mandi Bakakhel area to keep away suicide bombers a civilian was killed.
. Relatives of slaughtered LEAs personnel received 5 dead bodies of their relatives. 02 civilians also died due to bullet injuries.
. Unknown miscreants detonated explosive material at village Laghari injuring 03 family members.
. At Kabal Bazar (Swat) miscreants kidnapped 02 FC personnel.
"Bismillah-ir-Rehman-i-Raheem
Dear Pakistani brothers and sisters, Assalam o Alaikum!
Today as I address you, Pakistan is at the brink of a very dangerous situation. It is facing an internal crisis and whatever is happening now has a direct link with the internal situation. During such moments, for the nations, a time comes when difficult decisions have to be taken. For Pakistan too, we will have to take certain important and painful decisions. And if we do not take timely actions, then God forbid it could have an impact on Pakistan's sovereignty.
Before speaking something else I would like to promise one thing to the nation that whatever I will do and the decision that I have taken is on the basis of "Pakistan First", and this will always remain my guiding principle - "Pakistan First".
By rising above personal considerations and personal interests, Pakistan First. And I have similar hopes that the nation too will work on similar lines.
My dear brothers and sisters!
In the past few months, the situation in Pakistan has been changing swiftly and I would like to talk about it very frankly. The first thing is that extremism and terrorism are at their peaks. At this time, suicide bombings are happening all over the country. Whatever happened in Karachi, followed by the incidents in Rawalpindi, Sargodha, their intensity has increased all over the country.
Extremists are roaming freely in the country, and are not afraid of the law enforcing agencies. They are very confident. In the Frontier province, a lot was already going on and we have been dealing with it. Its impact has also reached settled areas and now we will also have to tackle with the situation in the southern districts. But it is a sad matter that in Islamabad, the heart of Pakistan, the capital of Pakistan, extremism has spread causing anguish among the people. These extremists are taking the writ of the state in their hands and want to run their own Government. And the biggest thing is that they have an obscurantist view about their religion Islam, that they wish to forcefully impose on moderate people. In my view, it is a direct challenge on Pakistan's sovereignty. This is a very critical situation pertaining to extremism and terrorism.
Now on the other hand the system of governance today stands paralyzed. All senior functionaries of the Government have to frequent the Courts, they are being sentenced, they are subjected to humiliation in the Courts, which they do not want to give a decision. Around 100 suo moto cases are being processed in the Supreme Court and I have been told that there are thousands of applications. And all these suo moto cases are concerned with Government departments. So now the system of governance stands paralyzed.
Let's look at the law enforcing agencies, these are demoralized, particularly in Islamabad. They are hopeless and have no courage as their officers are being punished and they have to visit the Courts regularly. Their officers, including two IGs have been convicted. This has demoralized the force, with low morale, they do not want to do anything and just want to sit idle.
Apart from that, let's take a look at the democratic system Hurdles are being created in it. In 1999, when our Government came into power, I prepared a three-phased strategy to transition to take the country towards democracy. As in 1999, the country was a defaulted state, the system of Government was shattered and no Government was completing its term. It was a sham democracy. In 2002, under the same strategy, I had total control, and I ran the affairs of the Government. In stage two that was from 2002 to 2007. It was a democratic system, with an elected national assembly, senate, provincial assemblies, local Governments, a system of elected Governments as part of a democracy. During this period I oversaw the affairs of the state. But the Government functioned on its own and I remained the President and Army Chief. There were some problems, but we created a record, where the Senate, National assembly, local Governments, provincial assemblies completed their term.
Now we are in the final stage of this transition. Now I had hope that after the assemblies, that are completing their term by November 15, there would be a Presidential election, and whoever the candidates for this post, followed by the general election and an elected Government, whoever wins, as part of political reconciliation, a new phase of full democracy moves ahead. This transition to complete democracy was intentionally introduced and we wanted to implement it, but in my view, and I am saddened to note that some elements are creating obstacles in this process and are not allowing it. Now since the time has come and in next three months we were about to complete this third phase, hurdles are being created.
I think that it is by design, for personal and political gains and for the detriment of Pakistan, a chaos is being created. All these things that I have mentioned, terrorism, extremism, paralysis, demoralized law enforcement agencies, interference in the democratic system, have unfortunately had an impact on the economic situation of the country and there has been a change in our move forward towards prosperity and now God forbid there are indications that it might show some downturn, though it has not yet done so, provided we are able to stop it in time.
I can also see that all investors that were coming to Pakistan, and I can see with great pain that it all is moving down, and now they have stopped whatever the investment that was coming to Pakistan and they are now seeing what is happening in Pakistan, whether it will continue to move forward in a stable manner or we stop investing our money here and invest it somewhere else. I fear that our efforts of the past seven years do not get wasted as during this period, the economic condition of the people witnessed a great change. There was infrastructure development, roads, airports, railway mobile telephones, land lines, rural communication, building and construction, there is a construction boom all over the country. Hundreds of new industries are being set up, irrigation system, new dams, canals, brick lining of water courses, all levels of education and primary and secondary level of health care and all these areas that signified a growing and prosperous Pakistan. But I fear that all this may not go in waste. And I feel very strongly about it as I have been involved with the entire process and all these development projects and cannot bear to see all this go down.
Overall due to all these reasons, the entire nation is a victim of uncertainty and I am getting telephone calls from all over, from within the country and abroad, who want to know what is happening and some even question my decision making ability and ask that why I am not taking some decision. I have been listening to all these pleadings and have been witnessing whatever has been going on with a state of disbelief. I had hope that the judiciary and the Government institutions will be able to tackle these issues. That maybe, they are able to deal with the situation and the situation improves.
But it could not happen, and the situation continues to go from bad to worse and Pakistan is fast moving towards a negative side. And I would also like to say that the media, I would say some channels did not play their role in averting this downslide, this negativism, negative thinking, negative projection, and rather enhanced this atmosphere of uncertainty.
I also feel very sorry for that, just because that it is the same media that in 1999 was only the PTV and there was no independence. It is the same media that got independence from me, from my Government, as I believed that media should be independent as I believe that it was the way forward in civilized societies. I have said several times to go towards positivism and stop negativism.
The media must be independent, but it should come with responsibility and I am sad to point that some channels did show such tendency. I would like to ask from the nation, why is that? For me, it is judicial activism and it's clash with the other two pillars. And a clash with the other two pillars that are legislative and executive pillars, and interference in their affairs. Because of this, both the law enforcement institutions, as there writ is being challenged, and the Government's functions are paralyzed in all spheres, in all manners.
This is the basic issue and began from March 9 when a reference against the Chief Justice, on recommendation of the Prime Minister, was sent to the Supreme Judicial Council. This was a fully constitutional and according to all legal requirements. There was nothing personal in it. There were serious allegations and I took a constitutional step. Now let's leave it aside. But the situation that developed later turned worse. There was breakdown of law and order, and some political elements joined their force, that further deteriorated the situation. I would not like to go in its details. All I would like to say is that if a mistake was committed by an official of the law enforcement agency, it does not mean that as a result the entire country is destabilized. The other thing is that this reference, following serious complaints, was referred to Supreme Judicial Council, and whatever transpired, its judgment, whether I agree with it or not, because in my view that the reference with serious allegations was not examined and a verdict was given. This decision was fully accepted by me in complete good faith as it was a decision by the Supreme Court and I accepted it, and showed an attitude of reconciliation, so that the differences disappear while rising above self interest and to work for Pakistan's stability and in the country's favour. However, unfortunately, the issue could not resolve, despite best and sincere efforts. This was reference and the judicial issue.
Then in Islamabad, we saw that the Lal Masjid issue cropped up, where extremists challenged the writ of the Government in the heart of Pakistan, in capital city of Pakistan, and caused great embarrassment for the country, all over the world, and only I know how much bad name we earned. That we despite being such a big power could not protect our capital where they had created a state within a state. Our image, our standing, our stature suffered a great deal. These people resorted to whatever they could do. They martyred police personnel, they held them hostage, they set on fire shops, they abducted Chinese, our great friends, held them hostage and beat them up. This caused great embarrassment to me and I had to personally apologize to the Chinese leadership that we are ashamed that despite you being our such great friends this has happened to you. And then they set on fire the Ministry of Environment and the vehicles. What should we have done? We were humiliated for several months and the people kept on saying that we were not taking any action. And we were not taking any action because we wanted to protect lives and not take lives. Therefore, when as a last resort we took action, and I again commend all law enforcing agencies, that they took action and brought to an end all this humiliation and embarrassment. Many of these were martyred and I pray for them. May Allah send them to the heavens as they undertook this mission for this nation and this country and not for their own sake and laid down their lives.
After that unfortunately there was the decision of Supreme Court. And now the situation is that 61 of the terrorists that were declared black, meaning they were confirmed terrorists, were released, and they are all roaming around freely. No one knows that the Rawalpindi blast, or the Karachi or Sargodha blast were their doings. They are now at large and no one knows what action they will continue to do and keep on causing severe damage to us.
Then those madaris that were involved in extremism were also ordered to be opened. We in the Government want to open up madaris. It is the Government's plan to establish model madaris, meeting all standards, for the most poor children, provide them boarding and lodging. There is no such thing that there is someone in the Government who is against the madaris. They need to be taken to the best places and get best education and best places to live. The Government is working on a comprehensive plan to provide such facilities. The Courts ordered opening of those places that were shut down and now it is being said that the security system will remain the same as it was before and some of these people will look after the security of the mosque. Now there is no need for any security in any mosque and we do not know whether these security people will once again take rifles and enter the mosque and we end up from where we started. And now all those elements who were first challenging the Government, now there relatives are challenging the Government, and the law enforcement agencies are being blamed for whatever action they are taking against extremists. They are also openly showing solidarity with extremists all over the country, while sitting in Islamabad. Now this is the other situation that we are facing.
Now coming to the Presidential elections in the past one month. During this a procedure was adopted fully according to the law and the constitution. The election commission gave a schedule under a time frame. The Chief Election Commissioner examined the nomination papers and these were accepted and then some references were filed, particularly against me that were taken up in the Supreme Court for consideration. Now there is no problem in it. It is a legal process. But then a seven-member bench was set up, later it was made into a nine-member bench, later to eleven-member bench. The case was thus being prolonged, no decision was being taken and there was a situation of uncertainty. In the presidential election, I am grateful to the assemblies for electing me by giving me 57 per cent votes in the national assembly, senate and the four provincial assemblies, but the case still lingered on. Unofficial result was announced, but the decision came that there should be no notification. Now the case is continuing, without any decision. Now one personality said that he has to attend the marriage ceremony of his daughter so the dates were further extended and the nation that was in a state of hopelessness and uncertainty continued.
The Prime Minister too noticed the situation and wrote to me that the Government's functioning in such circumstances was very difficult. My brothers and sisters, what is happening in Pakistan? What is happening to us? What is happening to this country? In which direction are we moving?
This country lives in my heart, in my blood and in my soul. I cannot see it go down. Therefore, a time for action has come. I reviewed the entire situation. How to stop this downslide. In my view, these three pillars of state; judiciary, executive and legislative, all need to work in harmony so that we can have good governance and can fight extremism and terrorism with full force. This is the way to bring back the derailed Government back on its tracks, before we completely run aground.
After reviewing this situation and after discussing it with all military, Government, political and private, friends expatriate Pakistanis, I took a decision and this decision is basically part of the third phase of transition to democracy that I have already mentioned. This phase has to complete Inshallah. The hurdles in the way to democracy have to be removed. And what is, and has been my decision, of completing this third phase, will be Inshallah completed.
To do this I have declared emergency. I have issued a Provisional Constitution Order that was on the television and you might have seen it. In this respect there will be no change in the Government, Prime Minister, Governors, Chief Ministers, all will continue to function, all assemblies-Senate, National Assembly, Provincial Assemblies - will continue to function as they are working now and this process will continue. I have taken this decision. For me this was the easiest way to put Pakistan back on the tracks and the progress on the economic developmental aspects continues unabated, and the last transition phase to democracy is completed.
Now taking advantage of this opportunity I would like to speak in English. I have spoken in Urdu to my countrymen, I would like to take this opportunity to speak to the world in general, but particularly to our friends in the West, United States, European Union and the Commonwealth.
I would ask you to kindly understand the criticality of the environment inside Pakistan and around Pakistan. Pakistan is on the verge of destabilization. If not arrested in time now, without loosing any further time, or delaying the issue. The saddest part of everything that saddens me the most, that after all we have achieved in the past seven years, I see in front of my eyes, Pakistan's upsurge taking a downward trend. I personally, with all my conviction and with all the facts available to me consider that inaction at this moment is suicide for Pakistan. And I cannot allow this country to commit suicide.
Therefore, I had to take this action in order to preserve the democratic transition that I initiated eight years back. I would like to repeat that what I have already said in Urdu that I started with a three-staged transition. The first stage from 1999 to 2002, where I remained in control, the second stage from 2002 to 2007, five years of democratic rule, all assemblies functioning, local Government functioning, I only oversaw it as the Chief of the Army Staff and the President, combined. And now I was launching the third phase that was to be completed in a few months, with complete democracy, return to civil rule, myself being only a civilian president, if elected.
It is this third stage that is being subverted today and it is this third stage which I want to complete with all my conviction. And if we don't take action, I don't think we are going into this third stage. I don't know what chaos and confusion may follow- So, therefore, I request you all to bear with us.
To the critics and idealists against this action, I would like to say, Please do not expect or demand your level of democracy which you learned over a number of centuries we are also trying to learn and we are doing well. Please give us time. Please also do not demand and expect your level of civil rights, human rights, civil liberties, which you learned over the centuries. We are trying to learn and we are doing very well also. Please give us time.
It would at this time venture to read out an excerpt of President Abraham Lincoln especially to all my listeners in United States. As an idealist, Abraham Lincoln had one consuming passion during the time of supreme crisis and this was to preserve the Union because the Union was in danger. Towards that end, he broke laws, he violated the Constitution, he usurped arbitrary power he trembled individual liberties. His jurisdiction was necessity and explaining his sweeping violation of constitutional limits, he wrote letter in 1864 and I quote "My oath to preserve the Constitution imposed on me, the duty of preserving by every indispensable means that Government, that nation of which the Constitution was the organic law. Was it possible to lose the nation and yet preserve the Constitution?
By general law, life and limb must be protected. Yet often a limb must be amputated to save a life but a life is never wisely given to save a limb. I felt that measures otherwise unconstitutional might become lawful, by becoming indispensable to the preservation of the constitution through the preservation of the nation. Right or wrong, I assume this ground and now avow it."
We are also learning democracy. We are going through a difficult stage. It is the nation which is important and for me and every Pakistani, Pakistan comes first and any one else's considerations come after that. I look at this from this point of view. So, whatever I do is for Pakistan and whatever anyone else thinks, comes after Pakistan with all my sincerity, whatever I am doing is in the interest of Pakistan and, therefore, I am doing it with full conviction and my full heart and soul and mind in it.
My dear brothers and sisters
I hope that you all will understand the criticality of this serious situation. In my view at this stage, whatever I did, there was no other option. I will have no hesitation if I have to render my life for this country. I know how to face the challenges. I never surrender. I always resist and will fight back. Not for me, but for this country and for the people of this nation, for their welfare and prosperity. If you stand by me, I have no doubt that if you keep on supporting with me, Inshallah Ta' Allah we will take Pakistan forward on the same path of growth, prosperity and will put it back on tracks. I have no doubt that the nation wants to progress, wants to move forward. The people have concern about the prices of everyday commodities, unemployment and poverty. The people are sick of the state of uncertainty in the name of democracy. The people are sick of these extremists and terrorists who every other day are killing Muslims in the name of Islam. The people are sick of all this.
I want to say to all my brothers and sisters that we will together, fight it and will take Pakistan forward. May Allah help you and Pakistan. Pakistan Paindabad always."
We have gone through the material brought on record by the learned counsel for the Respondent No. 2 as well as by the learned Attorney General for Pakistan. Both Mr. Irfan Qadir, ASC as well as Mr. Zafar Ullah Khan, ASC did not dispute the alarming security/law and order situation prevalent in the country which was borne out from the details of incidents of terrorism given by the Prime Minister of Pakistan in his letter of 3rd November 2007, as also explained by the President/Chief of Army Staff in his speech of the same day. Both the learned counsel for the petitioners conceded in plain terms that the country was in a grip of terrorism, extremism and militancy and the state institutions had been rendered non-functional and ineffective on account of the conduct of some of the former Judges, particularly the former Chief Justice of Pakistan as a result of which a state of uncertainty had overtaken the Government machinery. However, they did not agree with the modus operandi adopted by the Government to tackle the situation and they were of the view that the constitutional means should have been adopted to meet the situation. When questioned what remedy did the Constitution provide to meet such an extreme situation, Barrister Zafar Ullah Khan stated that the Government ought to have placed the matter before the Parliament for an appropriate action. According to him, for the purpose of handling law and order situation and upsurge of terrorism, the President could have proclaimed emergency under Article 232 of the Constitution in the areas affected by terrorist activities, but not throughout Pakistan. According to Mr. Irfan Qadir, the Armed Forces could have been called in aid of the civil power. The learned counsel for the petitioners insisted that situations of 12th October 1999 was different from 3rd November 2007 inasmuch as the military takeover of October 1999 was welcomed by the people of Pakistan, which was not the position of the case in hand.
In response to the above stance of the petitioners, the learned Attorney General stated that there was a lack of harmony and cohesion among various institutions of the state and none of them was in a position to provide a solution to the situation faced by the country on or before 3rd November 2007. Therefore, in order to save the country from chaos and anarchy, minimum deviation from the Constitution was made in the larger interests of the State necessity and for the welfare of the people under the principle of salus populi est suprema lex. The learned Attorney General for Pakistan submitted that National Assembly, being the highest democratically elected institution, had also endorsed and approved all the extra-constitutional measures of 3rd November 2007. The resolution passed by the National Assembly reads as under:-
"This House is of the considered view that the serious circumstances were prevailing in the country. The terrorist incidents were in the rising trend. There was lack of harmony among the various organs of the State. This was leading to weakening of the writ of the Government and its resolve in the war against terrorism. The demoralization and paralysis of the bureaucracy had been caused.
Out of this there are adverse effects on law and order situation in the country and economic growth, necessitated emergent and extraordinary action. Therefore, this House endorses and affirms the Proclamation of Emergency and Provisional Constitutional Order of 3rd November 2007."
The above resolution of the National Assembly meets the argument of the petitioners that the Government ought to have approached the Parliament for an appropriate action under the Constitution. The action of the Respondent No. 2 was welcomed by the National Assembly whose members were elected representatives of the people. Here too, the people have spoken, though indirectly, i.e. through their representatives.
. On 5th April, 2007, 45 foreigners and 7 locals were killed and four LEAs and four civilians were injured during clashes between militants and LEAs in South Waziristan;
. On 28th April, 2007, 27 persons were killed and 39 injured in a suicide bombing in Charsadda;
. On 5th May, 2007, three persons were killed and one injured in two separate incidents of sectarian violence in Layyah and D.I. Khan;
. On 9th May, 2007, two police officials killed in an attack by unidentified miscreants in Karachi;
. On 10th May, 2007, two IED explosions took place in Sui and Khuzdar and a rocket attack on FC post in Dera Bugti with one person injured in Sui;
. On 15th May, 2007, 276 persons were killed and 24 injured in a suicide attack in a restaurant in Peshawar;
. On 3rd July, 2007, nine persons including one Rangers' official were killed and 136 injured in Lal Masjid incident in Islamabad;
. On 7th July, 2007, unknown culprits fired anti-aircraft shells on a VVIP airplane; three police officials including a DSP injured when their mobile was fired upon in Swat; two locals and four kidnappers were killed and four persons were injured in an attempt to kidnap an Army Captain in North Waziristan;
. On 8th July, 2007, three Chinese businessmen were killed and one injured in Peshawar; one Levies official was killed and seven injured as a result of remote controlled explosion in Bajaur Agency; Four Levies personnel kidnapped in Bajaur Agency;
. On 10th July, 2007, 68 persons were initially reported to have died and 32 injured in the Lal Masjid incident in Islamabad.
. About two to three attempts were made on the lives of President and the Prime Minister.
The wave of terrorism reached its climax on 18th October 2007 when in the two bomb blasts on the rally of a former Prime Minister of Pakistan, who had returned to Pakistan after an exile of 7-8 years, about 150 people were killed and 350 seriously injured. The incident posed serious threat to the national security and also lowered the image of Pakistan before the international community. About the said holocaust, The Newsweek of 29th October 2007 carried the headline - "The Most Dangerous Nation in the World Isn't Iraq. It's Pakistan". We have read with great pain the following comments made in the above news story:--
"Today no other country on earth is arguably more dangerous than Pakistan. It has everything Osama bin Laden could ask for: political instability, a trusted network of radical Islamists, an abundance of angry young anti-Western recruits, secluded training areas, access to state-of-the-art electronic technology, regular air service to the West and security services that don't always do what they're supposed to do. (Unlike in Iraq or Afghanistan, there also aren't thousands of American troops hunting down would-be terrorists.) Then there's the country's large and growing nuclear program. "If you were to look around the world for where Al Qaeda is going to find its bomb, it's right in their backyard," says Bruce Riedel, the former senior director for South Asia on the National Security Council.
The conventional story about Pakistan has been that it is an unstable nuclear power, with distant tribal areas in terrorist hands. What is new, and more frightening, is the extent to which Taliban and Qaeda elements have now turned much of the country, including some cities, into a base that gives jihadists more room to manoeuver, both in Pakistan and beyond."
The Pakistani nation needs to rise above all prejudices and stand together against the menace of terrorism as well as the misleading propaganda aimed at harming the vital interests of Pakistan at the international level. The sovereignty, integrity and solidarity of the nation need to be preserved and protected internally as well as externally. The unabated gruesome terrorist activities worsened the security as also the law and order situation in the country, which called for zero tolerance approach. It is also clear from the letter of the Prime Minister that the Government's efforts to combat terrorism on the civil side unfortunately bore no fruit. It was an extraordinary situation that called for taking such measures, which were not provided by the Constitution.
The bench is a hallowed seat and judges must observe a gracious port and presence without making derisive comments and digs at lawyers and litigants who could as well retort and humble the bench in public. Offensive observations, even regarding other judges and judgments, are not uncommon with little-minded judges. Comic performance cannot be fobbed off on a submissive Bar, David Pannick cites some British instances which may have Indian parallels:
"Judicial humour can turn into judicial scorn. The eighteenth century Scottish judge, Lord Braxfield, was a disgrace to the age'. He took pleasure intauntingly repelling the last despairing claims of a wretched culprit, and sending him to Botany Bay or the gallows with an insulting jest'. Robert
Louis Stevenson based Lord Hermiston upon Braxfield. In Court, Hermiston took his ease and jested, unbending in that solemn place with some of the freedom of the tavern, and the rag of man (the defendant) was hunted gallowsward with jeers'. Braxfield and his contemporaries have a special place in the annals of judicial misbehaviour. They werecynically indifferent to the proprieties of the Bench to an extent which now may well seem incredible. Uncouth in appearance, profane in speech, frequently harsh and contemptuous in the discharge of their judicial functions, addicted to the wildest eccentricities, and exhibiting at all times are decided penchant for deep potation and the course and boisterous jocularity of the tavern...', they lacked all judicial qualities." (David Pannick-Judges-Oxford University Press, 1988 Edn., p.83)
Some judges do not care to listen or are too loquacious and by frequent interruptions make coherent argument impossible. There are many other way in which judges can disrupt fair hearing. Performance and discipline are components of judicial decorum.
"11. A perusal of the above clause (clause 5 of Article 209) indicates that on an information received from the Council or from any other source, the President is of the opinion that a Judge of the Supreme Court or of a High Court may be incapable of properly performing the duties of his office by reason of physical or mental incapacity or may have been guilty of misconduct, he shall direct the Council to inquire into the matter. The above clause does not admit filing of a Constitutional petition for a direction to the Supreme Judicial Council or to the President to initiate proceedings of a judicial misconduct against a Judge of a superior Court by a practicing lawyer or any other citizen of Pakistan. The wisdom seems to be that in order to keep the Judges free from being pressurized through frivolous Constitutional petitions or other legal proceedings for filing of a Reference, the framers of the Constitution provided above mechanism. This Court or a High Court cannot take upon itself the exercise to record even a tentative finding that a particular Judge has committed misconduct warranting filing of a Reference against him under Article 209 of the Constitution as it will be contrary to the language and spirit of the said Article."
In the above case, it is clearly laid down that direction cannot be issued to the Supreme Judicial Council to initiate proceedings of judicial misconduct against any Judge of a superior Court at the instance of a lawyer or a citizen. The above judgment in clear terms prohibits the Supreme Court as also a High Court to take upon themselves the exercise to record even tentative finding that a particular Judge has committed misconduct warranting filing of a Reference against him under Article 209 of the Constitution. On the same analogy, no direction could be issued to the Supreme Judicial Council to stay its hands off the Reference filed against the former Chief Justice of Pakistan, what to speak of quashing the Reference altogether. During the course of arguments, the learned Attorney General stated at the bar that a former Judge of the Supreme Court, in connivance with a Banking Judge for whom, in turn, he managed to get his tenure extended, purchased property worth more than Rs. 20,000,000/- for a petty consideration of Rs. 4,000,000/-. The Government very much wanted to file a Reference ¦against him before the Supreme Judicial Council, but refrained from doing so in view of the treatment meted out to the Reference filed against the former Chief Justice of Pakistan.
From page 265
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"The Indian experience with regard to the Executive, Judicative and Legislative instrumentalities over four decades has been one of exploitation darkening into misgiving, misgiving deepening into despair and despair exploding as adventurist violence. The categorical imperative for stability in democracy is, therefore, to see that every instrumentality is functionally kept on course and any deviance or misconduct, abuse or aberration, corruption or delinquency is duly monitored and disciplinary measures taken promptly to make unprofitable for the delinquents to depart from the code of conduct and to make it possible for people, social activists, professional leaderships and other duly appointed agencies to enforce punitive therapeutics when robed culprits violate moral - legal norms.
From page 268-269
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Less than impeachment, the Great Parchment does not provide as a punitive measure. There are misdemeanours and felonious temptations and vices, rudeness, vulgarities and arrogant misdirection of power which may call for milder therapeutics and punishment after due enquiry by impartial authority. In this area, our constitutional jurisprudence leaves a vacuum. We need an urgent graded measure for systemic correction and suitable mechanism because accusations are no longer exceptions and judges must suffer criticism and complaints against them cannot be condemned or go uninvestigated and, if true, unpunished. Judicial imperialism, impertinence and absurd or irresponsible behaviourism are a menace to the Justice Process and must, if the turpitude is truly proved, suffer sentence.
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The judge is the symbol of justice itself and, therefore, we cannot have a dissection of private life and judicial life of the `brethren'; both must become the sublime office. The pleasures and pains of millionaires, the temptations and vices of the higher classes, the aberrations and abuses of persons in power are taboo or forbidden fruit for the judges. Winston Churchill decades back, told the Commons that judges are required to conform to standards of "life and conduct far more severe and restricted than that of ordinary people". Indeed, their constitutional obligation to do justice without fear or favour, affection or illwill, is a high moral command and exacting demand on their conscience. If "you are what you wear" you have to keep up a certain manner of conduct which puts you in a category beyond the politicians and members of the bureaucracy. Judges, like Caesar's wife, must be above suspicion. They must be patient, maintain poise, the gentle and impartial and decline to be provoked and never lapse into venal behaviour or class conscience uppishness.
From page 276-277
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Even judicial independence, a most important value of our system, cannot forbid bringing to book those guilty of judicial misbehaviour. Judge Power is a critical factor of the highest importance in our constitutional order. For that very reason, the law must keep them away from lawless, immoral, unethical and unbecoming conduct. Some cowardly judges and opportunist brethren obligingly bend their judgments when political heavy-weights and tycoons with clout happen to be parties. Some leading members of the Supreme Court bar wrote, not long ago, a complaint to a Chief Justice referring to holiday hearings and nocturnal proceedings where influential persons figured as parties. Even the Bhopal Gas catastrophe litigation and later settlement with judicial imprimatur have come in for sharp criticism, bordering on the needle of suspicion being pointed at five judges. This case is not merely an event but a portend, and the contempt barricade notwithstanding, may remain a polemical issue where the judges may not emerged with flying colours.
From page 284-285
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Some judges think that disciplinary power over their peers may be left to the Chief Justices. Unfortunately, there are many instances where complaints have come against Chief Justices and judges themselves, in private, admit the Chief's to be over-bearing or dubious. More than that, Chief Justices have their own prejudices and many High Courts (is the Supreme Court an exception, I wonder), are not free from factions and the domineering moods of judicial heavyweights. Even their lordly social philosophy is distances away from the ideology of the Socialist Secular Republic of India. It is widely known that Chief Justices even of the Supreme Court have abetted or arranged hearing of bail petitions of V.I.Ps. on holidays and after nightfall. A senior-most Judge of the Supreme Court, who later became the Chief Justice, and another senior-most Judge of the Supreme Court, who also became a Chief Justice later, did hear criminal matters on an abnormal day or at an abnormal hour making a special exception for the accused tycoons. This resulted in some dissatisfaction at the Bar. Indeed, if we draw the line of objectionable conduct with socialistic sensitivity the discrimination in favour of influential petitioners makes the conduct of the Judges vanal. It is also reliably rumoured, perhaps, that a Chief Justice of Punjab and Haryana High Court was not consulted in the appointment of a Judge to his High Court, and likewise a Judge of the Supreme Court was appointed even though the Chief Justice of that time had not consented to his appointment. Other instances can be discovered, without much research, about deviances by Chief Justices themselves. Therefore, to make a class distinction between Chief Justices and puisne Judges on the assumption that Chief Justices are superior beings does not hold good. On the contrary, some Chief Justices are susceptible to Executive pressure and blandishments but it is not fare to divulge that here. For the sake of the extension of age of retirement, for perquisites which are not extended to other Civil Servants and so on, Judges have been passing resolution and getting their points accepted by Governments. Here is a case of Judges as a class, showing anxiety to secure Executive favours - not becoming conduct for those who have to sit in judgment over the benefactors.
Legal sanctions against judicial delinquency are a necessity if the globorama of robed souls robbing the Bench of its great integrity and impressive good behaviour is to be arrested. But the escalating misconduct of Judges has often gone unpunished because the law of judicial accountability is still in its infancy. Barring the extreme measure of impeachment the law is silent, so much so, world-wide one might well say that, with marginal exceptions, accountability of the judiciary to the country is the vanishing point of jurisprudence. This void, unless competently covered by well thought-out legislation, may militate against the democratic creditability of the high institution which is so central to human justice. While Judicial Independence is a valiant check against executive -- legislative tyranny, absent judicial accountability, independence, may portent a forensic despotism. The subject is delicate, the remedy, unless carefully adjusted, may aggravate the malady. Crude nostrums may prove iatrogenic and so experiences in various democratic countries must be garnered to win the principles and processes whereby the best system of checks can be evolved. Justice has a global dimension in our age of human rights and the twin components of Independence and Accountability also are matters of universal concern.
Judge's Power is vast and strong in the keeping of those who are fearless and flawless surrogates of Public Justice. But the Judiciary as a fiduciary must pay a price - they must be clean in public and private life, on the bench and off the bench and the worthy to be watchdogs, not lapdogs, sentinels, not sycophants.
The Justice System is our only stable asset, as yet not corrupt. Let us preserve it. Public Justice is too serious a business to be left to the Justices alone. We need a national debate on this theme.
The learned Attorney General for Pakistan contended that thousands of applications, all raising individual grievances were entertained and processed. For processing of such applications the former Chief Justice of Pakistan established a Human Rights Cell in the Court's Registry and engaged a large number of staff. The actions taken by the former Chief Justice of Pakistan were got covered in the media. This opened a floodgate of applications leading, on the one hand, to an arbitrary pick and choose of the cases, and on the other, to a naked interference in the other branches of the Government in the name of judicial activism conveniently ignoring and defying the principle of judicial restraint. This exercise, according to the learned Attorney General was undertaken in the purported exercise of power and jurisdiction vested in this Court under Article 184(3) of the Constitution.
The right of access to justice and the exercise of jurisdiction and power by this Court under Article 184(3) of the Constitution have formed subject matter of discussion in different judgments. It may be instructive to have a glimpse at how the Court looked at it on different occasions. In Govt. of Balochistan v. Azizullah Memon (PLD 1993 SC 341), the Supreme Court elaborated the `right of access to justice' in the following words:--
"The right of access to justice to all' is a well-recognized inviolable right enshrined in Article 9 of the Constitution.
This right is equally found in the doctrine ofdue process of law'. The right of access to justice includes the right to be treated according to law, the right to have a fair and proper trial and a right to have an impartial Court or
Tribunal. This conclusion finds support from the observation of Willoughby in
Constitution of United States, Second Edition, Vol. II at page 1709 where the term `due process of law' has been summarized as follows:--
(1) He shall have due notice of proceedings which affect his rights.
(2) He shall be given reasonable opportunity to defend.
(3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to give reasonable assurance of his honesty and impartiality, and
(4) That it is a Court of competent jurisdiction.
It, therefore, follows that in terms of Article 9 of the Constitution, a person is entitled to have an impartial Court and Tribunal. Unless an impartial and independent Court is established the right to have a fair trial according to law cannot be achieved. Therefore, justice can only be done if there is an independent judiciary which should be separate from executive and not at its mercy or dependent on it."
The right of access to justice is internationally well-recognized human right and is now being implemented and executed by granting relief under the Constitutional provisions. Article 10 of Universal Declaration of Human Rights and Article 14 of the United Nations Convention on Criminal Political Rights recognize the right of fair trial by an independent and impartial Tribunal established by law. The right of equal access to ordinary Tribunals and Courts is recognized in other countries also.
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The right of access to justice does not only mean that the law may provide remedies for the violation of rights, but it also means that every citizen should have equal opportunity and right to approach the Courts without any discrimination. It also envisages that normally the Courts established by law shall be open for all citizens alike. Where the jurisdiction of the ordinary Courts established under the ordinary law is excluded or barred and certain class of cases or class of persons or inhabitants of an area are not allowed to approach such Courts and are to be tried or rights adjudicated by special Courts, then a fair, rational and reasonable classification must be made which have nexus with the object of the legislation. Even in such cases where special Tribunals are constituted, arbitrary powers cannot be conferred on executive for appointing persons on the Tribunal, providing procedure or imposing any sentence or conviction. Such special Tribunals and Courts must follow the ordinary rules of justice, equality and good conscience.
From page-6
Judicial creativity may yield good results if it is the result of principled activism but if it is propelled by partisanship, it may result in catastrophic consequences generating conflicts which may result in social change. In 1857 when the American Supreme Court headed by Chief Justice Taney ruled in Dred Scott v. Sandford that negros were not equal to whites and the rights guaranteed under the Constitution were not available to them, the decision had accelerated the civil war between the Northern and Southern States ultimately resulting in the abolition of slavery and strengthening of the Union.
At page 10
A common criticism we hear about judicial activism is that in the name of interpreting the provisions of the Constitution and legislative enactments, the judiciary often rewrites them without explicitly stating so and in this process, some of the personal opinions of the judges metamorphose into legal principles and constitutional values. One other facet of this line of criticism is that in the name of judicial activism, the theory of separation of powers is overthrown and the judiciary is undermining the authority of the legislature and the executive by encroaching upon the spheres reserved for them. Critics openly assert that the Constitution provides for checks and balances in order to pre-empt concentration of power by any branch not confided in it by the Constitution.
Every judge must play an active role in the discharge of his duties as adjudicator of disputes. His role as an interpreter of law and dispenser of justice according to law should not be allowed to be diminished either because of the perceived notions of the other two wings of the State -- the legislature and the executive or any Section of the public. But this cannot be termed judicial activism.
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At page 11
The role of the Judge in interpreting law has been graphically described thus: "Judges must be sometimes cautious and sometimes bold. Judges must respect both the traditions of the past and the convenience of the present. Judges must reconcile liberty and authority; the whole and its parts."
Where the public opinion asserts itself against the decisions of the judiciary, the question immediately surfaces as to the legitimacy of the judiciary since it lacks popular mandate. That is the reason why judiciary was cautioned by eminent legal philosophers to exercise great restraint while declaring the actions of the legislature unconstitutional. Judicial veto must not be exercised except in cases that "leave no room for reasonable doubt". Very eminent Judges like Holmess, Brandeis and Frankfurter always adhered to the theory of reasonable doubt believing firmly that what will appear to be unconstitutional to one person may reasonably be not so to another and that the Constitution unfolds a wide range of choices and the legislature therefore should not be presumed to be bound by any particular choice and whatever choice is rational, the Court must uphold as constitutional.
judicial activism' andjudicial restraint' in a scholarly way. Relevant portion from page 478-480 of the book [Volume 1] is reproduced below for facility of reference:--"There have also been phases of judicial activism' in the sense of aggressiveness. Aggressiveness may imply exceeding of limits and cases which exemplify that sense are not wanting. Two of the cases are from
Great Britain and relate to thejudicial activism' of Lord Denning. In one, Re Racal
Communications Ltd, the Court of Appeal, presided over by Lord Denning MR, entertained an appeal and reversed the trial judges in a case in which the statute provided for no appeal; in so doing, Lord Denning was of the view that the provision excluding an appeal "is not a bar to the appeal to this
Court. There are many cases now which show that if a judge misconstrues a statute by giving himself jurisdiction when he has none or by refusing jurisdiction when he has it, then he makes an error which goes to the jurisdiction: and there is an appeal to this Court, no matter how wide the words which seem to exclude it..." The Court of Appeal was, of course, reversed by the House of Lords. In the other, Duport Steels v. Sirs, the Court of Appeal did not follow a decision, directly in point, of the House of Lords.
In reversing the Court of Appeal, Lord Diplock said:
"It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the Court before whom the matter comes consider to be injurious to the public interest."
And Lord Scarman started his discussion with the observation that the case raised "some profound questions as to the proper relationship in our society between the Courts, the Government and the Parliament", and went on to say:
"My basic criticism of all three judgments in the Court of Appeal is that in their desire to do justice the Court failed to do justice according to law... Within these limits, which cannot be said in a free society possessing elective legislative institutions to be narrow or constrained, judges, as the remarkable judicial career of Lord Denning MR himself shows, have a genuine creative role. Great judges are in their different ways judicial activists. But the Constitution's separation of powers, or more accurately functions, must be observed if judicial independence is not to be put at risk. For, if people and Parliament come to think that the judicial power is to be confined by nothing other than the judge's sense of what is right (or, as Selden put it, by the length of the Chancellor's foot), confidence in the judicial system will be replaced by fear of it becoming uncertain and arbitrary in its application. Society will then be ready for Parliament to cut the power of the judges. Their power to do justice will become more restricted by law than it need be, or is today."
In Pakistan, examples of this kind of `judicial activism' are a 1997 case, in which a three-Judges Bench of the Supreme Court, in a judicial review petition under Article 184(3) of the Constitution, thought it proper to suspend the operation of a duly enacted constitutional Amendment viz. 14th Amendment and a 1999 case in which the Supreme Court went so far as to extend the fundamental rights guaranteed by the Constitution of Pakistan to the Northern Areas which admittedly are not part of the territory of Pakistan and to which the Constitution of Pakistan and the jurisdiction of the Supreme Court itself do not extend.
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We have seen that a Constitution is drafted "with an eye to the future"; it is "intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs"; it must therefore be capable of growth and development at the hands of the Judges, who are to interpret it, and that is possible only if a constitutional instrument is treated as sui generic "so that there is room for interpreting it with less rigidity and greater generosity'." This means that the interpretation of a constitutional provision must be approached with an open mind, for the meaning of the words "is not fixed once and for all time.
They usually change owing to the lapse of time, the change in social conditions and the changed needs and views of society". If this isjudicial activism' so be it. For, by so interpreting the Constitution, the Judges are doing what they are supposed to do; they are merely performing their ordinary day to day judicial function. They are making law through interpretation, their
"very own field of creative endeavor". There is here no usurpation; no exceeding of constitutional limits. No Judge worthy of his name will knowingly exceed his judicial authority. If in performing the judicial function, the Judges depart from a precedent or an accepted practice or meaning of a provision, they do so because "it appears right to do so ..."; they are "deciding the law" applicable to the changed times and conditions.
Judicial self-restraint' is a self-imposed discipline which, we conceive, means that despite opportunities and temptations to indulge his personal views and ideas, the Judge exercise self-restraint to remain within the limits of his judicial authority consistently with the doctrine of separation of powers. It does not meanjudicial timidity' which implies that the Judges become so supine as to fear treading on the executive's or the legislature's toes; nor are its "overtones of servility" appropriate to describe it.
It emerges therefore that neither of the expressions
Judicial activism and Judicial restraint - is the best expression to use, if only because both are likely to be misunderstood. What is necessary is to understand the true nature of the judicial function, particularly in the interpretation of a written constitution. Like Aharon Barak (quoted above), we would therefore avoid, what we may call, esoteric distinction between judicial visitism' andjudicial restraint'. A true Judge knows the limits of his judicial function and if remaining within those limits he interprets the law and that involves departing from precedent or otherwise bringing about a change, then what he does need not fit into either of those philosophic theories. The true judicial attitude has, if we may say with great respect, been described nowhere better than by Chief Justice John Marshall in a speech made in answer to a tribute from the Bar. He said:
"... if he might be permitted to claim for himself and his associates any part of the kind things they had said, it would be this, that they had never sought to enlarge the judicial power beyond its proper bounds, nor feared to carry it to the fullest extent that duty required."
Basu in his commentary on the Constitution of India (4th Edition) (Vol. 2) at page 331 states that "the distinction between a judicial and a legislative act is well-defined. The one determines what the law is, and what rights the parties have with reference to transactions already had: the other prescribes what the law shall be in future cases arising under it" "A judicial enquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future, and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power." "To declare what the law is or has been is a judicial power ; to declare what the law shall be is legislative." "It is not for the Judges to alter the law, even though they have reasons to doubt the wisdom or justice of any provision or to find that the Legislature has made a mistake or was even deceived. The same Jurist in his commentary under Article 122 states that a writ would not lie against a Legislature to prevent it from passing a Bill on the ground that the Bill, if passed, would contravene some Fundamental Right". "The Court would have jurisdiction to declare the Act void after it is passed and a proper proceeding is brought by a person who is affected by the Act. Similar view is expressed by A.K. Brohi in his "Fundamental Law of Pakistan" at page 160/333 and 469. He states with reference to 1956 Constitution that "Article 4 also prohibits the State from enacting any law, "which takes away or abridges rights conferred by this part", and declares that "any law in contravention of this clause shall, to the extent of such contravention, be void". Despite the fact that the Constitution contains an express prohibition directed against the legislative organs thereby preventing them from making any law which takes away or abridges the rights conferred by this Part, there is no known method whereby the Legislature can be prevented from enacting laws, which are inconsistent with the fundamental rights guaranteed under the Constitution. No mandamus can lie to compel the Legislature to do or refrain from doing any act. Besides, when the Bill is introduced in the House it does not become an Act of the Legislature until it has actually been taken through the various stages of law-making and has received the assent of the Governor, if it is a Provincial law, and of the President, if it is a Federal law. It is thus only the completed act of the Legislature which can be prohibited, and when the Act is actually passed it is no use prohibiting it as it can be declared void by Courts. Thus it is not the mere projected adventure by the Legislative Assembly which is calculated to result in the consummation of a law which purports to take away fundamental rights of the citizens that can be prohibited by Courts. Every Bill that is moved in the State Legislature can be opposed by any one of its members, and even if its principle is accepted it can be amended and drastically modified. It would thus be worse than useless for any Court, assuming it had the jurisdiction to issue mandamus to legislative bodies, to interfere with legislative process when the act of the Legislature is not complete. If the Act, as "finally emerges is in conflict with the fundamental rights, it would ipso facto be void and can be declared as such by our Courts." See also Narainder Chand v. U.T.H.P. (AIR 1971 SC 2399) it was observed that "no Court can issue a mandate to a Legislature to enact a particular law. Similarly no Court can direct a subordinate legislative body to enact or not to enact."
The doctrines related to advisory opinions, mootness, collusiveness, ripeness, prematurity and abstractness, standing, and other such rules of self-restraint are all functions of the general and basic judicial duty to avoid decisions of constitutional questions. This duty, in turn, draws support from Chief Justice Marshall's rationale of judicial review as a reluctant power exercised only because the Court must decide cases brought before it in conformity with the Constitution.
There are also more pragmatic considerations for this policy of self restraint. Judicial review is inconsistent with pure majority rule, and, because of the conflict between the judiciary and the democratic system, may result in popular disapproval of Court action. The policy of a strict necessity in disposing of constitutional issues is a useful device which helps assure that judicial review does not take place gratuitously."
"We may now proceed to consider whether this is a fit case for being dealt with by this Court under the special jurisdiction conferred on it by clause (3) of Article 184 of the Constitution. This clause provides that "without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the fundamental rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article.
It will be noticed that although the power conferred on the Supreme Court is co-terminus with that enjoyed by the High Courts under Article 199 of the Constitution, yet it has been made subject to two limitations, namely:
(a) that the case must involve a question of public importance; and
(b) that the question must be with reference to the enforcement of any of the fundamental rights, guaranteed by the Constitution.
The Supreme Court can act only if both these elements are present. However, even then it may stay its hands if it finds that sufficient justification has not been shown for not invoking the concurrent, and wider, jurisdiction of the High Court concerned, it being an established principle of the exercise of judicial power that ordinarily, in matters concurrent jurisdiction, the lowest Court or tribunal must be approached in the first instance.
Now, what is meant by a question of public importance. The term "public" is invariably employed in contradistinction to the terms private or individual, and connotes, as an adjective, something pertaining to, or belonging to, the people; relating to a nation, state, or community. In other words, it refers to something which is to be shared or participated in or enjoyed by the public-at-large, and is not limited or restricted to any particular class of the community. As observed by the Judicial Committee of the Privy Council in Hamabai Framjee Petit. V. Secretary of State for India-in-Council (1) while construing the words "public purpose" such a phrase, "whatever else it may mean must include a purpose, that is an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals, is directly and vitally concerned". "This definition appears to me to be equally applicable to the phrase "public importance."
The learned Attorney-General is clearly right in saying that a case does not involve a question of public importance merely because it concerns the arrest and detention of an important person like a Member of Parliament. In order to acquire public importance, the case must obviously raise a question which is of interest to, or affects, the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case, may be of no particular consequence.
"While construing Article 184(3), the interpretative approach should not be ceremonious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, i.e. this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely, the Objectives Resolution (Article 2A), the Fundamental Rights and the Directive Principles of State Policy so as to achieve democracy, tolerance, equality and social justice according to Islam."
"A perusal of the above quoted provision of the Constitution indicates that without prejudice to the provisions of Article 199, the Supreme Court has been conferred with the power to entertain a petition under the above provision directly if the following two conditions are fulfilled:--
(i) The case involves a question of public importance; and
(ii) The question so involved pertains to the enforcement of any of the Fundamental Rights contained in Chapter 1 of Part II of the Constitution.
It may further be noticed that if the above two conditions are met, the above provision of the Constitution confers power on the Supreme Court to make an order of the nature mentioned in above Article 199 of the Constitution. It may be pertinent to point out that the scope of Article 199, which confers jurisdiction on the High Courts, is much wider than the jurisdiction conferred on the Supreme Court under the above-quoted provision of the Constitution inasmuch as a High Court not only can enforce a Fundamental Right under clause (2) of the above Article, but can also pass an appropriate order in the matters covered by sub-clauses (a) and (b) of clause (1) of Article 199 of the Constitution."
In Zulfiqar Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793) this Court dilated upon the term "public importance" used in Article 184(3) and held that issues arising in a case cannot be considered to be questions of public importance if the decision of those issues affected only the rights of an individual or a group of individuals. At pages 799 & 800 of the report, it was stated as under:
In order to confer jurisdiction on this Court to entertain a petition under Article 184(3) of the Constitution, it is necessary that two jurisdictional requirements must be established. Firstly, that the question raised in the petition is a question of public importance and secondly, it relates to the enforcement of a fundamental right guaranteed under Chapter 1, Part II of the Constitution (see Wasey Zafar v. Government of Pakistan PLD 1994 SC 621; and Shahida Zaheer Abbasi v. President of Pakistan PLD 1996 SC 632). The expression `public importance' was interpreted in the case of Manzoor Elahi Federation of Pakistan (PLD 1975 SC 66) as follows:
"Now, what is meant by a question of public importance. The term public' is invariably employed in contradistinction to the terms private or individual, and connotes, as an adjective, something pertaining to, or belonging to the people; relating to a nation, State or community. In other words, it refers to something which is to be shared or participated in or enjoyed by the public-at-large, and is not limited or restricted to any particular class of the community. As observed by the Judicial Committee of the Privy Council in
Hamabai Framjee Petit v. Secretary for India-in-Council (ILR 39 Bom 279) while construing the wordspublic purpose' such a phrase, whatever else it may mean must include a purpose, that is an object or aim, in which the general interest of the community, as opposed to the particular interest of individuals is directly and vitally concerned'. This definition appears to me to be equally applicable to the phrasepublic importance'.
The learned Attorney-General is clearly right in saying that a case does not involve a question of public importance merely because it concerns the arrest and detention of an important person like a Member of Parliament. In order to acquire public importance, the case must, obviously raise a question which is of interest to, or affects the whole body of people or an entire community. In other words, the case must be such as gives rise to questions affecting the legal rights or liabilities of the public or the community at large, even though the individual, who is the subject-matter of the case may be of no particular consequence.
Seen in this light, there can be little doubt as to the public importance of the questions arising in this case. I think I will not be far wrong in saying that it is not often that a single case raises so many questions of public importance touching the liberty of the citizen. In all systems of law which cherish individual freedom and liberty, and which provide Constitutional safeguards and guarantees in this behalf, any invasion of such freedom in circumstances which raise serious questions regarding the effectiveness and availability of those safeguards, must be regarded as a matter of great public importance."
The above observations of Anwar-ul-Haq, J. (as his Lordship then was) in Manzoor Elahi's case were quoted with approval in Ms. Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416).
In Shahida Zaheer Abbasi v. President of Pakistan (PLD 1996 SC 632), one of us (Justice Saiduzzaman Siddiqui), after examining the scope of the observations of this Court in Manzoor Elahi and Ms. Benazir Bhutto's cases held as follows:
"From above quoted passages, it is quite clear that whether a particular case involved the element of public importance' is a question which is to be determined by this Court with reference to the facts and circumstances of each case. There is no hard and fast rule that an individual grievance can never be treated as a matter involving question of public importance. Similarly it cannot be said that a case brought by a large number of people should always be considered as a case ofpublic importance' because a large body of persons is interested in the case. The public importance of a case is determined as observed by this Court in Manzoor Elahi's case (supra), by decision on questions affecting the legal rights and liberties of the people at large, even though the individual who may have brought the matter before the Court is of no significance. Similarly, it was observed in Ms. Benazir Bhutto's case (supra), that public importance should be viewed with, reference to freedom and liberties guaranteed under Constitution, their protection and invasion of these rights in a manner which raises a serious question regarding their enforcement irrespective of the fact whether such infraction of right, freedom or liberty is alleged by an individual or a group of individuals."
"Article 175(1) of the Constitution provides that there shall be a Supreme Court of Pakistan, a High Court for each Province and such other Courts as may be established under or by any law. Clause (2) of this Article, however, ordains that no Court shall exercise jurisdiction unless it is conferred upon it by or under any law. Article 187 of the Constitution empowers this Court to pass any judgment and decree in a case before it which, in the circumstances of the case, it deems fit, which power is controlled by clause (2) of Article 175 (ibid), which is indicative of the express command of the Constitution that jurisdiction conferred on this Court by or under any statute has been saved."
In Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583), this Court held that the mere fact that a question of arrest or detention of an important person was involved, that by itself was not enough to invoke clause (3) of Article 184. Relevant portion from the judgment at pages 595 - 597 is reproduced below:
Articles 199 and 184(3) regulate the jurisdiction of the Superior Courts and do not oust it. Perusal of clause (3) of Article 184 unequivocally postulates that two conditions are precedent for invoking said clause. Firstly, the petition must clearly demonstrate that the grievance relates to violation of fundamental rights. Secondly, the violation is of nature of public importance, which has been interpreted to mean, any invasion of individual freedom, liberty, fundamental rights, including effectiveness and safeguard for their implementation. Therefore, having regard to the connotation of the words "public importance", the facts and circumstances of each case would have to be scrutinized on its own merits.
With the assistance of learned counsel for the parties, we have surveyed the relevant case-law. In Manzoor Elahi's case, (PLD 1975 SC 66), Benazir Bhutto's case (PLD 1988 SC 416), Mian Muhammad Nawaz Sharifs case (PLD 1993 SC 473), Wasey Zafar's case (PLD 1994 SC 621), I.A. Sharwani's case (1991 SCMR 1041) and the Employees of Pakistan Law Commission's v. Ministry of Works (1994 SCMR 1548), questions of general public importance, which affected the people at large, were involved. In Asad Ali's case (PLD 1998 SC 161), the Supreme Court entertained petition directly for the reason that the issue affected the judicial system of the country. The finding and conclusion of the Supreme Court in Syed Zulfiqar Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793) have never been deviated from. It is advantageous to quote the relevant observation occurring at page 801 of the report, which reads as under:
"The issues arising in a case cannot be considered as a question of public importance, if the decision of the issues affects only the rights of an individual or a group of individuals. The issue in order to assume the character of public importance must be such that its decision affects the rights and liberties of people at large. The adjective `public' necessarily implies a thing belonging to people at large, the nation, the State or, a community as a whole. Therefore, if a controversy is raised in which only a particular group of people is interested and the body of the people as a whole or the entire community has no interest, it cannot be treated as a case of public importance."
"Now, what is meant by a question of public importance. The term `public' is invariably employed in contradistinction to the terms private or individual, and connotes, as an adjective, something pertaining to, or belonging to the people, relating to a nation, State or community..."
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Although the Supreme Court thereafter in a number of cases, such as Amanullah Khan v. Chairman, Medical Research Council (1995 SCMR 202) and Mrs. Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632) has taken a different view, yet the cases under Article 184(3) have been brought within the parameters of the observations referred to above.
Learned Attorney General took us through Article 32 of the Constitution of India, which is pari materia with Article 184(3) of the Constitution of Pakistan. It is noted that the words "question of public importance are not used in Article 32 of the Constitution of India. The Constitutions of 1956 and 1962 also did not have these words. There is, a conscious departure and the words `question of public importance' in Article 184(3) have been used with a purpose. The parameters of the jurisdiction under Article 184(3) are, that the petition must raise a question of public importance. In India, where there is no such requirement, the Supreme Court of India, has held that if the scope of Article 32 of the Indian Constitution were to be enlarged, it would immensely increase the dockets of the Court. Such jurisdiction remains with the High Court.
Under Article 199 wider powers have been conferred upon High Court than Supreme Court and these powers cover more areas than a mere enforcement of Fundamental Rights. It is significant to note that under Article 184(3), Supreme Court only interferes in cases of violation of Fundamental Rights, which are of public importance, whereas, no such-condition is provided under Article 199. ¦ Mere fact that a question of arrest or detention of an important person is involved, this by itself is not enough to invoke clause (3) of Article 184. What is essential is that the question so raised must relate to the interest of whole body of the people or an entire community. To put it in other words, the case must be such, which raises a question affecting the legal rights or liabilities of the public or the community at large, irrespective of the fact that who raised such question.
In Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642) the discussion on the question of exercise of jurisdiction under Article 184(3) of the Constitution was summed up at page 667 as under:
After having discussed the law laid down in the above mentioned cases the judicial consensus seems to be as follows:-
(i) That while interpreting Article 184(3) of the Constitution the interpretative approach should not be ceremonious observance of the rules or usages of the interpretation but regard should be had to the object and purpose for which this Article is enacted i.e. the interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution namely the Objectives Resolution (Article 2-A), `the fundamental rights and' the directive principles of State policy so as to achieve democracy, tolerance, equity and social justice according to Islam.
(ii) That the exercise of powers of Supreme Court under Article 184(3) is not dependent only at the instance of the "aggrieved party" in the context of adversary proceedings. Traditional rule of locus standi can be dispensed with and procedure available in public interest litigation can be made use of, if it is brought to the Court by a person acting bona fide.
(iii) That the provisions of Article 184(3), provide abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction and it would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class actions from case to case.
(iv) That under Article 184(3) there is no requirement that only an aggrieved party can press into service this provision. Supreme Court can entertain a petition under Article 184(3) at the behest of any person.
(v) That the Article 184(3) is remedial in character and is conditioned by three prerequisites, namely--
. There is a question of public importance.
. Such a question involves enforcement of fundamental right, and
. The fundamental right sought to be enforced is conferred by Chapter 1, Part II of the Constitution.
(vi) That it is not every question of public importance which can be entertained by this Court, but such question should relate to the enforcement of Fundamental Rights.
(vii) That even the disputed questions of facts which do not require voluminous evidence can be looked into where Fundamental Right has been breached. However, in case where intricate disputed question of facts involving voluminous evidence are involved the Court will desist from entering into such controversies.
(viii) That the language of Article 184(3) does not admit of the interpretation that provisions of Article 199 stood incorporated in Article 184(3) of the Constitution. Therefore, this Court while dealing with a case under Article 184(3) of the Constitution is neither bound by the procedural trappings of Article 199 ibid, nor by the limitations mentioned in that Article for exercise of power by the High Court in a case."
A survey of case law makes it abundantly clear that the power and jurisdiction under Article 184(3). of the Constitution cannot be invoked for redress of individual grievances. Unfortunately, the former Chief Justice of Pakistan paid no heed to the judicial precepts. He spared no department, whether judicial, executive or legislative. He took over the functions of superintendence over the subordinate Courts, which was the exclusive domain of the High Courts under Article 203 of the Constitution. He would entertain cases making grievances in matters pending before the High Courts as well as the subordinate Courts or which ought to be dealt with by a District & Sessions Judge. The learned Attorney General submitted that on several occasions, during the hearing of suo motu applications it was pointed out off and on by many counsel that power and jurisdiction under Article 184(3) of the Constitution could not be exercised in those matters, but unfortunately, the former Chief Justice would brush aside such submissions by making awful observations and remarks. According to the learned Attorney General, as a result of the above, the former Chief Justice of Pakistan interfered with and interrupted the working of each and every department/office of the Government and created a situation in which the other branches of the Government were not allowed to perform their functions and duties in accordance with the provisions of the Constitution and the law. This was a situation of chaos and anarchy for which the Constitution provided no solution and the Chief of Army Staff was constrained to take extra-constitutional steps in the larger interest of the state necessity and for the welfare of the people.
Pakistan has a parliamentary system and the Constitution is based on the principle of trichotomy of powers whereunder all the three organs of the state, namely, the legislative, executive and the judiciary are required to perform their functions and exercise their powers within their allotted sphere. Theory of trichotomy of power is the foundation of the constitutional scheme. Each organ of the State is equally important and each has definite role to play. None is permitted to intrude into the domain of the other. Illuminating discussion on the subject is found in State v. Zia-ur-Rehman (PLD 1973 SC 49). Relevant observations from pages 69 and 70 are reproduced below:
It may well be asked at this stage as to what is meant by "jurisdiction"? How does it differ from "judicial power"? Apart from setting up the organs the Constitution may well provide for a great many other things, such as, the subjects in respect of which that power may be exercised and the manner of the exercise of that power. Thus it may provide that the Courts set up will exercise revisional or appellate powers or only act as a Court of a cessation or only decide Constitutional issues. It may demarcate the territories in which a particular Court shall function and over which its Writs shall run. It may specify the persons in respect of whom the judicial power to hear and determine will be exercisable. These are all matters which are commonly comprised in what is called the jurisdiction of the Court. It expresses the concept of the particular res or subject matter over which the judicial power is to be exercised and the manner of its exercise. Jurisdiction is, therefore, a right to adjudicate concerning a particular subject-matter in a given case, as also the authority to exercise in a particular manner the judicial power vested in the Court.
In exercising this power, the judiciary claims no supremacy over other organs of the Government but acts only as the administrator of the public will. Even when it declares a legislative measure unconstitutional and void, it does not do so, because, the judicial power is superior in degree or dignity to the legislative power; but because the Constitution has vested it with the power to declare what the law is in the cases which come before it. It thus merely enforces the Constitution as a paramount law whenever a legislative enactment comes into conflict with it because it is its duty to see that the Constitution prevails. It is only when the Legislature fails to keep within its own Constitutional limits, the judiciary steps in to enforce compliance with the Constitution. This is no doubt a delicate task as pointed out in the case of Fazlul Quader Chowdhury v. Shah Nawaz, which has to be performed with great circumspection but it has nevertheless to be performed as a sacred Constitutional duty when other State functionaries disregard the limitations imposed upon them or claim to exercise power which the people have been careful to withhold from them."
"246.... The Principle of separation of the powers of Government operates in a broad manner to confine legislative powers to the legislature, executive powers to the executive department, and those which are judicial in character to the judiciary. The Constriction's central mechanism of separation of powers depends largely upon a common understanding of what activities are appropriate to legislatures, to executives, and to Courts, and this separation of powers doctrine requires the Court to leave intact the respective roles and regions of independence of the coordinate branches of Government ............
The true meaning of the general doctrine of the separation of powers seems to be that the whole power of one department should not be exercised by the same hands which possess the whole power of either of the other departments. Thus, it is generally recognized that constitutional restraints are overstepped where one department of Government attempts to exercise powers exclusively delegated to another, and that officers of any branch of the Government may not usurp or exercise the powers of either of the others."
247 ..... The principle of the separation of the powers of Government is fundamental to the very existence of constitutional Government as established in the Untied States. The division of Governmental powers into executive, legislative, and judicial represents probably the most important principle of Government declaring and guaranteeing the liabilities of the people. .....
..... It is not the function of the judiciary to entertain private litigation which challenges the legality, the wisdom, or the propriety of conduct of the executive, who is acting within his constitutional powers. In other words, so long as a public governing body acts within the limits of its legal powers and jurisdiction, the exercise of its judgment and discretion is not subject to review or control by the Courts at the instance of citizens, taxpayers, or other interested persons, in the absence of a statute authorizing such review or control. However, a Court order directing a local Government body to levy its own taxes is a judicial act within the power of a Federal Court. While the lack of authority in the judiciary to restrain a lawful exercise of power by another department of Government, where a wrong motive or purpose has impelled the exertion of the power, may render abuses temporarily effectual, the remedy lies not in the abuse by the judicial authority of its function, but in the people, upon whom reliance must be placed for the correction of such abuses."
In a very recent judgment titled Divisional Manager v. Chander Hass passed in Appeal (Civil) No. 5732 of 2007 the Supreme Court of India cautioned the judiciary in the exercise of its powers and jurisdiction and desired that it should confine itself to its proper sphere. Paragraphs 38 to 41 of the judgment are reproduced below for a ready reference:
"38. The moral of this story is that if the judiciary does not exercise restraint and overstretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence, of the judiciary (in fact the mere threat may do, as the above example demonstrates). The judiciary should, therefore, confine itself to its proper sphere, realizing that in a democracy many matters and controversies are best resolved in non-judicial setting.
We hasten to add that it is not our opinion that judges should never be activist. Sometimes judicial activism is a useful adjunct to democracy such as in the School Segregation and Human Rights decisions of the U.S. Supreme Court vide Brown vs. Board of Education 347 U.S. 483 (1954), Miranda vs. Arizona 384 U.S. 436, Roe vs. Wade 410 U.S. 113, etc. or the decisions of our own Supreme Court which expanded the scope of Articles 14 and 21 of the Constitution. This, however, should be resorted to only in exceptional circumstances when the situation forcefully demands it in the interest of the nation or the poorer and weaker Sections of society but always keeping in mind that ordinarily the task of legislation or administrative decisions is for the legislature and the executive and not the judiciary.
In Dennis vs. United States (United States Supreme Court Reports 95 Law Ed. Oct. 1950 Term U.S. 340-341) Mr. Justice Frankfurter observed: Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore, most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when Courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.
In view of the above discussion we are clearly of the view that both the High Court and First Appellate Court acted beyond their jurisdiction in directing creation of posts of tractor driver to accommodate the respondents."
On 3rd November 2007 the Prime Minister addressed a letter to the President of Pakistan who was also the Chief of Army Staff apprising him of the grave situation prevailing in the country on account of terrorism, extremism, militancy as well as the erosion of trichotomy of power resulting in a state of chaos and anarchy. The Chief of Army Staff reviewed the situation in his meetings with the Prime Minister, Governors of all the Provinces, Chairman Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and the Corps Commanders of the Pakistan Army, and in pursuance of the deliberations and decisions of these meetings decided to proclaim emergency throughout the country by way of exercise of power extra to the Constitution. The emergency if proclaimed under the Constitution, the President could not have dealt with the above situation. Therefore, the Chief of Army Staff justifiably decided to take extra-constitutional step by means of the Proclamation of Emergency as in the past the Constitutional deviations by the Chief of Army Staff/Armed Forces were validated by the Parliament in similar circumstances.
It was submitted by the learned counsel for the Respondent No. 2 as well as the learned Attorney General for Pakistan that the Proclamation of Emergency of 3rd November 2007, Provisional Constitution Order No. 1 of 2007 and the Oath of Office (Judges) Order, 2007 were not sub-constitutional but extra-constitutional measures. The learned counsel for the Respondent No. 2 rightly stated that if the actions of 3rd November 2007 were not taken, there would have been chaos and anarchy in the country. The impugned actions were taken by the Chief of Army Staff in the larger interests of the State and for the welfare of the people in consonance with the maxim salus populi est suprema lex. The maxim has been discussed in Hastings Law Journal [USA, April 1994 issue] at page 12 as under:
Salus Populi had many sources and expressions. The most abstract forms emanated from civil-law writers like Emmerich de Vattel, who based the legitimacy of all society and Government on its ability to promote the general happiness of mankind. [FN91] American versions most often took the shape of Chancellor Kent's declaration that private interest must be made subservient to the general interest of the community. Kent used this rationale to uphold Governmental regulations of unwholesome trades, slaughter houses, gunpowder, cemeteries, and the like. As Justice Holmes accurately noted later, this 1092 doctrine was the foundation for the state police power. [FN92] Indeed, the salus populi maxim is most often encountered in appellate cases justifying state regulations that restrict private rights in the common interest.
Another principle involved in the police power is expressed by the well known maxim "salus populi suprema lex est" (the welfare of the people is the highest law). "Salus populi est suprema lex" is the maxim most popularly applied to the police power. It stands for the proposition that legislation in response to the demands of strong or preponderant opinion is necessary to the public welfare and is a proper exercise of the police power. This maxim is the foundation principle of all civil Government and for ages it has been a ruling principle of jurisprudence. It is the polestar of police power legislation. All private rights enjoyed by individuals as members of the public are subject to the paramount right of the state to modify them to conserve the public welfare under this maxim.
At Section 323 ibid is discussed the law of necessity as under:--
The police power has been described as the law of necessity and as being coextensive with the necessities of the case and the safeguards of public interest. In a general way the police power extends to all the great public needs, and may be put forth in aid of what is sanctioned by usage or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare. And Governments may undertake to do more than the Constitution requires. Thus, for example, imposition of a requirement that all automobile drivers have mandatory insurance coverage is within the state's police power. This general doctrine furnishes the key to what is included within the boundaries of police power - not that a police regulation, to be legitimate, must be an absolute essential to the public welfare, but that the exigency to be met must so concern such welfare as reasonably to suggest a necessity for the legislative remedy. It is not essential that a present necessity should exist before the legislature moves under the police power; it may act to prevent apprehended dangers as well as to control those already existing.
While an emergency does not create power, increase a granted power, or remove or diminish the restrictions imposed upon a power granted or reserved, an emergency may furnish the occasion for the exercise of police measures. Thus, a limit in time in order to tide over a passing trouble may justify a law that could not be upheld as a permanent change. It must be borne in mind, however, that an emergency does not automatically lift all constitutional restraints, and that a law that depends upon the existence of an emergency to uphold it may cease to operate if the emergency ceases, even though it was valid when passed."
"The point that arises, and I am not aware if has ever arisen before in this acute forum, is whether in an emergency of the character described in the Reference there is any law by which the Head of the State may, when the Legislature is not in existence, temporarily assume to himself legislative powers with a view to preventing the State and society from dissolution. In seeking an answer to this question report must necessarily be had to analogies and first principle because the law books and reported precedents furnished no direct answer to the precise question which today confronts the judiciary of Pakistan. The Governor-General claims in the Proclamation that he has acted in the performance of a duty which devolves on him as Head of the State to prevent the State from disruption, and the preliminary question that has to be considered is whether when we speak the rights and duties in the matter of preservation of states or their creation, foundation & dissolutions, we are still in the field of law or in a region out of bounds to lawyers and Courts. Having anxiously reflected over this problem I have come to the conclusion that the situation presented by the Reference is governed by rules which are part of the common law of all civilized States and which every written Constitution of a civilized people takes for granted. This branch of the law is, in the worlds of Lord Mansfield, the law of civil or State necessity.
The law of natural necessity is a par of the statute law of our country, but the law of civil or State necessity is as much a part of the unwritten law as the law of military necessity, instances of which are adjudged cases and authorities on this part of the case Mr. Diplock has addressed us an eager and anxious argument claiming for the Governor-General, as representative of the King or as Head of the State, certain powers which entitle him in the interest of the State temporarily to act outside the limits of the written Constitution. He has realized in this connection on the maxim cited by the Bracton at folios 93-E and 247-A of his Treatise, "DE LEGIBUS ET CONSUETUDINIBUS ANGLIAE" (Of the laws and Customs of England), "ID QUOD ALIAS NON EST LICITUM, NECESSITAS FACIT" (that which otherwise is not lawful, necessity makes lawful), and the maxims salus pouli suprema lex (Safety of the people is the supreme law) and Salus republicae est suprema lex (Safety of the State is the supreme law) and certain authorities where one or more of these maxims or the principle under lying them was treated as part of the law. The best statement of the reason underlying the law of necessity is to be found in Cromwell's famous utterance. "If nothing should be done but what is according to law, the throat of the nation might be cut while we send for someone to make a law." Broom at p. 1 of the 10th Edition of his legal maxims says that the phrase salus populi suprema lex is based on the implied agreement of every member of society that his own individual welfare shall, in cases of necessity, yield to that of the community, and that his property, liberty, and life shall under certain circumstances, be placed in jeopardy or even sacrificed for the public good. In re: An Arbitration between Shipton, Anderson & Co. and Harrison Brothers & Co. (1) Darling J. described the maxim salus populi suprema lex as not only a good maxim but essential law. In that case, by a contract in writing, made in September, 1914, the owner of a specific parcel of wheat in a warehouse in Liverpool sold it upon the terms "payment cash within seven days against transfer order". Before delivery and before the property passed to the buyer the wheat was requisitioned by and delivered to His Majesty's Government under the powers of an Act passed before the date of the contract. It was held by the Court of the King's Bench Division that delivery of the wheat by the seller to the buyer having been rendered impossible by the lawful requisition of the Government, the seller was excused from the performance of the contract. The act of requisition was described both by Lord Reading C. J. and Lush J. as `an act of state'. Referring to that act Darling J. said:-
"It must be here presumed that the Crown acted legally, and there is no contention to the contrary. We are in a state of war; that is notorious. The subject-matter of this contract has been seized by State acting for the general good. Salus populi suprema lex is a good maxim and the enforcement of that essential law gives no right of action to whomsoever may be injured by it."
Syed Sharifuddin Pirzada, Sr. ASC contended that the Constitution made provision for emergency in Article 232. He also took us through the provisions of Article 280 of the Constitution to show that indirectly the Constitution recognized the emergency proclaimed during martial law. By Notification No. 45/1/71-P&C dated 23.11.1971, albeit in somewhat different circumstances, (viz. Pakistan threatened by external aggression) emergency was continued in pursuance of the Proclamation of 25th March 1969 read with the Provisional Constitution Order promulgated by the then President and Chief Martial Law Administrator. Under Article 280 of the Constitution said Proclamation of Emergency was deemed to have been issued under Article 232 of the Constitution. The 1973 Constitution was enacted on 14th August 1973 and as pointed out by the learned counsel for both sides, within four hours, an Order suspending fundamental rights was promulgated (Gazette of Pakistan dated 15th August 1973).
The principle of derogation or deviation, as the case may be, is accepted even in international charters on protection of human rights. An instance of the kind may be found in Article 15 of the European Commission on Human Rights, which reads as under:--
ARTICLE 15:
In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.
No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
Any High Contracting Party availing itself of this right of derogation shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary-General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.
A very instructive and illuminating discussion on the need to have extra powers during emergency is found in Basu's Human Rights in Constitutional Law, Second Edition 2003. At page 537 of the book, the learned author has stated as under:--
"Two World Wars have established the lesson that even in an ultra democratic country, the Government would need extraordinary powers in order to be able to meet a threat against the State itself, by situations such as a war or external aggression or even internal rebellion, civil war or the like, which render it impossible for the normal Constitutional machinery to cope with the abnormal situation.
In a federal country, such extraordinary emergency situation would call for a greater concentration of powers in the federal or national authorities and a greater encroachment on the powers normally assigned to the State Governments.
Whatever be the form of Government, emergent situations are bound to arise in any country, owing to various factors like war, rebellion, natural disaster, economic or financial breakdown which call for immediate measures to be taken by the Government to safeguard the stability of the country or the safety of the citizens, which, in order to be adequate, must be different from or in addition to the normal system of administration.
But in a country having a democratic system of Government such abnormal situation presents a dilemma, because the assumption of any extraordinary powers by the Government must be in derogation of the civil and political rights normally ensured to the citizens by the democratic Constitution.
A satisfactory solution of the problem can therefore be had only if extraordinary powers are available to the Government to meet such emergencies with the least encroachment upon the rights and liberties of the citizens."
"If riot, rebellion or insurrection outrun the ordinary sources of law and order and assume such proportions that civil authorities become powerless to deal with it, the State would naturally look to its armed forces for assistance. If the military take over in any such contingency and the general commanding the army completely ousts or subordinates civil authorities in the area, the law applied by him during the period of his occupation is martial law in sensu strictiore. During such period, all constitutional guarantees are suspended and the officer in chief command of the forces operating in the troubled area acquires for the time being supreme legislative, judicial and executive authority. In other words, he himself fixes the limits and definition of his own authority. He makes his own law, sets up his own Courts and no civil authority, while he is in command, may call into question what he does. In this sense, therefore, martial law is not law at all but the will of the officer commanding the army. A commander who steps in to quell a rebellion inaugurates a reign of lawlessness and a civil authority, legislative or executive, which hands over the civil populace of a locality to the military, places the life, liberty and property of the people at the feet of the general who commands the army.
In some constitutions, as for instance, the French Constitution there is provision for the declaration of what is called "a state of siege". Then such a declaration is made, even fundamental rights are suspended and during this suspension any person is liable to arrest, imprisonment or execution at the will of a military tribunal consisting of a few officers. Martial law in this sense is completely foreign to British or the American Constitution. And in our own Constitution there is nothing enabling the military to step in and take over to the exclusion of civil power, though in living memory there have been four occasions when people groaned under or enjoyed the blessings of martial law.
In seeking to discover the source and reason of martial law, the best course to adopt is to find an answer to a few simple questions. In case of war or invasion do the military have a right to act suo motu? If so, do they have the same right where there is a riot, insurrection, revolt or rebellion which, if not suppressed immediately, may become a successful revolution? If the answer to both these questions be in the affirmative, a third question, and that is the most important question, immediately presents itself, namely, what are the powers of the military when called upon to act in any such contingency? Can they, for the purpose of suppressing the riot or rebellion, make their own Rules and Regulations, set up their own Courts to enforce such Rules and Regulations and thus infringe the right of freedom of person and of enjoyment of property to which citizens are entitled under the ordinary law in peace time? If constitutional jurisprudence furnishes an answer to these questions, that is martial law sui generis.
Most constitutional writers affirm that where civil power is a deposed, suspended or paralysed by domestic disturbances, the military are entitled to step in to fill up the void but these writers are equally clear in their opinion that while so acting the legality or excusability of any action taken by the military will be judged by "necessity" and that such judgment will lie with the Civil Courts ex post facto. Thus martial law is the law of military necessity, actual or presumed in good faith. Whether where the defence of necessity and good faith cannot be founded on civil law, e.g., right of private defence or the use of force to disperse unlawful assemblies and there is no indemnity bill, it will be recognized by civil Courts is an open question though observations occur in several cases clearly indicating that such necessity will be recognized as a good defence Phillips v. Eyre (supra); Tilonko v. Attorney-General of Natal (supra). If martial law is a law and its limits are prescribed by necessity, then
(1) Not only the Crown has the prerogative to proclaim martial law but without any such proclamation the military can take over where by war, insurrection, rebellion or tumult civil authority is deposed, suspended or paralysed;
(2) all acts done by the military which are either justified by the civil law or were dictated by necessity and done in good faith will be protected, even if there be no bill of indemnity;
(3) while preventive action for the duration of the martial law will be valid, punitive action will generally be invalid;
(4) martial law will cease ipso facto with the cessation of the necessity for it; and
(5) sentences of confinement by Military Courts will expire with the expiry of the martial law."
Some of the learned counsel appearing on the other side at first advocated that we should totally ignore this argument but Mr. Manzoor Qadir and Mr. Sharifuddin Pirzada frankly conceded that within certain limits validation can be given to certain acts of even a de facto usurper of power either on the ground of state necessity or implied authority. Mr. Anwar sought at one stage to disassociate himself with this view but when it was pointed out to him that the result would then be that even the Legal Framework Order (No. 2 of 1970) and the elections held thereunder would also become invalid, he too hesitated and thought that that might be going too far. Mr. Brohi on the other hand, is prepared to concede only this much that an usurper may be given the limited power of acting within the framework of the Constitution, but nothing beyond that.
This is a difficult question to decide and although I have for my guidance the example of our own Federal Court, which in Governor-General's Reference No. 1 of 1955 invoked the maxim of salus populi suprema lex to create some kind of an order out of chaos, I would like to proceed with great caution, for, I find it difficult to legitimize what I am convinced is illegitimate. I shall, therefore, first examine some other decisions which have been cited at the Bar before I begin to formulate my own views in the matter.
I have been referred to the decision of the Privy Council in the case of Madzimbamuto v. Lardner-Burke and another ((1968) 3 A E R 561) where Lord Pearce in a very elaborate dissenting judgment accepted that acts done by those actually in control without lawful authority may be recognized as valid or acted upon by the Courts within certain limitations, on principles either of necessity or implied mandate, particularly where the enquiry is being made ex post facto, because, common sense dictates that every thing done during the intervening period, whether good or bad, cannot be treated in the same manner. In support of this proposition the noble lord refers also to a passage from Grotius' book on De Jure Belli et Pacis (Book 1, Ch. 4) where the following principle is enunciated:
"Now while such a usurper is in possession, the acts of Government which he performs may have a binding force, arising not from a right possessed by him, for no such right exists, but from the fact that one to whom the sovereignty actually belongs, whether people, king, or senate, would prefer that measures promulgated by him should meanwhile have the force of law, in order to avoid the utter confusion which would result from the subversion of laws and suppression of the Courts."
There is no doubt that a usurper may do things both good, and bad, and he may have during the period of usurpation also made many Regulations or taken actions which would be valid if emanating from a lawful Government and which may well have, in the course of time, affected the enforcement of contracts, the celebration of marriages, the settlement of estates, the transfer of property and similar subjects. Are all these to be invalidated and the country landed once again into confusion?
Such a principle, it appears, has also been adopted in America In various cases which came up after the suppression of the rebellion of the Southern States and the American Courts too adopted the policy that where the acts done by the usurper were "necessary to peace and good order among citizens and had affected property or contractual rights they should not be invalidated", not because they were legal but because they would cause inconvenience to innocent persons and lead to further difficulties. Vide Texas v. White (1868) 7 Wallace 733, Horn v, Loekhurt (1873) 17 Wallace 850 and Baldy v. Hunter (1897) 171 U S 388.
Lord Pearce himself indicated 3 limitations for the validation! of such acts, namely:--
"(1) So far as they are directed to and reasonably required for ordinary orderly running of the State;
(2) So far as they do not impair the rights of citizens under the lawful Constitution; and
(3) So far as they are not intended to and do not in fact directly help the usurpation and do not run contrary to the policy of the lawful Sovereign."
The judgments of the Court of Appeal in Rhodesia in the same case and of a Court in Uganda in the case of Uganda v. Commissioner of Prisons, Ex Parte Matovu (1966 EALR-514) have also been cited before us but I do not propose to deal with them, as they seem mainly to draw their inspiration from Hans Kelsen and the decision in Dosso's case. There is, however, another case from Nigeria where the military take over was not accepted as legitimate but condoned as a "manifestation of necessity" and not as "revolutionary breach of legal continuity". On this basis even the fundamental rights guaranteed by the pre-existing constitution were also maintained in the case of Lakamani and Ola v. Attorney General (West), Nigeria. (Unfortunately the full report of this decision is not available but it is referred to in S. A. de Smith's book on Constitutional and Administrative Law).
We have also in this connection been referred to a case from Cyprus sub-nominee. The Attorney-General of the Republic v. Mustafa Ibrahim and others (1964 CLR 195) where the Supreme Constitutional Court of Cyprus also applied the doctrine of necessity to validate a certain legislation which was otherwise to inconsistent with certain Articles of the Cyprus Constitution on the ground that they would be justified "if it can be shown that it was enacted only in order to avoid consequences which could not otherwise be avoided, and which if they had followed, would have inflicted upon the people of Cyprus, whom the Executive and Legislative organs of the Republic are bound to protect, inevitable irreparable evil; and furthermore if it can be shown that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by the enactment in question, was not disproportionate to the evil avoided". This the Court thought was its duty to do in view of its "all important and responsible function of transmitting legal theory into living law, applied to the acts of daily life for the preservation of social order.
I too am of the opinion that recourse has to be taken to the doctrine of necessity where the ignoring of it would result in disastrous consequences to the body politic and upset the social order itself but I respectfully beg to disagree with the view that this is a doctrine for validating the illegal acts of usurpers. In my humble opinion, this doctrine can be invoked in aid only after the Court has come to the conclusion that the acts of the usurpers were illegal and illegitimate. It is only then that the question arises as to how many of his acts, legislative or otherwise, should be condoned or maintained, notwithstanding their illegality in the wider public interest. I would call this a principle of condonation and not legitimization.
Applying this test I would condone (1) all transactions which are past and closed, for, no useful purpose can be served by reopening them, (2) all acts and legislative measures which are in accordance with, or could have been made under, the abrogated Constitution or the previous legal order, (3) all acts which tend to advance or promote the good of the people, (4) all acts required to be done for the ordinary orderly running of the State and all such measures as would establish or lead to the establishment of, in our case, the objectives mentioned in the Objectives Resolution of 1954. I would not, however, condone any act intended to entrench the usurper more firmly in his power or to directly help him to run the country contrary to its legitimate objectives. I would not also condone anything which seriously impairs the rights of the citizens except in so far as they may be designed to advance the social welfare and national solidarity."
"It is clear, therefore, that the conclusion that the act of General Muhammad Yahya Khan amounted to a usurpation of power flows directly from the circumstances obtaining in that case, and is not to be regarded as a general proposition of law to the effect that whenever power is assumed in an extra-Constitutional manner by an authority not mentioned in the Constitution, then it must amount to usurpation in all events. It would obviously be a question for determination in the circumstances of the particular case before the Court as to whether the assumption of power amounts to usurpation or not.
It is also clear from the various judgments delivered in Asma Jillani's case that the question of condonation arose only on the view that the Army Commander-in Chief was usurper. The learned Attorney General is, therefore, right in saying that in a case where extra-constitutional intervention is justified by necessity, then different considerations arise from those which would be relevant for judging the acts of a usurper.
It has also to be noticed that the concept of condonation, as expostulated in Asma Jillan's case, has relevance not only to the acts of a usurper, but also to a situation which arises when power has fallen from the hands of the usurper, and the Court is confronted with protecting the rights and obligations which may have accrued under the acts of the usurper, during the time he was in power. However, in the case of an authority, whose extra-Constitutional assumption of power is held valid by the Court on the doctrine of necessity, particularly when the authority concerned is still wielding State power, the concept of condonation will only have a negative effect and would not offer any solution for the continued administration of the country in accordance with the requirements of State necessity and welfare of the people. It follows, therefore, that once the assumption of power is held to be valid, then the legality of the actions taken by such an authority would have to be judged in the light of the principles pertaining to the law of necessity.
As already stated, the learned Attorney General submits that the doctrine of necessity is recognized by Islam. He has in this connection, in the first place, drawn our attention to the injunctions contained in Sura Al-Baqar and Sura Al Nahal, which are in almost identical terms and permit, if one is forced by necessity, without willful disobedience, nor transgressing due limits, that which is forbidden, namely, dead meat and blood and the flesh of swine and any food over which the name of other than Allah has been invoked. He also refers to certain observations appearing in Islamic Jurisprudence and Rule of Necessity and need by Dr. Muslehuddin, 1975 Edition, (pp. 60-63), Islamic Surveys by Coulson (p. 144), and the Muslim Conduct of State of Hamidullah (p. 33). These writings lend support to the maxim that "Necessity makes prohibited things permissible."
Mr. Sharifuddin Pirzada has next drawn our attention to certain Articles in the Majelle in support of his proposition. Article 17 enjoins that "Hardship causes the giving of facility; that is to say, difficulty becomes a cause of facility, and in times of embarrassment it becomes necessary that latitude should be shown." Article 21 says that "Necessities make forbidden things canonically harmless". Article 22 lays down that necessities are estimated according to their quantity, and Article 26 embodies the maxim salus populi suprema lex by saying that "To repel a public damage a private damage is preferred." He submits that although these maxims are directly relevant to cases of private necessity but the principle can certainly be extended to State necessity.
In support of his contention that the doctrine of law of necessity is recognized in most Western Systems of Jurisprudence, and has also been followed in Pakistan, the learned Attorney-General has referred us to Rex v. Stretton (1779) reported in Vol. 21, Howell's State Trials; Attorney-General of Duchy of Lancaster v. Duke of Devenshire (1884) 14 QBD 273; the well-known case from Cyprus. The Attorney General of Republic v. Mustafa Ibrahim (1964 CLR 195); the well-known case from Nigeria reported as E.O. Lakanmi and another v. Attorney-General, West Nigeria, Reference by H.E. The Governor-General (PLD 1955 FC 435) and of course observations appearing in the case of Asma Jillani.
He also relies upon the dissenting judgment delivered by Lord Pearce in the Rhodesian case, already referred to earlier in another context, namely, Madzimbamuto v. Lardner Burke (1968 3 All ER 561).
I find that in the Federal Court case, relied upon by the learned Attorney General, namely, Reference by H.H. Governor General, the implications of the law of necessity were discussed at some length by Muhammad Munir, C.J., and accordingly it will be useful to refer to it in the first instance.
After referring to several authorities including some of those now mentioned by Mr. Sharifuddin Pirzada, his Lordship stated, particularly relying on the address of Lord Mansfield in the proceedings against George Stretton and others that "the principle clearly emerging from this address of Lord Mansfield is that subject to the condition of absoluteness, extremeness and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity, the necessity being referable to an intention to preserve the Constitution, the State or the society and to prevent it from dissolution, and affirms Chitty's statement that necessity knows no law, and the maxim cited by Bracton that necessity makes lawful which otherwise is not lawful." Having stated this principle, the learned Chief Justice, with whom the majority of the Judges agreed, proceeded to answer the questions referred to the Court by the Governor-General, and suggested certain arrangements for the setting up of a Constituent Convention, which he preferred to call Constituent Assembly, and for which there was otherwise no provision in the Government of India Act, which then served as the Constitution for Pakistan. The opinion recorded by the Federal Court in this case provides a striking example of the invocation of the law of necessity to validate certain extra-Constitutional measures dictated by the considerations of the welfare of the people and the avoidance of a legal vacuum owing to an earlier judgment of the Federal Court in Usif Patel v. Crown (PLD 1955 FC 387). The measures in question were validated and not sought to be condoned.
In the case from the Cyprus jurisdiction a more or less similar situation had arisen owing to the difficulty of the Turkish members of the Cyprus Parliament participating for the passing of a law regarding the functioning of the Supreme Court itself. In a very elaborate judgment, after surveying the concept of the doctrine or law of necessity as obtaining in different countries the Court came to the conclusion that the Cyprus Constitution should be deemed to include the doctrine of necessity in exceptional circumstances which is an implied exception to particular provisions of the Constitution, and this in order to ensure the very existence of the State. It was further stated that the following pre-requisites must be satisfied before this doctrine can become applicable:--
(a) An imperative and inevitable necessity or exceptional circumstances;
(b) No other remedy to apply;
(c) The measure taken must be proportionate to the necessity; and
(d) It must be of a temporary character limited to the duration of the exceptional circumstances.
It was added that "A law thus enacted is subject to the control of this Court to decide whether the aforesaid prerequisites are satisfied, that is, whether there exists such a necessity and whether the measures taken were necessary to meet it".
It seems to me that this summing up of the law of necessity by one of the learned Judges of the Cyprus Supreme Court embodies the true essence of the doctrine, and provides useful practical guidelines for its application."
The discussion on the subject of emergency, the circumstances and the need for its issuance in the context of Pakistan's jurisprudence may be closed with the remark that the Proclamation of Emergency of 3rd November 2007 cannot be seen in isolation, but has to be examined in the context of the historical process of the country.
It is clear from the material placed on record by the respondents and the circumstances of the present case that the situation which led to the issuance of Proclamation of Emergency and the two other Orders was quite similar to the one that prevailed in July 1977 and October 1999. In 1977 almost in an identical situation martial law was imposed and the Constitution held in abeyance. The action of the Chief of Army Staff was upheld by this Court in the case of Begum Nusrat Bhutto v. Chief of Army Staff (PLD 1977 SC 657) on the touchstone of state necessity. The Chief Martial Law Administrator was possessed with the power to amend the Constitution. The Parliament validated all the actions and constitutional amendments of the Chief Martial Law Administrator through the Constitution (Eighth Amendment), Act, 1985 including Article 58(2)(b) of the Constitution, which conferred power on the President to dissolve the National Assembly and to direct holding of fresh elections.
In Mahmood Khan Achakzai v. Federation of Pakistan (PLD 1997 SC 426) this Court came to the conclusion that the constitutional amendments made during 1977-1985 were necessary to avoid martial law in future. From 1985 till 1999 elections to the Parliament and the Provincial Assemblies were held in Pakistan. But all the successive assemblies were dissolved by the President under Article 58(2)(b) of the Constitution. These dissolutions were challenged before the superior Courts, but all, except one, were upheld. Later, by means of the Constitution (Thirteenth Amendment) Act, 1997, Article 58(2) (b) was omitted. As a result thereof, things went out of control and ultimately the Proclamation of Emergency of 14th October 1999 was issued and the Armed Forces took over the administration of the country. The Army takeover was challenged before this Court in Zafar Ali Shah's case and the same was upheld. In pursuance of the above judgment, the country returned to civilian rule. In the said case this Court itself gave three years' time to the Armed Forces to restore law and order and to prepare the country for elections.
However, in the present case, soon after the imposition of emergency and the promulgation of the Provisional Constitution Order 2007, the Government announced the holding of election on schedule. The tug of war launched by the former Chief Justice of Pakistan and some other former Judges of the Supreme Court and the High Courts against the other branches of the Government made them non-functional and ineffective. Practically, the country had been driven to a state of lawlessness. The situation that prevailed on 3rd November 2007 could also adversely affect the defence capability of the country. From this perspective, the present situation was even worse than the one that prevailed in October 1999, which was fully covered by the law laid down in Zafar Ali Shah's case at page 1169 of the judgment, where this Court held as under:
"252. After perusing the voluminous record and after considering the submissions made by the parties, we are of the view that the machinery of the Government at the Centre and the Provinces had completely broken down and the Constitution had been rendered unworkable. A situation arose for which the Constitution provided no solution and the Armed Forces had to intervene to save the State from further chaos, for maintenance of peace and order, economic stability, justice and good governance and to safeguard integrity and sovereignty of the country dictated by highest considerations of State necessity and welfare of the people. The impugned action was spontaneously welcomed by all sections of the society."
As for the reinstatement of the former Judges of the Supreme Court and the High Courts who ceased to hold office under the Oath of Office (Judges) Order, 2007, we have already held in the Short Order that the learned Chief Justices and Judges of the superior Courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who were not given, or who did not make, oath under the aforesaid Order had ceased to hold their respective offices on 3rd November 2007 and their cases cannot be re-opened being hit by the doctrine of past and closed transaction. During the course of arguments, both the learned counsel for the petitioners repeatedly submitted that the Government ought to have adopted constitutional means to meet the situation that prevailed in the country on or before 3rd November 2007. However, they failed to point out any particular course that had been provided under the Constitution to meet a situation where any organ of the State, particularly when some former Judges of the superior Courts transgressed their constitutional limits and took upon themselves the execution of the functions of the executive or legislative branches of the Government, thereby bringing the functioning of the Government to a standstill. The learned Attorney General for Pakistan vehemently contended that the treatment the Presidential Reference filed against the former Chief Justice of Pakistan received at the hands of the former Judges of the Supreme Court closed the door for the Government to resort to the constitutional remedies provided for the accountability of the Judges of the superior Courts. According to him, the practical effect of the order dated 20th July 2007 passed by a majority of 10 to 3 in Constitution Petition No. 21/2007 was that the provisions of Article 209 of the Constitution were rendered nugatory and redundant. He further submitted that on the eve of hearings before the Supreme Judicial Council of Pakistan, lawyers-cum-political workers would enter the Supreme Court premises, raise slogans against the members of the Supreme Judicial Council and interrupt working of the Council as well as the Supreme Court Benches. The Court premises were practically turned into a ground exclusively meant for political processions and rallies, which badly impaired the sanctity of the Court. The learned Attorney General further stated that on the very first date of hearing of the Reference before the Supreme Judicial Council, the former Chief Justice did not sit in the vehicle made available to him at his official residence for traveling to the Supreme Court to attend the proceedings of the Council and insisted on walking on foot along with his family members. According to the learned Attorney General, it was an act unbecoming of a person who happened to be the Chief Justice of Pakistan and thus, the dignity and prestige of the highest judicial office of the country were disregarded. He submitted that the law enforcing personnel on duty requested the former Chief Justice time and again to use the vehicle provided to him for going to the Supreme Court, but he did not accede to their request. Hence, the behaviour of the former Chief Justice created an unpleasant scene. At the top of it, one of the former Judges took suo motu action of the matter and created an embarrassing situation for the administration - a situation that was the creation of the former Chief Justice. The learned Attorney General lamented on the fact that the media, particularly some private T.V. channels, took the occasion as the high time of their business and never realized the sensitivity of the issue. Instead of confining to their true role of relaying information to the masses, they turned their talk shows into an exercise aimed at advocating a particular point of view.
The learned Attorney General also submitted that a politician-cum-lawyer, who was one of the counsel of the former Chief Justice of Pakistan, used all his political skills and expertise in turning the Reference into a political gambol. He used every occasion in the course of the proceedings of the Reference and later the Constitution Petition filed by the former Chief Justice of Pakistan against the said Reference to gain political mileage. He organized political rallies for the former Chief Justice of Pakistan to address the bar associations throughout the width and breadth of the country. He became a personal driver of the former Chief Justice and also intended to ply a coaster for the other former Judges. Many former Judges of the High Courts would participate in those events all of which were calculated to destabilize the Government machinery under a scheme. Every speaker on the stage presided over by the former Chief Justice would make a political speech and at the end the former Chief Justice would deliver speech on the `rule of law'. It was a mockery of the Constitution and the law.
The learned Attorney General for Pakistan next submitted that the former Chief Justice as well as the former Judges of the Supreme Court created an atmosphere of extreme uncertainty in the matter of hearing/decision of the case relating to the election of the President of Pakistan. In the first round, the matter was heard for a very long time and ultimately the petitions were found to be not maintainable by a majority of six to three. Thereafter the nomination papers of the incumbent President were accepted by the Chief Election Commissioner through a well reasoned order, which was upheld by this Court vide judgment dated 19th November 2007 passed in Constitution Petition No. 73/2007 and Criminal Original Petition No. 51 of 2007. At the scrutiny of the nomination papers for the election of the President, some mischief mongers attempted to interrupt the functioning of the Chief Election Commissioner of Pakistan and created a situation of law and order. The law enforcing agencies had to intervene to ensure that the aforesaid constitutional functionary of the State was not prevented from performing his constitutional functions. However, the former Chief Justice of Pakistan, in line with his past conduct, initiated suo motu action against the concerned public servants and compelled the Government to take instant arbitrary action against those officials without waiting for the result of the inquiry ordered by the Government into the matter. Rather he never allowed the Government to proceed with the aforesaid inquiry. According to the learned Attorney General, this was not the first time that the State functionaries were intimidated, frightened and put in an embarrassing situation by the former Chief Justice. The suo motu actions of the former Chief Justice had created an atmosphere in which no senior officer was willing and ready to be posted in the administration of Islamabad Capital Territory.
The learned Attorney General for Pakistan further submitted that after the acceptance of the nomination papers for the Presidential election, the matter was again brought before the Supreme Court in the second round. The hearing continued for nearly two months. During this period the election to the office of President took place and though the incumbent President secured the highest votes (about 98%), yet the former Judges passed an order restraining the Chief Election Commissioner from issuing notification of the result of the election. The former Chief Justice of Pakistan kept changing the composition of the Bench, rather increased from time to time the number of the Judges on the Bench. Firstly, a Bench of 9 Judges was constituted. Later the number was raised to 11. The matter of election of the highest office of the country required urgent resolution in the supreme national interest. The situation was being closely monitored at the international level, particularly in view of the position taken by the Government of Pakistan in the war on terrorism. Summing up his arguments, the learned Attorney General submitted that the above uncertain state of affairs badly impaired the image of the country among the comity of nations, negatively impacted on the security as also the law and order situation in the country and adversely affected the economic growth.
We have given deep consideration to this aspect of the matter. The learned counsel for the petitioners have not been able to rebut the submissions made by the learned counsel for the Respondent No. 2 as well as the learned Attorney General for Pakistan on the above issue. The facts and circumstances narrated by the learned Attorney General for Pakistan in the preceding paragraphs presented an alarming situation and unfortunately the concerned stakeholders in the judicial and the legal arena of the time never realized the implications of the situation to which the country had been driven. The State functionaries were pushed against wall and no way out was left for them. Thus, the action of 3rd November 2007 had become inevitable, which had been taken by the Respondent No. 2 to save the country from chaos and anarchy. Being a step taken in the interest of State necessity and for the welfare of the people, this Court through the Short Order dated 23rd November 2007 validated the same.
On 15th December 2007, through the Revocation of Proclamation of Emergency Order, 2007, the emergency was revoked, the Provisional Constitution Order No. 1 of 2007 was repealed, the Constitution as amended by the Constitution (Amendment) Order, 2007 (P.O. No. 5 of 2007) and the Constitution (Second Amendment) Order, 2007 (P.O. No. 6 of 2007) was revived and the Chief Justice of Pakistan and Judges of the Supreme Court, the Chief Justice and the Judges of the Federal Shariat Court and Chief Justice and the Judges of the High Courts holding office at the time of the revival of the Constitution took oath under the Constitution in the form set out in the Third Schedule to the Constitution. The Revocation Order also provided that the said revocation or repeal shall not revive anything not in force or existing at the time of the revocation or repeal or affect the previous operation of any law or anything done or purported to, or suffered to have been done under the Proclamation of Emergency, the Provisional Constitution Order and the Oath of Office (Judges) Order, 2007. The above revocation or repeal would also not affect any right, privilege, obligation or liability acquired, accrued or incurred under the Proclamation of Emergency, the Provisional Constitution Order and the Oath of Office (Judges) Order, 2007.
The issue of reinstatement of the Judges of the superior Courts who were not given, or who had not made oath, under the Oath of Office (Judges) Order, 2000 was examined in depth in Syed Zafar Ali Shah's case. In the process, the Court took into consideration the position emerging after restoration of the Constitution. At Para 284 of the judgment, this Court held as under:
"284. We, therefore, declare that the Judges of the Supreme Court and High Courts cannot be removed without resorting to the procedure prescribed in Article 209 of the Constitution, but the cases of Judges who ceased to be Judges of the Supreme Court and High Courts by virtue of Oath of Office (Judges) Order, 2000 (Order 1 of 2000) are hit by the doctrine of past and closed transaction and cannot be reopened."
The learned Attorney General for Pakistan rightly pointed out that the former Chief Justice of Pakistan, Justice Iftikhar Muhammad Chaudhry and the former senior puisne Judge of this Court, Justice Rana Bhagwandas were among the Judges of the superior Courts who had taken oath under the Oath of Office (Judges) Order, 2000 and were among the signatories to the judgment in Zafar Ali Shah's case whereby the Army takeover of 12th October 1999, dissolution of the National Assembly and the Provincial Assemblies, dismissal of the Federal and the Provincial Governments and the removal of the Judges of the superior Courts were validated and the Chief of Army Staff who was the then Chief Executive of the country was given powers, inter alia, to amend the Constitution. Alas, the former Chief Justice and the former Judges forgot even the very recent history and failed to read the writing on the wall.
The cases of the former Judges of the superior Courts who ceased to hold office by virtue of the Oath of Office (Judges) Order, 2007, are fully covered by the law laid down in Zafar Ali Shah's case and cannot be dealt with differently. Further, soon after the action of 3rd November 2007 the process for filling the vacancies was undertaken and consequently appointments were made in the Supreme Court as well as in the High Courts. The Constitution stands revived on and from 15th December 2007 and is in full force. The action in respect of the former Chief Justice and former Judges has attained finality and being a fait accompli the same is even otherwise not reversible. The present dispensation attracts the provisions of Article 264 of the Constitution, which, inter alia, says:
"Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution,--
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of the law or anything duly done or suffered under the law..."
We, therefore, reaffirm, uphold and validate the action taken by the Respondent No. 2 under the Oath of Office (Judges) Order, 2007 in the light of the law laid down in Zafar Ali Shah's case. Upon Proclamation of Emergency, the Provisional Constitution Order and the Oath of Office (Judges) Order of 2007, the former Chief Justice of Pakistan and other former Judges of superior Courts had ceased to hold office. Thereafter any order passed or function performed by them was void, coram non judice and of no legal effect or consequence.
On 14th December 2007, President's Order No. 8 of 2007 was issued, whereby a permanent Judge who had ceased to hold office of a Judge of High Court in terms of Article 3 of the Oath of Office (Judges) Order, 2007 was held entitled to full pension and other retirement benefits admissible to a permanent Judge of a High Court and the provisions of clause (3) of Article 207 of the Constitution would apply to such a Judge. Likewise, President's Order No. 9 of 2007 of even date provided that a Judge of the Supreme Court who had ceased to hold office in pursuance of Article 3 of the Oath of Office (Judges) Order, 2007 would be entitled to full pension and other retirement benefits calculated on that basis. Thus, the former Judges would be at liberty to avail the pensionary benefits in terms of the aforesaid two Presidential Orders.
We gave some thought to the issue of suspension of Fundamental Rights under Articles 9, 10, 15, 16, 17, 19 and 25 of the Constitution under the Provisional Constitution Order No. 1 of 2007. During the course of arguments, on a Court query, the learned counsel for the Respondent No. 2 as well as the learned Attorney General for Pakistan stated that as soon as the objects of the emergency were achieved and the situation returned to normalcy, the emergency would be lifted immediately. Considering the positive assurance given on behalf of the Government, no order was deemed to be called for on this aspect of the matter.
As to the alleged restrictions on the media, or the alleged detention of certain lawyers-cum-political workers, suffice it to observe that the matter involved individual grievances of the concerned T.V. channels and the alleged detenues, which could not be properly adjudicated upon in these proceedings. The owners of those T.V. channels, as also the alleged detenues were at liberty to seek remedy at the appropriate forums in accordance with law. However, all through the emergency, there were no restrictions on the print media and the viewpoint of the citizens got full coverage. The critics of the actions of 3rd November 2007 even got extra coverage, rather undue projection. During this period yellow journalism touched new heights and attempts to malign the institutions of the State were made, which was an unhealthy sign in this noble profession. It should be hoped that some thought would be given to this aspect of the matter at the appropriate level and an effort made to draw a line somewhere.
Now, we take up the other objection regarding duration of Ordinances in force at the time of, or during the Proclamation of Emergency and the Provisional Constitution Order. A similar point was considered earlier by the superior Courts in a number of cases. In Mrs. Keays Byrne v. M. Obaidullah Khan (PLD 1961 [W.P.] Lahore 256), at page 263 a plea was taken that the West Pakistan Urban Rent Restriction Ordinance (IX of 1959), made by the President pursuant to Proclamation dated 21st March, 1957, under Article 193 of late Constitution of 1956, had ceased to have effect on the expiry of six months of the Proclamation. It was held as under:
"The Rent Restriction Ordinance of 1959, although described as an Ordinance, cannot be said to be a temporary statute. It has been promulgated in pursuance of the Presidential Proclamation of the 7th day of October 1958. There is no indication in that it is to continue only for a limited period. While dealing with this Ordinance, we cannot allow ourselves to be influenced by the Articles of the late Constitution according to which Ordinance made under the provisions of that Constitution used to lapse after the expiry of the prescribed period. We are, therefore, of the opinion that the Rent Restriction Ordinance 1959 is a permanent statute and the question of its expiry does not arise at all. In view of the permanent character of the Rent Restriction Ordinance, we hold that the jurisdiction of the Civil Court for trying a suit for the ejectment of a tenant has been ousted and no Civil Court is entitled to pass a decree for the ejectment of a tenant after the enforcement of this Ordinance."
In the case of Badrul Hague Khan v. The Election Tribunal Dacca (PLD 1963 SC 704), late Mr. Justice A.R. Cornelius, the former Chief Justice of Pakistan, speaking for the Court, took the view that the carrying over of laws as effective instruments from the period prior to the Revolution into the period of Martial law was effected by Article 4 of the Laws (Continuance in Force) Order, 1958, and it was clear that within the terms of that Article, the Representation of the People Act was one of the laws which continued to be existing law after the 7th October, 1958. This Court did not see that the law could be thought to have been deprived of its force by anything appearing in the Proclamation of Martial Law of the 7th October, 1958.
In Abu Farida Khan v. East Pakistan (PLD 1964 Dacca 473), the East Pakistan Public Safety Ordinance (LXVIII of 1958) was promulgated by the Governor of East Pakistan before the Constitution came into force on 8th June, 1962. The High Court took the view that it was not necessary to place the Ordinance for approval of the provincial legislature. The Ordinance had been continued as a valid law by virtue of Article 225 of the Constitution of 1962, whereunder all existing laws, subject to the Constitution, would continue in force until altered, repealed or amended by the appropriate legislature. There was no doubt in the mind of the High Court that the Ordinance was a valid law before Constitution came into force and since the Ordinance had not been excluded in Article 225, it continued to remain in force and its continuation was not dependent upon compliance with the provisions of Article 79 of the Constitution.
In Hashmat Ali v. Abdul Karim (PLD 1968 Lahore 188), the provisions of Article 225(1) of 1962 Constitution were considered with reference to the continuation of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958). It was held that the existing laws would continue until altered, repealed or amended by the appropriate legislature. It was further held that the word "until" was not used entirely to connote a duration. It really meant that existing laws were to continue so long as they were not altered, repealed or amended.
In the case of Sheikh Atta Muhammad v. Mian Muhammad Abdullah (PLD 1971 Lahore 210), the validity of the West Pakistan Urban Rent Restriction Ordinance, 1959, was challenged on the ground that the Provincial Assembly constituted under the 1962 Constitution had not accorded its approval to the Ordinance under Article 79(2), therefore, the same had ceased to operate after expiry of 42 days of the first meeting of the Provincial Assembly. It was held that the Ordinance in question was promulgated during the period of Martial Law in Pakistan and that admittedly at that time there was no legislature. The conditions of promulgation of the Ordinance too were no doubt similar to those mentioned in Article 102 of the 1956 Constitution, but the legislation, for failure of its approval by the subsequent legislature, would not go out of the statute book because protection to it had been given by virtue of Article 225 of the 1962 Constitution. The Ordinance was an existing law at the time of promulgation of the 1962 Constitution and it had to continue in force until altered, repealed or amended by the appropriate legislature, i.e. the Legislative Assembly of West Pakistan. The approval of the legislature as provided in clause (2) of Article 79 of the 1962 Constitution would, therefore, be unnecessary and the Ordinance could not be considered to be invalid for non-approval by the Assembly.
In Malik Muzaffar Khan v. Government of the Punjab (1980 SCMR 121), the question of validity of the West Pakistan Tribunals of Inquiry Ordinance (II of 1969), was called in question on the ground that the same had lapsed automatically with the issuance of the Proclamation of Withdrawal of Martial Law on 21st April, 1972. It was held by this Court that the Ordinance stood protected by the provisions of Articles 268(1) and 280 of the 1973 Constitution, and continued, without brake, to remain a valid law.
In our view, the Ordinances promulgated and legislative measures taken by the President, or as the case may be, by the Governor, which were in force at the time of, or during the period for which the Proclamation of Emergency of 3rd November, 2007 held the field, would continue to be in force by virtue of the Provisional Constitution Order, 2007, read with Article 270AAA(3) of the Constitution, until altered, repealed or amended by the appropriate legislature. There would be no question of expiry of these Ordinances in terms of Article 89(2), or as the case may be, under Article 128(2) of the Constitution.
Above are the reasons for the Short Order dated 23rd November 2007 whereby these Constitution Petitions were disposed of in the terms mentioned therein. For facility of reference, the Short Order is reproduced below:
"ORDER
The above Constitution Petitions are directed against the Proclamation of Emergency of the 3rd day of November 2007 and the Provisional Constitution Order No. 1 of 2007 issued by the Chief of Army Staff, as also the Oath of Office (Judges) Order, 2007 made and promulgated by the President of Pakistan.
(i) In the recent past the whole of Pakistan was afflicted with extremism, terrorism and suicide attacks using bombs, hand grenades, missiles, mines, including similar attacks on the armed forces and law enforcing agencies, which reached climax on 18th of October 2007 when in a similar attack on a public rally, at least 150 people were killed and more than 500 seriously injured. The extremists/terrorists resorted to abduction of foreigners, which badly impaired the image of Pakistan in the comity of nations, and adversely affected its economic growth. The situation in Islamabad and various places in NWFP, Balochistan and tribal areas was analogous to "a state within the state". Unfortunately, no effort by the Government succeeded in curbing extremism, terrorism and suicide attacks. The Prime Minister apprised the President of the situation through his letter of the 3rd of November 2007;
(ii) The Constitution of Pakistan is based on the principle of trichotomy of powers. All the three organs of the State, namely, the legislature, the executive and the judiciary are required to perform their functions and exercise their powers within their specified sphere. Unfortunately, some members of the superior judiciary by way of judicial activism transgressed the constitutional limits and ignored the well-entrenched principle of judicial restraint. Thousands of applications involving individual grievances were being processed as suo motu cases ostensibly in the exercise of power under Article 184(3) of the Constitution, which provision is resorted to the enforcement of fundamental rights involving questions of law of general public importance. Instances of transgression of judicial authority at large scale may be found in the cases of determination of prices of fruits, vegetables and other edibles, suspension and transfers of Government officials, frequent directions to enact particular laws, stoppage of various development projects, such as New Murree City, Islamabad Chalets, Lahore Canal Road and many more. They rendered the state machinery, particularly legislative and executive branches of the Government paralyzed and nugatory. They made ineffective the institution of the Supreme Judicial Council set up under the Constitution for the accountability of the members of the superior judiciary;
(iii) The sum total of the circumstances led to a situation where the running of the Government in accordance with the provisions of the Constitution became impossible for which the Constitution provided no remedy or satisfactory solution. There was a strong apprehension of disastrous consequences that would have followed in case the action of the 3rd day of November 2007 was not taken by the Chief of Army Staff/President;
(iv) The situation which led to the issuance of Proclamation of Emergency of the 3rd day of November 2007 as well as the other two Orders, referred to above, was similar to the situation which prevailed in the country on the 5th of July 1977 and the 12th of October 1999 warranting the extra-constitutional steps, which had been validated by the Supreme Court of Pakistan in Begum Nusrat Bhutto v. Chief of the Army Staff (PLD 1977 SC 657) and Syed Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869) in the interest of the State and for the welfare of the people, as also the fact that the Constitution was not abrogated, but merely held in abeyance;
Sufficient corroborative material has been produced by the respondents, which justifies the taking of the extra-constitutional measures by the Chief of Army Staff and the President.
(ii) the Constitution of the Islamic Republic of Pakistan, 1973 still remains to be the supreme law of the land albeit certain parts thereof have been held in abeyance in the larger interest of the country and the people of Pakistan;
(iii) The extra-constitutional steps of Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitution Order No. 1 of 2007, the Provisional Constitution (Amendment) Order, 2007, the Oath of Office (Judges) Order, 2007 and the President's Order No. 5 of 2007 are hereby declared to have been validly made by the Chief of Army Staff/President subject to the condition that the country shall be governed, as nearly as may be, in accordance with the Constitution. All acts and actions taken for the orderly running of the State and for the advancement and good of the people are also validated. In absence of the Parliament, General Pervez Musharraf, Chief of Army Staff/President, in pursuance of the Proclamation of Emergency of the 3rd day of November 2007 may, in the larger public interest and the safety, security and integrity of Pakistan, under the principle of salus populi suprema lex, may perform--
(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;
(b) All acts which tend to advance or promote the good of the people; and
(c) All acts required to be done for the ordinary orderly running of the State.
(i) The old Legal Order has not been completely suppressed or destroyed, but it is a case of constitutional deviation for a limited transitional period;
(ii) Constitutional amendments can be resorted to only if the Constitution fails to provide a solution for the attainment of the declared objectives of the Chief of Army Staff/President, but without affecting the salient features of the Constitution, i.e. independence of Judiciary, federalism, parliamentary form of Government blended with Islamic provisions;
(iii) The President, the Federal Government and the Election Commission of Pakistan shall ensure the holding of fair, free and transparent elections as required by the Constitution and the law;
(iv) The Superior Courts continue to have the power of judicial review, to judge the validity of any act or action of the Chief of Army Staff, or the President notwithstanding the ouster of their jurisdiction by the aforesaid extra-constitutional measures;
(v) The Chief Justices and Judges of the Superior Courts (Supreme Court of Pakistan, Federal Shariat Court and the High Courts) are subject to accountability only before the Supreme Judicial Council in accordance with the procedure laid clown in Article 209 of the Constitution;
(vi) The learned Chief Justices and Judges of the Superior Courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007 have ceased to hold their respective offices on the 3rd of November 2007. Their cases cannot be re-opened being hit by the doctrine of past and closed transaction; and
(vii) The Proclamation of Emergency of the 3rd day of November, 2007 shall be revoked by the President and/or the Chief of Army Staff at the earliest so that the period of constitutional deviation is brought to an end. However, this Court may, at any stage, re-examine the continuation of the Proclamation of Emergency if the circumstances so warrant.
(J.R.) Petition disposed of.
PLJ 2008 SC 617
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan and Ch. Ejaz Yousaf, JJ.
AZRA RIFFAT RANA--Petitioner
versus
SECRETARY, MINISTRY OF HOUSING & WORKS, ISLAMABAD and others---Respondents
C.P.L.A. No. 9 of 2008, decided on 7.4.2008.
(On appeal from the jdugment dated 24.12.2007 in Appeal No. 296(R)CS/2005 passed by the Federal Service Tribunal, Islamabad]
Accommodation Allocation Rules, 2002--
----R. 15(2) & Scope of--Constitution of Pakistan, 1973, Arts. 212(3)--Leave to appeal--Premature retirement from service--Retention of official accommodation after retirement--Appeal was rejected--Assailed--Direction to vacate accommodation--Office memorandum including to retain Government accommodation till the age of superannuation and six months thereafter were provided--Respondents/department was estopped to issue direction to vacate the premises--Validity of--Government vide the O.M. in-question had promised to allow the petitioner to enjoy possession of the house in question till the date of her superannuation and six months thereafter, hence, she could not have been asked to vacate the same before time and its further allotment was also bad in law--Held: Appellant was entitled to retain official accommodation upto the age of superannuation and six months thereafter of Finance Division.
[P. 627] E & F
Interpretation of Statutes--
----Administrative instructions could not have replaced Accommodation Allocation Rules, 2002 it may be pointed out here that though an office memorandum being inconsistent with any statutory rule on point cannot be given effect to as it does not stand on a higher footing than statutory rules. [P. 524] A
Doctrine of Promissory Estoppel--
----Government and through it, Ministry of Housing and Works, as per doctrine of promissory estoppel was bound by promise--Doctrine of promissory estoppel was discussed in detail in case of PLD 2002 SC 208. [P. 524] B
Constitution of Pakistan, 1973--
----Art. 187(1)--Entitlement of benefit--Supreme Court was competent to issue directions, orders or decrees as may be necessary for doing complete justice, therefore, the appellant was entitled to benefit of such addition in pension. [P. 626] C
Doctrine of Promissory Estoppel--
----Though the doctrine of promissory estoppel does not extend to legislative and sovereign functions yet, executive orders are not excluded from its operation. [P. 626] D
Mr. M. Shoaib Shaheen, ASC and Mr. Ejaz Muhammad Khan, AOR for Petitioner.
Ms. Nahida Mehboob Elahi, DAG, Mr. M.S. Khattak, AOR and Mr. Sher Afzal Khan, Estate Officer for Respondents.
Date of hearing: 31.1.2008.
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against the judgment dated 24.12.2007 passed by the Federal Service Tribunal, Islamabad, whereby petitioner's appeal for retention of official accommodation after retirement was rejected.
Facts of the case in brief are that the petitioner was employed as Deputy Secretary (BPS-19) in the Finance Division. During the course of her service she was allotted Government accommodation i.e. House No. 517-F, St. No. 66, Sector G-6/4, Islamabad. On 4th December, 1991 the Government of Pakistan vide O.M. No. F. 1(8)-R4/89, introduced certain incentives to those civil servants who wanted to proceed on leave preparatory to retirement (LPR). The petitioner also requested for premature retirement and was accordingly retired from service vide Notification No. 57/42/91-E-2, dated 20.12.2004. However, subsequently letter dated 4.2.2005 was issued by the respondents under the provisions of Accommodation Allocation Rules, 2002, directing her to vacate the said accommodation on 15.7.2005 after availing six months retention period w.e.f. the date of her retirement. Ironically the above letter was issued on the application dated 1.1.2005 submitted by the petitioner. The order dated 4.2.2005 was assailed before the Federal Service Tribunal by way of Appeal No. 296(R)CS/2005, treating petitioner's letter dated 1.1.2005 as departmental appeal, which was dismissed vide the impugned judgment, hence this petition.
Mr. M. Shoaib Shaheen, learned counsel for the petitioner has contended that since the petitioner opted for retirement in pursuance of O.M. No. F. 1(8)-R4/89, dated 4th December, 1991, whereby certain incentives including to retain Government accommodation till the age of superannuation and six months thereafter were provided, therefore, the respondents/department was estopped to issue letter dated 04.02.2005, directing her to vacate the premises. It is further his grievance that the Federal Service Tribunal has gravely erred in law by holding that since the O.M. dated 4.12.1991 had no statutory backing, in presence of the Pakistan Allocation Rules, 1993 and the Accommodation Allocation Rules, 2002, therefore, it could not have override or replace the statutory rules, and that the arrangement made through the said O.M. had not conferred any right upon the petitioner to retain the Government accommodation. It has been further contended by him that order of the Federal Service Tribunal is based on discriminatory treatment as a number of similarly placed employees were still enjoying Government accommodation in pursuance of the said O.M. Learned counsel has maintained that the impugned order was issued purportedly, in pursuance of the direction made by the Minister for Housing & Works, who under the Rules had no authority to make such a direction and that allotment of the house in question to Respondent No. 3 was also bad as the allotment in favour of the petitioner was protected under the principle of locus poenitentiae.
Ms. Nahida Mehboob Elahi, learned Deputy Attorney General, while controverting the contentions raised by the learned counsel for the petitioner has stated that the benefit of the O.M. dated 4.12.1991 could not have been availed by the petitioner because she was in Grade-19, whereas the incentive incorporated in the said O.M. was meant and available to Grade 21 & 22 employees only. She has maintained that as per Rule 15(2) of the Accommodation Allocation Rules, 2002, since a Government servant was entitled to retain Government accommodation for six months only after his retirement, therefore, benefit of the said O.M. could not have been extended to the petitioner. She has added that since the Estate department was an attached department of the Housing & Works Division, therefore, the impugned order was rightly and competently issued under the direction of the Minister concerned.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case, with their assistance, minutely.
Before proceeding further, it would be advantageous to have a glance at the O.M. in question which is reproduced herein below in extenso:-
"Government of Pakistan
Finance Division
(Regulation Wing)
No. F. 1(8)-R4/89 Islamabad, the 4th December, 1991.
OFFICE MEMORANDUM
Subject: INCENTIVES TO CIVIL SERVANTS TO PROCEED ON LEAVE PREPARATORY TO RETIREMENT AFTER COMPLETION OF 25 YEARS SERVICE
The undersigned is directed to state that the Govt. has been pleased to approve the following retirement benefits to the supersaturating and additional incentives for civil servants of B-21-22, who desire to proceed on retirement on completion of 25 years of service w.e.f. 19.2.1991:
Retirement benefits to superannuating Govt. Servants.
(i) Retention of Govt. accommodation:
A. A retiring Govt. servant will be entitled to retain the Govt. accommodation allotted to him after his retirement upto the date of his superannuation plus 5 months. In case the retired Govt. servant dies during this period this facility shall be extended to the family of the deceased for the corresponding period.
(ii) Private Job: A retiring Govt. officer shall be permitted to undertake a private job (except job under foreign Govt) or to carry on private business in partnership with other party during LPR and thereafter. Such permission will be given by the Govt. liberally; and
(iii) Additional Pension: A retiring Govt. officer in BPS 20, 21 and 22 will be allowed a special additional pension equal to the admissible pre-retirement orderly allowance.
(B) Additional incentives for Grade-21-22 officer to retire on completion of 25 years of service.
The incentives at (A) above will be available to all such officers. In addition the following additional incentives will be available to all civil officers in BPS-21 and 22 who opt to retire on completion of 25 years or more service:-
(i) Maximum limit of three hundred sixty five days of LPR will be relaxed in these cases.
All the leave available in the account of retiring Govt. servants of BPS-21 & 22.
Immediately before the proceedings on retirement shall be allowed to them on full pay as L.P.R.
(ii) On retirement after LPR, they will be entitled to pension calculated on their service as on the date of proceeding on LPR, Plus LPR availed plus a grace period of two years; provided the approve period does not exceed the prescribed age of superannuation.
(iii) For purpose of commutation, the factor relevant to actual age on conclusion of LPR will be as under existing orders/rules.
Sd/-
(Javed Ahmad Khan)
Joint Secretary (R)
Phone No. 820293
All Ministries/Division etc."
Record indicates that the Ministry of Housing & Works was not unaware of the issuance of the above O.M. because in pursuance of the query made vide Letter No. F. 1(5)R.4/95, dated 20-9-2003, by the said Ministry, it was replied that the scheme of incentives vide O.M. under reference was introduced for the benefit of those civil servants who wanted to proceed on LPR after completing twenty-five years of service and that under the said scheme, the Government servants were entitled to retain Government accommodation upto the date of superannuation and six months thereafter even; and that the scheme was still operative. It would also be beneficial to reproduce herein below the said letter for ready reference:
"Government of Pakistan
Finance Division
(Regulation Wing)
Subject: Petition of Government Accommodation to Civil Servant who proceeds on Voluntary Retirement after Completion of 25 years.
Reference Ministry of Housing & Works Letter No. 13.Cat.I.I-8/1-E1 dated 04-07-2003 on the subject noted above.
Sd/-
(Muhammad Riaz)
Section Officer
M/o Housing & Works, (Abdul Ghani Sameen, Sr. Joint Secretary), Islamabad.
Finance Division, Regulations Wing, U.O.No. F. 1(5)R.4/95, Dt. 20-9-2003."
Here it would also be useful to look at the impugned Letter No. F.517-E, G-6/4-EI, dated 4.2.2005 issued by the Ministry of Housing and Works, whereby the petitioner was deprived of the benefits/incentives contained in the O.M. in question. The said letter reads as follows:
"Government of Pakistan
Ministry of Housing and Works
No. F.517-F, G-6/4-EI Islamabad, the 04.02.2005
To
Mrs. Azra Riffit Rana, Deputy Secretary
Finance Division, Islamabad.
Subject: Vacation of House No. 517-F, G-6/4, Islamabad
I am directed to refer to your application dated 1.1.2005 on the above subject and to state that the instructions of Finance division dated 04.12.1991 relate to retirement of BPS 21 to 22 officers and moreover, administrative instructions can not over rule, the provision of rules. According to Accommodation Allocation Rules, 2002 on retirement (irrespective of superannuation or on 25 years qualifying service) Rule 15(2), a retiring Federal Govt. Servant can retain the Govt. House for six months.
In view of this rule position you are advised to vacate the said house on 15.07.2005 positively.
This issues with the approval of the Minister for Housing and Works.
Yours faithfully, Sd/-
(Ch. Muhammad Khan)
Section Officer (EI)
Copy to the Estate Officer, Estate Office, Islamabad for necessary action.
Sd/-
(Ch. Muhammad Khan)
Section Officer (EI)
Bare perusal of the above letter reveals that the benefit of O.M. in question was denied to the petitioner on two counts; firstly, because the instructions dated 4.12.1991 related to BPS-21 & 22 Officers only and secondly for the reason that the administrative instructions could not have overruled the rules on the subject and these two points are the foundation of arguments for the respondents.
"Government of Pakistan
Finance Division
(Regulation Wing)
Subject: INCENTIVES TO CIVIL SERVANTS TO PROCEED ON LEAVE PREPARATORY TO RETIREMENT AFTER COMPLETION OF 25 YEARS SERVICE
Reference Prime Minister's Secretariat U.O.No. 2-1/DS(F-II)/2003/Rly-1834 dated 09-12-2003, on the subject noted above.
Sd/-
(Muhammad Riaz)
Section Officer
Prime Minister's Secretariat, (Mrs. Nyla Qureshi, Deputy Secretary (FA-II), lbd.
Finance Division Regulations Wing, U.O.No. F. 1(5)R.4/95, dated 20.12.2003."
The contention therefore, is devoid of force.
"23. It will be necessary to touch the true concept of the doctrine of promissory estoppel. Before proceeding further this doctrine has been variously called promissoiy estoppel'requisite estoppel', quasi estoppel' andnew estoppel'. It is a principle evolved by equity to avoid injustice and though commonly named `promissory estoppel', it is neither in the real of contract nor in the realm of estoppel. The true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise plaintiff which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties and this would be so irrespective of whether there is any pre-existing relationship between the parties or not. The doctrine of promissory estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the Courts for doing justice and there is no reason why it should be given only a limited application by way of defence.
There is no reason in logic or principle why promissory estoppel should also not be available as a cause of action".
In the above judgment, the famous case of Robertson v. Ministry of Pensions (1948) 2 All ER 767), which has a close resemblance to the case in hand too, was relied upon. In that case Colonel Robertson suffered a permanent disability pursuant to an injury. He wrote to the War Office requesting that the question of attributability in regard to his disability should be solved. The War Office, without consulting the Ministry of Pension, replied that claimant's disability had been accepted as attributable to military service. On the faith of that assurance the claimant took no steps to get an independent medical opinion. The question falling for determination was whether the assurance contained in the letter from the War Office was binding on the Minister of Pensions, it was held that since the letter from the War Office on the face of it was an authoritative decision, intended to be binding and to be acted on and the fact that the claimant had, as a result of that letter, forborne from getting a medical opinion, was sufficient to have made letter binding if it had been written by a private person, It was further held that since the letter from the Office of War was clear and explicit, the doctrine of executive necessity could not have been implied therein so as to entitle the Crown to revoke the decision without cause. It was further held that as the War Office was an agent for the Crown, the Crown was bound by the letter and, therefore, other Government departments, being also agents of the Crown were also bound, and, accordingly the letter was binding on the Minister of Pensions, whose function was to administer the Royal Warrant issued by the Crown so as to honour all assurances given by or on behalf of the Crown.
In the case of S.A.M. Wahidi v. Federation of Pakistan through Secretary Finance & another (1999 SCMR 1904), the appellant retired from service as a Solicitor to the Government of Pakistan, Ministry of Law and Justice. He was allowed the retiring benefits and pension as admissible. The Ministry of Finance (Regulation Wing), by Office Memorandum, while revising the Basic Pay Scales of the civil servants from BPS-16 to 22, allowed special pay of Rs. 100/- to senior officers for advance Course in Management in N.I.P.A. The appellant demanded the above benefit by contending that since the above allowance was commutable towards pension of the civil servants who retired after enforcement of the above circular w.e.f. 1.6.1991, therefore, the appellant was also entitled to the increase in pension by recomputing the above amount by including the above allowance. The department rejected his claim. The appellant filed appeal against the said decision which was dismissed. He then approached the Supreme Court. In view of the fact that under Article 187(1) of the Constitution of the Islamic Republic of Pakistan, 1973, the Supreme Court was competent to issue directions, orders or decrees as may be necessary for doing complete justice, therefore, it was held that the appellant was entitled to benefit of such addition in pension granted under the said O.M. Reference in this regard may also be usefully made to the case of Bhim Singh and others v. State of Haryana and others (1983 PSC 42), from Indian jurisdiction, in which by virtue of Ex.P-1, certain specific promises were held out by the State as inducement for the appellants to move into a New Department (Agriculture Department). After they had gone over to the said department, the State, by virtue of its letter Ex.P-3, sought to go back upon the earlier promise made in Ex. P-1. It was held that the appellants having believed the representation made by the State and having further acted thereon could not have been defeated of their hopes which had crystallized into rights. It was further held that it was not open to the State according to the law laid down by the Supreme Court of India to backtrack. Needless to point out that though the doctrine of promissory estoppel does not extend to legislative and sovereign functions yet, executive orders are not excluded from its operation. Reference in this regard may be made to the cases reported as (i) Pakistan through Secretary, Ministry of Commerce and others v. Salahud Din and others (PLD 1991 SC 546), (ii) Federation of Pakistan v. Ch. Muhammad Aslam (1986 SCMR 916), (iii) Union of India and others v. Godfrey Philips India Limited (AIR 1986 SC 806), (iv) Messrs Jit Ram Shiv Kumar and others (AIR 1980 SC 1285), (v) M.P. Sugar Mills v. State of UP (AIR 1979 SC 621), and (vi) Ram Niwas Gupta and others v. State of Haryana through Secretary, Local Self Government, Chandigarh and another (AIR 1970 Punj. And Har. 462).
Following the ratio decidendi of the afore quoted judgments, we are inclined to hold that since in the instant case the Government vide the O.M. in question had promised to allow the petitioner to enjoy possession of the house in question till the date of her superannuation and six months thereafter, hence, she could not have been asked to vacate the same before time and therefore its allotment to Respondent No. 3 was also bad in law.
Upshot of the above discussion is that the petition is converted into appeal and allowed, impugned judgment dated 24.12.2007 passed by the Federal Service Tribunal, Islamabad, in Appeal No. 296(R)Cs/2005, as well as the order dated 04.02.2005 are set-aside and it is declared that the appellant is entitled to retain official accommodation upto the age of superannuation and six months thereafter in terms of the Finance Division (Regulation Wing) O.M. dated 4.12.1991, and as per terms and conditions of allotment.
(M.A.K.Z.) Appeal allowed
PLJ 2008 SC 627
[Appellate Jurisdiction]
Present: Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari and Sheikh Hakim Ali, JJ.
Dr. ALTAF HUSSAIN GARDEZI--Petitioner
versus
CHIEF SECRETARY TO GOVERNMENT OF PUNJAB, CIVIL SECRETARIAT, LAHORE and another--Respondents
C.P. No. 602 of 2006, decided on 7.4.2008.
(On appeal from the judgment and order of the Punjab Service Tribunal, Lahore, dated 12.4.2006, passed in Appeal No. 2170 of 2001)
Constitution of Pakistan, 1973--
----Art. 212(3)--Removal from service--Challenge to--Deffective inquiry--Effect of--Punjab Service Tribunal has already taken a view that the inquiry conducted against the petitioner was suffering from flaws--If the Tribunal has taken a view that the inquiry was defective, it was against propriety to hold the petitioner guilty on the basis of flawed enquiry. [P. 630] A
Constitution of Pakistan, 1973--
----Art. 212(3)--Mis-conduct--Allegation of--Proof of--Duty of authorities--It is for the authorities to prove the acts of alleged misconduct against a civil servant and that a civil servant cannot be held guilty of the charge merely because he failed to participate in the proceedings.
[P. 630] B
Mr. Mehmood A. Sheikh, ASC for Petitioner.
Mrs. Afshan Ghazanfar, A.A.G., Pb. for Respondents.
Date of hearing: 7.4.2008.
Judgment
Mohammad Moosa K. Leghari, J.--This petition under Article 212 (3) of the Constitution of Islamic Republic of Pakistan, 1973, is directed against the judgment dated 12.04.2006 passed by the Punjab Service Tribunal, Lahore, whereby the appeal filed by the petitioner challenging the notification of his removal from service was dismissed.
"9. Arguments heard record perused: Without going into the merits of the case, this case is remanded because of the procedural flaws, for fresh denovo proceedings. Hence the impugned orders are set-aside. He is re-instated in service with the direction that right from the seratch as above, a denovo inquiry is ordered to find out the facts at the bottom by affording full opportunity of defence to the appellant including hearing of appellant by the authority, if he so a likes. However if he has availed any pensionery benefits he will have to deposit those before the order, is put into operation. The intervening period will be decided in the out come of the inquiry. The parties are left to bear their own costs".
The above judgment passed by the Punjab Service Tribunal, Lahore was assailed by the respondents in Civil Petition No. 994/L of 2004. After hearing the parties this Court converted the petition into appeal and allowed. The judgment delivered by the Punjab Service Tribunal was set-aside and the matter was remanded to the Tribunal for deciding the petitioner's appeal afresh on merits in accordance with law on the basis of available record.
Vide impugned judgment dated 12.04.2006 Punjab Service Tribunal dismissed the appeal of the petitioner. Resultantly, the penalty of removal from service inflicted upon the petitioner vide notification dated 30.05.2001 was upheld.
It is contended on behalf of the petitioner that the allegations leveled against the petitioner could not be proved in two consecutive enquiries. The petitioner was proceeded ex-parte, as such his fundamental rights having been infringed, no weight could be given to the findings of the enquiry. It is further contended that the petitioner was also entangled in a case under the NAB Ordinance but was exonerated of the charges. It is next argued that this Court vide its judgment dated 26.03.2001 remanded the cases of the civil servants allegedly appointed by the petitioner in violation of rules to the departmental authorities for scrutinizing the individual cases, as such the petitioner could not be penalized. Learned counsel canvassed that the judgment passed by the Tribunal cannot be sustained in law. Alternatively it was pleaded that in any case the petitioner was not liable to the extreme penalty of removal from service.
Learned Assistant Advocate General, Punjab appearing for the respondents though opposed the petition yet conceded to the fact that the petitioner was exonerated in the two departmental enquiries and that the petitioner was found innocent in the investigation conducted by NAB. She was also unable to controvert the fact that the case of different persons appointed by the petitioner were remanded to the departmental authorities by this Court vide judgment dated 26.03.2001 passed in Civil Appeal Nos. 1105 to 1218 of 2000, 1491 to 1526 of 2000 and 1812 of 2000.
We have considered the submissions and carefully examined the available record with the assistance of learned counsel for the parties. The fact that the petitioner was exonerated in two consecutive enquiries is borne, out from the record. The enquiry in the present case was held ex-parte. As obvious from the operative part of the judgment, it was observed by the Tribunal that there were procedural flaws in the enquiry. In the circumstances the order passed by the authority was declared illegal and the petitioner was directed to be reinstated in the service. However, the Tribunal directed for holding a fresh enquiry in the matter. On appeal, this Court vide judgment dated 07.12.2005 held that since the civil servant stood retired, no denovo enquiry could be conducted against him. Accordingly the case was remanded to the Punjab Service Tribunal, Lahore for deciding the same on the material available on the record. The Punjab Service Tribunal in its judgment dated 23.10.2002 has already taken a view that the enquiry conducted against the petitioner was suffering from flaws. Indeed if the Tribunal has taken a view that the enquiry was defective, it was against propriety to hold the petitioner guilty on the basis of flawed enquiry. It is well settled that it is for the authorities to prove the acts of alleged misconduct against a civil servant and that a civil servant cannot be held guilty of the charges merely because he failed to participate in the proceedings. The material is available on the record to show that the petitioner was exonerated of the charges in the investigation conducted by the NAB authorities. The perusal of the judgment dated 26.02.2001 passed in Civil Appeals Nos. 1105 to 1218 of 2000, 1491 to 1526 of 2000 and 1812 of 2000, as referred by learned counsel for the petitioner adequately reveals that the appeal filed by the incumbent civil servants who were alleged to have been appointed in violation of law by the petitioner were accepted and the cases of those civil servants were remanded to the authorities for deciding each case on its own merit. In the circumstances, the penalty of removal from service inflicted upon the petitioner appears to be harsh, inappropriate and out of proportion. We are of the view that the penalty of compulsory retirement from service will be sufficient to meet the ends of justice in the facts and circumstances of the case.
For the foregoing reasons, the petition is converted into appeal and allowed. Consequently, the penalty of removal from service awarded to the petitioner is converted into compulsory retirement. The order passed by the departmental authorities and the impugned judgment delivered by the Punjab Service Tribunal, Lahore are altered accordingly.
(M.A.K.Z.) Appeal allowed
PLJ 2008 SC 631
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan and
Ch. Ejaz Yousaf, JJ.
MUHAMMAD ANWAR--Petitioner
versus
STATE--Respondent
Jail Petition No. 78 of 2006, decided on 26.2.2008.
(On appeal from the judgment dated 25.1.2006 in Cr. A. No. 708 of 2001, M.R. No. 757 of 2001 passed by the Lahore High Court, Multan Bench Multan)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 345(2)--Pakistan Penal Code, (XLV of 1860), S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed by High Court--Leave to appeal--Compromise--Offence of qatal-e-amd--Punishable with sentence of death or imprisonment for life as Ta'zir, can be compounded by all the legal heirs of the deceased under
S. 345(2) of Cr.P.C. yet its acceptance within the purview of above provision is dependent upon permission of the Court which has to be accepted in view of attending circumstances of each case. [P. 634] A
2003 SCMR 663; PLD 2003 SC 512; 2002 SCMR 1308 and 1997 SCMR 1307 rel.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 345(6)--Constitution of pakistan, 1973, Art. 185(3)--Mitigating compromise--Petitioner committed murder of his own father--Court was not inclined to allow application for acceptance of compromise as otherwise its effect would be of acquittal under Section 345(6), Cr.P.C. however, since the petitioner has two young sisters, the other male member of the family i.e. his brother, was behind the bar's in another case and the girls would be exposed to adversities of life, in case the petitioner is executed, therefore, while taking the compromise as a mitigating circumstance--Held: Sentence of death inflicted on the petitioner be commuted with imprisonment for life--Appeal allowed. [P. 634] B
PLD 1982 SC 139; PLD 1982 SC 277; 1982 SCMR 695; 1983 SCMR 557; 1983 SCMR 631; 1993 SCMR 667; 1984 SCMR 488; 1984 SCMR 1514; 1985 SCMR 172; 1985 SCMR 612; 1985 SCMR 780; 1986 SCMR 1420; 1988 SCMR 148 and 1988 SCMR 1420 rel.
Ch. Muhammad Akram, ASC for Petitioner.
Ch. Munir Sadiq, D.P.G. Punjab for State.
Date of hearing: 26.2.2008.
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against the judgment dated 25.1.2006 passed by a Division Bench of the Lahore High Court, Multan Bench, Multan, whereby appeal filed by the petitioner against his conviction and sentence recorded under Section 302(b) PPC was dismissed and murder reference sent for confirmation of death sentence was answered in the affirmative.
Facts of the case in brief are that the petitioner was tried by learned Sessions Judge, Lodhran, on the charge of murder of his father, namely, Allah Ditta. Petitioner was charged under Section 302(b) PPC to which he pleaded not guilty and claimed trial. At the trial, prosecution, in order to prove the charge and substantiate the allegation levelled against the petitioner, produced seven witnesses in all. Eye-witness account of the occurrence was furnished by PW-5 Allah Bakhsh and PW-6 Rustam. PW-2 Dr. Altaf Ahmad Khan had conducted post-mortem examination on the dead body of the deceased. On completion of the prosecution evidence the petitioner was examined under Section 342 Cr.P.C. In his above statement, the petitioner denied the charge and pleaded innocence. He produced two DWs, however, did not opt to appear as his own witness in terms of Section 340(2) Cr.P.C.
On conclusion of the trial, the trial Judge convicted the petitioner under Section 302(b) PPC and sentenced him to punishment of "death" with the direction to pay a sum of Rs. 50,000/- as compensation and in failure thereof to further undergo six months R.I. Being aggrieved, the petitioner approached the High Court by way of Criminal Appeal No. 708 of 2001. Murder Reference No. 757 of 2001 was also sent to the High Court for confirmation of the death sentence. A Division Bench of the Lahore High Court, Multan Bench, Multan, dismissed the appeal. Conviction and sentence recorded against the petitioner were maintained and the murder reference was answered in the affirmative.
Learned counsel for the petitioner, at the very outset, has submitted that since the matter has been compromised between the parties and all the legal heirs of the deceased have forgiven the petitioner in the name of Allah, therefore, he may be acquitted of the charge or else the sentence inflicted on him may be reduced. He has added that earlier a similar request was also made before the appellate Court but it was not accepted, because it was found by the learned High Court that since diyat falling in the share of Mst. Perveen, minor sister of the deceased, was not deposited by that time, hence partial compromise was not possible. He has maintained that learned Division Bench of the High Court has gravely erred in making the above observation, because as per report forwarded by District & Sessions Judge, Lodhran, Allah Ditta, deceased, had left behind, in addition to the petitioner, only, Muhammad Asghar, son, Mst. Nasreen Bibi, daughter, and Mst. Bashiran Bibi, another daughter as his legal heirs, the offence was compound, by all the three and none of them was a minor. He has further added that during pendency of the petition, Cr. Misc. No. 455 of 2006 was moved, wherein while clarifying the above position, it was prayed that since another brother of the petitioner was also in jail, in case FIR No. 483/1999, and there was no other male member of the family available to lookafter the two young daughters, and there was every likelihood that not only they would be exposed to the rigours of time but their property would also be usurped by their relatives, in case the petitioner was executed hence, compromise may be accepted.
Ch. Munir Sadiq, learned Deputy Prosecutor General, Punjab, appearing on behalf of the State, has though not disputed competence of the legal heirs of the deceased to compound the offence yet, has stated that since the petitioner has committed murder of his father, therefore, he does not deserve to be acquitted and adequate sentence of imprisonment should be inflicted on him, in case the sentence of death is commuted.
We have given our anxious consideration to the respective contentions of learned counsel for the parties and have also perused the available record, minutely, with their assistance.
Though an application for acceptance of compromise was also filed in the High Court, yet it was not accepted, as it was found by the learned Judges in the High Court that diyat amount falling in the share of "minor Perveen Bibi" was not deposited. It appears that proper assistance was perhaps not rendered to the Hon'ble Judges in the High Court and it was wrongly presumed that Perveen Bibi was minor sister of the deceased whereas the facts appear to be other way round.
It would be pertinent to mention here that pursuant to Cr. Misc. Application No. 455/2006, learned District & Sessions Judge concerned was directed to furnish report regarding genuineness or otherwise of the compromise and also to ascertain as to by whom the deceased was succeeded. In response to the query, learned District & Sessions Judge, Lodhran, vide Letter No. 1032, dated 24.9.2007 has reported that Allah Ditta had left behind, Mst. Pathani Mai, widow, Muhammad Anwar, (petitioner) and Muhammad Asghar, sons, Mst. Nasreen Mai and Mst. Bashiran Mai, daughters, as his legal heirs, out of whom Mst. Pathani Mai died on 20.8.1999. Statements of the rest of the legal heirs were recorded and they have confirmed that they have compounded the offence. He has through his Letter No. 1032, dated 24.9.2007 has also confirmed that none of the aforementioned legal heirs is minor and question of payment of diyat too, does not arise as all the legal heirs being major have stated that they have forgiven the petitioner in the name of Allah.
It would not be out of place to mention here that though the offence of Qatl-i-amd, punishable with sentence of death or imprisonment for life as Ta'azir, can be compounded by all the legal heirs of the deceased under sub-section (2) of Section 345, Cr.P.C yet, its acceptance within the purview of above provision, is dependent upon permission of the Court which has to be accorded keeping in view attending circumstances of each case. Reference in this regard may usefully be made to the cases reported as (i) Ghulam Shabbir & others v. the State (2003 SCMR 663) (ii) Muhammad Saleem v. The State (PLD 2003 SC 512), (iii) Muhammad Younis v. The State (2002 SCMR 1308) (iv) Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others (1997 SCMR 1307).
Since in the instant case, the petitioner has committed murder of his own father and that too, in a brutal manner, without any cause, therefore we are not inclined to allow application for acceptance of the compromise as otherwise its effect would be of acquittal under Section 345(6) Cr.P.C. However, since the petitioner has two young sisters, the other male member of the family i.e. his brother is behind the bars in an another case and it has been pleaded that the girls would be exposed to the adversities of life, in case the petitioner is executed, therefore, while taking the compromise as a mitigating circumstance, we order that the sentence of death inflicted on the petitioner be commuted with imprisonment for life. In this view we are fortified by the observations made in the following reported judgments:--
(i) Muhammad Bashir v. The State (PLD 1982 SC 139).
(ii) Iftikhar Ahmad v. The State (PLD 1982 SC 277).
(iii) Muzaffar alias Zafar Ali v. The State (1982 SCMR 695)
(iv) Javed and another v. The State (1983 SCMR 557)
(v) Nazar Muhammad v. The State (1983 SCMR 631)
(vi) Nazar Muhammad v. The State (1983 SCMR 667)
(vii) Inayat Ullah and another v. The State (1984 SCMR 488)
(viii) Labah and another v. The State (1984 SCMR 1514)
(ix) Abdul Quddus v. The State (1985 SCMR 172)
(x) Muhammad Hanif v. The State (1985 SCMR 612)
(xi) Ejaz Ahmed alias Jhajja v. The State (1985 SCMR 780)
(xii) Muhammad Aqeel alias Bila v. The State (1986 SCMR 1420)
(xiii) Inayat and 5 others v. The State (1988 SCMR 148)
(xiv) Abdul Hameed and 4 others v. The State (1988 SCMR 1420)
Rs. 50,000/- under Section 544-A Cr.P.C. will remain intact. With the above modification in sentence, this petition is converted into appeal and partially allowed.
(M.A.K.Z.) Appeal partially allowed
PLJ 2008 SC 635
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan and
Ch. Ejaz Yousaf, JJ.
CH. MUHAMMAD ASLAM--Petitioner
versus
CHAIRMAN COMMITTEE FOR ALLOTMENT OF OFFICIAL RESIDENTIAL ACCOMMODATION, PIMS, ISLAMABAD
and others--Respondents
C.P.L.A. No. 13 of 2008, decided on 11.2.2008.
(On appeal from the judgment dated 12.12.2007 in Appeal No. 200(R)(C.S.)/2006 passed by the Federal Service Tribunal, Islamabad)
Accommodation Allocation Rules, 2002--
----Rr. 6(5) & 7--Constitution of Pakistan, 1973, Art. 212(3)--Seniority in mode of allotment--If the date of entitlement of two or more (Federal Government Servants) is the same, the seniority shall be determined on the basis of length of service in BPS and if length of service is the same then the seniority shall be determined from the date of birth.
[P. 640] A
Constitution of Pakistan, 1973--
----Art. 212(3)--Accommodation Allocation Rules, 2002, Rr. 6 & 7--Leave to appeal--Pakistan Institute of Management Sciences Employees--Entitlement for allotment of official residential accommodation--Employees of the PIMS would be disentitled for Government accommodation in view of the fact that they had their own residential colony and allotments were being made on the recommendations of the PIMS authorities. [P. 640] B
Ch. Afrasiab Khan, ASC and Ch. Akhtar Ali, AOR for Petitioner.
Raja Muhammad Irshad, DAG alongwith Mr. S. Zamir Naqvi, Superintendent PIMS and Raja Abdul Ghafoor, AOR for Respondents No. 1-2.
Mr. Muhammad Ashraf, JEO for Respondents No. 3.
Respondents No. 5 & 6 in person.
Date of hearing: 11.2.2008.
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against judgment dated 12.12.2007 passed by the Federal Service Tribunal, Islamabad, whereby appeal filed by Respondent No. 6 was partially allowed and case was remanded to the authority.
F' situated in PIMS Colony, to Respondent
No. 4 Dr. Matloob Azam, vide order dated 23.6.2005 was challenged. In addition, order dated 11.2.2006, whereby categoryF' houses were allotted to officers, other than the said respondent, was also challenged. Case of Respondent No. 6 before the FST was that he had joined Pakistan Institute of Medical Sciences on 1.5.1986 and was allotted an 'E' type house in the year 1988 in which he was still residing, despite his promotion in BS-18 on 28.1.2004. It would be pertinent to mention here, that the above mentioned house was allotted to Respondent No. 4 Dr. Matloob Azam, who was in BS-19, vide allotment order dated 23.6.2005 on the recommendations of Respondent No. 1 i.e. the Chairman, Committee for Allotment of Official Residential
Accommodation. Respondent No. 6 Dr. Musharraf Ali Khan, submitted a departmental representation dated 27.7.2005 to Respondent No. 1. Since Respondent No. 1 had also allotted a number of vacant houses to various employees of PIMS vide letter dated 11.2.2006 which did not contain the name of the said Respondent No. 6, therefore, he i.e. the Respondent No. 6 took it as implied denial and approached the
Federal Service Tribunal. During pendency of the said appeal before the FST, present petitioner Ch. Muhammad Aslam and Respondent No. 5 Dr. Muhammad Irshad submitted applications to join the proceedings which were allowed, hence they were also impleaded as respondents. After hearing the learned counsel for the parties including the present petitioner, the Tribunal, vide its judgment dated 12.12.2007, while relying on the case of Mehran
University of Engineering and. Technology, Jamshoro v. Dr. Muhammad Moazzam Baloch and another (2006 PLC (C.S) 25), without going into merits of the case, observed as under:"Pursuant to the above, we do not find it necessary to look into the merits of this case and direct the respondents to process the departmental representation dated 27.7.2005 of the appellant in accordance with the laid down procedure and forward it to the Appellate Authority within 15 days of receipt of this judgment for an appropriate order. Pending decision by the Appellate Authority, one F-type house which has been kept vacant vide our order dated 1.11.2006 in MP. No. 503/2007 shall not be allotted to any other official. In case the appellant feels aggrieved by the appellate order he would be at liberty to seek remedy from this Tribunal, if so advised. The appeal is disposed of in these terms."
Being aggrieved of the above order, the petitioner has approached this Court through the instant petition.
It has been contended by the learned counsel for the petitioner that since the petitioner having been appointed in BS-18 on 17.3.1993 was senior most applicant in his grade for allotment of F' type accommodation in residential colony of PIMS and Respondents No. 5 & 6 were junior to him under the mandate of Federal Accommodation Allocation Rules 1993 as well as Accommodation Allocation Rules, 2002, therefore, the petitioner had a preferential right for allotment ofF' type accommodation. It is further his case that the Respondent No. 4 was though in Grade 19 yet, since he had applied for allotment later than the petitioner, therefore, allotment in his favour too, could not have been made ahead of the petitioner. It is further case of the petitioner that since he was allotted House
No. F-16, which was a separate house, therefore, he could not have been deprived to enjoy its possession. In order to supplement his argument the learned counsel clarified that Respondent No. 4 Dr. Matloob Azam was allotted House
No. 8, whereas House No. F-16 was allotted to the petitioner, hence, allotment in favour of Respondent No. 4 was not a hurdle, in transfer of possession of the said house to the petitioner. It is further his grievance that delivery of possession of House No. F-16 was unjustifiably denied to the petitioner by the Estate Office on the pretext that an injunction was granted by the Federal Service Tribunal in the case filed by the Respondent No. 6. He maintained that the Tribunal was under obligation to decide the case of the parties on merits itself instead of remanding the same to the appellate authority.
Respondents No. 5 & 6, while controverting the contentions raised by learned for the petitioner submitted that since subsequent to introduction of Accommodation Allocation Rules, 2002, power to allot houses was vesting in the Committee constituted for the purpose, therefore, the case was rightly remanded by the Federal Service Tribunal for reconsideration.
Raja Muhammad Irshad, learned Deputy Attorney General, while appearing for
Respondents No. 1 & 2, though denied the claim of the petitioner to the extent that he was senior most in grade 18, yet admitted that the petitioner had a claim towards allotment of an F' type house as per his entitlement. He however, submitted that Respondent No. 4 Dr. Matloob Azam being in Grade 19 too, was, as per his choice, entitled for allotment of anF' type house, as no `G' category house, as per his entitlement, was available in the PIMS colony. He further added that prior to introduction of Accommodation Allocation Rules, 2002 though allotment of
Government owned accommodations was being made by the Estate department, yet, subsequent to promulgation of "the Rules, 2002", it was vesting in the departmental allotment committee.
It would be pertinent to mention here that earlier the petitioner had also approached this Court vide CPLA No. 264 of 2007, wherein the following order was passed:
"After arguing the petition at quite some length on merits, learned counsel would not press this petition, as the petitioner would resort to Estate Officer, Federal Estate Office for the redress of his grievance under the Accommodation Allocation Rules, 2002. Petition is accordingly disposed of. Petitioner would be at liberty to agitate his right before the forum that may be available to him under the law."
Subsequent to the above order, according to the petitioner, he had submitted an application to the Estate Officer and another to the Supervisory Authority, namely, the Senior Joint Secretary, Ministry of Housing and Works, Islamabad, for allotment of `F' type house, in consequence whereof allotment of House No. 16 was approved in his favour and conveyed for implementation to the Estate Officer, by the Ministry of Housing & Works vide its Letter No. 16-F-PIMS-EI dated 21.7.2007. The said letter reads as under:
"I am directed to refer to the subject noted above and to convey that the competent authority has approved the allotment from the pool of PIMS of House No. F-16, PIMS colony Islamabad, to Ch. Muhammad Aslam, Deputy Director (Engg) BS-18) PIMS, Islamabad on subject to vacation basis.
The Estate Office shall take further necessary action in the matter after completing all codal formalities under intimation to the Ministry."
It is grievance of the petitioner that despite submission of report of vacant possession and clearance by the Estate Officer, delivery of possession of the said house, to him, was delayed on the ground that an injunction was issued by the Federal Service Tribunal. Record reveals that two separate houses i.e. Bearing Nos. 16 & 8 were allotted to the petitioner as well as Respondent No. 4 Dr. Matloob Azam, respectively, hence, apparently there was no clash of interest but since the applicants were eager to get possession of the houses, therefore, they entered into litigation. Be that as it may, in order to property appreciate the proposition in hand, it would be advantageous to have a glance at the registration and allotment policy as prescribed by Rules 6 and 7 of the Accommodation Allocation Rules, 2002 which read as under:
"6. Maintenance of General Waiting Lists.--(1) The applications for allotment of Government accommodation shall be received on the application form specified in annex-B. This form shall be forwarded to Estate Office under covering note by the department or Ministry of the applicant, certifying that the particulars given in the form are correct.
(2) The application for accommodation as and when received form an applicant, shall be acknowledged by the Estate Office by issuing a registration card in the form set out in annex-C.
(3) The Estate Office shall maintain waiting list of FGSs who have applied for Government accommodation on the prescribed form. The copies of the GWL shall be provided to all eligible Ministries or divisions or departments for information.
(4) Seniority of a FGS in the relevant GWL shall be determined from the date of his entitlement to the class of accommodation.
(5) If the date of entitlement of two or more FGSs is the same, the seniority shall be determined on the basis of length of service in the BPS and if the length of service in BPS is the same then the seniority shall be determined from the date of birth.
(6) If an allottee is transferred or sent on deputation to out station to an eligible department, he shall carry his seniority with him and shall be allotted accommodation at the new station of his posting on the basis of his date of entitlement to the class of accommodation.
(7) Federal Secretaries (BPS-22) and officers in BPS-22 will be given priority of allotment of accommodation in case they are not in occupation of Government accommodation elsewhere.
(2) Allotment of pool accommodation of Ministry of Foreign Affairs and ISI only be made by the Estate Office on the recommendation of the relevant department.
(3) Allotment in each class and category shall be made subject to the terms and conditions laid down in the form of allotment letter as set out in annex-D.
(4) In case a house of his entitlement is not available, a FGS may be allotted an accommodation of a class or category lower than his entitlement on payment of normal rent on maturity of his turn on the basis of GWL of that category."
It would be pertinent to mention here that in the meeting dated 10.10.2007, held under the Chairmanship of Secretary (Housing & Works), it was decided that employees of the PIMS would be non-entitled for Government accommodation in view of the fact, that they had their own residential colony and allotments were being made on the recommendations of the PIMS authorities. However, it was clarified that the allotments already made shall not be reversed. Clause-v of the said minutes is explicit in this regard which reads as follows:-
"v. The employees of PIMS will be declared non-entitled for Government accommodation in view of the fact, that they have their own residential colony and allotment of which is being made on the recommendation of PIMS authorities. However, allotments already made will not be reversed. Henceforth, the allotments of PIMS Colony will be made by PIMS authorities at their own."
Since applications for allotments of accommodation by the petitioner and others including the Respondents No. 4 & 6, appear to have been made after the promulgation of Accommodation Allocation Rules, 2002, therefore in order to set the controversy at rest we deem it appropriate to direct the departmental allotment committee to examine cases of the petitioner as well as Respondents No. 4 & 6, in the light of Accommodation Allocation Rules, 2002 and finalize the same within one month of the receipt of the copy of this judgment, positively.
Upshot of the above discussion is that this petition is converted into appeal and disposed of in the above terms.
(R.Q.) Appeal disposed of.
PLJ 2008 SC 641
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan and Ch. Ejaz Yousaf, JJ.
MUHAMMAD LATIF @ TIFA--Appellant
versus
STATE--Respondent
Crl. A. No. 242 of 2005, decided on 13.3.2008.
(On appeal from the judgment dated 22.5.2003 in Cr. A. No. 981 of 1999, M.R. No. 420 of 1999 passed by the Lahore High Court, Lahore)
Interested Witness--
----Both the witnesses being close relatives of the deceased would not like to let go the real offender or substitute him with the appellant just to take revenge. [P. 644] A
Mistaken Identity--
----Specific roles attributed--FIR was promptly lodged, wherein not only the names of the accused persons were given but specific roles were also attributed to each of them--It was a broad day-light murder--Accused persons were previously known to both the eye-witnesses, hence the possibility of mistaken identity has to be ruled out.
[P. 644] B
Abscondence--
----Appreciation of evidence--After the occurrence, the appellant remained at large for about 4« years and his abscondence was taken as incriminating piece of evidence. [P. 644] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 103--Recovery--Accused was carrying .12 bore gun, whereas as per Ex.PB a .7 mm rifle was recovered from his possession which was a licenced gun and that the alleged recovery was also in violation of Section 103, Cr.P.C.--Accused acquitted. [P. 644] D
Motive--
----Ocular evidence--Motives proved is immaterial in presence of ocular evidence and murder may be committed even for no motive or on a minor pretext--Where the motive was shrouded in mystery or was not alleged, conviction was maintained and absence of motive was not taken as mitigating circumstance. [P. 645] E
Cross-Firing--
----It was a cross-firing and not a case of capital punishment and ends of justice would be met with, if sentence of death inflicted on the appellant is reduced to life imprisonment. [P. 645] F
Sardar Muhammad Latif Khan Khosa, ASC and Mr. Mehr Khan Malik, AOR for Appellant.
Ch. Munir Sadiq, DPG, Punjab for State.
Date of hearing: 13.3.2008.
Judgment
Ch. Ejaz Yousaf, J.--This appeal by way of leave is directed against the judgment dated 22.5.2003 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby appeal filed by the petitioner against his conviction and sentence recorded by the learned Additional Sessions Judge, Mianwali, vide judgment dated 10.9.1999, was dismissed.
Facts of the case in brief are that on 19.2.1994 at about 10.00 a.m. complainant Muhammad Sher alongwith his brother Khan Baig, nephew Zafarullah and one Muhammad Aslam Khan were on their way to village Nari Miana. When they reached near the tube-well of Muhammad Akbar, Muhammad Latif accused armed with 303 rifle and acquitted co-accused Muhammad Khan armed with a .12 bore gun fired at them but luckily they were escaped. However, a bullet fired by the present appellant allegedly landed on the forehead of the complainant's brother, namely, Khan Baig who as a result of the injury died instantly. The accused persons thereafter fled away. A case was registered under Section 302/34 PPC, investigation was accordingly carried out and on completion of investigation, the accused persons were challaned to the Court for trial. It would be pertinent to mention here that after the occurrence since, the appellant was at large therefore, initially co-accused, namely, Muhammad Khan was tried, however, was acquitted vide judgment dated 30.7.1996. The appellant was proceeded against under Sections 87 & 88 Cr.P.C. After his arrest on 8.7.1998, the appellant was challaned to the Court for trial. At the trial, the prosecution, in order to prove charge and substantiate the allegation leveled against the appellant, produced eleven witnesses in all, whereafter the appellant was examined under Section 342 Cr.P.C. In his above statement the appellant denied the charge and pleaded innocence. While denying the allegation regarding his abscondance the appellant stated that since he was away to Karachi in connection with earning of his livelihood, therefore, he could not appear before the Court however, no sooner he came to know about the case against him, then he surrendered before the police. He also denied the recovery of gun etc. and pleaded that in fact the deceased and his companions were the aggressors and that the deceased had received injuries during cross firing which was made in their defence by those persons who exchanged firing with the deceased. He did not appear as his own witness in terms of Section 340(2) Cr.P.C. in disprove of the allegations leveled against him, however, tendered in Court a copy of the judgment dated 30.7.1996. He also made an application for summoning of Farhat Mehmood Investigating Officer as a Court witness. The application was allowed and the said I.O. was summoned and examined as CW-1. Thereafter, the appellant was again examined under Section 342 Cr.P.C. but he stuck to his previous statement and added nothing. After hearing the learned counsel for the parties, the learned trial Judge convicted the appellant under Section 302(b) PPC and sentenced him to death. He was also directed to pay a sum of Rs. 25000/- to the legal heirs of the deceased as compensation under Section 544-A Cr.P.C. or in default to suffer six months S.I. Being aggrieved the appellant approached the Lahore High Court by way of an appeal which was dismissed vide the impugned judgment, hence this appeal with leave of the Court.
Learned counsel for the appellant has contended; that since, on the same evidence earlier Muhammad Khan co-accused was acquitted of the charge, hence the appellant's conviction too, was bad in law; that since medical evidence was at variance with the ocular evidence therefore, prosecution version of the incident could not have been believed, alternatively it was pleaded that since the Investigating Officer in his statement had found that the instant was a case of cross-firing therefore, extreme penalty of death could not have been inflicted on the appellant.
Ch. Munir Sadiq, learned Deputy Prosecutor General, Punjab, on the other hand, while controverting the contentions raised by the learned counsel for the petitioner submitted that it was a broad day light murder and specific roles were attributed to the accused persons hence, it was not a case of mistaken identity or substitution of the accused. Further, the FIR was lodged promptly. He added that since both the eye-witnesses, namely Zafarullah and Muhammad Sher had unequivocally charged the appellant for murder and their testimony find support from the medical and other evidence therefore, the impugned judgment was unexceptionable. In reply to the query as to how on the basis of same evidence, co-accused Muhammad Khan was acquitted, he replied that in the previous trial since another eye-witness, namely, Aslam was examined by the prosecution whereas, in the instant case ocular account of the incident was furnished by PWs Muhammad Sher and Zafarullah therefore, it was not the "same evidence".
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case minutely, with their assistance.
Prosecution case rests on the statement of eye-witnesses, namely, Muhammad Sher and Zafarullah, who are real brother and son of the deceased, the medical evidence, abscondance of the appellant and the motive. Testimony of both the aforementioned witnesses cannot be doubted because they being close relatives of the deceased would not like to let go the real offender or substitute him with the appellant just to take revenge. Their presence at the place of occurrence was also natural. The evidence of both the eye-witnesses is corroborated by the medical evidence in all material particulars. Further, FIR in the case was promptly lodged, wherein not only the names of the accused persons were given but specific roles were also attributed to each of them. It was a broad day light murder. The accused persons were previously known to both the eye-witnesses hence, the possibility of mistaken identity has to be ruled out. It is also an admitted fact that after the occurrence, the appellant remained at large for about 4« years and his abscondance was taken as an incriminating piece of evidence. Though the recovery of .12 bore gun from the possession of the appellant, after his arrest, was not found to be of any use by the trial Court, in view of the fact that the appellant at the time of occurrence was allegedly carrying a rifle and the injuries sustained by the deceased were of bullet yet, the rest of the evidence was found sufficient by both the Courts below to base conviction thereon, and we see no reason as to why a different view may be taken.
Adverting to the next contention of the learned counsel for the appellant that since at the earlier trial co-accused Muhammad Khan was acquitted on the same evidence hence, conviction of the appellant was also bad in law, it may be pointed out here that firstly as pointed out by the learned Deputy Prosecutor General, it was not the same evidence because at the previous trial one Aslam was examined whereas in the instant case Zafarullah was examined and secondly co-accused Muhammad Khan was primarily acquitted by the trial Court for the reason that as per allegation contained in the FIR, he was allegedly carrying a .12 bore gun, whereas as per Ex.PB a 7mm rifle was recovered from his possession which was a licenced gun and that the alleged recovery was also in violation of Section 103 Cr.P.C. therefore, the contention is devoid of force.
As to the contention regarding motive that since brother of the deceased was killed by the appellant party at Lorry Adda Wanbachran about three years prior to the occurrence and it was apprehended by the appellant party that the deceased and his relatives would, in order to take revenge of Saeed Ullah, retaliate and therefore, the assault was made, it may be pointed out here that the contention raised on its face appears to be misconceived, because it could not have been a reason for the appellant party to launch an attack rather it was a strong motive for the complainant party. Be that as it may, it is settled law that motive, proved or otherwise, is immaterial in presence of ocular evidence and murder may be committed even for no motive or on a minor pretext. What to speak of proving motive, in certain cases where the motive was shrouded in mystery or was not alleged, conviction was maintained and absence of motive was not taken, as a mitigating circumstance even.
However, the submission made by the learned counsel for the appellant regarding reduction in quantum of sentence of the appellant appears to have force in it, because according to the eye-witnesses, the appellant at the time of occurrence was present at the roof of a tube-well, wherefrom he had allegedly fired at the deceased, whereas PW-9 Dr. Muhammad Khan, had, keeping in view the direction of firing, opined that at the time of firing the assailant and the victim were at the same level. Further, in view of the fact that no empty was recovered from the place of occurrence and investigating officer of the case i.e. CW-1 Farhat Mehmood had, at the trial opined that it was a case of cross firing, we feel that instant case is not a case of capital punishment and ends of justice would be met with, if sentence of death inflicted on the appellant is reduced to that of life imprisonment.
Upshot of the above discussion is that this appeal is partly allowed, conviction recorded against the appellant under Section 302(b) PPC is maintained however, the sentence of death inflicted on him thereunder is reduced to that of imprisonment for life. The amount of compensation of Rs. 25,000/- to be paid to the legal heirs of the deceased shall remain the same as ordered by the learned trial Court. Benefit of Section 382-B Cr.P.C. is also extended to the appellant.
These are the reasons for our short order of the even date announced in open Court.
(R.Q.) Appeal partly allowed
PLJ 2008 SC 646
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan and Ch. Ejaz Yousaf, JJ.
TARIQ MEHMOOD--Appellant
versus
DISTRICT POLICE OFFICER TOBA TEK SINGH and another--Respondents
C.A. No. 23 of 2006, decided on 29.2.2008.
(On appeal from the judgment dated 4.8.2004 in Appeal No. 203/04, passed by the Punjab Service Tribunal, Lahore)
Government Servants Efficiency & Discipline Rules, 1973--
----R. 4(1)(d)(i)--Reduction in rank is a major penalty. [P. 648] A
Government Servants Efficiency & Discipline Rules, 1973--
----R. 5--Major penalty--Show-cause notice--Regular inquiry--No major penalty can be imposed on a Government servant unless his guilt is properly inquired into by appointing an inquiry officer or an Inquiry Committee within the purview of Rule 5 of the E&D Rules, 1973 and the accused is served with a proper show-cause notice or charge sheet containing statement of allegations on which the penalty is proposed to be inflicted. [P. 650] C
1993 SCMR 1440 ref.
Government Servants Efficiency & Discipline Rules, 1973--
----R. 6--Compulsory retirement from service--Order of compulsory retirement was not sustainable as inquiry was not held in accordance with procedure laid down under Rule 6 of the E&D Rules, 1973.
[P. 651] D
PLD 1994 SC 222 and 1996 SCMR 802.
Government Servants Efficiency & Discipline Rules, 1973--
----Rr. 5 & 6--Distinction--There is a marked distinction between Rules 5 & 6 of the E&D Rules, inasmuch as under the former Rule, a regular inquiry can be dispensed with, whereas the latter rule envisages conducting of regular inquiry which would necessitate the examination of witnesses in support of the charges brought against the accused civil servant, his right to cross-examine such witnesses and his right to produce evidence in rebuttal--If nature of the alleged mis-conduct was such on which a finding of fact could not be recorded without examining the witnesses in support of the charges, the regular inquiry could not be dispensed with. [P. 651] E
2002 SCMR 57 rel.
Government Servants Efficiency & Discipline Rules, 1973--
----R. 6--Major penalty--Procedure--If major penalty is required to be imposed on any Government employee, then procedure as laid down in Rule 6 of E&D Rules, 1973 is required to be adhered to. [P. 648] B
Unheard--
----Principle of natural justice--Failure to associate civil servant with enquiry conducted against him would render the proceedings as unsustainable. [P. 651] F
Constitution of Pakistan, 1973--
----Art. 212(3)--Government Servants Efficiency & Discipline Rules, 1973--Dismissal from service on basis of registration of criminal case--Civil servant was dismissed from service on basis of registration of a criminal case, whereas the judgment of trial Court, whereby civil servant was acquitted was not considered by department--Fact finding committee, to investigate the matter was constituted in which civil servant was not even allowed to participate--Held: Major penalty of reduction in rank was imposed on appellant without proper inquiry and recording of evidence. [Pp. 651 & 652] G & H
2002 SCMR 57 rel.
Malik Saeed Hassan, Sr. ASC for Appellant.
Ex-parte for Respondents.
Date of hearing: 29.2.2008.
Judgment
Ch. Ejaz Yousaf, J.--This appeal by leave of the Court is directed against judgment dated 04.08.2004 passed by the Federal Service Tribunal, Lahore, whereby appeal filed by the petitioner against imposition of major penalty by reduction in rank was dismissed.
Facts of the case, in brief are that the appellant was awarded major penalty of reduction in rank from ASI to that of Head Constable by Respondent No. 1 vide order dated 16.4.2003 on the basis of show-cause notice dated 17.1.2003, dispensing with regular inquiry. The allegation against the petitioner was that he, during investigation of the case FIR No. 163, dated 20.11.2002 u/S. 337-A(1)(2)/34 PPC, registered at P.S. Aroti, had obtained a sum of Rs. 3500/- as gratification from complainant Muhammad Ali s/o Sultan. The appellant preferred departmental appeal before Respondent No. 2 which remained unfruitful and was dismissed vide order dated 9.1.2004. Being aggrieved, the appellant approached the Federal Service Tribunal but in vein. The appeal filed by him was dismissed, vide the impugned judgment, hence this petition.
It has been mainly contended by the learned counsel for the petitioner that since reduction in rank was a major penalty within the purview of Section 4(b)(i) of the Government Servants (E&D) Rules, 1973 (hereinafter called as "E&D Rules, 1973), hence regular enquiry could not have been dispensed with in the case of the appellant. It is further his grievance that before imposition of major penalty, neither any evidence was recorded nor the appellant was afforded opportunity to lead his defence, hence, it being in contravention of Section 6 of the E&D Rules, 1973 the impugned judgment is not sustainable.
Though none despite service has appeared on behalf of the respondents yet, while giving our anxious consideration to the contentions raised by the learned counsel for the appellant, we have carefully perused the record of the case.
No doubt, reduction in rank is one of the major penalties prescribed by rule 4(1)(b)(i) of the E&D Rules, 1973. The said rule reads as follows:-
Penalties.--(1) The following are the minor and major penalties, namely:-
(a) Minor Penalties:
(i)
(ii)
(iii)
(iv)
(b) Major Penalties:
(i) Reduction to a lower post or time-scale, or to a lower stage in time-scale;
(ii)
(iii)
(iv)
It appears from the record that though in pursuance of show-cause notice personal hearing was afforded to the appellant by the enquiry officer on 7.4.2004 yet, neither any evidence was recorded or taken by him nor the petitioner was afforded opportunity to rebut the same. It is well settled that if major penalty is required to be imposed on any Government employee, then procedure as laid down in Rule 6 of the E&D Rules, 1973 is required to be adhered to. The relevant provision reads as under:-
"6. Procedure to be observed by the Inquiry Officer and Inquiry Committee: Where an Inquiry Committee is appointed, the authorized officer shall--
(1) Frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration.
(2) Require the accused within a reasonable time, which shall not be less than seven days or more than fourteen days from the day the charge has been communicated to him, to put in a written defence and to state at the same time whether he desires to be heard in person.
(3) The Inquiry Officer or the Committee, as the case may be shall inquire into the charge and may examine such oral documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witness against him.
Here it would also be advantageous to have a glance at Rule 5 of the E&D Rules, which empowers the Authorized Officer to direct enquiry against Government Servant through an Inquiry Officer or an Inquiry Committee which reads as under:-
"5. Inquiry Procedure: (1) The following procedure shall be observed when a government servant is proceeded against under these rules:-
(i) In case where a government servant is accused of subversion, corruption or misconduct, the authorized officer may require him to proceed on leave or, with the approval of the authority, suspend him;
Provided that any continuation of such leave or suspension shall require approval of the authority after every three months;
Provided further that where the authority is President or Prime Minister the powers of the authority under this clause shall be executed by the Secretary, Establishment division.
(ii) The authorized officer shall decide whether in the light of facts of the case or the interest of justice an inquiry should be conducted through an Inquiry committee. If he so decides, the procedure indicated in Rule 56 shall apply.
(iii) If the authorized officer decides that, it is not necessary to have an inquiry conducted through an Inquiry committee, he shall--
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and
(b) give him a reasonable opportunity of showing cause against that action:
Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity.
(iv) On receipt of the report of the Inquiry Officer or Inquiry Committee or where no such Officer or committee is appointed, on receipt of the explanation of the accused, if any, the authorized officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty he shall pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge and statement of all allegations served on the accused, the explanation of the accused the findings of the Inquiry Officer or Inquiry Committee, if appointed and his own recommendations regarding the penalty to be imposed. The authority shall pass such orders as it may deem proper.
(2) The exercise or powers under clauses (i) and (iv) of sub-rule (1) by the authorized officers in the Pakistan Missions abroad shall, unless already so provided, always be subject to the approval of the authority."
A bare perusal of the aforesaid provisions lead to the conclusion that no major penalty can be imposed on a Government Servant unless his guilt is properly inquired into by appointing an Inquiry Officer or an inquiry committee within the purview of Rule 5 of the E&D Rules, 1973 and the accused is served with a proper show-cause notice or charge sheet containing statement of allegations on which the penalty is proposed to be inflicted. Law is well settled in this regard. In the case of Jan Muhammad v. The General Manager, Karachi Telecommunication Region (1993 SCMR 1440), the appellant was served with a charge sheet on the ground that he had disobeyed order of his superior which amounted to misconduct. He submitted his reply. After formal investigation order of compulsory retirement from Government service was passed. It was held that Order of compulsory retirement was not sustainable as inquiry was not held in accordance with procedure laid down under Rule 6 of the E&D Rules, 1973, the order, therefore, was set-aside. In the case of Ghulam Muhammad Khan v. Prime Minister of Pakistan & others (PLD 1994 SC 222), while referring to the case of Nawab Khan & another v. Government of Pakistan through Secretary, Ministry of Defence & others (1996 SCMR 802), it was held that there is a marked distinction between Rule 5 and Rule 6 of the E&D Rules, inasmuch as under the former Rule, a regular inquiry can be dispensed with, whereas the latter rule envisages conducting of regular inquiry which would necessitate the examination of witnesses in support of the charges brought against the accused civil servant, his right to cross-examine such witnesses and his right to produce evidence in rebuttal. The question, as to whether the charge of a particular misconduct needs holding of a regular inquiry or not, would depend on the nature of the alleged misconduct. If the nature of the alleged misconduct was such on which a finding of fact could not be recorded without examining the witnesses in support of the charge or charges, the regular inquiry could not be dispensed with In the case of Rashid Mehmood versus Additional Inspector-General of Police and 2 others (2002 SCMR 57) the appellant was acquitted from a criminal charge by the trial Court. Despite acquittal, he was proceeded against by the department on the ground that since, he had become criminal minded, therefore, was unfit to be retained in service. On finalization of the proceedings, the appellant was dismissed from service. The Service Tribunal maintained the decision of the departmental authority. Appeal was preferred to the Supreme Court which was allowed and it was held that regular inquiry having not been conducted by the departmental authority, there were no basis to hold that the civil servant was guilty of misconduct. Judgment passed by the Service Tribunal was accordingly set aside and the authority was directed to reinstate the appellant in service with back benefits. What to speak of holding of an inquiry prior to imposition of major penalty, in the case of Inspector General of Police v. Shafqat Mehmood (2003 SCMR 207), it was held that failure to associate civil servant with inquiry conducted against him would render the proceedings as unsustainable. In the said case, respondent was dismissed from service on the basis of registration of a criminal case, whereas the judgment of the trial Court, whereby the respondent was acquitted, was not considered by the department. It was born out from the record that regular inquiry, as required under Sindh Police (E&D) Rules, 1988, was not conducted, however, a fact finding committee, to investigate the matter, was constituted in which respondent was not even allowed to participate. The Tribunal, after careful consideration and following the rule laid down by this Court in the case of Rashid Mehmood v. Additional Inspector General of Police and others (2002 SCMR 57), (supra) allowed the appeal which was up held by this Court.
(R.Q.) Appeal accepted
PLJ 2008 SC 652
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Muhammad Farrukh Mahmud, JJ.
ACCOUNTANT GENERAL SINDH and others--Appellants
versus
AHMED ALI U. QURESHI and others--Respondents
C.A. No. 1021 of 1995 & C.M.A. No. 2454 of 2007 alongwith Constitution Petition Nos. 8 of 2000, 10 of 2001 and C.M.A. No. 198 of 2003 & C.M.A. No. 861 of 2003, Constitution Petition No. 26 of 2003, 34 of 2003, 4 of 2004 and 26 of 2007, decided on 6.3.2008.
(On appeal from the judgment dated 2.2.1995 passed by High Court of Sindh, Karachi in Constitutional Petition No. 2308/1994 alongwith Constitution Petitions and CMAs)
Constitution of Pakistan, 1973--
----Art. 184(3), 195 & 205--Fifth Schedule--Retired Judge of High Court who has put less than five years of service--Entitlement of grant of pension and pensionary benefits--Challenge the validity of judgment passed by High Court whereby relief of pension sought by respondent (since dead), a retired Judge of High Court against Federation was granted--Constitutional petitions have been filed by retired Judges of High Courts seeking declaration that the length of service mentioned in Paragraph 3 of Fifth Schedule--Constitution (Twelfth Amendment) Act, (XIV of 1991)--Pension was revised--Validity--Pension of the retired Judges of High Courts having direct nexus with fundamental rights enshrined in Constitution and with independence of judiciary involved interpretation of provisions of the Constitution--Judge of High Court on retirement is a entitled to grant of pension and other pensionary benefits under Art. 205 of Constitution r/w Paragraphs 2 & 3 of Fifth Schedule of Constitution and Constitutional right of pension of a retired Judge cannot be denied on the basis of condition of service--Held: President under Para 2 of Fifth Schedule, has to determine the privileges, allowances, leave and pension of every Judge of High Court irrespective of his length of service--Minimum and maximum amount of pension payable to a judge who retired after having put in service not less than five years, is to be determined. [Pp. 661, 663 & 665] A, B & C
Constitution of Pakistan, 1973--
----Art. 205 & Fifth Schedule--Pension of Judges of High Court--Question requiring determination--Way of classification--Right of pension of Judges of High Court who retired having put less than five years of service as Judge, was omitted without any amendment in Art. 205 of Constitution or Fifth Schedule and question requiring determination would be whether in consequence to omission in P.O. No. 3 of 1997--Held: Retired Judges of High Courts can be dealt with differently of their right of pension and privileges under the Constitution. [P. 666] D
Constitution of Pakistan, 1973--
----Art. 205 & Fifth Schedule--President Order No. 3 of 1997--Right of pension of Judge--Entitlement--Right of pension of a Judge of High Court, who retired after having put in less than five years of service has not been recognized in P.O. No. 3 of 1997, such Judge is entitled to pension and pensionary benefits. [P. 667] E
Constitution of Pakistan, 1973--
----Fifth Schedule--Right of pension--Principle of equality and equal protection of law--Distinction in light of principle of equality and equal protection of law, has no justification and rationale and is beyond the legislative wisdom and scope of Art. 205 of Constitution.
[P. 667] F
Interpretation of Statute--
----Redundancy cannot be attributed to any provision of the Constitution rather in case of conflict in provisions, the rule of harmonious interpretation is to be followed. [P. 669] G
Interpretation of Statute--
----Fifth Schedule--Only those retired Judges of High Court who have put not less than five years of service as Judge, would be entitled to grant of pension was due to mis-interpretation and misconception of the legislative intention and wisdom behind two independent paras of Fifth Schedule. [P. 669] H
Interpretation of Statute--
----Principle--Law cannot be stretched by necessary intendment to disadvantage of a person in departure to the expressed provision.
[P. 669] I
President Order No. 3 of 1997--
----Fifth Schedule of Constitution--Right of pension--President's Order No. 3 of 1997, acknowledged the right of pension only of retired Judges with reference to Para 3 of Fifth Schedule to Constitution and does not contain any provision of right of pension of those Judges who retire as such Judges before completing five years service.
[P. 670] J
Constitution of Pakistan, 1973--
----Art. 205 & Fifth Schedule--President Orders No. 3 & 8 of 2007--Retired Judges of High Court--Right of pension--Entitlement of pension and pensionary benefits--Right of pension and retirement benefits admissible to be retired Judge u/Art. 205 of Constitution would be available to all retired Judge--Date of retirement and length of service and consequently, distinction created with reference to date of retirement under P.O. No. 8 of 2007 promulgated on 14.12.2007 or on basis of length of service as provided of Fifth Schedule r/w P.O. No. 3 of 1997, would distinguish inter se retired Judges of High Court--Held: Mandate of Constitution, is that all Judges who retired as Judges of High Court irrespective of their length of service and date of retirement, would be entitled to pension and pensionary benefits without any distinction. [Pp. 673 & 674] K
Constitution of Pakistan, 1973--
----Arts. 25 & 175(3)--President's Orders No. 3 & 8 of 1997--Principle of equality and equal protection of law--Independence of judiciary--Concept of--Distinction made in respect of Constitutional right of pension of retired Judges of High Courts in P.O. Nos. 8 and 3 of 1997, was discriminatory in terms of Art. 25 of Constitution, which being without any significance and legal consequence is in conflict to concept of independence of judiciary. [P. 674] L
Independence of Judiciary--
----Concept of--Remedial steps for judicial reforms--Concept of independence of judiciary is complete separation from executive authorities of state in all matters including pay and pension which is an essential component of independence of judiciary but unfortunately from judicial history of Executive Authorities instead of acting in aid of judicial independence and taking remedial steps for judicial reforms have behaved with step motherly attitude towards judiciary and its independence for obvious reasons of maintaining their will and supremacy through administrative devices at cost of damaging judicial system. [P. 675] M
Appointment of Judges--
----Independence of judiciary--Appointment of judges of Superior Courts and their removal from offices as well as administrative independence--Held: Consultative process for appointment of Judges of superior Courts should not to be interfered and interrupted by Executive by ignoring the opinion of Chief Justice. [P. 675] N
Constitution of Pakistan, 1973--
----Art. 209--Judges cannot removed from their offices--Accountability--Judges of Superior Courts, cannot be removed from their offices except in accordance with provision of Art. 209 of Constitution but since they are not immune from accountability, if situation arises and President also considers necessary, the proceedings can be initiated against a Judge with respect to his conduct in terms of Art. 209 of Constitution. [P. 675] O
Constitution of Pakistan, 1973--
----Art. 209--Method of removal from the office of Judges--Neither a Judge of superior Court can be appointed except in accordance with method prescribed in Constitution nor he can be removed from his office except in accordance with provisions of Art. 209 of Constitution. [P. 678] P
Access to Justice--
----Right of--Strong judiciary for good governance and welfare of the people--Essential--Right of access to justice cannot be ensured, the independent and strong judiciary for good governance and welfare of the people, is essential and the matter relating to appointment and removal of judges from their offices, security of their tenure, pay and pension and privileges must not be in exclusive control and domain of Executive Authorities rather role of executive in affairs of judiciary must be curtailed to extent of general supervision, so that judicial reforms in real sense can be made to requirement of judiciary.
[P. 680] Q
Interpretation of Statutory Body--
----Judiciary--Administration and dispensation of justice--Judiciary which consists of Chief Justice of all the High Courts and Chief Justice of Pakistan, as its Chairman. [P. 680] R
Constitution of Pakistan, 1973--
----Art. 209--Protection to tenure of office of a Judge--Appointment of Judges in superior Courts is made through a consultative process provided in Constitution--Held: Judges of superior Courts in the past have been removed from their offices in an un-ceremonial and unconstitutional manner for political reasons or for Executive Command and will in departure to provision of Art. 209 of the Constitution which provide protection to tenure of office of a Judge.
[P. 680] S
Extra-Constitutional Measures--
----Imposition of emergency--Removal of Judges from their offices--Validity--There are instance of compelling the Judges of High Courts to resign from their offices has been withheld without any legal excuse and moral justification. [P. 681] T
Constitution of Pakistan, 1973--
----Art. 209--Concept of independence of judiciary--A Judge is free from all sort of out side influence in discharge of his functions and protection of tenure provided under Art. 209 of Constitution--Held: Judiciary must be independent in all respects in its affair for which judicial reform a large scale are required under control of Judicial Body. [P. 681] U
Constitution of Pakistan, 1973--
----Art. 14--Disturbance of privacy--Private affairs of Judges--Validity--Government Agencies and Functionaries instead of performing their duty, waste much public time and money on collecting information of private affairs of Judges and their families for no useful purpose and cause disturbance in their private life which is against all legal and moral norms and is strictly prohibited in Islam in addition to disturb privacy in terms of Art. 14 of Constitution. [P. 681] V
Constitution of Pakistan, 1973--
----Arts. 205 & Fifth Schedule--Para-2--Judge of High Court--Entitlement of pension--Determination-_Validity--Retired Judges of High Courts invariably are entitled to grant of pension u/Art. 205 r/w Fifth Schedule of Constitution, irrespective of the date of retirement before or after 25.1.2000 and length of service--Distinction created and classification of retired Judges made for purpose of grant of pension and pensionary benefits on the basis of length of service or date of retirement, is not legal and Constitutional. [P. 682] W
Interpretation of Fifth Schedule--
----A retired Judges of High Court who has not put in five years minimum service in terms of Para 3 of Schedule was not entitled to pensionary benefits. [P. 682] X
Constitution of Pakistan, 1973--
[P. 685] Y
Constitution of Pakistan, 1973--
----Arts. 203(c) & 205--Judge of Federal Shariat Court shall be entitled to the salary, pension, allowance privileges including grant of leave/LPR and others benefits as are allowed to Judge of Supreme Court--Right of pension and pensionary benefits of Chief Justice and Judges of Federal Shariat Court notwithstanding the length of service or fixed term of tenure is recognized under the Constitution.
[P. 685] Z
Constitution of Pakistan, 1973--
----Arts. 195, 203(c) & 205--Judges of High Courts and Federal Shariat Court--All retired Judges of High Courts, who retire as such Judge in terms of Art. 195 of Constitution and Chief Justice and Judges of Federal Shariat Court notwithstanding the tenure appointment, are entitled to pension and pensionary benefits in terms of Art. 205 r/w Fifth Schedule of Constitution. [P. 685] AA
PLD 2000 SC 869; PLD 1996 SC 324; PLD 2001 SC 607 and
1991 SCMR 1041.
Malik Muhammad Qayyum, Attorney General for Pakistan, Raja Abdur Rehman, DAG, Mr. Qasim Mir Jat, AAG Sindh and Raja Abdul Ghafoor, AOR for Appellant (in C.M.A. No. 2454/2007 in C.A. 1021/1995).
Mr. Waseem Sajjad, Sr. ASC and Mr. Saeed-ur-Rehman Farrukh, ASC for Respondents (in C.M.A. No. 2454/2007 in C.A. 1021/1995).
Nemo for Petitioner (in Const. P. No. 8 of 2000).
Nemo for Respondent (in Const. P. No. 8 of 2000).
Syed Sharif Hussain Bukhari, Sr. ASC and Mr. Saeed-ur-Rehman Farrukh, ASC for Petitioner (in C.M.A. 198 and 861 of 2003 in Const. P. 10/2001).
Malik Muhammad Qayyum, Attorney General for Pakistan and Raja Abdul Ghafoor, AOR for Respondent (in C.M.A. 198 and 861 of 2003 in Const. P. 10/2001).
Petitioner in person (in Const. P. No. 26 of 2003).
Malik Muhammad Qayyum, Attorney General for Pakistan for Respondent (in Const. P. No. 26 of 2003).
Nemo for Petitioner (in Const. P. No. 34/2003).
Nemo for Respondent (in Const. P. No. 34/2003).
Nemo for Petitioner (in Const. P. No. 04/2004).
Nemo for Respondent (in Const. P. No. 04/2004).
Hafiz S.A. Rehman, Sr. ASC and Mehr Khan Malik, AOR for Petitioner (in Const. P. No. 26/2007).
Nemo for for Respondent (in Const. P. No. 26/2007).
Date of hearing: 6.3.2008.
Judgment
Muhammad Nawaz Abbasi, J.--The Civil Appeal No. 1021 of 1995, by leave of the Court, has been filed by Accountant General, Sindh, challenging the validity of the judgment dated 2.2.1995 passed by the High Court of Sindh at Karachi whereby the relief of pension sought by the respondent (since dead), a retired Judge of the High Court of Sindh against the Federation of Pakistan through Secretary Finance, Government of Pakistan, Islamabad, was granted, whereas, Constitution Petitions Bearing Nos. 8/2000, 10/2001, 26/2003, 34/2003, 4/2004 & 26/2007 have been filed by the retired Judges of various High Courts under Article 184(3) of the Constitution of Islamic Republic of Pakistan seeking declaration that notwithstanding the length of service mentioned in Paragraph 3 of Fifth Schedule to the Constitution, a retire judge of the High Court who has put less than five years of service as such Judge is entitled to the grant of pension and pensionary benefits in terms of Article 205 of the Constitution read with Paragraph 2 of the Fifth Schedule of the Constitution. The civil appeal and the connected Constitution petitions involving common question of law and facts, are proposed to be disposed of through this single judgment.
The relevant facts in the background leading to the filing of Civil Appeal No. 1021 of 1995 by the Accountant General of Sindh are that Mr. Justice (R) Ahmed Ali U Qureshi [(since dead) (hereinafter to be referred as respondent)] being a member of the subordinate judiciary while holding the position of District and Sessions Judge was posted as Secretary to the Government of Sindh in the Law Department and in 1985, he was elevated as an Additional Judge of the High Court of Sindh, Karachi. The respondent on retirement on 25.10.1988 was allowed pension at the rate of Rs. 4,200/- per month with the benefit of commutation, gratuity and additional sum of Rs. 2,100/- per month as cost of living allowance payable to a retired Judge of the High Court under Paragraph 16-B of President's Order No. 9 of 1970, as amended by P.O. No. 5 of 1988. In pursuance of the Constitution (Twelfth Amendment) Act, 1991 (Act XIV of 1991), the pension of the respondent was revised and was fixed as Rs. 6300/- per month and thereafter by virtue of P.O. No. 2 of 1993, the pension of retired judges of the High Court and Supreme Court was again revised, wherein the pension of High Court Judges was fixed with minimum and maximum ratio of Rs. 9,800/- and Rs. 10,902/- per mensum but this increase in pension was declined to the respondent on the basis of departmental interpretation of the President's Orders referred to above read with Fifth Schedule of the Constitution. The respondent thereafter, invoking the Constitutional jurisdiction of the High Court of Sindh at Karachi, filed a Constitution petition wherein he sought a declaration that he was also entitled to the benefit of P.O. No. 2 of 1993.
The precise contentions of respondent before the High Court in the writ petition were firstly that notwithstanding the length of service, put by him, as judge of the High Court, he was entitled to the grant of pension as envisaged in Article 205 of the Constitution read with Paragraph 2 of the Fifth Schedule of the Constitution and secondly, he having put more than thirty five years of service in the subordinate judiciary was entitled to the pension at the rate of 77 per cent of his last emoluments in terms of service laws applicable to civil servants and consequently, he would get pension at the rate of Rs. 8,190/- per month. The High Court of Sindh, having considered the matter in detail, gave the verdict as under:
"We are consequently of the view that rights and privileges admissible to the petitioner in respect of his pension are now governed under President's Order No. 2 of 1993. As has been held by the Supreme Court in I.A. Sharwani's case, instruments such as P.O.2/1993 are Constitutional instruments, therefore, full effect must be given to them. We, therefore, find no force in the contentions raised on behalf of the respondent. Learned Standing counsel has also adopted the arguments advanced by the learned AAG but as we have just pointed out, we are unable to agree with the contentions.
Although, it has been contended by the petitioner in the alternative that, in any case, he is entitled to a pensions of Rs. 8,190/- in accordance with the Civil Servants Rules, but since we have accepted his plea that P.O. 2 of 1993 is applicable to the petitioner, it is not necessary for us to consider the second contention of the petitioner, however, it will always be open for the petitioner to take such a plea in the future if the circumstances so require.
In the result, the petition is allowed and the respondents are liable to fix the petitioner's pension at the maximum pension as allowed under President's Order No. 2 of 1993".
"So far the main petition is concerned, it is submitted by the learned Deputy Attorney General for the petitioner that Respondent No. 1 was a District and Session Judge and was elevated as Judge of the High Court in July, 1985 and retired after completing tenure of three years two months and twenty-seven days in that capacity, hence for the purpose of pension his case is covered by Article 15 of the High Court Judges (Leave, Pension and Privileges) Order, 1970, which is applicable to such Judges of the High Court who retire before completion of five years service in the High Court and are entitled to draw pension as having retired from the service they were taken from for elevation to the High Court. Leave is granted to examine the following questions. Firstly, whether for claim of Respondent No. 1 for extra/maximum pension writ petition before the High Court was competent to and maintainable. Secondly, whether P.O. 9/70 is to be read in conjunction with P.O. 2/93, P.O. 3/95 and Article 205 read with Fifth Schedule to the Constitution, if yes, what will be its effect on the claim of respondent. Thirdly, whether the President can only increase or decrease the amount of pension without altering the terms and conditions as contemplated under Article 205 read with the Fifth Schedule to the Constitution. Fourthly, whether Respondent No. 1 is entitled to the minimum and maximum amount of the pension as contemplated under P.O. 2/93."
(a) The provision of President's Order No. 3 of 1997 was in derogation to Article 205 of the Constitution read with Fifth Schedule of the Constitution wherein the right of pension of only those judges who have put minimum five years of service as Judge of the High Court, was recognized.
(b) The retired Judges of the High Courts, irrespective of their length of service were entitled to the grant of pension, as per their entitlement under Article 205 read with Paragraph 2 of the Fifth Schedule of the Constitution.
The matter in respect of the pension of the retired Judges of the High Courts having direct nexus with the fundamental rights enshrined in the Constitution and with independence of judiciary involved interpretation of certain provisions of the Constitution, therefore, we proceed to entertain these direct petitions under Article 184(3) of the Constitution and dispose of the same on merits.
Mr. Wasim Sajjad, learned Sr. ASC, counsel for the petitioner in CMA No. 2454/2007 in CA 1021/1995 and Mr. Saeed-ur-Rehman Farrukh, one of the petitioner in person in the Constitution petitions on his behalf and on behalf of other petitioners, have argued that under Article 205 of the Constitution, the remuneration and other terms and conditions of service of a Judge of the Supreme Court or of a High Court are to be determined by the President in the manner as provided in the Fifth Schedule to the Constitution as under:--
(1) There shall be paid to the Chief Justice of a High Court a salary of Rs. 7,200 per mensem, and to every other Judge of a High Court a salary of Rs. 6,500 per mensem;
(2) every Judge of the High Court shall be entitled to such privileges and allowances, and to such rights in respect of leave of absence and pension as may be determined by the President and until so determined, the privileges, allowances and rights to which, immediately before the commencing day, the Judges of the High Court were entitled; and
(3) the pension payable to a Judge of a High Court who retires after having put in not less than five years service as a Judge shall not be less than Rs. 2,400 per mensem or more than Rs. 4,200 per mensem, depending on the length of his service as such Judge and total service, if any, in the service of Pakistan."
Learned counsel has added that Reference in Article 205 of the Constitution to the remuneration of Judges also includes their pension besides their salary because the expression "remuneration" has been defined in Article 260 of the Constitution to include both salary and pension and plain reading of Paragraph 2 in the Fifth Schedule indicates that every Judge of a High Court is entitled to pension besides other rights and privileges as referred to in the said Paragraph, which may be determined by the President. This Paragraph further indicates that until such rights and privileges are so determined, a Judge shall be entitled to such privileges and rights including a right to receive pension to which a Judge was entitled immediately before the commencing day i.e. 14.8.1973. Learned counsel has vehemently contended that Paragraph 3 of Fifth Schedule provides for a minimum and a maximum pension payable to a Judge of a High Court who has not put in less than five years of service as such Judge and although Paragraph 3 refers to only to a particular class of Judges, as indicated therein, but nothing can be spelt out from this Paragraph to show that the same is to be read in derogation of Paragraph 2 in the Fifth Schedule. It appears that two Paragraphs are entirely independent in their import as one refers to every Judge of a High Court, whereas the other to a Judge of a High Court who retires after having put in not less than five years of service as such Judge. Learned counsel has thus contended that as is evident from the language employed by the law givers in Paragraph 2, "every Judge of a High Court shall be entitled to such pension, as may be determined by the President which makes it abundantly clear that under Paragraph 2 every Judge of a High Court is entitled to pension without any distinction on the basis of length of service as such Judge and added that under Paragraph 3, the retired Judges of the High Courts have to receive pension at the rate as determined therein whereas the rate of pension of other Judges falling within the ambit of Paragraph 2, was to be determined by the President. Learned counsel submitted that subsequent to promulgation of P.O. No. 9 of 1970 vide Constitution (Twelfth Amendment) (Act XIV of 1991) certain amendments were made in the Constitution, and by one of such amendments, Paragraph 3 in the Fifth Schedule was substituted which provided that the pension payable per mensem to a Judge of a High Court who retires after having put in not less than five years of service as such Judge shall not be less or more than the amount mentioned therein, depending on the length of service of such Judge. Learned counsel has submitted that such was the position till the President's Order No. 2 of 1993 came into force with effect from the 27th July, 1991 and it is evident from Article 2(2) of the said Order, that minimum and maximum pension of Rs. 8,722 and Rs. 10,902 respectively was payable to every other Judge of a High Court notwithstanding the period of service he might have put in as such Judge at the time of his retirement from service and if the intention only was to enhance the pension of such Judges of a High Court as referred to in Paragraph 3 of the Fifth Schedule, only substitution of the figures was sufficient. The plain language used by the law-maker in Article 2 of P.O. No. 2 of 1993 clearly shows that apart from increase in minimum and maximum pension payable to a Judge of a High Court under sub-Article (2) of the said Article, it was also provided that pension shall be payable to every other Judge of a High Court, irrespective of the condition of completing five years of service. The world "every other Judge" used in Article 2(2) of P.O.2/1993 is not only confined to the Judges with reference to Paragraph 3 of the Fifth Schedule because if the intention of legislature was to extend the benefit of pension only to the Judges who fulfill the condition of five years of service in terms of Paragraph 3, then Article 2(2) of P.O. No. 2 of 1993 would have been couched in a different language and thus Article 2(2) of P.O.2/1993 is found in complete consonance with Paragraph 2 in the Fifth Schedule and Article 205 of the Constitution. The real purpose of two independent Paragraphs in Fifth Schedule is to authorize the President to enhance, from time to time, the pension payable to those Judges who have served for a period not less than five years and also to determine the privileges and pension payable to every other Judge of a High Court and thus in this way, P.O. No. 2 of 1993 serves a dual purpose for determination of rates of pension admissible to both categories of Judges. Learned counsel while concluding his arguments has contended that President's Order No. 3 of 1997 deals only with category of Judges as mentioned in Paragraph 3 of the Fifth Schedule to the Constitution and contains no provision in respect of pensionary benefits so far as other Judges are concerned but the right of pension available to such Judges under Article 205 read with Paragraph 2 of the Fifth Schedule would not be negated by this omission in P.O. No. 3 of 1997 which having escaped the notice of legislature, was not considered and debated at any stage.
We have heard the learned counsel for the petitioners and also learned Attorney General who have rendered valuable assistance to the Court and have also examined the matter in detail with reference to the relevant provisions of the Constitution and law on the subject.
Article 205 of the Constitution provides as under:
"The remuneration and other terms and conditions of service of a judge of the Supreme Court or of a High Court shall be as provided in the Fifth Schedule."
The remuneration has been defined in Article 260 of the Constitution as under:
""remuneration" includes salary and pension;"
"Judge" has been defined in Article 260 (1) as under:--
""Judge" in relation to the Supreme Court or a High Court, includes the Chief Justice of the Court and also includes--
(a) in relation to the Supreme Court, a person who is acting as a Judge of the Court; an
(b) in relation to the High Court, a person who is an Additional Judge of the Court;"
The Fifth Schedule of the Constitution which deals with the Privileges, Allowance, Leave and Pension of the Judges of the High Court provides as under:--
"2. Every Judge of a High Court shall be entitled to such privileges and allowances, and to such rights in respect of leave of absence and pension, as may be determined by the President, and until so determined, to the privileges, allowances and rights to which, immediately before the commencing day, the Judges of the High Court were entitled.
Provided that the President may, from time to time, raise the minimum or maximum amount of pension so specified:-
Judge Minimum Maximum Amount
Amount
Chief Justice Rs. 5640/- Rs. 7050/-
Other Judge Rs. 5040/- Rs. 6300/-
The plain reading of Paragraphs 2 and 3 of Fifth Schedule in the light of the provisions of Article 205 of the Constitution shows that the President under Paragraph 2 of the Fifth Schedule, has to determine the privileges, allowances, leave and pension of every judge of High Court irrespective of his length of service whereas under Paragraph 3 of this schedule, the minimum and maximum amount of pension payable to a judge who retires after having put in service not less than five years, is to be determined.
The President, in pursuance of the Fifth Schedule, before promulgation of President's Order No. 3 of 1997, issued President's Order. No. 2 of 1993, by virtue of which the pension of the retired Judges, was determined as under:
Short title and commencement.--(1) This order may be called the pension of Judges of Superior Courts Order, 1993.
(2) It shall be come into force at once and shall be deemed to have taken effect on the twenty seventh day of July, 1991.
(2) The minimum and maximum monthly pension of the Chief Justice of a High Court shall be Rs. 9800/- and Rs. 12250/- respectively and that of every other Judges of a High Court shall be Rs. 8722/- and Rs. 10902/- respectively.
"14. Conditions or admissibility of pension.--A Judge shall, on his retirement, resignation or removal, be paid a pension in accordance with the provisions of this Order if lie has--
(a) completed not less than five years of service for pension and attained the retiring age; or
(b) completed not less than five years of service for [pension and before attaining the age, resigned or sought retirement; or
(c) completed not less than five years of service for pension and, before attaining the retiring age, either resigned, his resignation having been medically certified to be necessitated by ill-health or been removed for physical or mental incapacity or been allowed by the President for sufficient cause to retire".
The comparative study of P.O. No. 2 of 1993 and P.O. No. 3 of 1997 would show that in P.O. No. 3 of 1997, the right of pension of the Judges of the High Court who retired having put less than five years of service as such Judge, was omitted without any amendment in Article 205 of the Constitution or in the Fifth Schedule and thus the first question requiring determination would be whether in consequence to the omission in P.O. No. 3 of 1997, the right of pension of every Judge available under Article 205 read with Paragraph 2 of Fifth Schedule of the Constitution, was really affected and second question for examination would be as to whether by way of classification, on the basis of length of service, the retired Judges of the High Courts can be dealt with differently in respect of their right of pension and privileges under the Constitution.
The first question was answered by the High Court of Sindh in its judgment under challenge before us in Civil Appeal No. 1021 of 1995 wherein with reference to Paragraphs 2 and 3 of the Fifth Schedule of the Constitution, it was held as under:
"The two Paragraphs appear to be completely independent, on referring to every Judge of a High Court, whereas the other to a judge of a High Court who retires after having put in not less than five years of service as such Judge"
The conclusion of the Court was as under:
"It is, therefore, abundantly clear that Paragraph 2 includes within its ambit every Judge of a High Court without making any classification on the basis of his length of service as such Judge."
The above verdict given by the High Court in the light of Constitutional mandate, would be unexceptionable.
Notwithstanding the fact that right of pension of a Judge of High Court, who retires after having put in less than five years of service as such Judge, has not been recognized in P.O. No. 3 of 1997, such Judge in terms of Article 205 read with Fifth Schedule of the Constitution, is entitled to the pension and pensionary benefits. The wisdom behind the classification of Judges in Paragraph 2 and 3 of Fifth Schedule was for the purpose of determination of pension, admissible to the two categories of Judges with reference to the length of service and consequently, these two Paragraphs are not to be read conjunctively rather both having separate connotations and implications have to be read independently and given effect accordingly. The ceiling in the P.O. No. 3 of 1997 on the right of pension of a Judge who put less than five years of service as such Judge in terms of Paragraph 3 of the Fifth Schedule is in conflict to the provisions of Article 205 of the Constitution read with Paragraph 2 of the Fifth Schedule.
The argument of Hafiz S.A. Rehman, learned Sr. ASC, counsel for the Federation that the right of pension and other privileges as provided under Paragraph 2 of the Fifth Schedule to the Constitution is subject to the provisions of Paragraph 3 of the said Schedule and power of President was confined to the extent of determination of pension of only those Judges of the High Courts who fulfill the requirement of Paragraph 3 of the Fifth Schedule to the Constitution, has no substance. The above interpretation of Paras 2 and 3 of the Fifth Schedule is not in consonance to the spirit of Article 205 of the Constitution of Islamic Republic of Pakistan and denial of the Constitutional right of pension to the retired Judges of the High Courts through President's Order, a sub-Constitutional instrument, is deviation from the mandate of Constitution. The classification of the retired Judges of the High Courts for the purpose of pension and pensionary benefits into two categories with reference to the length of service is certainly relevant to determine the maximum and minimum ratio of pension payable to a Judge but this division for the purpose of determination of their entitlement to pension is beyond the scope of Article 205 read with Paragraph 2 of the Fifth Schedule of the Constitution and consequently, the omission of the right of pension of the Judges of the High Court who retire having put less than five years of service in President's Order No. 3 of 1997 was in direct conflict with Article 205 read with Paragraph 2 of the Fifth Schedule of the Constitution. The above omission in P.O. No. 3 of 1997 either was deliberate or accidental, has caused injustice to all those Judges who are otherwise entitled to the grant of pension under Article 205 read with Fifth Schedule of the Constitution. Be that as it may, this omission in P.O. No. 3 of 1997, stood rectified by virtue of President's Order No. 8 of 2007, promulgated on 14.12.2007, in the following manner:
"4. Retirement and pension, etc.--A Judge who has ceased to hold office of a Judge of High Court in terms of Article 3 of the Oath of Office (Judges) Order, 2007 or has otherwise retired from service as permanent Judge shall be entitled to full pension and other retirement benefits admissible to a permanent Judge of a High Court and the provisions of clause (3) of Article 207 of the Constitution of the Islamic Republic of Pakistan shall apply to such a Judge, including a permanent Judge who had retired under the High Court Judges (Service Benefits) Order, 2000 (P.O. No. 5 of 2000):
Provided that commutation of pension shall be admissible to such Judge on the basis of his actual age as on the 3rd day of November, 2007."
In consequence to the above change, the right of pension of all retired Judges of High Courts has been recognized w.e.f. 25.1.2000 without any distinction or classification with reference to Paragraphs 2 and 3 of the Fifth Schedule to the Constitution but still the right of pension of those Judges who retired before 25.1.2000 has not been acknowledged. This distinction in the light of principle of equality and equal protection of law, has no justification and rationale and is beyond the legislative wisdom and scope of Article 205 of the Constitution.
Initially under President's Order No. 9 of 1970, promulgated on the 17th June, 1970, the pay, pension and other privileges of the Judges were determined and subsequently certain amendments were brought in the Constitution including the substitution of Paragraph 3 in the Fifth Schedule through Act, XIV of 1991 (Constitution Twelfth Amendment) as referred hereinabove and this position continued as such till promulgation of P.O. No. 3 of 1997 supra.
In Paragraph 2(2) of Order No. 2 of 1993, the Chief Justice and every other Judge without any distinction, were held entitled to get minimum and maximum pension mentioned therein in consonance to Paragraph 2 and 3 of the Fifth Schedule, notwithstanding the length of service of a Judge who might have put in as such Judge at the time of his retirement. The plain reading of Paragraphs 2 and 3 of the Fifth Schedule with Paragraph 2(2) of P.O. No. 2 of 1993, would make it clear that the maximum and minimum monthly pension with the ratio mentioned therein was payable to the Chief Justice and every other Judges, irrespective of length of service or any other distinction, therefore, in the substituted Paragraph 3 of the Fifth Schedule of the Constitution, the expression "every other Judge" used therein in departure from the language earlier employed therein, would convey the intention that the benefit of pension was not only confined to a Judge who has completed five years of service as such Judge but it was also extendable to every other Judge who has retired as such Judge. The reading of words "every other Judge" in Paragraph 2 of Fifth Schedule in conjunction with Paragraph 3 of the Fifth Schedule to the Constitution, would make Paragraph 2 of the said Schedule redundant and ineffective, whereas this is well settled principle of interpretation of statutes that redundancy cannot be attributed to any provision of the Constitution rather in case of any conflict in two provisions, the rule of harmonious interpretation is to be followed. The careful examination of Paragraphs 2 and 3 of the Fifth Schedule of the Constitution, would show that two categories of the Judges referred therein have been classified for the purpose of pension and privileges admissible to the retired Judges of the High Court and Para 2(2) of P.O. No. 2 of 1993 was promulgated in complete consonance with the spirit of these Paragraphs read with Article 205 of the Constitution.
In the light of above discussion, the true import of Fifth Schedule appears that President under para 2, has to determine the rate of pension and privileges of the Judges and until such determination is made, they shall be paid pension and privileges, which were admissible to them immediately before the commencing day and thus, the interpretation placed on Fifth Schedule that only those retired Judges of the High Court who have put not less than five years of service as such Judge, would be entitled to the grant of pension was due to misinterpretation and misconception of the legislative intention and wisdom behind the two independent Paragraphs of the Fifth Schedule read with Article 205 of the Constitution. It is thus manifest from the language of these paragraphs of the Fifth Schedule that the right of pension of all those Judges who retired as Judges of the High Court irrespective of their length of service is not negated either by Paragraph 3 of the said schedule or by any other legal instrument and except the distinction that a Judge on retirement after having put not less than five years of service would get pension at the rate given therein in the table and a Judge who has less than five years of service at the time of retirement would get minimum pension mentioned therein, there was no other legislative intention and wisdom behind this classification which was made for the purpose of determination of rates of pension admissible to the two categories of Judges referred in Paragraphs 2 and 3 of the Fifth Schedule. In the light of fundamental principle of interpretation of the Statute, that law cannot be stretched by necessary intendment to the disadvantage of a person in departure to the expressed provision, any other interpretation of Fifth Schedule, would amount to negate the Constitutional right of pension of retired Judges.
President's Order No. 3 of 1997, acknowledged the right of pension only of the retired Judges with reference to Paragraph 3 of the Fifth Schedule to the Constitution and does not contain any provision in respect of right of pension of those Judges who retire as such Judge before completing five years service. This distinction in P.O. No. 3 of 1997 apart from being in derogation to P.O. No. 2 of 1993 is also in direct conflict to Article 205 read with Article 260 of the Constitution. However, as referred above, this anomaly has been removed by virtue of P.O. No. 8 of 2007 promulgated on 14.12.2007 which has been validated by this Court in the case of Tikka Iqbal Muhammad Khan etc vs. General Pervez Musharraf (Const. P. Nos. 87 & 88 of 2007) as under:--
"3. We, therefore, hold that--
(i) the Constitution of the Islamic Republic of Pakistan, 1973 still remains to be the supreme law of the land albeit certain parts thereof have been held in abeyance in the larger interest of the country and the people of Pakistan;
(ii) The extra-Constitutional steps of Proclamation of Emergency of the 3rd day of November, 2007, the Provisional Constitution Order No. 1 of 2007, the Provisional Constitution (Amendment) Order, 2007, the Oath of Office (Judges) Order, 2007 and the President's Order No. 5 of 2007 are hereby declared to have been validly made by the Chief of Army Staff/President subject to the condition that the country shall be governed, as nearly as may be, in accordance with the Constitution. All acts and actions taken for the orderly running of the State and for the advancement and good of the people are also validated. In absence of the Parliament, General Pervez Musharraf, Chief of Army Staff/President, in pursuance of the Proclamation of Emergency of the 3rd day of November 2007 may, in the larger public interest and the safety, security and integrity of Pakistan, under the principle of salus populi suprema lex, may perform--
(a) All acts or legislative measures which are in accordance with, or could have been made under the 1973 Constitution, including the power to amend it;
(b) All acts which tend to advance or promote the good of the people; and
(c) All acts required to be done for the ordinary orderly running of the State.
(i) The old Legal Order has not been completely suppressed or destroyed, but it is a case of Constitutional deviation for a limited transitional period;
(ii) Constitutional amendments can be resorted to only if the Constitution fails to provide a solution for the attainment of the declared objectives of the Chief of Army Staff/President, but without affecting the salient features of the Constitution, i.e. independence of Judiciary, federalism, parliamentary form of Government blended with Islamic provisions;
(iii) The President, the Federal Government and the Election Commission of Pakistan shall ensure the holding of fair, free and transparent elections as required by the Constitution and the law;
(iv) The Superior Courts continue to have the power of judicial review, to judge the validity of any act or action of the Chief of Army Staff, or the President notwithstanding the ouster of their jurisdiction by the aforesaid extra-constitutional measures;
(v) The Chief Justices and Judges of the superior Courts (Supreme Court of Pakistan, Federal Shariat Court and the High Courts) are subject to accountability only before the Supreme Judicial Council in accordance with the procedure laid down in Article 209 of the Constitution;
(vi) The learned Chief Justices and Judges of the superior Courts, (Supreme Court of Pakistan, Federal Shariat Court and the High Courts), who have not been given, and who have not made, oath under the Oath of Office (Judges) Order, 2007 have ceased to hold their respective offices on the 3rd of November 2007. Their cases cannot be re-opened being hit by the doctrine of past and closed transaction; and
(vii) The Proclamation of Emergency of the 3rd day of November, 2007 shall be revoked by the President and/or the Chief of Army Staff at the earliest so that the period of Constitutional deviation is brought to an end. However, this Court may, at any stage, re-examine the continuation of the Proclamation of Emergency if the circumstances so warrant.
The petitions are disposed of in the above terms."
In the light of above discussion and the Constitutional provisions on the subject, the sole question requiring determination relates to the grant of benefit of pension in terms of Article 205 of the Constitution read with Paragraph 2 of the Fifth Schedule of the Constitution to those Judges of the High Courts who retired before completing five years of service as such Judge and also the date of retirement as mentioned in P.O. No. 8 of 2007 promulgated on 14.12.2007 wherein the right of pension to all those Judges of the High Courts, who retired as such Judges on or after 25.1.2000, has been given, whereas an embargo has been placed on the right of pension of those Judges who retired before the above date. This may be pointed out that the case of those Judges who retired before the date referred therein may not be differentiated to that of the Judges who retired after the said date because such distinction with reference to date of retirement, is definitely discriminatory in terms of Article 25 of the Constitution. This Court in I.A. Sherwani v. Government of Pakistan (1991 SCMR 1041), observed as under:
"14. I will now take up the case of legislation effecting increase in salaries and indexation on salaries. This cannot be treated as legislation creating a classification which is arbitrary just because the retired pensioners have not been given higher pensions by figuratively treating them as entitled to such higher salaries or indexation. The object of Article 25 is not to force Government to legislative over a matter which is silent, but to strike down a legislation or a legal instrument which creates classification which is unreasonable or arbitrary. The fact that salaries are increased or indexation is allowed thereon, is legislation pertaining to salary which specifically deals with serving Government servants and has no connection with pension which specifically deals with Government servants who have retired. Merely because the legal instruments are directly intended to augment salaries of serving Government servants, the fact that indirectly they may tend to affect emoluments and thus augment pensionary benefits or affect other allowances which are allowed as a percentage of the wages and thus augment such allowances, cannot be treated as creating an unreasonable discrimination against recipients of pensions and allowances. The rule is that where a particular legislation tends to create an arbitrary distinction or unreasonable discrimination, the principle that all persons similarly circumstances or matters evenly placed should be treated or dealt with alike is enforced. But where a legislation dealing with one subject has the effect of indirectly affecting other persons or matters covered by another legislation dealing with another subject, the violation of the rule of equality cannot be blindly enforced, unless there is some strong ground which would make it almost mandatory for the Court to do so. Legislation also treats salary and pension separately. Just because one indirectly affects the other, it does not become a case of unreasonable discrimination. If such a rule were to be applied, it would open up a pandora's box of illusive and unintelligible classification, having no rationable nor reason, and all forms of legislation would be thrown into utter confusion. In State Government Pensioners Association Vs. State of Andhra Pradesh (AIR 1986 SC 1907) the Supreme Court of India was considering the question whether a provision providing for payment of enhanced gratuity with prospective effect from a specified date offended Article 14 of the Indian Constitution if it did not provided for payment under the revised basis to all those who had already retired, the Indian Supreme Court answered the question in the negative. In dealing with this question the Supreme Court held:
"Improvements in pay scales by the very nature of things can be made prospectively so as to apply to only those who are in the employment on the date of the upward revision. Those who were in employment say in 1950, 1960 or 1970, lived, spent and saved on the basis of the then prevailing cost of living structure and pay scale structure, cannot invoke Article 14 in order to claim the higher pay-scale brought into force say, in 1980. If upward pay revision cannot be made prospectively on account of Article 14, perhaps no such revision would ever be made."
I do not think that legal instruments augmenting salaries or indexation on salaries can be struck down as violating Article 25 of the Constitution if they indirectly happen to affect pension. Thus, every time increase in salary or indexation to salary takes place, a sub-class would be crated, each sub-class being constituted by a group of pensioners who have retired on or after the date when some change in the legal instruments has taken effect till the date the next change in the salary or indexation takes place."
In the light thereof, the right of pension and retirement benefits admissible to a retired Judge under Article 205 of the Constitution would invariably be available to all retired Judges in terms of Paragraph 2 of Fifth Schedule notwithstanding the date of retirement and length of service and consequently, the distinction created with reference to the date of retirement under P.O. No. 8 of 2007 promulgated on 14.12.2007 or on the basis of length of service as provided in Paragraph 3 of the Fifth Schedule read with P.O. No. 3 of 1997, would not distinguish the case inter se retired Judges of High Courts vis-a-vis their right of pension admissible under Article 205 read with Fifth Schedule. In view of the above, the mandate of the Constitution, is that all those judges who retired as Judges of the High Court irrespective of their length of service and date of retirement, would be entitled to the pension and pensionary benefits without any distinction.
In the light of principle of equality and equal protection of law, the above distinction made in respect of Constitutional right of pension of retired Judges of High Courts in P.O. No. 8 of 2007 and President's Order No. 3 of 1997, was discriminatory in terms of Article 25 of the Constitution, which being without any significance and legal consequence also is in conflict to the concept of independence of judiciary enunciated in Article 175 (3) of the Constitution. This Court in Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105) held as under:
"In the result, while upholding the judgment of the High Court in the main, some modifications therein have been made. These have become necessary as some of the directions issued by the High Court in its impugned judgment have by now been already complied with, while some others, we felt, cannot appropriately be issued in these proceedings. In our opinion, the following directions will, consistent with the mandate contained in Article 175 of the Constitution suffice to secure the separation of the Judiciary from the Executive, namely:--
(i) The Governments of Sindh and Punjab shall issue the requisite notifications in items of sub-section (2) of Section 1 of Law Reforms Ordinance (XII of 1972) for enforcing the provisions of the aforesaid Ordinance by 23rd March, 1994, for bifurcating magistracy into Judicial Magistrates and Executive Magistrates and place all the Judicial Magistrates under the administrative control of the High Court; and
(ii) The Federal Government as also the Provincial Governments of Sindh, Punjab, NWFP, and Balochistan shall not require the Supreme Court and the High Courts of the Provinces to seek their approval to incurring expenditure or any item from the funds allocated for them in the annual budgets provided the expenditure incurred falls within the limit of the sanctioned budgets, as more fully explained in the body of the judgment above. Necessary instructions to enable in compliance with this direction shall be issued by the Federal Government and the Provincial Governments to all concerned by 1.12.1993."
"209. (5) If, on information [from any source, the Council or] the President is of the opinion that a Judge of the Supreme Court or of a High Court--
(a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or
(b) may have been guilty of misconduct, the President shall direct the Council to [, or the Council may, on its own motion,] inquire into the matter."
In nutshell, the Executive is not supposed to interfere in the affairs of judiciary in any manner. The relevant portions from the judgments referred above are reproduced hereunder:--
In Al-Jehad Trust case, supra, it was held as under:
"The independence of judiciary is inextricably linked and connected with the Constitutional process of appointment of Judges of the superior Judiciary. The relevant Constitutional provisions are to be construed in a manner which would ensure the independence of Judiciary. A written Constitution is an organic document designed and intended to cater the need for all times to come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the growth of the country and its people. Thus, the approach, while interpreting a Constitutional provision should be dynamic, progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation cannot be a narrow and pedantic. But the Court's efforts should be ever changing society. The general words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In other words, their colour and contents are derived form their context.
The above principles will have to be kept in view while construing the provisions of the Constitution relating to the appointments/transfers of Judges of the superior Judiciary."
The Constitution contemplates trichotomy of power inter se the three pillars of the State, namely, Legislature, Executive and the Judiciary, each one of the organs of the State has to function within the limits provided in the Constitution. The Constitutional provisions relating to the appointments and transfers of Judges of the superior Courts, therefore, need to be examined in the light of the Islamic concept of justice.
"Article 209 of the Constitution relates to the composition of the Supreme Judicial Council and its functions. It enables the Council to take action or remove a Judge from the office on the ground of his incapability to perform the duties of his office for the reason of physical or mental incapability or misconduct. Sub-Article (7) of this Article provides that a Judge of the Supreme Court or of a High Court shall not be removed from the office except as provided by this Article. Sub-Article (8) of this Article provides that the Council shall issue the Code of Conduct to be observed by the Judges of the Supreme Court and the High Courts. It is clear from the above provisions that the security of tenure is provided under Article 209 and also the forum for removal from the office as Judge of the High Court or of the Supreme Court. This provision is incorporated in the Constitution by the Constitution-makers. Subsequently, Chapter 3A setting up the Federal Shariat Court was inserted in Part VII of the Constitution vide P.O. No. 1 of 1980 providing in Article 203C(4) that a Judge or Chief Justice of the High Court can be appointed to the Federal Shariat Court without his consent for a period not exceeding two years. After such appointment it is open to the President to modify the terms of the appointment of such Judge in the Federal Shariat Court or assign him any other office or require him to perform such other functions as the President may deem fit. If a Judge of Chief Justice of a High Court refuses to accept the appointment to the Federal Shariat Court, then he stands retired. No doubt, Chapter 3A inserted in Part VII of the Constitution for the purpose of setting up of the Federal Shariat Court envisages that the provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution, still the appointment of a Judge or a Chief Justice of a High Court to the Federal Shariat Court in such manner without his consent accompanying by such harsh conditions, in the final analysis, tantamount to removal or forcible retirement which can and should be done only under Article 209 of the Constitution under which the Supreme Judicial Council is constituted and is authorized to take action of such punitive nature. If the Government finds a particular Judge or the Chief Justice of a High Court to be un-cooperative and if there is sufficient material to support the charge of misconduct, then in all fairness action should be taken against him and proceedings should be initiated before the Supreme Judicial Council in the manner prescribed under Article 209. The object is not to strike down provisions (4), (4-B) and (5) of Article 203C as void being inconsistent with Article 209 but keeping in view the rules of interpretation, if there is choice between two forums or provisions, then the provision beneficial to the affected Judge should have been adopted or resorted to, and in such circumstances, the resultant action is to be considered as void in absence of cogent reasons without going into the Constitutionality of Article 203C of the Constitution. The Constitution is to be read as a whole and if there is any inconsistency, the same can be removed or rectified by the Parliament.
In Zafar Ali Shah Vs. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), it was held as under:
"The independence of judiciary is a basic principle of the Constitutional system of governance in Pakistan. The Constitution of Pakistan contains specific and categorical provisions for the independence of judiciary. The Preamble and Article 2A state that "the independence of judiciary shall be fully secured", and with a view to achieve this objective, Article 175 provides that "the Judiciary shall be separated progressively from the executive".
....... In a system of Constitutional governance, guaranteeing Fundamental Rights and based on principle of trichotomy of powers, such as ours, the judiciary plays a crucial role of interpreting and applying the law and adjudicating upon disputes arising among Governments or between State and citizens or citizens inter se. The judiciary is entrusted with the responsibility for enforcement of Fundamental Rights. This calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of Fundamental Rights are nullified and the rule of law upheld in the society.
The Constitution makes it the exclusive power/responsibility of the judiciary to ensure the sustenance of system of "separation of powers" based on checks and balances. This is legal obligation assigned to the judiciary. It is called upon to enforce the Constitution and safeguard the Fundamental Rights and freedom of individuals. To do so, the judiciary has to be properly organized and effective and efficient enough to quickly address and resolve public claims and grievances; and also has to be strong and independent enough to dispense justice fairly and impartially. It is such an efficient and independent judiciary which can foster an appropriate legal and judicial environment where there is peace and security in the society, safety of life, protection of property and guarantee of essential human rights and fundamental freedoms for all individuals and groups, irrespective of any distinction or discrimination on the basis of caste, creed, colour, culture, gender or place of origin, etc. It is indeed such a legal and judicial environment, which is conducive to economic growth and social development".
"A perusal of the above clause indicates that the right to move the Supreme Judicial Council (SJC) against a Judge of the superior Court under Article 209 of the Constitution is not available to any individual. Secondly, the President alone on the advice of Prime Minister or the Cabinet as the case may be, can refer a case of the Judge of the superior Court to Supreme Judicial Council for holding an enquiry against him. Thirdly, the jurisdiction of Supreme Judicial Council to hold in enquiry against the Judge of a superior Court arises only when a reference is made to it by the President in this behalf. Fourthly, the enquiry by the Supreme Judicial Council against the Judge of a superior Court under Article 209 of the Constitution of Pakistan (1973), is limited only to two points, namely (i) the incapacity of the Judge to perform the duties of his office properly arising from any physical or mental incapacity, and (ii) misconduct of the Judge concerned. Lastly, the findings of the Supreme Judicial Council in such an enquiry are recommendatory in nature and the action, if any, is to be taken by the President on the advice of the Prime Minister or the Cabinet. However, in order to make the Supreme Judicial Council more effective and functional and to ensure that the Judges of the superior Courts observe the Code of Conduct in letter and spirit, the Chief Justice of Pakistan/Chairman, Supreme Judicial Council convened meetings of the council on 29.3.2000, 13.4.2000 and 30.4.2000 respectively wherein decisions, inter alia, were taken to make it obligatory on every Judge to take all steps necessary to expedite cases, and effectively control the processing thereof with a view to deciding the same expeditiously and to strictly adhere to the Code of Conduct, pursuant to the provisions contained in Articles II, IX and X of the Code of Conduct. Article X provides for quick disposal of cases. The Judges of the superior Courts have to work and conduct themselves under the Code of Conduct already prescribed for them. They are oath-bound to preserve the Code and act in accordance with its dictates. The Code of Conduct is a fairly comprehensive document and covers both the public and private conduct of Judges. It lays down essential norms of behavior to be observed in the interest of maintaining decorum and judicial propriety. The Supreme Judicial Council is a unique institution, which comprises the senior most Judges in judicial hierarchy and entrusted with he onerous responsibility of deciding complaints that are referred to it through references by the President alone. It is an essential prerequisite of the independence of judiciary that there is put in place a system of accountability. It should, therefore, be the endeavour of the Judges of the superior Courts to make the Code fully applicable and ensure that it is strictly adhered to. The Judges of the superior Courts are not immune from accountability. They are accountable only in the manner laid down under Article 209 of the Constitution. The Judges of the superior Courts are not immune from accountability and that it is for the President to make a reference if in a case such a course is desirable at his end."
The judicial history of Pakistan is full of victimization of the Judges of superior Courts at the hands of Executive and irrespective of the fact that independence of judiciary, has always been considered a threat to the Executive, the Judges collectively as well as in their individual capacity have always been functioning according to their conscious. The judiciary is an important Organ of the State and without its independence at all levels in all affairs including the financial matters, the right of access to justice cannot be ensured, therefore, the independent and strong judiciary for good governance and welfare of the people, is essential and thus the matters relating to the appointment and removal of Judges from their offices, security of their tenure, pay and pension and other privileges must not be in the exclusive control and domain of Executive Authorities rather the role of executive in such affairs of judiciary must be curtailed to the extent of only general supervision, so that judicial reforms in real sense can be made to the requirement of the Judiciary. It is thus imperative that all matters concerning with the judiciary should be decided by the Judicial Policy Making Body, a highest statutory Body in the Judiciary which consists of the Chief Justices of all the High Courts and the Chief Justice of Pakistan, as its Chairman. The direct or indirect control of the Executive Authorities in the affairs of judiciary has always been an hindrance in the administration and dispensation of justice and also the smooth functioning of judiciary.
The appointment of Judges in the superior Courts is made through a consultative process provided in the Constitution but the Executive Authorities with a view to make the appointments of their choice always cause unnecessary interruption in this process and similarly the Judges of the superior Courts in the past have been removed from their office in an un-ceremonial and unconstitutional manner even in normal circumstances either for political reasons or for Executive command and will in departure to the provision of Article 209 of the Constitution which provide protection to the tenure of office of a Judge. The Judges of the superior Courts at a number of occasions became victims of the Executive action either in consequence to the imposition of emergency in the country or when the Constitution was held in abeyance and have been removed from their offices through an extra-Constitutional measures so much so even in normal situation, there are instances of compelling the Judges to resign from their offices or confirmation of Additional Judges of the High Courts has been withheld without any legal excuse and moral justification. In recent past in consequence to the observation made by this Court without taking judicial notice of certain facts brought before the Court in Asif Ali Zardari Vs. The State (PLD 2001 SC 568), the Executive Authorities of the State forced two Judges, one of this Court and one of Lahore High Court to resign from their offices which was in complete departure to the mandate of Constitution. The use of such device to force a Judge to tender resignation from his office, is certainly un-Constitutional which has no legal and moral justification. The concept of independence of judiciary is that a Judge is free from all sort of out side influence in discharge of his functions and in view of protection of tenure provided under Article 209 of the Constitution, his removal from office in any other manner except in accordance with the Constitution and the procedure provided therein including involuntary resignation is un-Constitutional, thus apart from the personal independence of the Judges, Judiciary must be independent in all respects in its affairs for which judicial reforms at large scale are required under the control of Judicial Body (JPM Body) and Government should confine its role to the extent of providing resources and general supervision otherwise the concept of independence of judiciary would remain confine to the extent of persons of the Judges. This may be seen that the Government Agencies and Functionaries instead of performing their duty, waste much public time and money on collecting information in respect of private affairs of Judges and their families for no useful purpose and thereby cause disturbance in their private life which is against all legal and moral norms and is strictly prohibited in Islam in addition to disturb privacy in terms of Article 14 of the Constitution.
Reverting back to the present case, we find that a plain reading of Paragraph 2 in the Fifth Schedule referred to above indicates that every Judge of a High Court shall be entitled to a pension besides other rights and privileges as referred to in the said paragraph, as may be determined by the President. It is thus clear that all those Judges of the High Courts on retirement, irrespective of their length of service as such Judges would get pension as per their entitlement and the executive authorities including the President cannot by way of Presidential Orders or through any other legal instrument curtail their Constitutional right of pension. Consequently, we hold that retired Judges of the High Courts invariably are entitled to the grant of pension under Article 205 read with Fifth Schedule of the Constitution, irrespective of the date of retirement before or after 25.1.2000 and length of service, therefore, the distinction created and classification of retired Judges made for the purpose of grant of pension and pensionary benefits on the basis of length of service or date of retirement, is not legal and Constitutional.
The matter relating to the grant of pension to the retired Judges of High Courts irrespective of their length of service as such Judge, at one stage was seriously considered by the Federal Government but it could not be materialized for the reason of departmental interpretation of Fifth Schedule that a retired Judge of the High Court who has not put in five years minimum service in terms of Paragraph 3 of the Schedule, was not entitled to the pensionary benefits whereas the plain reading of Paragraph 2 in the Fifth Schedule referred to above, would show that every Judge of a High Court shall be entitled to a pension besides other rights and privileges as referred to in the said Paragraph, as may be determined by the President. This Paragraph further provides that until such rights and privileges are so determined, a Judge shall be entitled to such privileges and rights including a right to receive pension to which a Judge was entitled immediately before the commencing day. There is no ambiguity in Paragraphs 2 and 3 of Fifth Schedule because Paragraph 3 provides for a minimum and a #+able to a Judge of a High Court who has not put in less than five years of service as such Judge whereas Paragraph 2 deals with the entitlement of Judges. In short Paragraph 3 identifies a particular class of Judges, with reference to the length of service and nothing can be spelt out that Paragraph 2 has no independent implication with reference to every Judge of a High Court. It is thus clear that the classification of Judges was made with reference to their length of service for the purpose of determination of their pension at different rates mentioned therein and not for the purpose of determination of their right of pension which is recognized under Article 205 of the Constitution.
Malik Muhammad Qayyum, learned Attorney General for Pakistan, having placed on record advice tendered by him to the Ministry of Law, Justice and Human Rights, has submitted that in consequence to the promulgation of P.O. No. 8 of 2007, the Judges of the High Courts who retired on or after 25.1.2000 irrespective of their length of service, have been given the right of pension and pensionary benefits as provided under Article 205 read with Fifth Schedule of the Constitution. The learned Attorney General stated that principally all retired Judges of the High Courts irrespective of date of retirement and length of service are equally entitled to the grant of pension and pensionary benefits under the Constitution without any distinction. He added that in the light of principle of equality and equal protection of law, the retired Judges of the High Courts by implication may be entitled to the benefit of P.O. No. 8 of 2007 read with Article 205 of the Constitution. However, the learned Attorney General has not been able to justify the grant of such right to the Judges of the High Courts who retired on or after 25.1.2000 and withheld the same in respect of the Judges who retired prior to this date, as no such distinction can be created in respect of the right of pension and pensionary benefits of the retired Judges of the High Courts under the Constitution. All retired Judges of the High Courts in the above circumstances, are placed in the same situation and are equally entitled to the grant of pension and pensionary benefits without any discrimination. The advice referred to above tendered by the learned Attorney General for Pakistan to the Government of Pakistan through Secretary, Ministry of Law, Justice & Human Rights, Islamabad, is reproduced hereunder:
"As requested vide your Letter No. F. 1(3)/2008-A-II dated 14.2.2008. I have examined the matter and am clearly of the view that the pensionary benefits granted to the permanent Judges of the High Court through Presidential Order No. VII of 2007 are available to all the permanent Judges who retired on or after 25th of January 2000 irrespective of the length of service.
As you are fully aware the issue has a background. Many of the permanent Judges of the High Court who had retired from service after putting in less than five years service were denied pensionary benefits and they have been agitating their matters before different forums. The Constitutional Petitions filed by them are still pending in the Supreme Court of Pakistan.
One of the reason for granting pensionary benefits to the permanent Judges irrespective to the length of service was that those Judge cannot practice before the High Court in view of Article 207(3) of the Constitution. It was felt that it was anomalous that while these Judges were deprived of the right to practice the profession of law before the High Court, they were not being paid any pension which resulted in great financial hardship to them and many of them were living from hand to mouth. As already mentioned the idea of promulgation of Presidential Order No. VIII of 2007 was to grant pensionary benefits to all such Judges. It was also felt that there was no legal or Constitutional backing for differentiating between the permanent Judges who had put less than five years of service and those who had held the office for a larger period of time. The cut off point, in the circumstances appeared to be discriminatory and violative of Article 25 of the Constitution keeping in view laid down in I.A. Shervani's case (I.A. Shervani Vs. Government of Pakistan) 1991 SCMR 1041.
The answer to the questions posed by the High Court is as under:--
(i) Q. Whether a Judge of High Court having put in less than five years of service is entitled to receive full pensionary benefits.
Ans. Yes.
(ii) Q. Whether Article 4 of the President's Order No. VIII/2007 overrides Para 3 of the 5th schedule to the Constitution, relating to the High Court Judges ?
Ans. It is clear from the perusal of the Presidential order itself that which has an override effect inasmuch as it is specifically provided in Article 2 thereof that provisions of the Order shall have effect notwithstanding anything to the contrary in any other law for the time being in force.
(iii) Q. Who is Permanent Judge within the meaning of Article 4 of the President's Order No. VIII/2007?
Ans. The word "Permanent Judge" has been used in all the Laws as to distinguish such Judges from the Additional Judges. The permanent Judges are the Judges who are appointed under Article 193 of the Constitution as distinguished from Additional Judges appointed under Article 197.
(iv) Q. Who is not eligible to enjoy the Pensionary benefits under Articles 4 within the contemplation of Article 5 of the President's Order No. VIII/2007?
Ans. All Permanent Judges are entitled to the pensionary benefits.
(v) Q. If any permanent/confirmed Judge of a High Court having put in less than five years of service has been allowed pensionary benefits under the President's Order No. VIII/2007, then, the exact rate of pension paid, be also intimated.
Ans. The question of rate of pension may be examined at your level or by the concerned officers of Audit and Accounts.
(vi) Q. Who are the Permanent Judges, eligible for the benefit under the High Courts Judges (Service benefits) Order, 2000 (Orders No. V/2000) and what is the implication qua its retrospectively i.e from the 25th day of January 2000 as mentioned in the Article 7 of the Article 1 of the P.O. No. VIII/2007?
Ans. Strictly speaking the pensionary benefits should be given with effect from the date 5th January 2002, as Presidential Order No. VIII of 2007 has been made retrospectively applicable from the date."
"(9) A Chief Justice who is not a Judge of the Supreme Court shall be entitled to the same remuneration, allowances and privileges as are admissible to a Judge of the Supreme Court and a Judge who is not a Judge of a High Court shall be entitled to the same remuneration, allowances and privileges as are admissible to a Judge of a High Court:
Provided that where a Judge is already drawing "a pension for any other post in the service of Pakistan, the amount of such pension shall be deducted from the pension admissible under this clause."
The Chief Justice or a Judge of Federal Shariat Court shall be entitled to the same salary, pension, allowances, privileges, including grant of leave/LPR and other benefits as are allowed to a Judge of the Supreme Court and High Court respectively. The plain reading of Article 203-C of the Constitution read with Article 205 and Fifth Schedule of the Constitution would show that right of pension and pensionary benefits of the Chief Justice and Judges of Federal Shariat Court notwithstanding the length of service or fixed term of tenure is recognized under the Constitution and consequently, this judgment subject to the Constitution, shall be equally applicable in respect of the right of pension and pensionary benefits admissible to the Chief Justice and Judges of the Federal Shariat Court.
In the light of foregoing reasons, we hold that all retired Judges of the High Courts who retire as such Judge in terms of Article 195 of the Constitution of Islamic Republic of Pakistan and the Chief Justice and Judges of the Federal Shariat Court notwithstanding the tenure appointment, are entitled to the pension and pensionary benefits in terms of Article 205 read with Fifth Schedule of the Constitution read with P.O. No. 8 of 2007 and Article 203-C of the Constitution and all other enabling provisions of the Constitution as well as President's Order No. 2 of 1993 and P.O. No. 3 of 1997, irrespective of their date of retirement and length of service. The miscellaneous applications Bearing No. 940 in CA 1021 (filed by Justice (R) Muhammad Azam Khan), 968/05 in CA 1021/95 (filed by Syed Sharif Hussain Bokhari and Muhammad Aqil Mirza, retired Judges of Lahore High Court, 1004/05 in CA 1021/95 (filed by Ghulam Muhammad Qureshi), 1176/05 in CA 1021/95 (filed by Mr. Riaz Kayani, retired Judge of Lahore High Court, 1190/05 in CA 1021/95 (filed by Rao Iqbal Ahmed Khan, retired Judge of Lahore High Court, 1368/05 in CA 1021/95 (filed by Dr. Munir Ahmed Mughal, retired Judge of Lahore High Court, 2079/06 in CA 1021/95 and 1273/06 in Const. P. 10/01 (both filed by Justice (R) Saeed-ur-Rehman Farrukh), involving similar questions of facts and law, containing the prayer for impleadment of the applicants in the Constitution petitions as co-petitioner and in civil appeal as respondent, have already been allowed.
In consequence to the above discussion, the Constitution Petition Nos. 8/2000, 10/2001, 26/2003, 34/2003, 04/2004 & 26/2007, filed by the retired Judges of the High Courts are allowed and the petitioners/applicants in these petitions and miscellaneous applications, alongwith all other retired Judges of the High Courts, who are not party in the present proceedings, are held entitled to get pension and pensionary benefits with other privileges admissible to them in terms of Article 205 of the Constitution read with P.O. No. 8 of 2007 and Article 203-C of the Constitution read with paras 2 and 3 of Fifth Schedule and P.O. No. 2 of 1993 and P.O. No. 3 of 1997 from the date of their respective retirements, irrespective of their length of service as such Judges.
In Civil Appeal No. 1021/1995, no one appeared behalf of the respondents but since the question involved therein relates to the right of pension and pensionary benefits of the retired Judges of the High Courts and respondent was also a retired Judge of the High Court therefore, notwithstanding his death pending disposal of this appeal, the judgment of the High Court, impugned before us, is upheld and this Civil Appeal filed by the Federation is dismissed, with no order as to costs.
(R.A.) Order accordingly
PLJ 2008 SC 687
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan, Mian Hamid Farooq & Syed Zawwar Hussain Jaffery, JJ.
ALTAF HUSSAIN--Petitioner
versus
FAKHAR HUSSAIN and another--Respondents
Crl. P. No. 50 of 2008, decided on 08-04-2008.
(Against the order dated 25-02-2008 of the Lahore High Court Lahore Rawalpindi Bench, Rawalpindi in Crl. A. 169/2004)
Last Seen Evidence--
----Evidentiary value--Held: Last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing--Need nto be reiterated for sake of brevity.
[P. 689] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Appreciation of evidence--Held: When an accused person is acquitted from the charge by a court competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. [P. 689] B
Medical evidence--
----Ocular evidence--Medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of crime. [P. 689] C
Malik Shahzad Ahmad Khan, ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 8.4.2008.
Judgment
Ijaz-ul-Hassan, J.--Through this petition, Altaf Hussain, petitioner, seeks leave to appeal against order dated 25.2.2008 passed by learned Lahore High Court, Rawalpindi Bench, Rawalpindi, dismissing Criminal Appeal No. 169 of 2004 filed by petitioner challenging acquittal of Fakhar Hussain, respondent, vide judgment dated 1.4.2004 rendered by learned Additional Sessions Judge, Chakwal, in case FIR No. 48 dated 12.6.2003 under Section 302 PPC registered at Police Station, Choa Saidan Shah District Chakwal.
Since facts of the case in sufficient detail stand incorporated in the impugned order as well as in the memo of petition, therefore, need not be reiterated for the sake of brevity.
After registration of FIR at the instance of Altaf Hussain, complainant/petitioner, maternal uncle of Shahid Hussain, deceased, police investigated the matter and submitted challan before trial Court. At the trial, prosecution produced 13 witnesses in support of its case. Respondent in his statement under Section 342 Cr.P.C denied the prosecution allegations and claimed to have been falsely charged. In defence respondent examined Muhammad Gulistan, Head Constable.
Upon consideration of the material placed before him, learned trial Judge vide judgment dated 1.4.2004 extended benefit of doubt to respondent and acquitted him from the charge of murder of Shahid Hussain, deceased. Petitioner impugned said acquittal of the respondent before learned High Court by filing a Criminal Appeal which has been dismissed as mentioned and stated above.
Malik Shahzad Ahmed Khan, Advocate for petitioner, bitterly criticized the impugned judgment and attempted to argue that sufficient material was available to prove that deceased was lastly seen alive in the company of respondent, which has been discarded without any justifiable reason; that the recoveries from the spot coupled with the evidence of motive, extra judicial confession and recovery of weapon of crime i.e. hatchet, inexorably connected the respondent with murder of the deceased; that minor lapses, defects and lacunas on the part of the investigating agency do not become base for the acquittal of the respondent from the charge; that the impugned judgment whereby benefit of doubt has been extended to the respondent underlies an impossible view in as much as the evidence led by the prosecution conclusively established the guilt of the respondent, prosecution evidence taken from any angle is not capable of being construed differently than the guilt of the respondent and strong evidence is available on the record making a full link and chain leading to the guilt of the respondent, which has not been appreciated in its true perspective, resulting incomplete failure of justice.
We have heard arguments and submissions of learned counsel for the petitioner. We have also gone through the record of the case with his assistance. Learned counsel has not been able to point out any piece of evidence which could persuade us to hold that the findings of fact recorded by learned trial Court as well as High Court are against the evidence brought on record the impugned judgment are neither perverse nor arbitrary nor against the evidence on file.
It is settled principle of law that the last seen evidence is a weakest type of evidence unless corroborated with some other piece of evidence which is conspicuously missing in this case. This piece of evidence has been disbelieved by the trial Court as well as learned High Court and rightly so. So far as circumstantial evidence is concerned it does not lead to the conclusion in any manner that the respondent had any hand in the affair and caused the murder in question. Needless to emphasis that all the pieces of evidence should be so linked that it should give the picture of a complete chain, one corner of which should touch the neck of the deceased and other corner to the neck of the accused. Failure of one link will destroy the entire chain.
It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record.
It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime.
In view of the above, we do not find any substance in this petition, which is dismissed and leave refused.
(W.I.B.) Leave to appeal refused
PLJ 2008 SC 689
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar HCJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MUHAMMAD YAQOOB--Appellant
versus
STATE--Respondent
Crl. A. No. 83 of 2006, decided on 20-03-2008.
(On appeal from the judgment dated 16-09-2004 passed by Lahore High Court, in Criminal Appeal No. 301-J of 2003) & M.R. No. 23-T of 2003).
Pakistan Penal Code, 1860 (XLV OF 1860)--
----Ss. 302(b) & 34--Anti-Terrorism Act, (XXVII of 1997), S. 7(i)(a)--Constitution of Pakistan, 1973, Art. 185(3)--Conviction and sentence--One of the accused was sentenced to death and other two were acquitted by extended benefit of doubt--Appeal was dismissed by High Court--Challenge to--Reduction of sentence--Appreciation of evidence--Validity--Witness has no reason or motive for false implication--Medical evidence is also in complete harmony with the deposition of eye witnesses and suggested that the death to the deceased was caused as a result of fire arm injuries--Recoveries have been discarded by Courts below--It was the shot of the appellant which resulted in the death of deceased it constitutes a mitigating or extenuating circumstance justifying lesser punishment--Sentence of the appellant was reduced from death to imprisonment for life--Appeal was allowed. [P. 693] A, C & D
1995 SCMR 142 and 1984 SCMR 1069, ref.
Witness--
----Credibility--Mere Fact that they are police officials by itself cannot be considered a good ground to disbelieve their evidence. [P. 693] B
Mr. Muhammad Javed Aziz Sindhu, ASC for Appellant.
Mr. M. Siddique Khan Baloch, DPG for Respondent.
Date of hearing: 20.3.2008.
Judgment
Ijaz-ul-Hassan, J.--The above captioned appeal arises out of the judgment dated 16.9.2004 passed by a learned Division Bench of the Lahore High Court, Lahore, dismissing Criminal Appeal No. 301-J of 2003 filed by Muhammad Yaqoob, appellant and answering in the affirmative Murder Reference sent by learned Judge, Special Court, Anti Terrorism-II, Lahore.
gashat'. When they reached near the road leading to shrine of HazratKaramanwala', a car was seen coming from Renala Khurd side. On seeing the police party, driver of the car negotiated a turn and changed the direction of the car. The car was chased and got stopped at some distance. Three persons stepped down from the car while one remained seated on the driving seat. One of them, namely, Muhammad Yaqoob, was armed with .222 bore rifle, the other was carrying
Kalashnikov and the third had a .30 bore pistol with him. All the three persons on confrontation, started firing at the police party as a result of which, Asghar Nadeem and Noor Samand constables were hit and seriously injured. The official vehicle was also damaged due to the firing. After accomplishing the mission, the accused made good there escape. The injured were rushed to DHQ
Hospital, Okara. Asghar Nadeem could not survived and expired in the hospital.2A. After completion of investigation, appellant and co-accused Mazhar and Sarfraz were sent up to face trial. In order to establish its case, prosecution examined 19 witnesses in all. P.Ws. Noor Samand, Muhammad Iqbal, Ghulam Mustafa and Noor Ahmed furnished eye-witness account of the occurrence. Dr. Arshad Iqbal, Medical Officer, DHQ, Hospital, Okara, conducted post-mortem examination of Asghar Nadeem deceased on 28-5-2001 at about 10.30 a.m. and found the following injuries:--
"1. A lacerated wound 1.5 c.m. x 1.5 c.m. with inverted margin and abraded area around the wound, deep going on left hpogastic region 9 cm. above root of panes (wound of entry).
A lacerated wound 1 c.m. with averted margin on outer and lower part of right side of abdomen (wound of Exit) The wound is 6 cm. above right ilic krest.
A lacerated wound 1 c.m. with inverted and blacken margin deep going on back and upper thigh (wound of entry).
A lacerated wound 2 c.m. x 2 c.m. with averted margin on left groin 3 c.m. away from left scrotum (wound of exit).
Left desceing colon and right colon and blood vessels in left groin(femoral) were ruptured, heart was healthy and right vertical was full of blood. Stomach was healthy and empty. Bladder was healthy and contained about 2 ounce of urine. All other organs were healthy.
Cause of death was hemorrhage and shock resulting from Injury Nos. 1, 2, 3 and 4. The probable time between injury and death was within half an hour.
"I have been falsely implicated in the present case at the instance of Muhammad Ashraf Snaghoka, resident of Okara with whom I got previous enmity though I have no concern wit the present occurrence."
They neither examined themselves on oath as required under Section 340(2) Cr.P.C. nor produced evidence in their defence.
(i) Under Section 302 (b) read with Section 34 PPC to death.
(ii) Under Section 324 read with Section 34 PPC to ten years R.I. and to pay fine of Rs. 50,000/- or in default thereof to further suffer six months R.I.
(iii) Under Section 7(i) (a) of the Anti Terrorism Act, 1997 to death.
(iv) The sentences of death awarded to appellant under the two offences were subject to confirmation by High Court.
(v) Appellant was also directed to pay compensation of Rs. 1,00,000/- to legal heirs of Asghar Nadeem, deceased, and Rs. 30,000/- to Noor Samand or in lieu thereof to undergo six months imprisonment on each count.
The sentences were ordered to run concurrently with benefit of Section 382-B Cr.P.C.
Feeling aggrieved, appellant preferred appeal before Learned Lahore High Court, Lahore, which has been dismissed as stated hereinabove.
Mr. Muhammad Javed Aziz Sindhu, learned counsel for appellant in support of the appeal contended that except the bare allegations in the FIR, there is nothing incriminating on the file which could connect the appellant with commission of the crime; that prosecution story is highly unnatural as the circumstances leading to occurrence would vividly suggest that deceased was murdered by some unknown assailant/assailants but appellant has been involved at the instance of Muhammad Ashraf Sanghoka and truth has been suppressed by implicating the appellant in the false case. Learned counsel also contended that on the basis of the same evidence, the co-accused were acquitted but both the Courts below have erred in law in not extending benefit of doubt to the appellant and convicting him on the same evidence which was not believed by those Courts against the acquitted co-accused. Learned counsel further contended that the medical evidence does not corroborate the ocular account and stands belied by host of circumstances. In short it was reiterated that the evidence produced by the prosecution being shaky and not confidence inspiring was not liable to be relied upon without strong independent evidence which is not available in this case to sustain the conviction of the appellant.
While controverting the arguments of learned counsel for the appellant, Mr. M. Siddique Khan Baloch, learned Deputy Prosecutor General, supported the impugned judgment asserting that both the Courts below after proper appreciation of evidence have come to the concurrent conclusion qua the guilt of the appellant and as such the impugned judgment admits no interference by this Court and appeal merits out-right dismissal.
We have heard the arguments of both the learned counsel and with their assistance the impugned judgment has been gone through carefully and minutely in the light of the evidence produced before the trial Court.
The prosecution case mainly rests upon ocular account of the incident furnished by PWs. Noor Samand, Muhammad Iqbal, Ghulam Mustafa and Noor Ahmed, medical evidence and recoveries. The eye-witnesses have deposed almost on the lines of FIR (Ex PA). They remained unanimous and consistent on all details of the occurrence. The witnesses have no reason or motive for false implication. They were subjected to lengthy and searching cross-examination but their creditability could not be shattered. The mere fact that they are police officials by itself cannot be considered a good ground to disbelieve their evidence. Learned appellant's counsel has not been able to refer to any piece of evidence which, if considered, could persuade us to interfere with the concurrent findings of guilt recorded by the learned two Courts. The evidence has been minutely reappraised by learned High Court which upheld conviction of the appellant. Medical evidence is also in complete harmony with the deposition of eye-witnesses and suggested that the death of the deceased was caused as a result of fire arm injuries. So far as the recoveries are concerned, same have been discarded by the Courts below and rightly so.
While considering the question of sentence, we feel that as it is not certain from the evidence on record that it was the shot of the appellant which resulted in the death of Asghar Nadeem, deceased, it constitutes a mitigating or extenuating circumstance justifying lesser punishment, as held by this Court in cases of Allah Dad and another vs. The State (1995 SCMR 142) and Saeed and others vs. The State (1984 SCMR 1069). We are inclined to partly allow the appeal and while maintaining the conviction, we reduce the sentence of the appellant from death to imprisonment for life with benefit of Section 382-B Cr.P.C. Other sentences shall remain intact and run concurrently.
Above are the detailed reasons of our short order dated 20.3.2008.
(W.I.B) Appeal partly allowed
PLJ 2008 SC 694
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir & Zia Perwez, JJ.
FARYAD ALI--Appellant
versus
STATE--Respondent
Crl. A. No. 449 of 2007, decided on 9.4.2008.
(On appeal from the judgment of the Lahore High Court Lahore, dated 5.12.2006 passed in Crl. A. No. 1530 of 2001 and M.R. No. 657 of 2001).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302(b), 34 & 324--Conviction and sentence recorded by trial Court--Conversion of death sentence into life imprisonment--Challenge to--Appreciation of evidence--Finding of Medical Officer as well as the special Medical Board were concurrent on the weapon of offence used for the commission of offence i.e. the seat of injury on the head of deceased--There was a commminuted of fracture of skull involving the frontal, temporal parietal and occipital bones of the skull especially its upper half of skull was scattered into 15 pieces of different size--Head injury was caused by a fire-arm--Prosecution had established the participation of the accused in occurrence but failed to established his intention to kill the deceased or causing a fatal blow/injury with blunt weapon beyond reasonable doubt--Conviction & sentence under S. 302(b) set aside while others maintained.
[Pp. 698, 699 & 700] A, B, F & K
Criminal trial--
----Medical evidence--Expert's opinion--Legal status--Held: Medical evidence or expert's opinion is always treated to be confirmatory in nature. [P. 699] C
Medical evidence--
----Expert opinion--Legal effect--Held: Medical evidence cannot establish the presence of the accused in the occurrence and the weapon used or injury caused--Medical expert who can opine that a specific injury was inflicted by which kind of weapon. [P. 699] D
Criminal trial--
----Medical evidence--Ocular evidence--Conflict--Legal value--Held: When there is a conflict between the ocular account and medical evidence, if the ocular account is straight, fair and confidence inspiring, it shall be given more weight and will prevail--It is not sufficient to suggest the non-presence of eye-witnesses at the spot but the conflict and nature of injury can be relevant to ascertain the role of an individual accused in the occurrence. [P. ] E
Benefit of Doubt--
----Status of--Presumption--Favourite child of law--Held: An accused is the most favourite child of law and every benefit of doubt would go to him regardless of whether he has taken any such plea or not.
[P. 699] G
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 34--Common intention--Vicarious liability--Legal requirement--Held: Common intention of an accused person for committing murder is a question of fact which can be ascertain on the basis of acts and conduct of accused, the ferocity of attack, the weapon used, the number of blows coupled with the element of pre-concert of mind. [P. 699] H
Criminal Procedure Code, 1898 (V of 1898)--
----S. 176--Medical jurisprudence--Exhumation/disinterment--Re-examination of dead body after 10 months--Validity--Held: Medical jurisprudence has not provided any time limit for disinterment of the dead body in India and England while in France the period is limited to 10 year and 30 years in Germany. [P. 699] J
PLD 2005 SC 99; 1968 SCMR 18; PLD 2005 SC 40 &
PLD 2006 SC 109 ref.
Mr. F.K. Butt, ASC for Appellant.
Mr. M. Siddique Khan Baloch, DPG and Ch. Akhtar Ali, AOR for State.
Ch. Naseer Ahmad Sindhu, ASC for Complainant.
Date of hearing: 27.3.2008.
Judgment
Muhammad Akhtar Shabbir, J.--This criminal appeal, by leave of the Court, is directed against the judgment dated 05.12.2006 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby criminal appeal filed by the appellant against his conviction and sentence of death awarded to him for committing "qatl-i-amd" of Muhammad Hanif, deceased, by the learned Additional Sessions Judge, Faisalabad, vide judgment dated 28.09.2001, was partly allowed and while maintaining his conviction under Section 302(b)/34 PPC, the learned High Court altered the major penalty of death to imprisonment for life. Hence, the appellant preferred Jail Petition No. 05 of 2007 before this Court out of which the instant appeal has arisen.
Briefly stated the facts of the case, as narrated in the FIR (Ex.PG/1) by complainant Barkat Ali (PW-5), are to the effect that on the fateful day and time (08.01.1996 at 3.00 P.M.), he along with his brother Muhammad Ibrahim, Muhammad Hanif (deceased) and Taj Ali injured PW were present in their Haveli (Ahata Muwaishian/Cattle shed). In a short while, Faryad Ali, appellant armed with Wahola, Abdul Sattar @ Ranjha (since P.O.) armed with .222 rifle and their mother Mst. Hameedan Bibi (since acquitted) came there raising lalkaras. On hearing the noise, Muhammad Hanif went out of the Haveli as to see what had happened. On seeing him, Mst. Hameedan Bibi raised lalkara inciting Abdul Sattar @ Ranjha and Faryad Ali to give him a lesson for hurling abuses and to kill him. The accused tried to get him but he ran towards the Haveli on which Abdul Sattar @ Ranjha fired with his rifle which shot hit him on the back of his left shoulder. It was alleged that Faryad Ali then gave Wahola blow on the head of Muhammad Hanif which caused his brain come out of the skull. Muhammad Ibrahim and Taj Ali (PWs) also received injuries on their heads at the hands of Abdul Sattar @ Ranjha. Faryad Ali also gave a Wahola blow on the left chin of Taj Ali PW. On hearing the alarm, Mst. Muniran Bibi also came out of her house who was given Wahola blow on her left shoulder by Faryad Ali. The occurrence was also witnessed by Mushtaq Ahmed and Mukhtar Ahmed (given up PWs). The injured were taken to the hospital but Muhammad Hanif died before reaching the hospital.
The prosecution to establish its case against the appellant produced as many as 12 witnesses including the doctor and the Investigating Officer. The ocular account of the occurrence was furnished by complainant Barkat Ali (PW.5), Taj Ali (PW.6) and Mst. Muniran Bibi (PW-7). The medical evidence was furnished by Dr. Masood Iqbal Bukhari (PW.2) and Dr. Mian Tahir Javed (PW.10) who conducted the autopsy on the dead body of Muhammad Hanif deceased. PW-12 Allah Ditta, SI was the Investigating Officer. The appellant when examined under Section 342 Cr.P.C. denied the prosecution story and pleaded that due to enmity he and his co-accused had been falsely involved in this case with the connivance of Police.
The learned trial Court having found the case against the appellant proved beyond reasonable doubt, convicted him under Section 302(b) PPC and sentenced him to death as also to pay Rs. 50,000/- as compensation to the legal heirs of Muhammad Hanif deceased. He was also convicted under Section 324 PPC for launching murderous assault on Taj Ali and Mst. Muniran Bibi and was sentenced to 07 years and 03 years R.I. respectively with fine of Rs. 5000/- each on two counts, in default whereof to undergo S.I. for six months.
Learned counsel for the appellant vehemently argued that in the FIR as well as in the evidence of the prosecution witnesses, the blunt weapon (Wahola) injury caused on the head of the deceased Muhammad Hanif has been assigned to the appellant Faryad Ali, while the `Special Medical Board' after re-examination of the dead body of the deceased opined that both the Injuries No. 1 and 2 were the result of fire-arm, the fire-arm was used by the co-accused Abdul Sattar (P.O.) and not by the present appellant. Further contended that there is a material conflict between the ocular evidence and the opinion of the Medical Board. The learned counsel also argued that in view of the dissenting opinion of the Special Medical Board, the appellant was not liable to be punished under Section 302(b) PPC nor Section 34 PPC is attracted to his case. The learned counsel for the appellant confined his arguments to the extent that no fatal injury was caused by the appellant to the deceased.
While on the other hand, the learned Deputy Prosecutor General opposed the arguments of the learned counsel for the appellant and supported the judgment of the Courts below. He specifically contended that the re-examination of dead body of the deceased by the Special Medical Board after 10 months of the burial is not tenable in law.
We have heard the arguments of the learned counsel for the parties and perused the record with their able assistance.
The only controversy to be determined by this Court as agitated by the learned counsel for the appellant is that as per the opinion of the Special Medical Board, no fatal injury on the person of the deceased is attributed to the appellant. There is no denial to the fact that the complainant has attributed specific role to the appellant Faryad Ali in the FIR and in his statement as PW-5 to the extent that the appellant gave a blunt weapon (Wahola) blow on the head of the deceased Muhammad Hanif which was sufficient to cause his death. As per medico-legal report (Ex.PK), the deceased sustained two injuries. The medical officer at the time of postmortem of the dead body of the deceased declared Injury No. 1 by fire-arm and Injury No. 2, by blunt weapon. While the defence being dissatisfied with the opinion of the medical officer (PW-10) Dr. Mian Tahir Javed, approached the District Magistrate for permission of exhumation and re-examination of the dead body of the deceased by a Medical Board. The appellant's request was turned down by the District Magistrate, his writ petition also met with the same fate. However, this Court vide order dated 21.08.1996 passed in C.P. No. 1733-L allowed the disinterment and fresh postmortem examination of the dead body of the deceased and the Special Medical Board by furnishing its reasons declared that Injury No.2 was also caused by a fire-arm. The High Court in the impugned judgment has also accepted the dissenting opinion of the Medical Board about Injury No.2. The relevant portion of the judgment for further ready reference is reproduced as under:
"But in view of the dissenting opinion expressed by the medical board about Injury No.2 sustained by Muhammad Hanif, deceased the appellant Faryad Ali cannot be said to have caused fatal injury to the deceased."
It transpires from the above observation of the learned High Court that it has given weight to the defence version.
It will not be out of place to mention here that the opinion of the Special Medical Board has also not been categorically contradicted or denied by Dr. Mian Tahir Javed (PW-10) who had conducted the first postmortem examination of the deceased. He in his statement under Section 164 Cr.P.C. before the trial Court when put to cross-examination, admitted that "it is correct that Injury No. 2 is a lacerated wound. A lacerated wound may also be caused by fire arm. There is possibility of sustaining Injury No.2 by the deceased in standing position." He further admitted that "the possibility of Injury No.2 being caused by fire arm cannot be ruled out." It means that in view of the deposition or admission by Dr. Mian Tahir Javed, there is no denial to the fact that the findings of the medical officer as well as the Special Medical Board are concurrent on the weapon of offence used for commission of the offence i.e. the seat of injury on the heard of the deceased Muhammad Hanif. From the medical evidence, it is evident that there was a comminuted fracture of skull involving the frontal, temporal parietal and occipital bones of the skull especially upper half of the skull was scattered into 15 pieces of different size. As per medical jurisprudence, "the temporal bone and the orbital plate of the frontal bone are easily fractured. When a bullet with high velocity causes a glancing blow it may cause guttering of the outer table of skull, usually the inner table is also involved and shows irregular depressed fracture. A bullet though of little weight strikes small area with great velocity and hence may disrupt and disintegrate all the tissues including bone and brain. Blunt objects may cause depressed fracture at the point of impact. The varieties of the fractures of the skull that are usually met with are fissured partial (outer or inner table, though the inner table is more commonly fractured), stellate or radiating, depressed (fracture a la signature), elevated, punctured, guttered, crushed and comminuted-broken into pieces." (Modi's Medical Jurisprudence & Toxicology). The above text of the medical jurisprudence strengthens the medical evidence that the head injury sustained by Muhammad Hanif deceased was caused by a fire-arm.
The cause of death of an injured deceased can only be gathered safely through a postmortem examination as laid down by this Court in the case of Mrs. Alia Tareen, Managing Director, Pakistan General Hospital, Quetta & others v. Amanullah Khan, Advocate and 3 others (PLD 2005 SC 99). The observation was made by this Court in the case (supra) where postmortem examination was never conducted. It has also been observed by this Court that as far as the medical evidence or expert's opinion was concerned, it was always treated to be confirmatory in nature. The medical evidence cannot establish the presence of the accused in the occurrence and weapon of offence used or injury caused to the deceased. So far as the opinion that the injury sustained by the injured or the deceased was caused by which weapon, it is the medical expert who can opine that a specific injury was inflicted by which kind of weapon.
It is also the settled principle of law that when there is a conflict between the ocular account and the medical evidence, if the ocular account is straight, fair and confidence inspiring, the weight shall be given to the ocular account and it will prevail. It is not "sufficient" to suggest the non-presence of the eye-witnesses at the spot but the conflict of medical evidence and the ocular account in respect of number and nature of injuries can be relevant to ascertain the role of an individual accused in the occurrence. In the case in hand, the prosecution has established the participation of the appellant in the occurrence but so far as his intention to kill the deceased or causing a fatal blow/injury to the deceased with blunt weapon is concerned, the same is not established beyond reasonable doubt. The opinion of the medical experts (PW-10, DW-4 and CW-2) with regard to Injury No.2 seated on the head of the deceased cannot be brushed aside. The co-accused Abdul Sattar (P.O.) was armed with fire-arm weapon and as per the medical evidence injuries No.1 & 2 were result of fire-arm, certainly the proclaimed offender aforesaid was responsible for taking life of the deceased. The medical evidence by the medical expert has made a dent in the prosecution story which made it doubtful as it has been laid down by the superior Courts a number of times that an accused is the most favourite child of law and every benefit of doubt would go to the accused regardless of whether he has taken any such plea or not. Reference in this context can be placed in the cases of Fazal Din and others v. Rahmat and others (1968 SCMR 18) and Muhammad Nawaz & others v. The State & others (PLD 2005 SC 40).
The common intention of an accused person for committing murder is a question of fact which can be ascertained on the basis of the acts and the conduct of the accused, the ferocity of the attack, the weapon used, the number of blows coupled with the element of pre-concert of mind. While the appellant in the instant case has caused injuries to Taj Ali (PW.6) and Mst. Muniran Bibi (PW.7) with Wahola a blunt weapon and as per medical evidence (discussed above), no such injury has been sustained by the deceased at the hands of the appellant which is proof of the fact that despite participating in the occurrence, the appellant had no intention to kill any member of the complainant party. Reference in this context can be placed in the case of Zahid Imran & others v. the State & others (PLD 2006 SC 109).
Coming to the contention of the learned Deputy Prosecutor General that the re-examination of the dead body conducted by the Special Medical Board after about 10 months of the burial, suffice it to answer that the medical jurisprudence has not provided any time limit for exhumation/disinterment of the dead body in India and England while in France the period is limited to 10 years and 30 years in Germany. Reference is made to Modi's Medical Jurisprudence & Toxicology (Chapter IV Page 90).
For what has been discussed above, while partly allowing this appeal, we set aside the conviction and sentence of life imprisonment awarded to the Faryad Ali, appellant under Section 302(b) PPC for committing Qatl-i-Amd of Muhammad Hanif, whereas the conviction and sentence awarded to him under Section 324 PPC (on two counts) for launching murderous assault on Taj Ali and Mst. Muniran Bibi (the injured PWs) is maintained.
(J.R.) Order accordingly.
PLJ 2008 SC 700
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, H.C.J.; Ch. Ejaz Yousaf & Muhammad Farrukh Mahmud, JJ.
GHULAM AKBAR and another--Appellants
versus
STATE--Respondents
Crl. A. No. 406 of 2007, decided on 9.4.2008.
(On appeal from the judgment dated 17.3.2006 of the High Court of Sindh, Karachi passed in Spl. Anti-Terrorism Appeal No. 57 of 2001 and Confirmation Case No. 8 of 2001).
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 7(ii)--Pakistan Penal Code, (XLV of 1860), Ss. 302(b), 34, 392 & 394--Conviction and sentence--Appreciation of evidence--Registration number was not mentioned in the FIR nor its colour was mentioned--Almost all the PWs had quite different account vis-a-vis the identification of the jeep--Recovery witness was not the resident of the locality--Place of recovery was surrounded by 50/60 hours but none was summoned--Recovery evidence was not worthy of credence and could not be used against accused persons--Conviction and sentence set aside. [Pp. 705, 706 & 707] A, B, C, D & E
Administration of Justice--
----Burden of proving the case beyond doubt securely lies upon the prosecution and it did not shift--Similarly, presumptions and probabilities however, strong may be, cannot take the shape of proof.
[P. 708] F
PLJ 1974 Cr.C. (Lah) 28, 1976 P.Cr.L.J. 1462, PLD 1989 K. 466, 43 Cr.L.J. 1942 (268), PLD 1997 SC 408, 2002 SCMR 1986, PLJ 1992 SC 149, PLD 1990 Pesh 10 & PLD 1970 SC 10, ref.
Sardar M. Latif Khan Khosa, Sr. ASC, Mr. M. Zaman Bhatti, ASC & Ch. Akhtar Ali, AOR for Appellants.
Mr. M. Qasim Mirjat, AAG for State.
Date of hearing: 9.4.2008.
Order
Muhammad Farrukh Mahmud, J.--Ghulam Akbar, Qasim and Luqman alias Ghazi were tried by the Judge, Special Court, Anti Terrorism, Hyderabad and Mirpurkhas in case FIR No. 3 of 1999 dated 9.1.1999 registered at Police Station Sanghar. Vide judgment dated 6.5.1999, the learned trial Court convicted the accused for offence under Section 302/34 PPC and for offence under Section 392 PPC. The convicts filed an appeal which was accepted on 6.4.2000 by the learned Division Bench of the Sindh High Court and the case was remanded to the trial Court from the stage of the charge, as the charge for offence punishable under Anti Terrorism Act was not framed. In the second round, the learned trial Court vide judgment dated 6.7.2000 convicted and sentenced the petitioners as followed:--
"Sr.No. Under Section Sentence
sentenced to death
sentenced to suffer R.I. for 10
years each and fine of
Rs. 50,000/- each in default
thereof to suffer R.I. for two
years each.
1997 to death.
Benefit of Section 382-B Cr.P.C. was given to the convicts."
The convicts went up in appeal which was decided vide judgment dated 17.3.2006 handed down by the learned Division Bench of the High Court of Sindh, Karachi, whereby Luqman co-accused was acquitted while the convictions and sentences of Ghulam Akbar and Qasim were maintained for offence under Section 302(b) read with Section 34 PPC and for offence under Section 7(ii) of the Act, 1997. Both the convicts were directed to pay Rs. 1,00,000/- each as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. The learned Appellate Court while maintaining the sentence of Ghulam Akbar and Qasim for offence under Section 392 PPC altered the conviction to offence under Section 394 PPC. Benefit of Section 382-B Cr.P.C. was given to both the appellants.
Through Jail Petition No.150 of 2006, Ghulam Akbar and Qasim challenged their conviction and sentences. The petition came up for hearing on 26.11.2007 and leave was granted to re-appraise the evidence. Hence the above captioned appeal.
The FIR was recorded in Sindhi language and is not legible, hence, the relevant facts as given in para 2 of the impugned judgment are being reproduced:--
"Brief facts giving rise to the present Appeal and confirmation case are that the deceased Safdar Ali was Manager in United Bank Limited, Workshop Branch, Sanghar. He was residing in Ward No. 8 Sanghar along with his family members. On 9.1.1999 at about 7:30 a.m. the deceased on his new motorcycle which he had purchased few days back with his daughter PW 6 Manza and niece PW-7 Quratulain both aged about 11 years left the house for leaving the girls in the school. Within one or two minutes the motorcycle reached near the house of Jaipuri on Mithi Khuai Road where a white Jeep was parked in which a person was sitting on driver's seat, two persons were standing near the said Jeep. The said two persons were armed with pistols and on the pistols points the motorcycle of the deceased was got stopped. Both the persons had muffled their faces. They asked the deceased to leave the motorcycle, therefore, scuffle took place between one of the culprits and the deceased with the result that muffle on his face was removed and the deceased told him that he was identified. Suddenly that person fired from his pistol at the deceased who received the injury on his left eye. The other culprit pushed the deceased. During that period, the muffle of the second culprit was also removed. The deceased fell down on the ground and then the culprits took away the motorcycle. The White Jeep parked there followed the culprits. The PW 6 immediately rushed to her house to inform the incident to his uncle Azhar Abbas, the complainant who after hearing the incident rushed to the place of incident where he found the deceased lying in injured condition. A police mobile van also reached there. The deceased was shifted to the hospital but he was declared dead therefore the complainant went to police station and lodged the report at 9:30 a.m."
During trial, Akhtar Abbas brother of the deceased appeared as PW.4. He stated about reaching the spot after the receipt of information of the occurrence from Baby Manza daughter of Safdar Ali deceased and reporting the matter to the police. He is not an eye-witness of the occurrence. However, he did not mention the registered number of Jeep and colour of Jeep used during the occurrence. He also conceded that in a normal situation the report of fire could not be heard while sitting in the house. Azhar Abbas also brother of the deceased, Manza daughter of the deceased and Quraitulain niece of the deceased furnished the eye-witness account. Out of the three, Azhar Abbas was not mentioned as a witness in the FIR.. Their evidence was subject to identification parade. However, the learned Appellate Court concluded that the identification of the accused could not be satisfactorily proved. These PWs also stated about identification of the Jeep which was used during the occurrence and was occupied by the accused when they were arrested. They also stated about identification of the robbed Motorcycle recovered at the instance of appellants. Dr. Hothomal PW.2 stated about the post-mortem examination conducted on the dead body of deceased Safdar Ali. According to him, the deceased has received fire-arm injury on his left eye ball and died immediately after receipt of injury. He, however, opined that the post-mortem examination was conducted within two hours of the death. In cross-examination, he explained that the injury was caused from a probable distance of two feet and there was no signs of grappling. Ijala Hyder, Judicial Magistrate, Sanghar PW.3 stated about the identification parade of the accused. He also stated about the identification of Jeep and stolen Motorcycle. Ghazanfar Abbas PW.11 stated that on 9.2.1999 in his presence the accused were arrested while they were occupying Jeep which was being driven by Luqman. He further stated that alongwith the driver, Qasim was sitting on the front side while Ghulam Akbar was sitting on the rear seat. He further stated that at the time of arrest revolver was recovered from Luqman acquitted co-accused while at that time, no weapon was within the possession of the appellants. He is real brother of the deceased and is attesting witness of the test identification held in lieu of Jeep and Motorcycle. Nazir Ahmed PW.12 who was employee of the WAPDA stated that he accompanied the SHO and the accused at the time of recoveries of Motorcycle and weapons of offence. Muhammad Sharif PW.13 claimed that he was owner of the Jeep and was friend of Akbar and Luqman. That on 4.1.1999 he left the Jeep with Akbar and Luqman as the Jeep needed repair and that on 10.1.1999 the Jeep was returned to him. He was declared hostile and was cross-examined by the prosecution as well as by the defence. During cross-examination he stated that on 4.1.1999 he had brought his Jeep to the house of accused but his Jeep did not start, therefore, he went back on the Jeep of the accused and that his Jeep became out of order and was left from where it was taken by the appellants. He further stated that his Jeep was not returned to him till the day of his examination. He also stated that he was detained by CIA Police for 20 to 21 days and was forced to sign the statement. Abdul Haque, SHO PW.14 stated about the registration and investigation of the case including the arrest of the accused, test identification of the accused and test identification in lieu of Jeep and Motorcycle. He also stated about the recoveries at the instance of the accused. Anwar Jamal, SHO also appeared and stated about the blocking of road by mob after the incident. Rest of the witnesses are formal. The prosecution closed its case after producing the reports of Chemical Examiner, Serologist and Forensic Science Laboratory.
After closure of prosecution case, the statements of eye-witnesses were recorded under Section 342 Cr.P.C. Both the appellants pleaded innocence. In addition to that Ghulam Akbar stated that his father Yaqoob has moved an application Ex.22/A available at page 178 of the paper book against SDPO Ali Nawaz Khashkheli who felt aggrieved. He further stated that he was arrested from his house. Similarly, Qasim appellant also pleaded innocence and stated that firstly he himself appeared before the police and let of. Subsequently, he was arrested from his house.
Learned counsel appearing on behalf of the appellants has argued that the learned Appellate Court has maintained the conviction of the appellants merely on probabilities and presumptions which could not be taken as proof and that the evidence relating to all the recoveries was neither trust-worthy nor reliable; that after discarding the ocular evidence, conviction could not be recorded on the basis of corroborative evidence that of recoveries.
Conversely, Mr. M. Qasim Mirjat, AAG appearing on behalf of the State has tried to justify the conviction of the appellants on the basis of strong circumstantial evidence like recovery of stolen property at the instance of both the appellants and recovery of weapon at the instance of Ghulam Akbar which wedded with the empty recovered from the spot.
We have heard the learned counsel for the parties and have gone through the entire record of the case. The learned Appellate Court for very cogent reason has discarded the ocular testimony by holding in para 30 of the impugned judgment as follows:--
"It appears that the witnesses had seen the appellants before the identification tests, therefore, such possibility is required to be accepted. In such a situation, the identification tests have lost their evidentiary value. Thus, the prosecution has failed to prove this piece of evidence against the appellants."
Now we are left with the evidence of recovery of Jeep, recovery of stolen Motorcycle and recovery of pistol from appellant Akbar and its tallying with the empty recovered from the spot. According to prosecution case, the appellants alongwith Luqman were arrested on 9.2.1999 while they were occupying the Jeep which was used during the occurrence. At that time, the Jeep was being drived by Luqman acquitted co-accused. The story has been disbelieved qua Luqman co-accused who was acquitted and from whose possession allegedly revolver was recovered at the time of arrest. The witnesses of the story are the same i.e. Ghazanfar and Abdul Haq SHO. It may be noted here that the registration number of the Jeep was not mentioned in the FIR nor the colour of the Jeep was mentioned. In order to establish that the Jeep was the same which was used during the occurrence, it was alleged that a test identification was arranged. According to Magistrate, he mixed the Jeep with three other Jeeps. However, firstly he said that he did not remember the colours of the Jeeps with which the Jeep used during crime was mixed up. He also did not remember the difference between the different models. However, he admitted that the distinguishing feature of present Jeep from other Jeeps was that the present Jeep had leather hood whereas some of other Jeeps did not have any hood while some had. After admitting that he did not remember whether the Jeeps were carrying number plates or not, he shifted by stating that the number plates were got removed by the Naib Qasid. Almost all the witnesses have quite different account vis-a-vis the identification of the Jeep. I Azhar Abbas stated that the total number of Jeeps was three as against that of the word of the Magistrate according to whom there were four Jeeps. Manza PW stated that the Jeep used in crime had hood of black colour which was not available with the rest of the Jeeps. Quraitulain PW stated that she identified the jeep because of the sticker of falcon. Ghazanfar Abbas stated that sticker of falcon was affixed on the front of the Jeep on the day of identification and the same was not affixed on the Jeep present outside the Court room when his statement was recorded by the learned trial Court. Abdul Haque SHO knocked the very basis of identification by admitting that no special marks were affixed on the Jeep in question but number plate was affixed on it. He further admitted that the other Jeeps were also have the number plates. Undeniably the Jeep did not belong to any of the appellants and its owner was Sharif PW who stated that his Jeep went out of order, was left there and was taken by the police. In such circumstances, it cannot be said that either the accused were arrested while they were travelling in some Jeep or the same Jeep was used during the occurrence. After considering the whole evidence on the point one gathers strong impression that it was a clear cut case of padding on the part of the police.
The next piece of evidence relied by the learned trial Court was recovery of stolen Motorcycle at the pointing of appellants Akbar and Qasim. Allegedly as per prosecution case on 9.2.1999 after 30 days of the occurrence, stolen Motorcycle was recovered at the joint pointing of both the appellants from a sugar cane field. Firstly the field belonged to one Jamaluddin, was an open place and it could not be said that the stolen Motorcycle was recovered from the exclusive possession of the appellants. The second question would be whether the recovery, at the joint pointing of two accused, had any evidenciary value or not. It was held by a Division Bench of Sindh High Court in the case of Abdul Ghani and 3 others Vs. The State (1976 PCr.LJ 1462) that the recovery at the pointation jointly of several accused persons cannot be made the basis of drawing an inference about the conduct of such accused persons unless it can be shown with a degree of particularity that such inference can be drawn with respect to each one of the persons involved in the act. In para 14 of the judgment in the case of Nazeer and 2 others Vs. The State (PLD 1989 Karachi 466) it was observed by the Division Bench as follows:--
"It was held by a Division Bench of this Court that where joint acts of several persons are sought to be proved, in order to ask the Court to draw an inference from such conduct, evidence should be led with some degree of particularity so that it may be possible for the Court to draw the necessary inference from the conduct of each one of the persons concerned in the act."
"The mere fact that a person points out a place where stolen property is concealed, if that place is not his own, does not justify the Court in drawing the conclusion that the person who pointed out the stolen article had received or retained it, nor does the mere knowledge of the place of concealment necessarily lead to the conclusion that the person having such knowledge participated in the act of concealment."
In the case of Muhammad Ayub etc. Vs. The State (PLJ 1974 Cr.C. (Lah) 28) the learned Division Bench held that the recovery witness appearing to be a chance witness accompanying police for recovery purposes-recovery also from an open place, the evidence of recovery was not worthy of credence. Lastly, on this point we may refer to the judgment of this Court in the case of State through Advocate General Sindh Vs. Bashir and others (PLD 1997 SC 408) where in it was observed that it was the requirement of Section 103 Cr.P.C. that two members of the public of the locality should be Mashirs to the recovery and it was mandatory unless it is shown by the prosecution that in the circumstances of a particular case, it was not possible to have two Mashirs from the public if however, the statement of the police officer indicated that no efforts were made by him to secure two Mashirs from public, the recoveries would be doubtful.
In the instant case, recovery witness Nazir Ahmed was not the resident of the locality and the I.O. admitted that the place of recovery was surrounded by the 50/60 houses but none was summoned from the locality. According to PW.12 he was standing at a bus stand and was going to Sinjhoro (where he lived) when police reached there and he just accompanied them. The learned Appellate Court did not take the above-mentioned circumstances while placing reliance on the evidence of recovery and has erred in law. The recovery evidence is not worthy of any credence and cannot be used against any of the appellants.
The learned Appellate Court while passing the death sentence on the appellants has also believed the evidence of recovery of weapon at the instance of Ghulam Akbar and its tallying with the empty recovered from the spot. We are of the considered opinion that for the following reasons the evidence was not free from doubt and could not be used against the appellants:
"1. The occurrence took place on 9.1.1999.
According to SHO Abdul Haque after registration of the case on the same date he visited the spot and secured blood stained earth, empty bullet and one live bullet which was sealed into parcel.
The report of Forensic Science Laboratory Ex.20/B available at page 171 of the paper book reveals that the empty was received alongwith pistol on 12.4.1999 i.e. after three months. Such a long delay has not been explained at all. The requirement of law is that the empty recovered from the spot should be sent to the Laboratory without any delay. To top it, the report reveals that the empty and the recovered pistol were received together on the same date i.e. the pistol was also sent after more than two months of its recovery."
Needless to say that the prosecution tried to prove the recovery through Nazir Ahmed PW who as stated above was resident of a distant place and not of the locality and was a chance witness. It has been held in a number of cases that in such circumstances no reliance can be placed on the recovery and the same cannot be used against the accused. The following judgments may be referred on the points:
"In the case of Jehangir Vs. Nazar Farid and another (2002 SCMR 1986) this Court observed as follows:
"The occurrence had taken place on 21.1.1996, Nazar Farid was arrested on 1.2.1996. The rifle in question had been allegedly recovered from him on 12.2.1996 and it was at least 7 days thereafter i.e. on 19.2.1996 that the crime empties in question had been received in the Forensic Science Laboratory. In the circumstances this piece of evidence is not credible and is of no assistance to the prosecution as against Nazar Farid accused."
In the case of Muhammad Younis Khan Vs. The State (PLJ 1992 SC 149) it was held in para 16 that so far as the recovery of revolver P.5 is concerned at the instance of the appellant which matched with the crime empty P.4 recovered from the spot, both the crime empty and the revolver were sent after both the recoveries were made to the office of the F.S.L. which destroys its incriminatory value, (under line is ours)
It was observed in the case of Atta Ullah and others Vs. The State (PLD 1990 Peshawar 10) that the crime empties should be immediately despatched to Arms Expert and should not be kept by the Investigating Officer because in that case objection regarding manipulation of recoveries will hold good."
"with due respect to the learned Judges, it may be said that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may be irresistible be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case were to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of `benefit of doubt' to an accused person which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the superior Courts will be reduced to a naught."
(J.R.) Appeal allowed
PLJ 2008 SC 709
[Appellate Jurisdiction]
Present: Saiyed Saeed Ashhad, Muhammad Qaim Jan Khan, Syed Zawwar Hussain Jaffery & Sheikh Hakim Ali, JJ.
IMTIAZ ALI--Appellant
versus
ATTA MUHAMMAD and another--Respondents
Civil Appeal No. 2762 of 2001, decided on 19.3.2008.
(On appeal from the judgment dated 17.8.2001, passed by the Lahore High Court, Multan Bench, Multan in R.S.A. No. 164 of 1987).
Supreme Court Rules, 1980--
----O. XII, R. 2--Civil Procedure Code, (V of 1908), O. XLV, R. 1--Filing of appeal--Condonation of delay--Compulsory for an appellant to file appeal within 30 days from the date of impugned order--Held: Appellant was not allowed to wait for preparation of decree sheet because petition of appeal could also be filed against the impugned judgment and law had not bound him down to file it against decree only--Period spent awaiting for the preparation of decree sheet, therefore could not be exempted--Moreover as under O. 45 R. I of C.P.C. decree includes a "Judgment or final order" also and appellant had already appended a copy of the impugned judgment so condonation of delay of 4 days was not granted--Appeal dismissed in limine. [Pp. 711 & 712] A, B, C, D & E
1971 SCMR 54, ref.
Mr. Iftikhar Ullah Malik, ASC for Appellant.
Sh. Zamir Hussain, Sr. ASC for Respondents.
Date of hearing: 19.3.2008.
Judgment
Sheikh Hakim Ali, J.--Against the sale of agricultural lands, measuring 120 kanals, situated in Chak No. 319/TDA, Tehsil Layyah, transacted between Imam Din, vendor and Atta Muhammad & another, vendees, through registered sale-deed dated 05.03.1981, a pre-emption suit under the old law of Pre-emption Act 1913, was filed before the learned Civil Judge, Layyah on 03.03.1982. The sale price entered into the aforementioned sale-deed, was shown to be of Rs.90,000/- while the suit for pre-emption for the purpose of Court Fees and jurisdiction was valued at Rs.58,855.50. The suit was decided against the vendees, the present respondents, from the learned Civil Judge, as the decree was passed by the learned trial Court in favour of Imtiaz Ali, present appellant/plaintiff, on 19.01.1986, which was assailed through appeal before the learned District Judge, Layyah, by the vendees-respondents but without success, as the appeal was dismissed on 11.07.1987 by the aforesaid learned District Judge. Aggrieved from the aforementioned judgment and decree passed in appeal, respondent filed R.S.A. No. 164 of 1987, before the learned Lahore High Court, Multan Bench, Multan, from where they succeeded to get the judgment and decree of the learned District Judge reversed, with consequence of dismissal of the pre-emption suit on 17.08.2001. Imtiaz Ali, the present appellant has filed the instant appeal on 22.09.2001. According to the office note, the appeal is barred by the delay of 1 day. CMA No. 4352 of 2001 has been filed by the appellant to get the condonation of delay on the ground that the decree sheet was prepared and signed on 23.08.2001. Therefore, the delay in filing of the appeal may be condoned.
Learned counsel for the appellant has reiterated his noted stance of the application through his arguments that as the decree sheet in the RSA No. 164 of 1987 was prepared on 23.08.2001, by the office of Lahore High Court, Multan Bench, therefore, the appellant could claim the condonation of delay due to the late preparation of the decree sheet. According to learned Court, to obtain copy of decree, application was filed on 14.09.2001, which was supplied on 17.09.2001. The appellant was entitled to deduct this period of 04 days also, in the computation of period of limitation.
According to record, decree sheet was admittedly prepared on 23.08.2001 but the appellant had filed application for obtaining copy of it on 14.09.2001, why this period up-till the filing of the application to obtain the copy of the decree was allowed to run, no explanation was advanced. Moreover, the appellant has not made any disclosure with regard to his knowledge of decree sheet, having not been prepared, by the office on the date of delivery of judgment. When and how the appellant came across with the knowledge of preparation of the decree, nothing has been brought on the record. With the announcement of judgment, it was incumbent upon the appellant to file an application for obtaining copy of the judgment and decree simultaneously. Why bifurcation in filing of an application to obtain copy of judgment and for the decree sheet later on, was made by the appellant and on what grounds, nothing was laid before us.
We have also considered and examined this proposition on the anvil of legal touchstone, but we are not satisfied with the plea raised and arguments submitted by the learned counsel. According to Order 12 Rule 2 of the Supreme Court Rules, 1980, it is compulsory for an appellant to file an appeal within 30 days from the date of impugned judgment, decree or order of the High Court. The aforementioned Rule 2 of Order 12 is reproduced as below for ready reference:--
"The petition of appeal shall be presented within thirty days from the date of the grant of the certificate by the High Court or the date of impugned judgment, decree or final order of the High Court: Provided that the Court may for sufficient cause extend the time." Underlining has been provided by us.
While examining the above noted rule, it transpires unambiguously that the appeal before this Court had to be filed against the impugned judgment, decree or final order of the High Court within 30 days. The appellant has not been allowed by the above rule to wait for the preparation of decree sheet in the High Court because the words used in the rule are "........ or the date of impugned judgment ........" which clearly display that the petition of appeal can be filed against the impugned judgment also. It is not necessary for an appellant to bide for the preparation of decree sheet for filing of an appeal. If a judgment has been delivered, that can easily be challenged through filing of appeal in this Court according to the above indicated rule. As the law has not bound down the appellant to file appeal against a decree only. The period spent waiting for the preparation of decree, therefore, cannot be exempted. A distinction has to be kept in view with regard to a case, wherein an appeal cannot be filed without decree and has mandatorily to be filed against a decree, and those of the cases in which appeal can be filed even against the judgment/order only. In the former case, period consumed in the preparation of decree would be allowed while in the latter case, the period of limitation would commence with the birth and announcement of the judgment/order to be appealed against.
"In this Order, unless there is something repugnant in the subject or context, the expression "decree" shall include a judgment or a final order."
In other words, a copy of the impugned judgment, if has been appended with the appeal, while filing of appeal in this Court, it would be competent as the impugned judgment has been treated a decree by fiction of law due to provision of Order 45 Rule 1 of the C.P.C. Therefore, the argument of the learned counsel that waiting period of appellant for the preparation of decree may be excluded, cannot be accepted, as this has not been found to be based upon any sound legal reason and justification. This view which we have adopted has got supportive base of a judgment of this Court also, reported in 1971 SCMR 54 (Nakuleswar Sikdar Vs. Barun Chandra Chakvravorty and another. It may be clarified here that filing of appeal within limitation of 30 days is mandatory from the delivery of judgment, while insufficiency of documents with an appeal due to some reasons, have got a different concept and effect. Due to the non-availability of required but not mandatory document, one can obtain a period from the office/Court, after filing of an appeal within the prescribed period of limitation because from the date of announcement of the judgment, limitation period having commenced, no interruption could stop the limitation running. The period spent for obtaining copy of impugned judgment could be exempted from 25.08.2001 to 29.08.2001 spent for obtaining copy of judgment, which we have found, office has correctly excluded a period of 05 days and computed it in the period of limitation for the fireing of the instant appeal. But the appellant cannot be allowed any more period of 04 days spent for obtaining copy of decree, as it would have overlapping effect and a grant of period doubly.
Winding up the above noted discussion, the appeal having been filed after one day of period of limitation, has created valuable right in favour of respondents. We having found no sufficient cause for filing of delayed appeal, are not prepared to condone it. Hence, the appeal is dismissed in limine.
(J.R.) Appeal dismissed
PLJ 2008 SC 713
[Appellate Jurisdiction]
Present : Muhammad Moosa K. Leghari and
Syed Sakhi Hussain Bukhari, JJ
SAKINA BIBI--Petitioner
versus
STATE--Respondent
Crl. P. No. 15 of 2008, decided on 11.4.2008.
(On appeal against the order dated 04.10. 2007 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Crl. M. No. 865-B of 2007)
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 497(2) & 103--Control of Narcotic Substances Act, (XXV of 1997), S. 9(c)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Bail, grant of--Prayer for--Further inquiry--Raid conducted at the house of the petitioner/accused on spy information without search warrant in disregard of the mandatory requirement of Ss. 20, 21 of the Act--Violation of--Requirements of search warrant under Sections 98 and 103 of Cr.P.C is mandatory which can be dispensed with only in exceptional circumstances--Petitioner called for further inquiry, thus entitling to concession of bail--Leave allowed. [P. 715] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Control of Narcotic Substances Act, (XXV of 1997), S. 9(c)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Recovery of contraband material--Bail, grant of--Further inquiry--Prosecution has to prove the conscious and exclusive possession of the petitioner and the quantity of contraband material recovered therefrom--Petitioner called for further inquiry, this entitling to concession of bail--Leave allowed. [Pp. 716 & 717] B
Syed Zulfiqar Abbas Naqvi, ASC for Petitioner.
Sh. Riaz-ul-Haq, ASC/Special Prosecutor, Anti-Narcotics Force ANF for State.
Date of hearing : 19.3.2008.
Order
Muhammad Moosa K. Leghari, J.--This petition, for leave to appeal, arises out of order dated 04.10.2007 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby the petitioner was declined post-arrest bail in a case registered vide FIR No. 3 dated 11.01.2007 at P.S. Anti-Narcotics Force, Rawalpindi, under Section 9(c) of Control of Narcotic Substances Act, 1997 (to be referred herein after as "the Act").
"2. Brief facts as unfolded in the FIR are that on 11.01.2007 at about 6 a.m. ANF got spy information that a lady named Sakina Bibi was doing business of narcotics and in case of raid recovery was expected; on this information, a raid was conducted at the house of the petitioner/accused; when the raiding party reached on the first floor they found a woman and a boy sitting in the room busy in making pieces of Charas; both the said persons were apprehended and the pieces of Charas were taken into possession; after some time co-accused Irfan also got recovered Charas which was lying beneath the mattress of his bed; on weighing the total recovered Charas came to 13 kg."
It is contended on behalf of the petitioner that the accused being a woman is entitled to concession of bail (i) in view of the proviso contained under Section 497 Cr.P.C. as she is neither involved in an offence related to terrorism, financial corruption and murder; (ii) there is no presumption of conscious and exclusive possession of the narcotic substances and; (iii) that despite having before hand spy information the raiding party entered the house without obtaining a search warrant in disregard of the mandatory requirements of Sections 20 and 21 of the Act. On the above premises it is argued that the case of the petitioner is one of further inquiry.
Conversely, the learned ASC/Special Prosecutor, Anti-Narcotics Force, argued that the alleged offence involves punishment of death and that the provisions of Section 103 Cr.P.C. having been explicitly excluded in the narcotic cases, no case for bail was made out. In support of his contentions, learned ASC/Special Prosecutor, Anti-Narcotics Force, relied upon the cases of (i) The State through Deputy Director, Anti-Narcotics Force, Karachi vs. Mobin Khan (2000 SCMR 299), (ii) Muhammad Afzal Darzi vs. State (2000 SCMR 1837), (iii) Muhammad Gul vs. The State (2001 SCMR 71), (iv) Ghulam Raza vs. Khuda Bux and another (2005 SCMR 1904), (v) Sh. Muhammad Tasleem vs. The State (2006 SCMR 468), (vi) The State through Force Commander, Anti-Narcotics Force, Rawalpindi vs. Khalid Sharif (2006 SCMR 1265).
The contentions raised on behalf of the petitioner/accused and Anti-Narcotics Force have been considered and the material placed on the record has been perused.
The bare perusal of the contents of the FIR would reveal that the raiding party entered the house without obtaining any search warrant, though they have received spy information in advance.
The question of requirement of search warrant was considered by a Full Bench of this Court in Criminal Appeal No. 313/2006 decided on 31.01.2008. In the said judgment the learned bench of which one of us was the member observed that the requirement of search warrant under Sections 98 and 103 Cr.P.C. is mandatory which can be dispensed with only in exceptional circumstances mentioned there under. While discussing the above provisions of Cr.P.C. in juxta position with Sections 20, 21 and 25 of the Control of Narcotic Substances Act, 1997, it was observed as under:--
"10. The plain reading of the above provision would show that the police or such other agencies do not enjoy unlimited powers to make search of the house of a person and disturb his privacy and dignity in violation of the mandate of the Constitution. The member of concerned agencies under the provision Cr.P.C. as well as under CNS Act, 1997, without satisfying the requirement of law cannot enter into the residential premises without search warrant.
In the present case, the raiding party despite having prior information did not bother to obtain search warrant from a competent Court and conducted the raid at the house of appellant without showing circumstance to justify such raid without a search warrant. Section 25 of CNS Act, 1997, provided that provision of Section 103 Cr.P.C. are not as such applicable to the cases under the ibid Act but this provision does not exempt the requirement of search warrant and prior permission for entry into the residential premises for the purpose of search, the special provision relating to search and arrest under CNS Act, 1997, are not as such inconsistent to the provisions of Code of Criminal Procedure or are above the Constitution. The special provision of Section 25 or Sections 20 to 21 of CNS Act, 1997, do not as such permit violation of Constitutional guarantee of privacy and dignity of a man. The public functionaries are obliged to strictly follow the law and observe the privacy of the houses of the citizen failing which they can be proceeded against both for criminal trespass and also for damages in their individual capacity. The association of a magistrate with the raiding party in a raid at a residential house, may not dispense with the requirement of search warrant and his presence is not sufficient to bypass the mandatory provision of law and violate the constitutional mandate. The purpose of search warrant is to maintain the privacy of the house, therefore, a Magistrate is not as such authorized to enter into the premises without due process of law or permission of inmates and is also not supposed to exercise his authority of law in any manner, he likes and since act of raiding the house of appellant in the present case was in utter disregard to the law and was a sheer violation of the fundamental right of privacy as envisages in Article 14 of the Constitution of Islamic Republic of Pakistan, therefore, the association of Magistrate in the raid was immaterial."
It will be seen that the law laid down by the Full Bench is squarely applicable to the facts and circumstances of the petition in hand, whereas the facts and circumstances in the cases relied upon by learned Special Prosecutor, Anti-Narcotics Force, are quite distinguishable. In the case referred at Sr. No. (i), the bail allowed by the High Court was cancelled on the ground that the third proviso to Section 497(1) Cr.P.C. can not be pressed into service in the Narcotic cases, and further that the statutory period as stipulated in the said proviso had not yet expired. In the case referred at Sr. No. (ii), the petition was disposed of with the direction to the trial Court to conclude the trial within a period of 3 months as the petitioner alleged that the case filed against him was absolutely false and an outcome of his father's enmity with the police and that the recovery of Heroine powder was fake. In the case referred at Sr. No. (iii), the bail was refused as the Charas was recovered from the truck being driven by the accused. In the case referred at Sr. No. (iv), the bail granted by the High Court on medical ground was cancelled by this Court wherein the accused was convicted by the trial Court and his sentence was suspended on the ground that he was suffering from a common eye disease which could have been conveniently treated in jail and did not appear to be dangerous to life of the convict. In the case referred at Sr. No. (v), the order passed by the High Court granting bail to the accused on the basis of affidavits of witnesses was set-aside while observing that the accused persons particularly those involved in narcotic case face no difficulty in obtaining affidavit from witnesses resiling from their previous statements. In the case referred at Sr. No. (vi), the order granting bail to the accused was set-aside as admittedly he was the proprietor/owner of the clearing agency which was found responsible for handling the consignment containing Hashish.
It is quite obvious that the point decided in the criminal appeal cited above neither arose, nor was considered in the above referred cases. The perusal of the order impugned in this petition reveals that though the plea of violating the mandatory provisions relating to search warrants was raised on behalf of the petitioner before the High Court, but the High Court did not dilate upon the same. Apart from above, the prosecution has to prove the conscious and exclusive possession of the petitioner and the quantity of contraband material recovered therefrom.
In the given circumstances, the case of the petitioner calls for further inquiry, thus entitling her to the concession of bail. The Criminal Petition is, therefore, converted into appeal and allowed. The impugned order is set-aside. Consequently, the petitioner is directed to be released on bail subject to furnishing of surety bonds in the sum of Rs. 0.5 million to the satisfaction of the trial Court.
(M.Y.B.) Leave allowed.
PLJ 2008 SC 717
[Appellate Jurisdiction]
Present : Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan and
Ch. Ejaz Yousaf, JJ.
ANWAR-UL-HAQ QURESHI--Petitioner
versus
NATIONAL ACCOUNTABILITY BUREAU and another--Respondents
Civil Petition No. 28 of 2008, decided on 5.3.2008.
(On appeal from the judgment dated 20.11.2007 of the Lahore High Court, Rawalpindi Bench, passed in WP No. 962/07]
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--National Accountability (Bureau) Ordinance, (XVIII of 1999), S. 9(a)(iv), (ix) & (xii)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Bail, grant of--Prayer for--Petitioner was arrested on 20.11.2006 and since then he was behind the bar--Validity--A person cannot be detained for the purpose of investigation/inquiry for a period exceeding ninety days and for every remand, reasons have to be recorded--No progress whatsoever has taken place towards the conclusion of trial--Bail allowed. [P. 719] A
2004 SCMR 1805, 2005 SCMR 1666, 2002 SCMR 1478, reference.
Mr. M.A. Zaidi, AOR for Petitioner.
Mr. M. Asghar Rana, Addl. PG NAB for Respondents.
Date of hearing: 5.3.2008.
Order
Abdul Hameed Dogar, CJ.--This petition for leave to appeal is filed against judgment dated 20.11.2007 passed by learned Division Bench of Lahore High Court, Rawalpindi Bench whereby Writ Petition No.962 of 2007 filed by petitioner was dismissed and he was declined concession of bail.
Briefly stated, facts giving rise to the filing of instant petition are that Reference No. 19 of 2007 was filed by Chairman NAB against petitioner and co-accused. The allegation against them was that they were involved in making of false documents, counterfeiting seal, plates and other instruments for the purpose of pecuniary gain for themselves and corresponding loss to the state exchequer. It was also alleged in the reference that they were also involved in sale and distribution of counterfeit currency i.e. Pakistan Currency, US $ and manufacturing of fake found sterling coins.
It is mainly contended by Mr. M.A. Zaidi, learned AOR appearing on behalf of petitioner that according to the prosecution version the offence against petitioner falls under clauses (iv), (ix) and (xii) of Section 9(a) of the Ordinance whereas on bare perusal of the said provisions of law it can easily be inferred that Section 9(a) of the Ordinance relates to public servants and since petitioner was not a public servant as such the same was misapplied. He further contended that petitioner was arrested on 20.11.2006 by the NAB authorities whereas reference was filed on 04.6.2007, therefore, there is a lapse on behalf of NAB in filing the reference within stipulated period. He referred to Section 24(d) of the Ordinance and contended that an accused cannot be detained for the purpose of inquiry and investigation for a period exceeding ninety days.
When confronted with the above, Dr. M. Asghar Rana, learned Addl. Prosecutor General NAB could not controvert the same and contended that trial could not proceed because some of the accused were absenting themselves from the trial.
We have gone through record and noticed that petitioner was arrested on 20.11.2006 and since then he was behind the bar whereas, reference was filed on 04.6.2007. As far as legal position is concerned, reference can be made to provision of Section 24(d) of the Ordinance which is reproduced as under:--
"(d) Notwithstanding any contained in the Code, where the holder of public office or any other person, accused of an offence is arrested by NAB under this Ordinance, NAB shall as soon as may be, inform him of the grounds and substance on the basis of which he has been arrested and produced before him before the Court within a period of twenty four hours of arrest excluding the time necessary for the journey from the place of arrest to the Court and such person shall having regard to the facts and circumstances of the case, be liable to be detained in the custody of NAB for the purpose of inquiry and investigation for a period not exceeding ninety days (and the Court may remand an accused not exceeding fifteen days at a time and for every subsequent remand, the Court shall record reasons in writing copy of which shall be sent to the High Court."
On perusal of above provision of law, it is clear that a person cannot be detained for the purpose of investigation/inquiry for a period exceeding ninety days and for every remand, reasons have to be recorded. Petitioner is in judicial lock up since his arrest i.e. 20.11.2006, whereas, as pointed out by learned Addl. Prosecutor General NAB reference was filed on 04.6.2007 but no progress whatsoever has taken place towards the conclusion of trial. This Court in the case of Asif Sharif v. Chairman, NAB (2004 SCMR 1805) granted bail to accused against whom the reference was filed after about two years from date of his arrest. It was also held in the case of Aga Jehanzeb v. NAB & others (2005 SCMR 1666) that if trial of case is not concluded within 30 days from date of submission of challan, accused would automatically become entitled to grant of bail. This Court has also held in the case of Abdul Qadir v. Federation of Pakistan through Secretary Ministry of Interior, Government of Pakistan and others (2002 SCMR 1478) that conveyance of the grounds and substance on the basis of which the accused is arrested, is the first essential ingredient of Section 24(d) of the Ordinance which is mandatory in nature and has to be complied with in letter and spirit as the same is based on constitutionally guaranteed right providing safeguards as to arrest and detention of a person embodied in Article 10 of the Constitution of Pakistan, 1973. Non-compliance of such provision of the Constitution and the Ordinance would render the arrest and detention illegal.
In view of above discussion, we are of the view that it is a fit case for interference by this Court. Accordingly, we convert this petition into appeal and allow the same. Appellant Anwarul Haq Qureshi is granted bail, subject to furnishing surety in the sum of Rs. 10,00,000/.-(Rupees ten lac only) with PR bond in the like amount to the satisfaction of the trial Court.
These are the reasons in support of our short order even date, which are of tentative nature and shall have no bearing on the merit of the case.
(M.Y.B.) Appeal allowed.
PLJ 2008 SC 720
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ; Ijaz-ul-Hassan and
Ch. Ejaz Yousaf, JJ.
PETROSIN CORPORATION PVT. LTD & others--Petitioners
versus
MOL PAKISTAN OIL & GAS CO. & others--Respondents
Civil Petition No. 211 of 2008, decided on 11.2.2008.
(On appeal from the order dated 23.01. 2008 of the Lahore High Court, Rawalpindi Bench in CR No. 530/07)
Civil Procedure Code, 1908 (V of 1908)--
----O. XXXIX, Rr. 1 & 2--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Temporary injunction--Application was dismissed by trial Court--Assailed--Order upheld by First Appellate Court--Challenge to--License issued by the Government to the respondents for petroleum exploration--Discovered--Respondents invited different entities for pre-qualifications of engineering, procurement, construction--Petitioners also submitted their pre-qualification documents--Petitioners' certificate of quality management system, ISO 9000 was valid only for one year--Petitioners were ousted from the process of pre-qualification on the basis of lawful grounds--Tendering process completed and contract awarded to respondents--Petitioners would not suffer any irreparable loss as compared to respondent--Injunction can only be granted restraining defendants from committing breach of some concluded contract or other injury of any kind but there was no contract in favour of petitioners, as such the question of breach of contract did not arise--Concurrent findings of the Courts below do not suffer from any illegality or infirmity warranting interference by the Supreme Court--Leave refused.
[P. 723] A
Mr. Nazir Ahmed Bhutta, ASC with Mr. Arshad Ali Ch., AOR for Petitioners.
Mr. Makhdoom Ali Khan, Sr. ASC with Mr. M.S. Khattak, AOR for Respondents No. 1 to 5.
Raja M. Bashir, ASC with Mr. M.S. Khattak, AOR for Respondent No. 6.
Date of hearing: 11.2.2008.
Order
Abdul Hameed Dogar, HCJ.--This petition for leave to appeal is directed against order dated 23.1.2008 passed by learned Judge in Chambers of Lahore High Court, Rawalpindi Bench, Rawalpindi whereby Civil Revision No.530 of 2007 was dismissed.
Briefly stated, facts giving rise to the filing of instant petition are that Government of Pakistan granted license to a consortium consisting of five companies, namely, M/s Oil and Gas Development Company (OGDC), Pakistan Oil Fields Limited (POL), Pakistan Petroleum Limited (PPL), Government Holdings (Pvt.) Ltd. (GHL) and MOL Pakistan Oil and Gas Company for petroleum exploration in TAL Block in NWFP. They entered into a joint venture agreement and discovered petroleum at Manzalai. In order to set up a Central Processing Facility for gathering system for the Manzalai Gas Field they invited different entities for pre-qualification of engineering, procurement, construction and commissioning contractors through press publication dated 30.4.2007. The petitioners through electronic mail dated 02.5.2007 participated in the pre-qualification and tendering process alleging that they had vast experience in Oil and Gas sector within Pakistan and outside the country. It was also alleged that petitioners submitted their pre-qualification documents along with bank draft of US 1000$ for processing fee. The documents were acknowledged by the respondents but were not responded till 25.7.2007 when it was informed that petitioners had not qualified for EPCC stage of the Manzalai Project due to non-compliance with the prescribed criteria for pre-qualification. Feeling aggrieved, the petitioners filed a suit for declaration and permanent injunction along with an application under Order XXXIX Rules 1 and 2 CPC for grant of temporary injunction. It was alleged in the suit that the petitioners were deprived of their right without providing an opportunity of hearing. It was also alleged that the process for awarding the contract was not transparent, rather was the result of favoritism. The suit was resisted by respondents by filing written statements raising number of preliminary objections. The learned Civil Judge seized of the matter after hearing the parties dismissed the application for grant of temporary injunction on 30.10.2007. This order was assailed before learned Additional District Judge, Islamabad but was upheld vide order dated 17.11.2007. The petitioners then filed Civil Revision No. 530 of 2007 before Lahore High Court, Rawalpindi Bench which too was dismissed vide impugned judgment.
We have heard Mr. Nazir Ahmed Bhutta, learned counsel for the petitioners, Mr. Makhdoom Ali Khan, learned Sr. ASC for Respondents No. 1 to 5 and Raja M. Bashir, learned ASC for Respondent No. 6 at length and have gone through the record and proceedings of the case in minute particulars.
It is vehemently contended by learned counsel for the petitioners that learned High Court has not appreciated the facts and circumstances of the case in its true perspective which resulted in miscarriage of justice. He contended that the letter dated 25.7.2007 was sketchy/unreasoned and issued without providing an opportunity of hearing to the petitioners was against the principles of natural justice. According to him, petitioners had much more experience as compared to other competitors and their rates had been much low as compared to market. He further contended that the process of awarding contract by the joint venture excluding petitioners was not transparent and malice had been shown by the members of the consortium by awarding contract to some picked person at the cost of public exchequer. He prayed that the process be declared as illegal, void, without authority or jurisdiction and based on malafide.
On the other hand, Mr. Makhdoom Ali Khan, learned Sr. ASC for Respondents No. 1-5 and Raja Muhammad Bashir, learned Sr. ASC for Respondent No. 6 controverted above contentions and supported the impugned order. It is contended that petitioners did not fulfill the pre-requisites for pre-qualification as they were not holders of certificate `ISO-9000' at the time of submission of pre-qualification documents. According to them, since petitioners had failed to comply with the conditions laid down for pre-qualification, as such they were rightly not considered in the tendering process.
Admittedly, petitioners certificate of quality management system `ISO 9000' was valid for one year and had lapsed at the time of submission of their pre-qualification documents. They got their certificate renewed after two months of the date fixed for submission of pre-qualification documents. In absence of any valid/renewed certification, the documents were rightly rejected by the respondents. The stance of petitioners that they were not provided opportunity of hearing has no merit as the letter dated 25.7.2007 is self-contained and gives reasons for regret on behalf of the consortium. It is pointed out that after dismissal of petitioners' appeal, the tendering process for Manzalai project was completed and the contract was awarded to Respondent No. 6. M/s Presson Descon International Limited which was reduced in writing on 17.11.2007 and is now under performance. Petitioners have not claimed any relief against Respondent No. 6 who had spent huge amount during the course of performance of the contract including arrangement of the bank guarantee of 1.7 million, insurance of 7.00 millions, incidental expenditure at the site worth rupees 300 million besides incurring expenses of the employees running into 2.5 million daily. Any injunction to bring back everything to standstill will be unlawful and prejudicial to his vested rights accrued under the contract lawfully executed, which is now in the process of implementation.
The petitioners, who were ousted from the process of pre-qualification on the basis of lawful grounds would not suffer any irreparable loss as compared to Respondent No. 6 in whose favour legitimate rights have been created under the contract. Similarly, balance of convenience also leans in favour of Respondent No. 6. Injunction can only be granted restraining defendants from committing breach of some concluded contract or other injury of any kind but there was no contract in favour of petitioners, as such the question of breach of contract did not arise. Moreover, the concurrent findings of the Courts below do not suffer from any illegality or infirmity warranting interference by this Court. Learned counsel has failed to point out that the decision taken by respondents lacked transparency or was tainted with mala fide or was unfair or was based on favoritism.
In view of above no ground for interference in the impugned order is made out which is maintained.
These are the reasons of our short order dated 11.2.2008, whereby the petition was dismissed and leave to appeal was refused.
(M.Y.B.) Leave refused.
PLJ 2008 SC 723
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan, Mian Hamid Farooq and
Syed Zawwar Hussain Jaffery, JJ.
MUHAMMAD ASGHAR--Appellant
versus
STATE--Respondent
Crl. A. No. 215 of 2007, decided on 7.4.2008.
(On appeal from the judgment dated 23.02.2006 of the Lahore High Court, Lahore passed in Criminal Appeal No. 1586, 1641, 1664 & Murder Reference No. 99-T/2002)
Criminal Procedure Code, 1898 (V of 1898)--
----S. 342--Anti Terrorism Act, (XXVII of 1997), S. 7--Pakistan Penal Code, (XLV of 1860), Ss. 302, 324, & 337--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Appreciation of evidence--Conviction and sentence recorded against accused by trial Court--High Court dismissed the appeal--Sentence of death was altered to imprisonment for life--Assailed--Appellant was convicted on the basis of a portion of his statement u/S. 342, Cr.P.C.--Principle--Statement of a accused recorded u/S. 342, Cr.P.C is to be read in its entirety; is to be accepted or rejected as a whole and reliance should not be placed on that portion of the statement which goes against the accused person. [P. 729] A
PLD 1995 SC 343, 1992 SCMR 2047, 2006 SCMR 1139, Ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 161---Circumstantial evidence--A person cannot be convicted on basis of mere utterances, when there is no other corroborative evidence available on record to connect the accused with the commission of crime. [P. 730] B
Recoveries--
----No report of the Forensic Science Laboratory--Validity--Empties recovered from the place of occurrence were actually fired from the pistol allegedly recovered from the appellant another empties recovered from the crime scene actually matched with the pistol of the appellant--Alleged recovery of pistol from the possession of the appellant is of no consequence. [P. 730] C
Identification Parade--
----Prosecution never filed any application for holding identification parade--Appellant was not known to the witness by face and his name was not mentioned in the FIR, it was all the more necessary for the prosecution to hold identification parade of the appellant.
[P. 731] D
Dr. Babar Awan, ASC with Mr. Ejaz Muhammad Khan, AOR for Appellant.
Mr. Siddique Khan Baloch, Deputy Prosecutor General, Punjab for State.
Date of hearing: 7.4.2008.
Judgment
Mian Hamid Farooq, J.--"For the reasons to be recorded later, this criminal appeal is allowed, the impugned judgment dated 23.2.2006 of the Lahore High Court, Lahore, is set aside and appellant Muhammad Asghar is acquitted from the charge. He shall be released forthwith, if not required in any other case".
Following are the detailed reasons for the above noted short order dated 7.4.2008.
Present appeal, by leave of the Court, filed by Muhammad Asghar, the appellant/convict, proceeds against the judgment dated 23.2.2006, whereby, the learned Division Bench of Lahore High Court at Lahore accepted the appeal (Cr.A. 1641/2002) filed by Shaukat Ali and Muhammad Arif, their conviction and sentence were set aside and they were acquitted of the charge; appeal (Cr.A. 1586/2002) filed by Muhammad Asghar, (the appellant) was dismissed, however, his sentence of death was altered to imprisonment for life with the direction to pay Rs. 1,00,000/- as compensation to the legal heirs of each deceased, his conviction and sentence under Sections 324/34 PPC was maintained and the appeal (Cr.A. No. 1664/2002) filed by Amanullah against acquittal of Muhammad Ameer alias Meeri was dismissed and Murder Reference (M.R. No. 99/2002) was disposed of.
The Facts of the case as recorded in the impugned judgment are reproduced below:--
"2. "The occurrence took place on 12.12.2000 at about 08.30 p.m. on Chunian road near Mauza Dhool Choor. According to the prosecution, Muhammad Azam, Inspector/SHO Police Station Hujra Shah Muqeem, District Okara (PW-15) accompanied by Ahmad Ali, ASI, Muhammad Ashraf, head Constable (deceased), Qaiser Naeem, Constable (deceased) Ghulam Abbas, Constable (injured PW-13), Ashfaq Ahmad, Constable (PW-14) and Munawar Taj, Constable was patrolling in his area of jurisdiction in a private Hiace wagon bearing Registration No. LHO 174 driven by one Muhammad Boota son of Allah Ditta. He was at Chunian Road when he received a spy information that few armed men were moving around in a white Toyota Corolla car bearing Registration No. MNM 216 in front of Abdullah Sugar Mills in suspicious manger. On receipt of this information the police party barricaded near the shop of Ghulam Mustafa, a Tyre Vulcanizer after taking necessary protective measures. In the meantime, the said car arrived from the side of Hujra Shah Muqeem. On a signal given by the police party the car stopped and the person sitting on the front seat came out of it. On search conducted by Ghulam Abbas (PW-13), the said person was found carrying .30 bore pistol in his right hand. In the meantime the remaining three passengers also alighted from the car. One of them was tall with long face and stout body aged about 30/32 years with a height of 5' and 8/9' aimed with .222 rifle. The second one, who was of wheatish complexion and stout body, was also of the same height and age. He was carrying a 7MM rifle with him. The third one was also of wheatish complexion having round face, stout body aged about 28/30 years armed with .222 rifle, These persons opened fire at the police party with their respective weapons just after they alighted from the car. Muhammad Ashraf, head Constable and Qaiser Naeem, Constable, after receiving firearm injuries died at the spot while Ghulam Abbas, Constable (PW-13) also received serious injuries and fell on the ground. Thereafter the police party also opened fire in the right of exercise of private defence upon which one of the perpetrators shouted, "Zubair alias Jeeri Dogar, Asghar hurry up, the policemen have been killed after receiving injuries with firearms. Try to escape". All the four perpetrators resorted to indiscriminate firing, got into the car and decamped towards Chunian. A stepney of Toyota Corolla car bearing Registration No. MNM 216 was found lying near the vulcanizing shop. Muhammad Azam, Inspector/SHO in his report (Exh.PL) which he sent to the Police Station at 08.30 p.m. from Abdullah Sugar Mills alleged that Zubair alias Jeeri Dogar and Muhammad Asghar accused in consultation with their two unknown companions had fired and killed two police officials and injured one and thereby had committed offences under Sections 302, 324,353/34, PPC.
After the dispatch of complaint (Exh.PL) through Muhammad Ashfaq, Constable (PW-14), Muhammad Azam, Inspector/SHO completed formalities and sent the dead bodies for postmortem examination. During spot inspection, he had collected identity card of Ameer Ali accused from the spot besides eight empties of .30 bore pistol, eight empties of 7MM rifle and 14 empties of .222 rifle which he took into possession vide memo Exh.PW14/M. It transpired that rifle of Muhammad Ashraf (deceased) MP-5 was missing which the accused persons had taken away with them. On 14.12.2000 Muhammad Ishaq, Draftsman (PW-9) visited the spot on the direction of the investigating officer, took rough notes and prepared site-plan of the place of occurrence in triplicate. On 22.12.2000 he seized Car No. MNM-216 on spy information from the possession of one Muhammad Ikram, who was driving the car.
Muhammad Ameer Ali accused (since acquitted) was arrested by Muhammad Azam, Inspector on 27.12.2000. He was found in possession of a .222 bore rifle (P14). Muhammad Ashraf, SI (PW16) had arrested Shaukat Ali, Muhammad Arif and Asghar Ali appellants on 27.2.2001, 23.3.2001 and 25.4.2001. Pistol (P18), .222 bore rifle (P17) and pistol (P19) were recovered from them respectively. After the completion of the investigation, the SHO submitted his report under Section 173, Cr.P.C. in which the present three appellants and Muhammad Ameer Ali besides Zubair alias Jabbar alias Jeeri (since absconder) were arraigned as accused".
In the above perspective, (i) Muhammad Asghar (the appellant) (ii) Shaukat Ali and (iii) Muhammad Arif (acquitted by High Court) along with (iv) Muhammad Ameer alias Meeri (acquitted by the trial Court) were tried by the learned Special Judge, Anti Terrorism Court No. 1 Lahore, constituted under Anti Terrorism Act, 1997, in case FIR No. 795/2000 dated 12.12.2000 registered at Police Station Hujra Shah Moqeem District Okara under Sections 302/324/353/34 PPC. The trial Court framed formal charge to which the appellant pleaded not guilty and claimed trial. The prosecution examined as many as 18 witnesses and tendered the reports of Chemical Examiner and Forensic Science Laboratory in evidence. Medical evidence was furnished by Dr. Muhammad Yahya (PW-7) and Dr. Abid Hussain (PW-8). All the accused persons in their statements recorded under Section 342 Cr.P.C. denied the allegations and pleaded innocence. Muhammad Asghar, the appellant, in his statement took the plea that Jabbar alias Jeeri, who was a man of bad character, took away his taxi car on rent and used the same in the commission of crime. All the accused persons neither produced any evidence in their defence nor appeared as witnesses under Section 340(2), Cr.P.C. The learned trial Court concluded the trial, acquitted Muhammad Ameer alias Meeri, held that the prosecution has succeeded in establishing its case against Shaukat Ali, Muhammad Arif and Muhammad Asghar, they were convicted and sentenced under Section 302(b) read with Section 34, PPC and were sentenced to death for committing Qatl-e-Amd of Muhammad Ashraf and Qaiser Naeem, constables; they were also convicted under Section 7 of the Anti Terrorism Act, 1997 and sentenced to death besides being burdened with Rs. 1,00,000/- as compensation to be paid to the legal heirs of each deceased; they were also convicted under Section 324 read with Section 34, PPC and sentenced to rigorous imprisonment for 10 years each and fine of Rs. 10,000/- each or in default of payment thereof to undergo further simple imprisonment for two months each and the fine, if recovered, was ordered to be paid to Ghulam Abbas injured, vide judgment dated 31.8.2002. Shaukat Ali and Muhammad Arif challenged their conviction and sentence through appeal (Cr.A. 1641/2002), Muhammad Asghar, the appellant, filed appeal (Cr.A. 1586/2002), whereas, Amanullah also filed appeal (Cr.A. 1664/2002) against acquittal of Muhammad Ameer Ali alias Meeri and reference (MR. No. 99-T/2002) was sent by the trial Court. The learned Division Bench of Lahore High Court at Lahore decided all the afore-noted matters vide single judgment dated 23.2.2006 in the following manner:--
"As a sequel to the discussion made above, we have come to the conclusion that the prosecution has succeeded in establishing its case against Muhammad Asghar appellant to the hilt whereas it has failed to prove its case against Shaukat Ali and Muhammad Arif appellants beyond reasonable doubt. Accordingly, we extend the concession of doubt and accept Criminal Appeal No. 1641 of 2002. The conviction and sentenced of Shaukat Ali and Muhammad Arif appellants is, therefore, set aside, They shall be set as liberty forthwith if not required in any other case. The appeal filed by Muhammad Asghar appellant fails and is hereby dismissed. Since it is not certain as to which of the victim received which injury at the hands of which of the accused, so we, keeping in view the principles of safe administration justice, consider it proper to alter the sentence of Muhammad Asghar appellant from death to imprisonment for life. However, he shall pay Rs. 1,00,000/- (Rupees one hundred thousand) as compensation to the legal heirs of each of the deceased as ordered by the learned trial Court. His conviction and sentence under Section 324/34, PPC is also maintained. Criminal Appeal No. 1664/2002 also fails and is hereby dismissed and Murder Reference No. 99-T of 2002 stands disposed of."
"The learned counsel for the petitioner contends that admittedly petitioner was not known to the witnesses by face and except that his name was mentioned in the FIR, no other evidence direct or circumstantial to identify him as assailant was brought on record to connect him with the crime and in view of the fact that no identification parade was held on his arrest, the petitioner would stand at much better footing for the purpose of grant of benefit of doubt to that of his co-accused, who have been acquitted by the High Court.
We having heard the learned counsel for the petitioner and perused the record with his assistance, have found sufficient force in the above contention and thus grant leave in this petition to reappraise the evidence for the purpose of ascertaining the question of guilt or innocence of the petitioner".
Learned counsel for the appellant while specifically referring to the statements of PWs-10, 11 & 15 submitted that the prosecution failed to prove the case against the appellant; statement of an accused recorded under Section 342 Cr.P.C. is to be taken as a whole, the appellant was not named in the FIR and according to the report of Forensic Science Laboratory the empties recovered from the place of occurrence did not match with the pistol allegedly recovered from the appellant. He has further submitted that there is no evidence on record to identify the appellant as assailant and no identification parade was conducted on his arrest. He summarised his arguments by submitting that the appellant's case stood at much better footing for grant of benefit of doubt to that of his co-accused who were acquitted by the High Court. Learned Deputy Prosecutor General has, however, supported the impugned judgment.
We have heard the learned counsel for the appellant as well as DPG and examined the available material on record. The High Court in para-13 of the impugned judgment dealt with the case of the appellant and while mainly relying upon a portion of his statement, recorded under Section 342 Cr.P.C, (whereby, the appellant admitted the use of his car in the occurrence) and in view of some utterances heard by PWs from the mouth of one of the perpetrators dismissed his appeal, however, reduced his sentence from death to life imprisonment. The basis of his conviction is that the participation of Jeeri Dogar and the use of Muhammad Asghar's car is established and that had the car of Muhammad Asghar would not have been used in the commission of occurrence, it would have been difficult for prosecution to prove the charge against the appellant. The appellant was convicted on the basis of a fraction of his total statement, recorded under Section 342 Cr.P.C. viz that the car of Muhammad Asghar was used in the commission of crime. We have examined the said statement of the appellant and find that he in his statement has categorically denied his presence at the place of occurrence; also stated that he was neither in the car nor armed with any weapon nor fired at any of the police personnel; empties of .30 bore pistol were added later on; the recoveries attributed to him were false, it has been planted upon him; Jabbar alias Jeeri who was a man of bad character took away his taxi car which was used m the commission of occurrence and the police officials were killed/injured as a result of quarrel occurred between Jeeri and the police officials. The learned High Court picked up a small portion out of his statement, to the extent that Jabbar alias Jeeri took away his taxi car which was used in the commission of crime, and convicted him completely bypassing the rest of the statement of the appellant, which was very relevant and material. It is settled law by now that a statement of an accused recorded under Section 342 Cr.P.C. is to be read in its entirety, is to be accepted or rejected as a whole and reliance should not be placed on that portion of the statement which goes against the accused person. Reference can be made to the cases of Shabbir Ahmad v The State (PLD 1995 SC 343) and The State v. Muhammad Hanif and 5 others (1992 SCMR 2047). It has been held by this Court in the judgment reported as Waqar Ahmad v. Shaukat Ali and others (2006 SCMR 1139), that prosecution is bound to establish its own case independently instead of depending upon the weaknesses of the defence, and the assertion of the accused in his statement under Section 342 Cr.P.C. was not sufficient to establish the prosecution case regarding guilt of the accused and such statement of the accused could be accepted in toto in the absence of any other prosecution evidence. In the case in hand, the High Court should have either accepted appellant's statement in its entirety or rejected it altogether, but it had misdirected itself while choosing a portion of the statement, which went against the appellant, and convicting him.
As regards utterances heard by the PWs, the learned DPG could not refer to the statement of any of the witnesses, who stated that they heard the utterances by the co-accused, in which they uttered the name of the appellant. PW-15 did not say about the said utterances rather he had stated that Muhammad Asghar accused came down from the front seat of the car who was armed with pistol of .30 bore. It has neither been so stated in the FIR nor in his statement recorded under Section 161 Cr.P.C. In cross-examination this witness stated that he arrested father, brothers and other relatives of the appellant, recorded their statements and they were sent to the judicial lockup, however, none of them could be identified in the identification parade and the version of the relatives of Muhammad Asghar was that he was not present in the car and was not armed with any weapon. Be that as it may a person cannot be convicted on the basis of mere utterances, when there is no other corroborative evidence available on record to connect the accused with the commission of crime.
There is another aspect of the case. According to the prosecution case two .30 bore pistols were used in the commission of crime, one by Shaukat Ali (acquitted accused) and other by the present appellant; a .30 bore pistol (Bearing No. 8147) was recovered from said Shaukat Ali, vide recovery memo Ex.PE and another .30 bore pistol (Bearing No. B159385) was recovered from possession of the "appellant, vide recovery memo Ex.PF. Record of the case manifests that only a .30 bore pistol (Bearing No. 8147) recovered from Shaukat Ali, was sent for report of Forensic Science Laboratory and the other .30 bore pistol allegedly recovered from the appellant was not even sent for report of said Laboratory. We have thoroughly examined the report of Forensic Science Laboratory and find that 8 empties of .30 bore pistol, 14 crime empties of .222 bore rifle, 8 empties of 7MM bore rifle, one rifle of 222-bore, one pistol of .30-bore (8147) and one rifle of .222-bore were sent to Forensic Science Laboratory for report, however, it does not show that 30-bore pistol, allegedly recovered from the appellant, or other empties of the said pistol were sent for the report of the said Laboratory. Hence there is no report of the Forensic Science Laboratory that the empties recovered from the place of occurrence were actually fired from the pistol allegedly recovered from the appellant and the empties recovered from the crime scene actually matched with the pistol of the appellant. In view whereof, the alleged recovery of pistol from the possession of the appellant is of no consequence and is neither here nor there.
In addition thereto none of the injuries of the deceased and/or of injured witnesses was attributed to the appellant. This aspect of the case was conveniently ignored by the learned High Court, while convicting the appellant.
Furthermore, the learned counsel for the appellant was right in contending that the identification parade was not undertaken qua the appellant. We have thoroughly examined the record and do find that although identification parades of the other co-accused namely Muhammad Ameer, Shaukat All and Muhammad Arif were held, yet there is no proof on record that any effort was made by the prosecution for identification parade of the appellant, inasmuch as, the prosecution never filed any application for holding identification parade of the appellant. We feel that in the attending circumstances of the case as the appellant was not known to the witnesses by face and his name was not mentioned in the FIR, it was all the more necessary for the prosecution to hold identification parade of the appellant.
There can possibly be no cavil to the proposition that the prosecution is under an obligation to prove the case against an accused person beyond any shadow of doubt. In this case, there is no evidence on record to connect the appellant with the commission of crime, inasmuch as, according to the prosecution witnesses, he did not fire even a single shot. We have no hesitation in concluding that the appellant case is on much better footing and position as compared to the two accused who were acquitted by the High Court.
In the above perspective, we have examined the impugned judgment and find that the learned High Court convicted the appellant on the basis of no evidence and committed grave illegality, inasmuch as, the evidence was completely misread. We after reappraisal of the evidence, as noted above, find that the prosecution comprehensively failed to prove the charge against Muhammad Asghar, and the findings of the learned High Court that the prosecution has succeeded in establishing his case against Muhammad Asghar, the appellant, are erroneous and not sustainable in law. Thus we reverse the said findings and are persuaded to set aside the impugned judgment of the High Court qua the appellant.
For the foregoing reasons, the present appeal is allowed, the impugned judgment of the Lahore High Court, Lahore dated 23.2.2006, to the extent of the appellant, is set aside, the conviction and sentence recorded by the High Court is also set aside and the appellant, Muhammad Asghar, is acquitted from the charge. He shall be released forthwith if not required in any other case.
(M.Y.B.) Appeal allowed.
PLJ 2008 SC 732
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan, Mian Hamid Farooq &
Syed Zawwar Hassain Jaffery, JJ.
Mian MUHAMMAD SABIR--Appellant
versus
Malik MUHAMMAD SADIQ (deceased) through his Legal Heirs
and others--Respondents
Civil Appeal No. 689 of 2000, decided on 8.4.2008.
(On appeal from the judgment dated 12.2.1998 passed by the Peshawar High Court, Peshawar in WP. No. 810/1995).
Limitation Act, 1908 (IX of 1908)--
----Ss. 12(2) & (5)--Constitution of Pakistan 1973, Art. 185(3)--Leave to appeal--Time barred--Condonation of delay--Appellant applied for certified copies of impugned judgment on the same day i.e. 12.2.1998--It was prepared on 21.2.1998 and he secured the same on 1.10.1998--Held: When a person applies for certified copy, the copying agency issues a receipt/chit indicating tentative date of preparation of copy--Appellant did not mention any date given by copying agency, in his petition--Appellant after applying for the certified copy, went into a deep slumber and did not enquire from the copying agency about the fate of his application for 8 months--Petition being time barred, dismissed. [Pp. 734 & 735] A, B, C, D & E
2003 SCMR 1562, ref.
Mr. Maazullah Barkandi, ASC for Appellant.
Mr. Abdul Samad Khan, ASC for Respondents No. 1 (i, vi & x, xi).
Sardar Shaukat Hayat, Addl. A.G. N.W.F.P. for Respondents No. 2 to 8.
Ex-parte for Respondent No. 1 (vii to viii & 9-22).
Date of hearing: 8.4.2008.
Judgment
Mian Hamid Farooq, J.--The appellant, through the present appeal, by leave of the Court, has challenged the judgment dated 12.2.1998, whereby, the learned Division Bench of the Peshawar High Court, Peshawar dismissed his constitutional petition (WP. No. 810/1995).
"2. "Factual aspect of the case is that land measuring 14 kanals 17 marlas situated in Mauza Daman (Akbarpura) Tehsil and District Nowshera was acquired by the irrigation Department for the Scheme "Protection of Akbarpura village from floods in Bara Nala" on the basis of award dated 3.3.1966 of the Collector Acquisition, Peshawar. The case of the petitioner is that the acquired land was owned by the petitioner and on acquisition its compensation was paid to his predecessor. On 8.10.1990, the petitioner applied for restoration of the surplus land. The Deputy Commissioner and the Commissioner recommended that the surplus land be returned to the owner from whom it was acquired on payment of the price to be fixed by the competent authority. Consequently, it was returned to the petitioner by the order of the Commissioner and Mutation No. 1226 dated 5.7.1994 was also sanctioned in his name. Malik Muhammad Sadiq respondent agitated the matter in revision before the Senior Member, Board of Revenue, NWFP, which was accepted, the order of the Commissioner dated 12.6.1994 was set aside and the impugned Mutation No. 1226 dated 5.7.1994 was cancelled. The writ petition of the petitioner against the said order was dismissed through impugned judgment".
"4. We grant leave to consider "whether the Senior Member, Board of Revenue, in revision was legally justified in cancelling the mutation in favour of the petitioner after it was held by the Commissioner and the Deputy Commissioner that the land was acquired from the petitioner and compensation was paid to him. Moreover, as the grounds of appeal before the Member Board of Revenue, reveal it was not the case of the respondent that the land being Shamilat, therefore the proprietary body of the village and not the petitioner alone was entitled to its compensation. The petition is barred by time and this point will be considered at the time of hearing of the appeal." (underlining is ours).
Learned counsel for the appellant stated that impugned judgment was passed on 12.2.1998, the appellant applied for obtaining certified copy of the judgment on the same day, it was prepared on 21.2.1998 and the appellant secured certified copy on 1.10.1998 and filed the petition on 30.10.1998. He contended that since the certified copy of the judgment was delivered to the appellant on 1.10.1998 and the petition was filed within 60 days from the date of delivery of the copy, therefore, civil petition was within time. He has further contended that "requisite time" under Section 12(2) of the Limitation Act would be the period computed from date of application till date of delivery of certified copy and that copying agency did not issue any notice to the appellant informing him about readiness of the certified copy. He has referred to the case reported as West Pakistan Industrial Development Corporation, Karachi v. Aziz Qureshi (1973 SCMR 555). Conversely, learned counsel for the respondents submitted that the appellant deliberately failed to place on record chit issued by the copying agency indicating tentative date of preparation of the certified copy and the time for filing petition would run from the date of preparation of copy i.e. 21.2.1998 and not from the date of delivery. He referred to para-3 of the application for condonation of delay to contend that had the appellant been visiting the copying agency for obtaining certified copy as alleged, he would have definitely got the certified copy, as it was admittedly prepared on 21.2.1998.
We have heard the learned counsel for the parties and examined the material available on record. Even according to the narrative furnished by the learned counsel, (viz the appellant applied for the certified copy on 12.2.1998, it was prepared and ready for delivery on 21.2.1998 and the petition was filed on 30.10.1998) the petition was barred by 8 months and 9 days. The stance of the learned counsel is that if the time is computed from date of delivery of the certified copy of the impugned judgment, then the petition is within time. Learned counsel when asked as to why chit/receipt issued by the copying branch was not placed on record stated that he is not aware as to whether chit or receipt was issued by the copying agency or not as the certified copy was applied by the appellant. The learned counsel has also not been able to disclose about the date, which was given by the copying agency or indicated on the receipt issued by the copying agency to obtain certified copy. It is a matter of common knowledge that when a person applies for certified copy, the copying agency issues a receipt/chit indicating tentative date of preparation of certified copy and on that date an applicant is obliged to enquire from the copying agency as to whether the requisite copy is prepared or not. Interestingly, the appellant in his application for condonation of delay even did not mention the date given by the copying agency to the appellant for obtaining the certified copy of the judgment. This Court in a case reported as Fateh Muhammad and others v. Malik Qadir Bakhsh (1975 SCMR 157) has held that the time "requisite" for obtaining copy of order within the meaning of Section 12 of the Limitation Act, 1908, means only the interval between the date of application for supply of copy and the date when it is ready for delivery and that the time between the date on which the copy was ready for delivery, and the date on which the applicant chooses to take delivery thereof is not a portion of time "requisite" for obtaining a copy. Even Section 12 (5) of the Limitation Act is of no help to the appellant as he failed to produce the chit/receipt issued by the copying agency showing the date for preparation of certified copy, inasmuch as, no such date has been indicated in the application for condonation of delay. Had the appellant produced a chit issued by the copying agency and the copy was not ready on the date indicated in the chit, then the appellant could have taken shelter under Section 12(5) of the Limitation Act. This Court under the similar facts and circumstances of the case reported as Zulfiqar Ali v. Superintendent of Police and others (2003 SCMR 1562) refused to condone the delay of nearly 50 days while in the present case the delay is of 249 days. The case of Zulfiqar Ali (ibid) applies to the facts and circumstances of the case in hand on all fours.
There is another aspect of the case. The appellant applied for certified copy on 12.2.1998 and he waited for a period of nearly eight months to inquire about the copy, as he obtained the copy on 1.10.1998. The appellant after applying for the certified copy of the judgment went into a deep slumber and did not enquire from the copying agency about the fate of his application for the grant of certified copy for approximately eight months. Even if it be presumed that no chit/receipt was issued by the copying agency, the appellant as a prudent person should have acted with reasonable promptitude and diligent and should have approached the copying agency inquiring about certified copy within a reasonable time. The appellant was extremely negligent in securing the certified copy of the judgment and did not bother to inquire from the copying agency about the preparation of certified copy for nearly 8 months, which was ready for deliver on 21.2.1998. Learned counsel for the respondents has rightly referred para-3 of the application for condonation of delay, in which the appellant stated that he visited the copying branch several times for collecting the certified copy but was told that the same has not yet been prepared. Suffice it to say that the said assertion, on the face of it seems to be erroneous. Had the appellant visited the copying agency after 21.2.1998 he would have definitely got the certified copy as according to him it was prepared on the said date. It leads to the irresistible conclusion that the appellant never visited copying agency during the period from 21.2.1998 to 1.10.1998.
Seeing from any angle, the appellant has not been able to sufficiently explain the inordinate delay of 8 months and 9 days within the parameters of law. Thus the petition was grossly barred by time and we see no sufficient cause to condone this inordinate delay.
For foregoing reasons, the petition was barred by time which is hereby dismissed and leave granted order is rescinded.
(J.R.) Petition dismissed.
PLJ 2008 SC 736
[Appellate Jurisdiction]
Present: Saiyed Saeed Ashhad, Muhammad Akhtar Shabbir &
Syed Sakhi Hussain Bukhari, JJ.
AAMIR GILL--Petitioner
versus
ELECTION COMMISSION, PUNJAB, LAHORE/RETURNING OFFICER FOR MINORITY RESERVED SEATS
and others--Respondents
Civil Petition No. 93-L of 2008, decided on 7.5.2008.
(On appeal from the judgment dated 25.1.2008 passed by the Lahore High Court, Lahore in Writ Petition No. 12113 of 2007).
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 47-A--General Election Order 2002, Art. 8-F--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Inclusion the name of petitioner in the list of validly nominated candidates of minority list--Election Tribunal ordered to include the name of petitioner, while High Court in writ petition, set aside--Validity--Father of petitioner had applied to the concerned political party for ticket/inclusion of his name in the reserved seats, meant for non-Muslims--At the same time, petitioner had also applied for ticket--Due to fact that in case of withdrawal or non-setting aside the condition of "Graduation" resulting in disqualification of his father, he would replace him, being a Graduate--After expiry of the fixed date no changes/addition or alteration could have been made in the list--His application for correction of the name was actually for addition/substitution of his own name in place of the name of his father--High Court had rightly set aside the order of Tribunal--Leave refused. [P. 738] A, B & C
Mr. Nazeer Ahmad Ghazi, ASC for Petitioner.
Nemo for Respondents No. 1 to 3.
Mr. Abid Saqi, ASC & Mehmood-ul-Islam, AOR (Absent) for Respondent No. 4.
Date of hearing: 7.5.2008.
Judgment
Saiyed Saeed Ashhad, J.--This petition for leave to appeal has been filed to assail the judgment of Lahore High Court, Lahore dated 25.1.2008 in Writ Petition No. 12143/2007. By the aforesaid judgment the High Court has set aside the order dated 8.12.2007 passed by the Election Tribunal whereby it had allowed inclusion of the name of the petitioner in the list of validly nominated candidates by substituting it in place of the name of Peter Gill in the Priority List of party.
Pursuant to the requirements of Article 8-F of the General Election Order, 2002 (hereinafter referred to as the "Order") and Section 47-A of the Representation of the People Act, 1976 (hereinafter referred to as the "Act") the Political Parties are required to file separate list of candidates in order of priority for seats reserved for women and non-Muslims. In compliance of the above provisions Respondent No. 3 submitted separate list of candidates in order of priority for the reserved seats of non-Muslims before the due date which was 26.11.2007. The name of the petitioner did not appear in the said list. On 1.12.2007 the name of the petitioner was sought to be included in the said list. Such request was rejected by the Provincial Election Commissioner, Punjab/Returning Officer for reserved seats in Punjab Provincial Assembly vide order dated 3.12.2007. Such order was assailed before the Election Tribunal who vide order dated 8.12.2007 set aside the same and directed that the name of the petitioner be included in the list of validly nominated candidates by substituting it with the name of Peter Gill.
Respondent No. 4 feeling aggrieved and dis-satisfied with the order of the Election Tribunal assailed the same by way of Writ Petition No. 12113/2007 which was disposed of by means of impugned order dated 25.1.2008, as stated above, setting aside the order dated 8.12.2007 of the Election Tribunal and declaring the same to be without lawful authority.
Petitioner feeling aggrieved and dis-satisfied with the impugned order dated 25.1.2008 had assailed the same by way of this petition for leave to appeal.
We have heard the arguments of Mr. Nazeer Ahmad Ghazi, learned ASC on behalf of the petitioner and Mr. Abid Saqi, learned ASC for Respondent No. 4.
Mr. Nazeer Ahmad Ghazi, learned ASC appearing on behalf of the petitioner tried to argue that it was not a case of addition or substitution of the name of the candidate with the name of another candidate but it was correction of name which had been wrongly and inadvertently mentioned in the separate list of candidates in order of priority for reserved seats for non-Muslims. Elaborating his argument he submitted that actually Peter Gill, father of the petitioner was the proposer of the petitioner but inadvertently his name appeared as candidate and when this discrepancy came to the notice of Respondent No. 3 an application was moved for rectification thereof which request initially was rejected by the Returning Officer but was subsequently allowed by the Tribunal.
This contention in view of the facts and circumstances of the case, to say the least, is absolutely frivolous and baseless. As a matter of fact it was Peter Gill who had applied to the concerned Political Party for ticket/inclusion of his name in the separate list of candidates for reserved seats meant for non-Muslims. At the same time his son, the petitioner had also applied for a ticket/inclusion of his name. From the facts it transpires that the petitioner had applied for a ticket subject to withdrawal or setting aside the condition of Graduation for contesting National and Provincial Assemblies and in case was not withdrawn or set aside resulting in disqualification of Peter Gill, then he (petitioner) would replace him as a candidate being a Graduate. The fact that both the petitioner and his father had applied for a ticket for a minority seat in Punjab Provincial Assembly is borne out from their applications which have been annexed in the paper book appears at pages 40 and 48. Till the date fixed for filing of nomination papers i.e. 26.11.2007 the name of petitioner did not appear in the list of the candidates filed in pursuance of Article 8-F of the Order and Section 47-A of the Act. After expiry of this date no changes/addition or alteration could have been made in the aforesaid list of candidates and therefore his application dated 1.12.2007, which he claimed to be an application for correction of the name as the name of his father Peter Gill was wrongly and inadvertently mentioned in the list instead of his name, was in affect an application for addition/substitution of his name in place of the name of Peter Gill was not maintainable and the Returning Officer rightly rejected the same. The Election Tribunal did not take into consideration the material facts for deciding the issue involved and fell in error in holding that the above was a case of correction/rectification and not a case of substitution/inclusion of the name of the petitioner. The High Court rightly set aside the order of the Election Tribunal holding that it was a case of substitution/ addition of the name in the separate list of candidates for reserved seats for non-Muslims and the same could not have been done after 26.11.2007.
For the foregoing facts, reasons and discussion this petition is found to be without any merit and substance which is accordingly dismissed. Leave refused.
(J.R.) Leave refused.
PLJ 2008 SC 739
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
BARRISTER MASROOR SHAH--Petitioner
versus
NWFP BAR COUNCIL and another--Respondents
Civil Petition No. 582 of 2007, decided on 24.4.2008.
(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 10.4.2007 passed in W.P. No. 490 of 2007).
Legal Practitioners & Bar Councils Act, 1973 (XXXV of 1973)--
----S. 27(c)--N.W.F.P. Bar Council & Legal Practitioners Rules 1996, R. 5.7--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Statutory period of 6 months--Grant of license to appear as advocate High Court--Exemption from condition of 2 years practice before lower Courts--In ordinate delay in deciding the matter within 6 months--Petitioner's application claiming such exemption remained pending for more than one & half years--Held: By reason of inordinate delay caused by respondents in adjudicating the matter within statutory period of 6 months, petitioner's seniority had not adversely affected without any fault on his part--Delay could not be attributable to him--Petition converted into appeal and allowed.
[P. 740] A & B
Petition in person.
Qazi A. Rashid, ASC & Mr. G.N. Gohar, AOR and Mr. Naeem Pervaiz, Secy. Bar Council, NWFP for Respondents.
Date of hearing: 24.4.2008.
Judgment
Ijaz-ul-Hassan, J.--Through instant petition, Barrister Masroor Shah, petitioner, seeks leave to appeal against judgment dated 10.4.2007 passed by learned Peshawar High Court, Peshawar, dismissing Writ Petition No. 490 of 2007 filed by the petitioner under Article 199 of the Constitution of the Islamic Republic of Pakistan.
The petitioner applied to Respondent No. 1 i.e. NWFP Bar Council, Peshawar, through its Secretary, for grant of license to appear, act and plead as an advocate of lower Courts, which was granted on 30.6.2001. The petitioner on 2.07.2001 submitted an application to Respondent No. 1, claiming exemption from condition of two years practice before the lower Courts in order to qualify for the grant of license to appear, act and plead as an advocate of the High Court, under Section 27(c) of the Legal Practitioners and Bar Councils Act, 1973 (hereinafter referred to as the `Act'). The application was forwarded to the Administration Committee of the Peshawar High Court, where it remained pending adjudication for more than one and a half years. Ultimately, the exemption sought was granted and license to practice law before the High Court was issued on 8.2.2003. The grievance of the petitioner in nutshell is, that by reason of inordinate delay caused by the respondents in adjudicating upon the petitioner's application under Section 27(c) of the Act within the statutory period of six months as enunciated by the law, the rights of the petitioner have been materially prejudiced.
We agree with the petitioner that by reason of an inordinate delay caused by the respondents in adjudicating upon the petitioner's application within the statutory period of six months as enunciated by Rule 5.7 of the NWFP Bar Council and Legal Practitioners Rules, 1996, the petitioner's seniority in the legal profession has been adversely affected without any fault on his part. The delay is not attributable to the petitioner.
In view of the above, while converting this petition into appeal, we allow the same and set-aside the impugned judgment dated 10.4.2007 of the Peshawar High Court, Peshawar.
(J.R.) Petition allowed.
PLJ 2008 SC 740
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ch. Ejaz Yousaf &
Muhammad Farrukh Mahmud, JJ.
ABDUL MAJEED--Appellant
versus
STATE--Respondent
Crl. A. No. 340 of 2005, decided on 10.4.2008.
(On appeal from the judgment dated 21.4.2004 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal No. 230 of 1998 and Murder Reference No. 77 of 2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Conviction and sentence of death by trial Court--Challenge to--Appreciation of evidence--Blood-stained earth and empties were not recovered--Two motives behind occurrence--PWs had given consistent, coherent, natural and convincing account of the occurrence--They had corroborated each other on almost all the material particulars of the case--Their statements could not be discarded for the mere reason that blood-stained earth was not collected by I.O.--Occurrence was reported within two hours without any delay--Medical evidence fully supported the ocular account, as the deceased had received multiple fire-arm injuries on his person--Occurrence took place in day-light, so without any question of identity of the assailant--Appeal dismissed.
[Pp. 744, 745 & 746] A, B, C, D & E
2005 SCMR 427, ref.
Sardar Muhammad Latif Khan Khosa, ASC with Mr. M.A. Zaidi, AOR for Appellant.
Ch. Afrasiab Khan, ASC with Ch. Akhtar Ali, AOR for Complainant.
Mr. M. Siddique, D.P.G. for State.
Date of hearing: 10.4.2008.
Order
Muhammad Farrukh Mahmud, J.--Abdul Majeed appellant was tried for causing the murder of Fazal Karim in case FIR No. 160 dated 21.6.1995 Police Station Mandra Tehsil Gujar Khan District Rawalpindi for offence under Section 302 PPC. Vide judgment dated 24.9.1998, the learned trial Court convicted the appellant for offence under Section 302(b) PPC and sentenced to death. He was also directed to pay Rs. 1,00,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. and in default thereof he was to suffer S.I. for six months. The conviction and sentence was upheld by the learned Division Bench of Lahore High Court (Rawalpindi Bench) vide judgment dated 21.4.2004. Feeling aggreived the appellant filed petition for leave to appeal against his conviction and sentence. Leave was granted by this Court on 26.9.2005 to re-appraise the evidence in its true perspective considering the fact that neither blood-stained earth nor empties were recovered from the place of incident, hence, the above captioned appeal.
The relevant facts are that on the fateful day, the complainant was getting a well dug outside the village, Fazal Karim deceased, Wadi Hussain, Munir Ahmed PWs were with him. At about 4:15 p.m. the work was stopped, Wadi Hussain and Munir Ahmed started towards the village while Fazal Karim started towards his well. While he was at few paces from his well, Abdul Majeed appellant who was already present on the way surprised him. After raising lalkara, Abdul Majeed started firing at Fazal Karim who fell after the receipt of fires. Complainant alongwith PWs rushed to the spot. Meanwhile Abdul Majeed made good his escape. The PWs observed injuries on the chest under right shoulder, right thigh, left thigh and three fingers of the left hand. The wounds were bleading. Fazal Karim while injured was put on a cot, he was brought on the mettled road and from there he was shifted in a Suzuki in order to take him to hospital, however, Fazal Karim lost his life at Sakkar Mor ( ) and his dead body was taken to the police station in the Suzuki where the matter was reported to Ishtiaq Ahmed, Inspector (PW.8).
According to FIR, there were two motives behind the occurrence. The first was that three days prior to the occurrence, cattle belonging to Abdul Majeed appellant were found grazing in the field of Fazal Karim which led to quarrel between the two, abuses were exchanged and both grappled with each other. They were separated by Gulzar Hussain and Abdul Rasheed PWs.. The second motive was that Mst. Safia Sultana and Fazal Hussain sister and brother of Abdul Majeed had filed civil cases against the complainant, Fazal Karim used to help the complainant which caused grievance to Abdul Majeed.
During trial prosecution examined eight witnesses in support of its case. Haji Nazir Ahmed first cousin and brother-in-law of the deceased alongwith Munir Ahmed who was distantly related to the deceased appeared as eye-witnesses No. 5 and 7. Both of them supported the story given in the FIR including the motive. Gulzar Hussain PW3 who was brother-in-law of the deceased stated about the altercation which had taken place on 18.6.1995 i.e. three days prior to the occurrence. Dr. Muhammad Ajmal Khan (PW.1) stated that he conducted post-mortem examination at 8:40 a.m. on 22.6.1995 on the dead body of Fazal Karim deceased. He observed 10 injuries on the person of the deceased. Injury No. 1 was on the chest. Injury No. 2 was on the front of right thigh. Injury No. 4 was on the left thigh and was from a very close range as blackening was present. Injuries No. 5, 7 and 9 were on the index finger, middle finger and ring finger of the left hand. The rest of the injuries were exit wounds. According to his opinion, injury No. 1 proved fatal and the deceased lost his life within half an hour of the receipt of injuries. He further opined that time elapsed between death and post-mortem was within 24 hours. The Doctor also recovered bullet from the dead body sealed it in a bottle and handed it over to Muhammad Hussain Constable (PW.6). During cross-examination, he admitted it to be correct that injury No. 1 resulted into internal bleeding and that injuries No. 2 to 10 must have bled profusedly. In reply to a question, he explained that the application submitted by the Investigating Officer was dated 21.6.1995 and was received by him on 22.6.1995. It has been noted that injury statement Ex.PB and inquest report Ex.PC both are dated 21.6.1995 i.e. when the occurrence took place. Ishtiaq Ahmed, SHO appeared as PW.8. His statement was recorded on oath on 6.6.1998 but he could not be cross-examined due to non-availability of learned defence counsel and the same was reserved. Before he could be cross-examined, he was murdered while in line of his duty on the night in between 19/20-6-1998 as is evident from mark A/1 present at page 112 of the paper book and mark B FIR No. 71 registered at Police Station Dhadiyal District Chakwal on 19.6.1998 at 11:00 p.m. available at page 113 of the paper book. Rest of the witnesses are formal.
After closure of the prosecution case, statement of appellant was recorded on 22.8.1998 under Section 342 Cr.P.C. He claimed to be innocent and stated that PWs were related inter se and were inimical towards him as his sister had been litigating against the PWs.. He further stated that the deceased was murdered by some unknown persons at some unknown place and time. In other words it was an un-witnessed occurrence.
The learned counsel for the appellant has argued that both the eye-witnesses were closely related to the deceased and were chance witnesses; that there was no physical evidence of the presence of PWs as there clothes were not stained with blood and for that they were not taken into possession by police; that the presence of the PWs is also doubtful from the fact that no empty or blood-stained earth was recovered from the spot. Further more he submitted that no blood was collected from the cot which was used in carrying the deceased while injured; that no signs of trampling were seen at the place of occurrence; that the ocular account was in conflict with the medical evidence; that the ocular account which consisted of interested witnesses was not corroborated by any reliable evidence as the recovery of revolver from appellant was disbelieved by the learned trial Court; that the prosecution case was not free from doubt.
Conversely, learned counsel appearing on behalf of the complainant has argued that both the eye-witnesses have given trust-worthy account; that PW Munir had no direct enmity with the appellant; that the PWs were natural and their statements were fully supported by the medical evidence; that revolver was used in the occurrence, there was six entry wounds on the dead body of the deceased that meant that whole chamber was emptied by firing and that since the appellant was equipped with revolver, the empties remained in it and there was no question of falling of empties on the spot. He further argued that PWs had explained that they immediately rushed to the spot and carried the deceased and then put him on a cot. Furthermore according to PWs the deceased fell on the ground while his face was upwards so no blood fell on the ground as the deceased was immediately attended to by the PWs. The learned counsel further submitted that the ocular testimony was fully corroborated by the medical evidence, motive and circumstances of the case and that the learned trial Court wrongly discarded the evidence of recovery of revolver. He summed up his arguments by submitting that no mitigating, circumstance existed in favour of the appellant.
The learned Deputy Prosecutor General supported the impugned judgment.
We have heard the learned counsel for the parties at great length and have scanned the entire record of the case. It is in evidence that the deceased and PWs were together on the occasion of digging of well and departed at 4:15 p.m. after the closure of the work. The factum of digging of well of the complainant has not been seriously challenged. It is customery that close relatives help each other on such occasions so the presence of PWs was quite natural. The complainant did not specify the shots fired upon by the appellant in the FIR nor it was mentioned therein that the deceased received fires at such and such part of the body. It was stated in the FIR that the appellant started firing at the deceased, the PWs rushed to the spot and reaching there observed the wounds on the person of the deceased on different parts of the body. The narration by the complainant is very natural and truthful. He could very easily improve his statement by specifying the number of shots and seat of injuries but he did not do so. We are afraid that the statements of eye-witnesses cannot be discarded for the mere reason that blood-stained earth was not collected by the Investigating Officer. The explanation for not falling of blood on the ground has been brought on the record by the learned counsel of the appellant himself during cross-examination. We may refer to the relevant portion of the cross-examination available at page 55 of the paper book:--
"the deceased was bleeding but the blood had not as yet fallen on the ground that we picked up. Deceased Fazal Karim had fallen on the ground. Deceased had fallen while facing towards sky. We reached near the deceased within a minute after he received the injury."
The complainant in reply to the question stated that his clothes were stained with blood while shifting the deceased. If his clothes were not taken in possession by the Investigating Officer, then it reflected on his working and lethargy. It could not cause any harm to the prosecution case. As far as the occurrence is concerned both the PWs Nazir Ahmed and Munir Ahmed have given consistent, coherent, natural and convincing account of the occurrence. They have corroborated each other on almost all the material particulars of the case. It may be mentioned here that PW5 was subjected to a very lengthy cross-examination consisting of eight pages but the intrinsic value of his evidence could not be shaken. The tenor of cross-examination suggests that the appellant had been taking different defences. It was suggested to complainant that firstly Iftikhar son of deceased was married with Rukhsana daughter of Ali Shan PW2. A child was born. Thereafter the marriage broke up and Rukhsana obtained divorce and after divorce married with one Riaz. It was further suggested that Rukhsana was suspected to have relationship with said Riaz and that Rukhsana had been stating that Iftikhar and his father (Fazal Karim deceased) would be taken to task at appropriate time for levelling allegations against her. It was specifically suggested to the complainant that Riaz and Ali Shan jointly murdered Fazal Karim at some unknown place and time. Of course, the suggestion was denied. A wild allegation was also levelled against the character of the deceased that he was addicted to liquor, was a dare devil and used to outrage the modesty of women of the area. All these wild allegations were levelled without any proof in the shape oral or documentary evidence. Not a single FIR was brought on record against the deceased. Realising that substitution was a rare phenomenon, the appellant did not say a word about the character of the deceased in his statement recorded under Section 342 Cr.P.C. or that deceased was done to death by Riaz and Ali Shan jointly. It may be mentioned here that Ali Shan appeared as a prosecution witness and it speaks volumes against the theory that Ali Shan was one of the murderers. The PWs were related to the deceased, the deceased was also survived by a son, no reason existed whatsoever to substitute the killer with an innocent person. The presence of the complainant and other PWs is also established from the factum of lodging of FIR without any loss of time. The occurrence took place at 4:15 p.m. while the matter was reported to the police at Police Station at 6:15 p.m. within two hours of the occurrence while the Police Station was at a distance of 22 k.ms.. It is mentioned in the FIR that the complainant after the death of Fazal Karim went to the police station alongwith the dead body straight away. This part of the story is also corroborated by the un-challenged statement on oath of PW8 Ishtiaq Ahmed, SHO.. The learned counsel has referred to certain confrontations available on the record of the case and argued that witnesses improved their statements. On the contrary, the contention of learned counsel is devoid of any force as the confrontations are in fact only details of the occurrence which naturely crop up during examination and cross-examination of a witness.
The medical evidence has fully supported the ocular account, as the deceased had receive multiple fire-arm injuries on his person.
As far as motive is concerned the factum of altercation between the deceased and the appellant three days prior to the occurrence has been brought on record through eye-witnesses as well as Gulzar Hussain PW3. The mere fact that the matter was not reported to the police would not matter much as the villagers do not rush to the police station to report every incident especially when the incident did not result into any serious injury. As far as second part of the motive is concerned, that is almost admitted. The argument of learned counsel that in that case the appellant would have murdered complainant instead of deceased is devoid of any force as it is the mind of the killer which matters and the Court cannot indulge into hyphothetical theories.
Now coming to the recovery. We are of the view that in the absence of recovery of any empty, the recovery of revolver could not be used against the appellant. Even otherwise the learned trial Court has discarded this piece of evidence for valid reasons.
The upshot of the whole discussion is that it was a case of single accused, the occurrence took place when the light was available and the identity of the assailant was not in question. PWs plausibly established their presence at the time of occurrence. Their statements were fully supported by the medical evidence and corroborated by the circumstances of the case including lodging of FIR promptly. Both the learned Courts rightly believed the prosecution evidence. In the circumstnaces, in our opinion the prosecution has successfully proved its case agianst the appellant. The appellant waylaid the deceased and repeatedly fired at him which showed his intention and weakness in the motive, if any, would not come to his rescue. Reference may be made to the judgment of this Court in the case of Syed Hamid Mukhtar Shah Vs. Muhammad Azam and 2 others (2005 SCMR 427) wherein it was observed that "inefficiency of motive or motive being shrouded in mystery could not be considered as circumstances justifying non-awarding of the normal penalty of death to a murderer or to reduce the sentence of death to a lesser punishment". This appeal is accordingly dismissed.
(J.R.) Appeal dismissed.
PLJ 2008 SC 747
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
GHULAM QADIR and 2 others--Appellants
versus
STATE--Respondents
Crl. A. No. 402 of 2002, decided on 4.4.2008.
(On appeal from the judgment and order of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 21.3.2002 passed in Cr. A. No. 20 of 2000).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 396, 148, 449, 324 & 149--Docoity and murder--Conviction and sentence--Challenge to--Appreciation of evidence--Admittedly, first informant, was not the eye witness but the telephone operator had informed him about the incident, who was not produced--Validity--Injured employees of the mill was the best evidence but they were not produced, without any justifiable reason--Accused persons were merely picked up and the role attributed to them was not stated by PWs, so identification could not be relied upon--Benefit of doubt extended to the accused--Appeal accepted.
[Pp. 751, 752 & 753] A, B, D, F & L
Criminal Procedure Code, 1898 (V of 1898)--
----S. 161--Examination of witness by police--Delay in--Held: Belated examination of a witness may not be fatal to the prosecution but where the delay was unexplained, accused was not named in FIR and circumstances justified that the open FIR and delay had been purposely manoeuvred to name the accused later, such managed delay & gaps adversely affect the prosecution case. [P. 751] C
1995 SCMR 127 rel.
Injured Witness--
----Non-appearance--Effect of--Held: If an injured witness himself does not appear to charge an accused for his injury and the Court is not satisfied with his disability or incompetence or reasons for his non-appearance, then the conviction for his injury cannot be recorded on the basis of other evidence under Qisas. [P. 752] E
1992 SCMR 2088 rel.
Medical Evidence--
----Evidenciary value--Held: Medical evidence may confirm the ocular evidence with regard receipt of injuries, nature of injuries and kind of weapon but it would not connect the accused with the commission of offence. [P. 753] G
Benefit of Doubt--
----Critaria--For the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding truth of the charge makes the whole case doubtful.
[P. 753] H
Criminal Trial--
----Duty of prosecution--Proved of--Held: Merely because the burden is on the accused to prove his innocence, it does not absolve the prosecution from its duty to prove the case beyond any shadow of doubt and this duty does not change or vary in the case. [P. 753] J
Criminal Trial--
----Guilty of accused--Proof of--Conjectures & probabilities--Effect--Held: Mere conjectures and probabilities can not take the place of proof. [P. 753] K
1995 SCMR 127; 1992 SCMR 2088; 1985 SCMR 721; ILR 51 Lah. 396 & PLD 1970 SC 10, ref.
Raja Muhammad Ibrahim Satti, ASC for Appellants.
Ms. Yasmin Seghal, DPG for State.
Date of hearing: 4.4.2008.
Judgment
Ijaz-ul-Hassan, J.--This criminal appeal has been directed against the judgment dated 21.3.2002 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby Criminal Appeal No. 20 of 2000 preferred by Ghulam Qadir, Rab Nawaz and Ali Hasan, appellants, against their conviction and sentences awarded to them under Sections 148/149/324/396 and .449 PPC vide judgment dated 31.5.2000 passed by the Judge Special Court for Suppression of Terrorist Activities, Bahawalpur Division, Bahawalpur, has been dismissed.
The facts necessary for the disposal of instant appeal are that on the fateful night i.e. 21.02.1998, complainant, Muhammad Akram, Manager Administration, Ashraf Sugar Mills Limited, Ashraf Abad Bahawalpur, was present in his office when at about 8.00 p.m. 8/10 persons armed with Kalashnikovs, Pistols and Mousers, entered into the Mill's premises and headed towards Accounts Branch. They caused injuries to Muhammad Akmal, Security Guard and snatched his rifle. One of the accused fired at Akbar Khan, Security Guard, hitting him on the right leg. Thereafter all the accused broke the lock of iron grill, entered into the Account Branch and tried to brake open the iron safe in order to take away the cash, but could not succeed. In the meanwhile, there was commotion all around, which attracted the mill's workers. Confronted with this situation, the accused started firing, as a result of which, Ghulam Hussain, Security Supervisor and Mehdi Khan, Security Guard, received injuries and died there and then, whereas Muhammad Azam, Security Officer, Muhammad Zaman, Time Keeper and Muhammad Akhtar, Telephone Operator, Account Branch, sustained injuries. The accused took rifles of the deceased and injured security staff, and after firing made good their escape.
The matter was immediately reported at the police station Musafar khana, District Bahawalpur, by complainant, Muhammad Akram, whereupon FIR No. 37 of 1998 was lodged the same night at 8.15.p.m. After registration of the case, SI/SHO Abdur Rashid, visited the scene of occurrence, secured number of empty cartridges and blood stained earth from the spot. He prepared injury statements and inquest reports of the deceased and dispatched the dead bodies to the mortuary for postmortem examination. The injured were also referred to the hospital for treatment.
The matter remained under investigation as the accused were not traceable. It was on 23.8.1998 when Khan Muhammad, Ali Hassan, Rab Nawaz and Ghulam Qadir, were arrested who were carrying certain weapons with them. As no one was nominated in the FIR, an identification parade was held on 27.8.1998 within the premises of New Central Jail, Bahawalpur. PWs Muhammad Azam and Muhammad Akmal took part in the identification parade. Out of them PW Muhammad Azam identified Ghulam Qadir, Ali Hassan and Rab Nawaz whereas PW Muhammad Akmal failed to identify any of the accused. Khan Muhammad and Ghulam Qadir led to the recovery of rifles whereas Rab Nawaz led to the recovery of Kalashnikov. On 6.9.1998, after completion of investigation, challan was submitted in Court. The accused were charged under Sections 148/449/395/396/397 and 412 read with Section 149 PPC to which they plead not guilty and claimed to be tried.
The prosecution in order to prove its case, produced as may as 17 witnesses. The ocular account was furnished by complainant Muhammad Akram (PW.1), Muhammad Akmal (PW.2) and Muhammad Azam (PW.3). The accused facing trial in their statements recorded under Section 342 Cr. P.C. by the learned trial Court, denied and disputed the accusation of the incriminating pieces of evidence and claimed their innocence, as well as, false involvement in the case. None of them opted to record statement on oath in disproof of the charges under Section 340(2) Cr.P.C. but said that they have been falsely involved at the instance of Jam Manzoor Ahmed, SI/SHO. They also refuted being in possession of any weapon or having led to any recovery.
The learned Trial Court, on conclusion of the trial, while extending benefit of doubt, acquitted co-accused Muhammad Khan whereas convicted and sentenced the appellants vide judgment dated 31.5.2000 as follows:--
(i) Under Sections 396/149 PPC.
Rab Nawaz, Ali Hassan and Ghulam Qadir were convicted and sentenced to death.
(ii) Under Sections 148/149 PPC
They were convicted and sentenced to 5 years R.I. and fine of Rs.5000/- each or in default thereof to undergo 6 months S.I.
(iii) Under Sections 449/149 PPC.
They were convicted and sentenced to 5 years R.I. and a fine of Rs.5000/- each or in default thereof to undergo 6 months S.I.
(iv) Under Sections 324/149 PPC.
They were convicted and sentenced to 7 years R.I. and a fine of Rs.5000/- each or in default thereof to undergo 6 months S.I.
Feeling aggrieved, the appellants filed appeal before the Lahore High Court, Bahawalpur Bench, which was dismissed on 21.3.2002, hence, this appeal with leave of the Court.
We have heard Raja Muhammad Ibrahim Satti, learned ASC, appearing on behalf of the appellants and Ms. Yasmin Seghal, Deputy Prosecutor General, representing the State. We have also perused the entire record with their assistance.
Learned counsel for the appellants bitterly criticized the impugned judgment and attempted to argue that appellants had no hand in the commission of crime and they have been falsely implicated in the case at the instance of P.W. Jam Manzoor Ahmed, Sub Inspector/SHO. The learned counsel also contended that appellants were not named in the FIR nor their physical features were mentioned therein. None of the appellants was arrested from the spot and subsequent arrest of the appellants on 23.8.1998 and belated identification parade held on 27.8.1998 was result of police manipulation, that ocular account of the incident furnished by P.Ws. complainant Muhammad Akram, Muhammad Akmal and Muhammad Azam is highly in-convincing and unreliable which cannot be made basis for conviction of the appellants. The learned counsel, in the last limb of arguments, challenged the evidentiary value of identification parade and submitted that it was not conducted in consonance with the requirement of law as it was incumbent upon the identifying witnesses to attribute specific role and weapons of offence to each of the appellant which was not done.
Learned Deputy Prosecutor General, representing the State, controverted the arguments of learned appellants' counsel and submitted that statement of prosecution witnesses have rightly been believed and acted upon, hence, conviction of the appellants and punishment awarded to them by the trial Court and maintained by the High Court is un-exceptionable and admits no interference.
The prosecution case primarily hinges upon the ocular account furnished by P.Ws., Muhammad Akram, Muhammad Akmal and Muhammad Azam, identifications parade, recoveries and medical evidence. Admittedly, Muhammad Akram, PW, first informant, is not an eyewitness of the incident. Telephone Operator, Amanullah, is stated to have informed the complainant about the incident, stating that on the night of occurrence some persons entered into the Mill's premises, they had concealed firearms under the `Chaddirs'. They rushed towards the Accounts Branch and on resistance they opened fire, resulting in murder of two workers and injuries to others. It may be pertinent to mention here that Telephone Operator, Amanullah has not been examined at the trial. Testimony of P.W. Muhammad Akram being hear say cannot be relied upon. As mentioned above, after arrest of the appellants, an identification parade was held in the jail premises. Muhammad Akmal and Muhammad Azam P.Ws took part in the identification parade. Muhammad Akram failed to recognize any of the accused during identification parade. P.W. Muhammad Azam also could not identify all the accused persons. His statement under Section 161 Cr.P.C. was recorded at very belated stage on 4.3.1999. Need-less to emphasize that belated examination of a witness by the police may not be fatal to the prosecution case but where the delay is unexplained, accused has not been named in the FIR and circumstances justify that the open FIR and delay have purposely been manoeuvred to name the accused later, such managed delay and gaps adversely affect the prosecution case. The version of Muhammad Azam would denude his statement of all legal values, Mehmood Ahmad versus The State, (1995 SCMR 127).
It may be pertinent to mention here that Muhammad Zaman, Muhammad Akhtar and akbar Khan employees of the Mill, stated to have sustained injuries in the occurrence, have not been produced at the trial. Best evidence has been with held without any justifiable reason. Needless to add that if an injured witness himself does not appear to charge an accused for his injury and the Court is not satisfied with his disability or incompetence or reasons for not appearing then the conviction for his injury cannot be recorded on the basis of other evidence under Qisas, as held by this Court in Asghar Ali alias Sabah versus the State (1992 SCMR 2088).
The next piece of evidence heavily relied upon by the prosecution is identification parade held on 27.8.1998, in which Muhammad Azam identified three appellants namely, Ghulam Qadir, Rab Nawaz and Ali Hassan. The learned trial Court as well as learned High Court has relied upon it as corroborative piece of evidence. We have examined the record of the identification proceedings and found that it suffers from infirmities and illegalities. The appellants were merely picked up and the role attributed to them was not stated by the witness. In such circumstances, the settled law is that identification could not be relied upon and was of no evidentiary value. Reference in this regard can be made to the case of Khadim Hussain versus The State, (1985 SCMR 721), where it was observed that "It is not clear from the entire evidence relating to identification parade whether the persons named were identified by their role in the crime or as individuals, as friends or as foes. If it was the identification of their role then it should have been specific so as to complete the picture of the crime and reinforce the case against them for commission of the crime. The value of such an identification parade was pointed out as early as 1924 in Lal Singh v Crown ILR 51 Lah. 396 in the words "The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It might merely mean that the witness happens to know that accused person. The principal evidence of identification is the evidence of a witness given in Court as to how and under what circumstances he came to pick out a particular accused persons and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court but otherwise the evidence of identification furnished by an .identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he knew a certain accused person by sight." It is, therefore, clear that proceedings of the identification parade where the appellants were picked up without describing the role played by them in the crime suffers from illegalities and infirmities rendering it completely unreliable having no evidentiary value. The possibility that police had not got accused identified by the witnesses prior to identification parade cannot be excluded".
Adverting to the question regarding recovery of crime weapons at the pointation of some of the appellants, we find that learned trial Court has held that "it is hardly believable that after about six months of the occurrence, all the accused should be traveling together in the same truck and be apprehended jointly. And if the investigating officer had any impression that the weapons so recovered from the accused might be the weapon of offence in the instant case, he should have sealed them forthwith and handed over to some responsible official of the Police Station for safe custody but it never happened. These weapons were left somewhere in the "Malkhana" without taking any care of getting them analyzed. It is highly improbable that these accused would halt in a nearby Graveyard of Mouza Jamal Channer and Shrine and start digging the ground for concealing only two rifles. They had their own weapons and were in no need of taking away others' rifles. In view of this matter, we are least convinced to hold that accused Khan Muhammad and Ghulam Qadir were ever found in possession of the stolen rifles owned by the Ashraf Suger Mills. Further no person of adjoining area was cited as an attesting witness".
So far as medical evidence is concerned, it is settled law that the medical evidence may confirm the ocular evidence with regards receipt of injuries, nature of the injuries, kinds of weapon, used in the occurrence but it would not connect the accused with the commission of the offence.
It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt and this duty does not change or vary in the case. A finding of guilt against an accuased person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. Mere conjectures and probabilities cannot take the place of proof. Muhammad Luqman versus The State, (PLD 1970 SC 10).
In view of the above discussion, while extending benefit of doubt in favour of the appellants in the given facts and circumstances of the case, they have been found entitled to earn acquittal. Resultantly, the appeal is accepted and convictions and sentences recorded by the learned trial Court and maintained by the learned High Court are set aside. The appellants are acquitted of the charges. They are directed to be released forthwith if not required in any other case.
These are the detailed reasons of our short order dated 4.4.2008.
(J.R.) Appeal accepted.
PLJ 2008 SC 754
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, Saiyed Saeed Ashhad, Muhammad Akhtar Shabbir & Syed Sakhi Hussain Bukhari, JJ.
ZAFAR--Appellant
versus
STATE--Respondent
Crl. A. No. 310 of 2003, decided on 17.4.2008.
(On appeal from the judgment of the High Court of Sindh at Karachi dated 8.7.2003 passed in Crl. A. No. 100 of 2002).
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(c)--Recovery of 11 Kg opium--Conviction and sentence recorded against accused by trial Court--Appeal was dismissed by High Court--Challenge to--Appreciation of evidence--A huge quantity of narcotic material had been recovered from possession on pointation of accused--At the time of occurrence and arrest, members of the patrolling party were associated in recovery proceedings--Though I.O. and other PWs were employees of A.N.F., yet they had no animosity or rancor against accused--Prosecution successfully proved his guilt to the hilt by placing ocular account, recovery of narcotic material & chemical examiner's report--Conviction and sentence maintained--Appeal dismissed. [Pp. 756 & 758] A, B, E, G & H
Criminal Trial--
----Police witness--Competency--Appreciation of evidence--Held: The Police employees are the competent witnesses like any other independent witness and their testimony cannot be discarded merely on the ground that they are police employees. [P. 756] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 103--Control of Narcotic Substances Act, 1997--S. 27--Recovery proceedings--Non-inclusion of private witness--Effect--Held: Applicability of S. 103, Cr.P.C. in narcotic cases has been excluded and non-inclusion of any private witness is not a serious defect to vitiate conviction. [P. 757] D
Criminal Trial--
----Registration of case by police officer--Effect--Held: Police Officer is not prohibited under the law to be complainant if he is a witness to the commission of an offence and also to be an I.O. so long it does not in any way prejudice the accused person. [P. 758] F
2003 SCMR 1237; 2004 SCMR 988, 2004 SCMR 1361 &
PLD 1997 SC 408, ref.
Mr. Muhammad Ashraf Qazi, ASC for Appellant.
Sh. Riaz-ul-Haq, ASC for State.
Date of hearing: 17.4.2008.
Judgment
Muhammad Akhtar Shabbir, J.--This criminal appeal, by leave of the Court, is directed against the judgment dated 08.07.2003 passed by a learned Division Bench of the High Court of Sindh at Karachi whereby Criminal Appeal No. 100 of 2002 of the appellant against his conviction and sentence by the trial Court was dismissed.
A criminal case F.I.R. No. 25/1999 (Ex.P.2) dated 16.12.1999 under Section 9(c) of the Control of Narcotic Substances Act, 1997 was registered against the appellant at Police Station ANF-II, Karachi at the instance of Liaqat Ali Zaidi, S.I.(PW-2). According to the prosecution case, a mobile party of Anti Narcotic Force headed by Syed Liaqat Ali Zaidi, S.I., on a tip from an informer, overpowered a person carrying a nylon bag in his hand. The person introduced himself as Zafar (present appellant). On search of the bag, 11 plastic balls containing opium were found. The opium recovered was weighed at the spot and each ball weighed 01 kilograms (total 11 kilograms of opium). Out of the same, 100 grams from each packet was separated and sealed for analysis of the chemical examiner. During investigation at the spot, Zafar accused also disclosed about the presence of his associate at Pankha Hotel carrying huge quantity of opium. On the pointation of Zafar accused, a person namely Fazal Ahmed carrying a nylon bag containing 12 Kgs of opium was arrested. Separate cases were registered against both the accused persons.
The appellant was sent up for trial before the learned Judge, Special Court Narcotic Substances, Karachi Division, who by judgment dated 15.04.2002 convicted him under Section 9(c) of the Control of Narcotic Substances Act, 1997 (CNSA) and sentenced to imprisonment for life with a fine of Rs.100,000/- or to undergo imprisonment for one year in default of payment of fine. However, benefit of Section 382-B Cr.P.C. was extended in his favour. He preferred Criminal Appeal No. 100 of 2002 which was dismissed by a learned Division Bench of the High Court of Sindh, vide impugned judgment dated 08.07.2003.
The learned counsel for the appellant contended that the occurrence has not taken place within the jurisdiction of the P.S. ANF-II Muhammad Ali Society where on the day of occurrence PW Syed Liaqat Ali S.I. was posted and he was not authorized to arrest the appellant and register the case in his own police station; that the investigating officer himself is the complainant as well as the witness of recovery; that no independent witness from the public has been associated by the police (ANF) and all the witnesses of occurrence and recovery are the government employees and they had deposed against the appellant just in their subordination. Their testimony is not worth credence. Further contended that the provisions of Code of Criminal Procedure are applicable to the cases of CNSA; that the alleged recovery of narcotic material has been effected in conflict with Section 103 Cr.P.C; that the appellant has been involved in the case mala fidely letting off the real culprit (owner of the narcotic material); that the alleged narcotic material has been recovered from Zafar appellant and Fazal Ahmad co-accused during one transaction but both have been involved maliciously in two different F.I.Rs. He lastly contended that the appellant being of tender age is entitled to leniency.
While on the other hand, the learned counsel for the State (ANF Establishment) vehemently opposed the arguments of the learned counsel for the appellant and supported the judgments of the courts below.
We have heard the arguments of the learned counsel for the parties and perused the record with their kind assistance.
A huge quantity of narcotic material has been recovered from possession and pointation of the appellant on the day of occurrence on receipt of information from an informer and the Investigating Officer Syed Liaqat Ali accompanied by Ghulam Abbas, Inspector, Siraj Khan, Pervez Shah etc, while on patrolling duty proceeded to the place of occurrence and intercepted Zafar appellant from whose search a nylon bag was taken into possession. On checking opium in 11 plastic balls was found in the bag. On weightage each packet was found to be of one kilogram and total 11 kilograms of opium was recovered and taken into possession. At the time of occurrence and arrest of the appellant Zafar, the employees who were the members of the patrolling party were associated in the proceedings of recovery. They were the natural witnesses. Syed Liaqat Ali, S.I. categorically stated that he had invited the members of the public to join the proceedings but they excused and there was no option left except to complete the proceedings of arrest and recovery in the presence of members of the raiding party. The police employees are the competent witnesses like any other independent witness and their testimony cannot be discarded merely on the ground that they are the police employees as laid down in the cases of Muhammad Azam v. the State (PLD 1996 SC 67), Muhammad Hanif v. the State (2003 SCMR 1237), Riaz Ahmad v. the State (2004 SCMR 988) and Naseer Ahmad v. the State (2004 SCMR 1361).
As to the argument of non-performance of provisions of Section 103 Cr.P.C., it would be appropriate to refer to Section 25 of CNSA which is reproduced hereinunder:--
"25. Mode of making searches and arrest--The provision of the Code of Criminal Procedure, 1898, except those of Section 103, shall mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of Sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections."
It would mean that applicability of Section 103 Cr.P.C. in the narcotic cases has been excluded and non-inclusion of any private witness is not a serious defect to vitiate the conviction. Reference in this context can be placed on the cases of Muhammad Shah etc v. the State (PLD 1984 SC 278), State v. Muhammad Amin (1999 SCMR 1367) and Fida Jan v. the State (2001 SCMR 36). Rasool Baksh v. the State (2005 SCMR 731).
"22. Power to seizure and arrest in public place.--An officer authorized under Section 21 may--
(a) seize, in any public place or in transit, any narcotic drug, psychotropic substance or controlled substance in respect of which he has reason to believe that an offence punishable under this Act has been committed, and, alongwith such drug, substance or any other article liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act; and
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug, psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him."
Even the provisions of Sections 20 to 22 of CNSA being directory, non-compliance thereof would not be a ground for holding the trial/conviction bad in the eyes of law. On this ground, the conviction of the appellant cannot be set aside. Reference in this behalf can be made to the cases of Fida Jan v. the State (2001 SCMR 36), State through A.G. Sindh v. Hamid (2003 SCMR 881), Karl John Joseph v. the State (PLD 2004 SC 394) and Muhammad Younas v. Mst. Perveen (a) Mano & others (2007 SCMR 393), wherein it is observed that where provisions of CNSA are directory in nature, non-compliance of the same is not fatal. Even otherwise no evidence has been produced to establish that the place of recovery and arrest was not within the jurisdiction of the Police Station concerned.
man of tender age and is entitled to lesser penalty, the answer would be if the quantity of the narcotic material would not have exceeded ten kilogram, then the Court was empowered to reduce the sentence. In the case in hand, 11 kilograms of opium has been recovered from Zafar appellant which exceeds 10 kgs and as per proviso to Section 9(c) of CNSA, such cases are punishable with sentence not less than imprisonment for life.
So far as the objection of the learned counsel for the appellant that the investigating officer is the complainant and the witness of the occurrence and recovery, the matter has been dealt with by this Court in the case of State through Advocate General Sindh v. Bashir and others (PLD 1997 SC 408), wherein it is observed that a police officer is not prohibited under the law to be complainant if he is a witness to the commission of an offence and also to be an investigating officer, so long as it does not in any way prejudice the accused person. Though the investigating officer and other prosecution witnesses are employees of ANF, they had no animosity or rancor against the appellant to plant such a huge quantity of narcotic material upon him. The defence has not produced any such evidence to establish animosity qua the prosecution witnesses. All the prosecution witnesses have deposed in line to support the prosecution case. The witnesses have passed the test of lengthy cross examination but the defence failed to make any dent in the prosecution story or to extract any material contradiction fatal to the prosecution case. The prosecution has been successful to bring home the guilt of the appellant to the hilt by placing ocular account, recovery of narcotic material, the chemical examiner report G-1, Ex P/3. The learned counsel for the appellant has not been able to point out any error of law in the impugned judgment and the same is unexceptionable.
For what has been discussed above, the appeal being devoid of any merit is dismissed.
(J.R.) Appeal dismissed.
PLJ 2008 SC 759
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ. Ijaz-ul-Hassan, Muhammad Qaim Jan Khan & Ch. Ijaz Yousaf, JJ.
FAZAL AHMAD NASEEM GONDAL--Appellant
versus
REGISTRAR, LAHORE HIGH COURT, LAHORE--Respondent
Civil Appeals No. 53, 54, 55 & 56 of 2008, decided on 29.4.2008.
(On appeals from the judgments dated 28.9.2007 passed by the Punjab Subordinate Judiciary Service Tribunal, Lahore High Court, Lahore in S.A. Nos. 49/2002, 17/2004, 11/2005 and 13/2005).
Punjab Subordinate Judiciary Service Tribunal Act, 1991--
----S. 5--Punjab Civil Servants (Efficiency & Discipline) Rules, 1999, R. 3(b) & (c)--Charge sheet--Corruption and misconduct--Dismissal from service--Validity--Inquiry Officer had taken in consideration, the reference by District Judge, Resolution of District Bar Association & adverse remarks recorded in A.C.Rs. against appellant--A number of 21 transfer applications containing serious allegations of corruption were moved against him in 3 of them he had been accused of flouting judgments & stay orders of the Appellate Courts--Appellant had been afforded fully opportunity to clarify his position but he failed to do so--Appeal dismissed. [Pp. 760 & 761] A & B
PLD 1989 SC 335 & 1986 PLC (CS) 339, ref.
Mr. M. Zakria Sh., ASC for Appellant (in all appeals).
Qazi M. Amin, Addl. A.G. Pb. with Mr. M. Akram, DR (Cofnidential) LHC for Respondent (in all appeals).
Date of hearing: 29.4.2008.
Judgment
Ijaz-ul-Hassan, J.--The above captioned appeals, with leave of the Court, have been filed by Fazal Ahmed Naseem Gondal, appellant, against judgments dated 28.9.2007 passed by the Punjab Subordinate Judiciary Service Tribunal, Lahore High Court, Lahore, challenging appellant's dismissal from service as well as adverse remarks recorded in his annual confidential reports.
Relevant facts giving rise to the filing of instant appeals are, that appellant joined Police department on 2.10.1979 as Prosecutor and served the Police and Law department for about 7 years. On 24.1.1987 appellant was inducted in the Punjab
Subordinate Judiciary. Appellant while serving as Civil Judge-cum-Judicial
Magistrate, Rajanpur, was served with a charge sheet for misconduct' andcorruption' within the purview of Rule 3(b) and (c) of the Punjab Civil
Servants (Efficiency & Discipline) Rules, 1999. Regular inquiry was conducted and the Inquiry Officer found charges of misconduct' andcorruption' proved against the appellant, recommended imposition of major penalty of dismissal from service and issued notice to appellant to offer his explanation against the proposed penalty. The appellant filed reply. After providing him opportunity of personal hearing, the Authority dismissed appellant from service. The appellant filed departmental review/representations which remained unresponded. The appellant, feeling aggrieved, preferred appeals before the Punjab Subordinate Judiciary Service Tribunal, Lahore High Court, Lahore. Service Appeal No. 17/2004 challenging dismissal of the appellant from service has been dismissed on merit, whereas Service Appeal Nos. 49/2002, 11/2005 and 13/2005, concerning expunction of adverse remarks in his annual confidential reports, have been disposed of as having become infructuous vide impugned judgments.
We have heard Mr. Muhammad Zakria Sh., learned Advocate for the appellant and Qazi Muhammad Amin, learned Additional Advocate General, Punjab, for the respondent, in the light of the material on the file.
Learned counsel for the appellant mainly contended that major penalty of dismissal from service has been imposed upon the appellant in total disregard to the fact that appellant has 25 years unblemished service to his credit and without any complaint, what so ever, from any quarter. The learned counsel reiterated that the evidence on record has not been appreciated in its true perspective and appellant has been found guilty of misconduct' andcorruption' without any solid ground, resulting in complete failure of justice. To substantiate the contentions, reliance has been placed on Samiuddin Qureshi versus Collector of
Customs, (PLD 1989 S.C 335) and S.M. Tufail Ahmad versus Kafiluddin Ahmad and others, (1986 PLC (C.S) 339).
Learned Additional Advocate General, Punjab, on the other hand, supported the impugned judgment, whole heartedly and prayed for its sustenance.
A perusal of the record would reveal, that the Inquiry Officer, while giving his findings has taken into consideration the reference sent by the District and Sessions Judge, Rajanpur, resolution of District Bar, Mianwali, adverse remarks recorded in the annual confidential reports of the appellant and the statements of prosecution witnesses and other material on the file. It may be pertinently mentioned here that during appellant's posting at Rajanur, from July 2002 till he relinquished the charge, twenty-one transfer applications containing serious allegations of corruption were moved against the appellant. The President of District Bar, Rajanpur and other members of the Bar had been complaining against the integrity and reputation of the appellant. In three transfer applications, the appellant was accused of having flouted the orders of the District and Sessions Judge, Rajanpur and announced the judgments/orders despite stay proceedings by the appellate Court.
It stands establish from the material on record that fair and proper inquiry was conducted and appellant was afforded full opportunity of personal hearing to clarify his position but he failed to do so. Learned counsel for the appellant has not been able to point out any illegality or irregularity in the mode and manner of inquiry proceedings.
Adverting to the objection that the appellant has been condemned unheard, it holds no ground because the appellant attended the proceedings before the Inquiry Officer and also cross-examined the witnesses produced in the case.
In view of the above, we find no merit in these appeals, which are hereby dismissed, with no order as to costs.
(J.R.) Appeals dismissed.
PLJ 2008 SC 761
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ., Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
WATER & POWER DEVELOPMENT AUTHORITY through its Chairman and 2 others--Appellants
versus
NEK MUHAMMAD--Respondent
Civil Appeal No. 873 of 2007, decided on 22.4.2008.
(On appeal from the judgment dated 21.11.2006 passed by the Lahore High Court, Lahore in RFA No. 474 of 2002).
Land Acquisition Act, 1894 (I of 1894)--
----S. 18--Determination of value of land--Acquisition of land for installation of Grid Station--Compensation assessed by Land Acquisition Collector was challenged before Civil Court--Senior Civil Judge rejected the reference, however, on appeal High Court enhanced the rate of compensation--Validity--Record revealed that 17 1/2 marlas out of acquired land was situated on Bypass and rest, on the side lane in back--Held: High Court had enhanced the compensation amount and compulsory acquisition charges for valid and cogent reasons and after proper appreciation of evidence in its true perspective--No case of misreading or non-reading was made out--Appeal dismissed. [Pp. 763 & 764] A, C & D
Administration of Law--
----Determination of the price of compensation--While determining the price of compensation, Referee Court should consider evidence on record and to see whether Land Acquisition Collector has considered the nature location and future potential of land acquired in addition to one year average price. [P. 763] B
PLD 2003 SC 480, ref.
Mr. Aurangzeb Mirza, ASC for Appellants.
Sheikh Masood Akhtar, AOR for Respondent.
Date of hearing: 22.4.2008.
Judgment
Ijaz-ul-Hassan, J.--This appeal has been filed by WAPDA through its Chairman and two others, appellants, against judgment dated 21.11.2006 passed by learned Division Bench of Lahore High Court, Lahore, allowing appeal of respondent, assailing judgment dated 15-5-2001 announced by Senior Civil Judge/Referee Judge, Gujranwala, rejecting reference petition of respondent in respect of his acquired land.
The facts giving rise to the filing of instant appeal briefly stated are, that land measuring 71 kanals 19 marlas situated in village Sundar Singh, Tehsil and District Gujranwala, including the land of Nek Muhammad respondent measuring 18 kanals and 5 marlas in the same `Mauza', was acquired by WAPDA for construction of 132 KV Grid-station Hafizabad Road, Gujranwala. Notification under Section 4 of the Land Acquisition Act, 1894 was approved by Collector Gujranwala vide a notification dated 30.1.1993, published in the Government Gazette on 30.1.1993. Joint notification under Sections 17(4) and 6 of the Land Acquisition Act, 1894 was approved by Commissioner, Gujranwala, on 5.12.1993 and it was published in the Government Gazette on 8.12.1993. The award was announced by the Commissioner Gujranwala on 14.2.1996. The compensation was assessed at the rate of Rs. 2000/- per marla. The respondent filed petition under Section 18 of the Act, seeking reference to the trial Court for determination of value of his land, as he was not satisfied with the value of the land assessed by the Land Acquisition Collector. The matter was referred to the Senior Civil Judge, Gujranwala. After framing necessary issues and recording evidence, learned Referee Judge, vide judgment and decree dated 15.5.2001, rejected the reference petition as stated and mentioned above. Nek Muhammad preferred appeal there-against before the learned High Court, which has been accepted vide judgment impugned herein, enhancing rate of compensation of 17« marlas of his acquired land from Rs. 2000/- to Rs. 15,000/- per marla and compulsory acquisition charges from 15% to 20%.
Mr. Aurangzeb Mirza, learned Advocate appearing for the appellants attempted to argue that impugned judgment suffers from the vice of misreading and non-reading of the evidence on record, as learned High Court has not properly appreciated the award given on the basis of the actual nature of the land acquired and its prevalent market value assessed as per law and that learned High Court has proceeded on wrong premises in considering the element of compensation and has not followed the law for enhancing the compulsory acquisition charges.
Sheikh Masood Akhtar, learned AOR representing respondent supported the impugned judgment and stated that the same does not suffer from any legal infirmity to qualify for being interfered by this Court. He argued that learned High Court has enhanced the compensation properly while assessing the value of the land in question, its location, potentiality and prices on the report of Halaqa Patwari and also on one year average during the period the land was acquired. To substantiate the contentions, reliance was placed on Fazal Haq College Versus Said Rasan and others, (PLD 2003 SC 480).
A perusal of the record would reveal that land of respondent situated on Gujranwala and Rawalpindi Bypass, within the municipal limits of Gujranwala, was acquired by WAPDA for construction of Grid-Station. As per Ex.A-2, the value of 17« marlas of land was shown as
Rs. 45,000/- per marla and the value of similarly situated land of remaining acquired land was fixed at Rs. 3450/- per marla. It has come on record that 17« marlas of the land acquired is situated on the Bypass and rest of the land is situated on the side lane in the back. The settled principle of law is that while determining the price of compensation, the Referee Court should consider evidence on record and to see whether the Land Acquisition Collector has considered the nature, location and future potential of the land acquired, in addition to the one year average price. The learned High Court has enhanced the compensation amount and compulsory acquisition charges for valid and cogent reasons which cannot be successfully challenged. Para 7 of the impugned judgment is reproduced herein below:--
"From the evidence and material on the record, we find that land was acquired at the request of WAPDA a company for construction of Grid Station. AW. 1 Patwari stated that the total land acquired including land of appellant is situated on the Gujranwala and Rawalpindi Bypass. Appellant while appearing as AW.2 stated that land measuring 17« marlas out of total acquired land is situated at the Bypass and the value of the same is Rs. 45,000/- per marla and produced Ex.A-2 to support his contention. Thereafter that DC rate of the similarly situated land was fixed at Rs. 3450/- per marla when price awarded was Rs.2000/- per marla. RW. 1 Land Acquisition Collector WAPDA stated in the award announced by the Commissioner Gujranwala price of the land situated on the front was fixed at the rate of Rs. 3174.50 and other land was assessed at Rs. 2000/-. In the cross-examination it is admitted that 17« marlas of the appellant is situated on the Bypass. Rest of the land is situated on the side lane in the back. He shows ignorance about the DC rate to be fixed as Rs. 3450/- per marla. Documents R-1 to R-10 were produced. No document showing that DC rate was less then 3450/- per marlas was produced. No evidence in rebuttal to A-2 was produced. Ex.P.3 Aikas Shajra produced by the respondent shows that Khasra No.348 from which sale of two mutations was made for 90000/- in the year 1991 is situated on Gujranwala Rawalpindi Bypass and Khasra No. 335 measuring 4 kanals owned by the appellant is also situated on Gujranwala Rawalpindi Bypass."
(J.R.) Appeal dismissed.
PLJ 2008 SC 764
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ., Ijaz-ul-Hassan &
Ch. Ijaz Yousaf, JJ.
KHALID MANSOOR--Appellant
versus
DIRECTOR, FIA, RAWALPINDI and another--Respondents
Civil Appeal No. 1718 of 2007, decided on 12.5.2008.
(On appeal from the judgment dated 19.2.2007 of the Federal Service Tribunal, Islamabad in Appeal No. 1775(R)CS/2005).
Removal from Service (Special Powers) Ordinance, 2000 (XVII of 2000)--
----S. 3--Constitution of Pakistan, 1973, Art. 212(3)--Inefficiency and misconduct--Dismissal from service--Allegation against appellant was that due to his two passengers had succeeded to travel to U.K on fake passports--Inquiry had been conducted in detail in which appellant was provided full opportunity of cross-examination but he failed to vindicate his position--He proved guilty but responsibility could not have been placed solely on his shoulders--Recommendations made by the Inquiry Officer should have been given respect--Appellant was ordered to be reinstated in service with a penalty of reduction to lower stage in time scale for a period of 3 years--Appeal partly allowed. [Pp. 765 & 767] A, B, C & D
1990 SCMR 994; 1992 SCMR 1864; 1996 SCMR 248; 2000 SCMR 669; PLD 1989 SC 335 & PLD 2004 SC 55, ref.
Mr. M. Shoaib Shaheen, ASC & Mr. M.A. Zaidi, AOR for Appellant.
Raja M. Irshad, D.A.G. and Mr. M.S. Khattak, AOR for Respondents.
Date of hearing: 8.5.2008.
Judgment
Ijaz-ul-Hassan, J.--Above titled appeal, with leave of the Court granted on 7.11.2007, is meant to call into question the judgment dated 19.2.2007 passed by Federal Service Tribunal, Islamabad, dismissing Appeal No. 1775 (R)/CS of 2005, preferred by Khalid Mansoor, appellant.
Shortly narrated the facts necessary for disposal of instant appeal are, that appellant joined service of the Federal Investigation Agency (FIA) as constable w.e.f. 13.9.1987. The appellant was proceed under the provisions of Removal from Service (Special Powers) Ordinance, 2000, vide order dated 17.9.2004 on the allegation that while posted at FIA Immigration Check Post at Islamabad International Airport, he committed acts constituting inefficiency and misconduct as two passengers namely, Mrs. Romeena Manzoor and Mr. Gulzar Hussain traveled to United Kingdom on fake passports and the appellant being on duty at General Checking Counter failed to check/stop them from proceeding to their destination. An Inquiry Officer was appointed to conduct a departmental inquiry and a charge sheet was issued to the appellant. The appellant submitted his defence reply and denied the charges/allegations levelled against him and professed innocence. After the finalization of the inquiry proceedings, Inquiry Officer submitted his report to Respondent No. 1 i.e. Director, FIA, Rawalpindi Zone, Rawalpindi recommending that `appellant may be awarded major penalty of reduction to lower stage in time scale for a period of three years'.
On receipt of the Inquiry report, Respondent No. 1, while disagreeing with the recommendations of the Inquiry Officer, imposed major penalty of dismissal from service upon the appellant vide order dated 08.11.2004. The appellant filed a departmental representation/ appeal before Respondent No.2 i.e. Director, FIA Headquarters, Islamabad, which was allowed. Dismissal order was set aside and appellant was re-instated in service with order of denovo proceedings. The appellant reported for duty. Denovo proceedings were started against the appellant, a Show-Cause-Notice was issued and reply of the appellant having been found unsatisfactory, major penalty of compulsory retirement from service was imposed upon the appellant vide order dated 01.6.2005. Against the aforesaid order, a department representation was made before Respondent No.2, which remained un-responded. Feeling aggrieved, appellant filed an appeal before Federal Service Tribunal, which was dismissed through the impugned judgment.
Mr. M. Shoaib Shaheen, Advocate appearing on behalf of the appellant, in the support of the appeal, contended with vehemence that the Competent Authority has no power to impose a major penalty upon the appellant without recording specific reasons of disagreement of the recommendations made by the Inquiry Officer in the departmental inquiry report; that the Tribunal instead of adjudicating upon the question assailed in appeal as to whether order of compulsory retirement was lawful, valid and legal or otherwise, took into consideration extraneous matters; that the appellant has been discriminated and given step-motherly treatment qua other officials involved in the case and that material on the file has not been appreciated in its true perspective and appellant has been condemned unheard. To augment the contentions, reliance has been placed on Dilawar Hussain Shah versus Maqbool Hussain Shah, (1990 SCMR 994), Mukhtar Ahmad Bhatti versus Director Food, Punjab, Lahore, (1992 SCMR 1864), Chief Director, Central Directorate of National Savings, Islamabad versus Rahat Ali Sherwani, (1996 SCMR 248), Deputy Inspector-General of Police versus Shafique-ur-Rehman, (2000 SCMR 669), Samiuddin Qureshi versus Collector of Customs, (PLD 1989 S.C 335) and Shafaullah Khan Niazi versus Deputy Director, Food Department, Multan, (PLD 2004 SC 55).
Raja M. Irshad, learned Deputy Attorney General, on the other hand, controverted the arguments of learned appellant's counsel and supported the impugned judgment forcefully, maintaining that sufficient incriminating material was available on the record to connect the appellant with the guilt and in view of the gravity of the offence, appellant has been dealt with rightly and punished appropriately.
A perusal of the record would reveal that a detailed inquiry was conducted to probe into the matter and appellant was provided full opportunity of cross-examination of the witnesses but he failed to vindicate his position. The appellant also failed to prove that the two passengers boarded on the plane not by using some unauthorized passage thereby avoiding the immigration clearance. It stands established from the material on record that both the passengers succeeded to proceed abroad on fake traveling documents during appellant's duty at General Checking Counter and it was not possible for the said passengers to go abroad without the blessing of the appellant or at least because of his inefficiency. However, we find force in the contention of learned counsel for the appellant that the competent authority imposed major penalty upon the appellant without recording specific reasons of disagreement with the recommendations made by the Inquiry Officer and instead of adjudicating upon the question involved, added the additional charges which were neither contained in the order of inquiry nor in the statement of allegations or even in the final show cause notice. The responsibility in our considered view, could not have been solely placed on the appellant's shoulders. The recommendations of the Inquiry Officer should have been given respect.
In view of the above, this appeal is partly allowed. The impugned judgment of learned Federal Service Tribunal, Islamabad is set aside and appellant is reinstated in service. Penalty of reduction to lower stage in time scale for a period of three years, as recommended by Inquiry Officer is maintained. We make no order as to costs.
Above are the detailed reasons of our short order dated 08.5.2008., vide which we had partly allowed this appeal.
(J.R.) Order accordingly.
PLJ 2008 SC 767
[Appellate Jurisdiction]
Present: Muhammad Qiam Jan Khan, Muhammad Moosa K. Leghari & Sheikh Hakim Ali, JJ.
SARTAJ KHAN and others--Appellants
versus
ARSHAD ALI and others--Respondents
Civil Appeal No. 1124 of 2006, decided on 15.4.2008.
(On appeal from the order dated 26.5.2006, passed by the Peshawar High Court, Peshawar in C.Ms. 1271, 1272/2005 (N) with C.R.
No. 1451/2005 9M).
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 115 & 12(2)--Civil revision--Forum of--Valuation of plaint as
Rs. 5,00,000/- --High Court remanded to Session Court--Validity--Held: Revision can be filed before Distt. Court, if the subject matter falls within the pecuniary limits and encompass of Distt. Court, otherwise it shall have no jurisdiction to entertain the petition and in such case only High Court would be a competent forum--As valuation of the original plaint was fixed as Rs. 5,00,000/- Supreme Court remanded the case to High Court for its decision on merits.
[Pp. 770 & 771] A & C
Civil Procedure Code, 1908 (V of 1908)--
----Ss. 115 & 12(2)--Non-mentioning of valuation in application u/S. 12(2)--Forum of revision--Held: Petition u/S. 12(2), C.P.C. though apparently appears to be independent petition, yet for determining the forum of revisional jurisdiction value of plaint would be considered as the basic value. [P. 771] B
Mr. Abdul Sattar Khan, ASC with Mr. M. Zahoor Qureshi, AOR for Appellants.
Haji M. Zahir Shah, ASC for Respondents No. 1 to 4.
Date of hearing: 15.4.2008.
Judgment
Sheikh Hakim Ali, J.--Relevant facts necessary for the disposal of the instant appeal are that Sartaj Khan along with Iqbal Hussain had filed a suit for recovery of possession through specific performance of a contract of sale dated 18.06.2002 and a writing dated 20.06.2002, with regard to property in dispute (detail of which is available in the heading of the plaint), against Mehr Muhammad and others, present appellants No. 3 to 7, in the Court of learned Senior Civil Judge, Charsadda. The sale consideration mentioned in the plaint was Rs. 50,00,000/ (Fifty Lacs) out of which Rs. 7,40,000/- were narrated to have been paid as earnest money, while Rs. 42,60,000/- (Forty two lacs and sixty thousand) were to be paid after six months. The suit was valued for the purpose of Court fee to the extent of Rs. 3000/-, while for the purpose of jurisdiction at Rs. 50,00,200/- (Fifty lacs two hundred). During the pendency of the suit, a compromise between parties was affected, and on the basis of that compromise, a decree was passed on 20.09.2003. The above noted value for the purpose of Court fee and jurisdiction was entered and mentioned in the decree-sheet also. Arshad Ali and others, respondents of the instant appeal filed a petition under Section 12(2) of the C.P.C. in the Court of learned Senior Civil Judge, Charsadda on 30.09.2003, which was dismissed on merits by the aforementioned learned Senior Civil Judge on 13.06.2005. As the appeal was not competent against the aforesaid order, therefore, Arshad Ali and others filed a revision petition, with the court of learned District Judge, which was entrusted to and heard by learned Additional District Judge-III, Charsadda, who directed the return of aforementioned revision petition, for presentation before a proper forum, after holding the revision petition incompetent, due to lack of pecuniary jurisdiction of the aforementioned Court. After return of revision petition from the learned Additional District Judge, Charsadda, Arshad Ali and others, the present respondents, presented that revision before the learned Peshawar High Court Peshawar, but the learned Judge in Chamber of the Peshawar High Court directed back the transmission of aforementioned revision petition to learned Additional District Judge after holding it to fall within his jurisdiction. This order announced on 26.05.2006 by the learned Judge in Chamber of the Peshawar High Court has been assailed through the instant civil appeal.
Learned counsel for the appellants submits that the learned High Court had the jurisdiction to entertain the revision petition as the value of the original suit from where the present proceedings were initiated and commenced was more than Rs. 50,00,000/- (Fifty lacs), which was in excess of the jurisdiction of learned District Court. Revision was not competent before the learned District Judge, even if it was filed against an order passed up on a petition of Section 12 (2) of the C.P.C. because the decision/order passed on the aforementioned petition had the effect of maintaining or setting aside the decree of the original suit, the value of which was admittedly more than Rs. 50,00,000/-(Fifty lacs). According to the learned counsel, this value was to govern the forum for the purpose of filing of the revision petition also.
Replying to it, learned counsel for the respondents submits that learned Judge in Chamber of the Peshawar High Court has rightly returned the revision petition because the petition filed under Section 12(2) of the C.P.C. was filed after disposal of the main suit which was not pending and no value for the purposes of Court fee or jurisdiction was fixed or prescribed by any law for that petition. As it was simply an independent petition filed under Section 12(2) of the C.P.C, therefore, revision against the order passed upon it could be filed before the learned District Court.
Arguments heard and record perused. It is an admitted fact that the original suit as mentioned above had contained the value of more than Rs. 50,00,000/- (Fifty lacs) for the purpose of jurisdiction. Question arises as to whether such revision petition can be filed before the learned District Court against a decision/order, if passed during or after the pendency of the suit, the answer would be in the negative. The reason being that revision can be filed before the learned District Judge, if value of the original suit does not exceed its pecuniary limits. According to sub-section (2) of Section 115 of the C.P.C., which is reproduced for ready reference, the learned District Court has got the power of revision with regard to a case decided by a subordinate Court, when amount or value of the subject matter does not exceed the pecuniary limits of its appellate jurisdiction:--
"115-Revision (1)........................
(2) The District Court may exercise the powers conferred on the High Court by sub-section (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject matter whereof does not exceed the limits of the appellate jurisdiction of the District Court."
(i) Case must have been decided by a Court subordinate to learned District Court.
(ii) Against that decision, appeal is not competent; and
(iii) Amount or value of subject matter of the case should not exceed the limits of appellate jurisdiction of learned District Court.
As for essentialities of (i) and (ii) are concerned, these are present in the instant case. It is the third element which has been found missing, if the reasoning of the learned Peshawar High Court is accepted for the sake of arguments. The minute study of this point reveals that revision can be filed before the learned District Court, if the subject matter of the case falls within the pecuniary limits and encompass of learned District Court, otherwise learned District Court shall have no jurisdiction to entertain such revision. In that event, the learned High Court would be competent Court to entertain such revision. If the reasoning of learned Court is adopted as correct for the purpose of argument, then the decision on petition under Section 12(2) of the CPC having not contained any pecuniary value limits, even then revision shall not lie before the learned District Court on the basis of this reasoning. To be more elaborative and to state it with precision, a decision which does not contain pecuniary limits upto the extent of appellate limits of learned District Court, in such case revision cannot be filed before the learned District Court and the learned District Court shall not be able to entertain it, as it would not fall within his domain of revisional jurisdiction. So, the reasoning adopted by the learned High Court, if applied also bars the filing of revision before the learned District Judge.
Rs. 50,00,000/-, therefore, against that decree, revision cannot be filed before the learned District Court.
(J.R.) Case remanded.
PLJ 2008 SC 772
[Appellate Jurisdiction]
Present: Muhammad Qaim Jan Khan and Sheikh Hakim Ali, JJ.
Mst. BASHIRAN BEGUM--Appellant
versus
NAZAR HUSSAIN and another--Respondents
Civil Appeal No. 501 of 2006, decided on 18.4.2008.
(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench dated 6.3.2006 passed in Civil Revision No. 534/2001).
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13(2) & (3)--Civil Procedure Code, (V of 1908), O. VI, R.2--Non mentioning of date, time & place in plaint--Effect--Held: The mentioning of date, place and time in the plaint in a pre-emption suit is manandatory regarding talab-i-muwathibat because from such date the time provided for making Talb-i-Ishhad i.e. 14 days can be calculated, otherwise it would be very difficult to give effect to
S. 13(3) and there would be a possibility that pre-emptor may attempt to get the delay, occasioned in performance of talab-i-ishhad, justified--Appellant did not provide any information regarding knowledge about sale and making talab-i-muwathibat--Appeal dismissed. [P. 774 & 775] A & B
2000 SCMR 329; 2000 SCMR 314; PLD 2005 SC 977; 2005 SCMR 431; 2005 SCMR 1201; PLD 2007 SC 302 & PLD 2003 SC 315, ref.
Mr. Mumtaz Mustafa, ASC for Appellant.
Mr. Ejaz Ansari, ASC for Respondents.
Date of hearing: 18.4.2008.
Judgment
Muhammad Qaim Jan Khan, J.--This appeal under Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the judgment and decree of the Lahore High Court, Bahawalpur Bench dated 6.3.2006 vide which Civil Revision No. 534-2001/Bwp filed by the respondents was accepted, the judgments and decrees of the two Courts below i.e. the Senior Civil Judge, Rahimyarkhan and Addl. District Judge, Rahimyarkhan dated 25.1.2001 and 14.7.2001, respectively were set aside and as a result the suit filed by the pre-emptor/petitioner was dismissed with no order as to costs.
Short facts of the case are that the petitioner, Mst. Bashiran Begum filed a suit against the respondents, Nazar Hussain and Sardar Muhammad for a decree of possession by pre-emption of land measuring 34 kanals 3 marlas situated in village Aslam Abad Tehsil and District Rahimyarkhan mentioned in detail in the heading of the plaint, at a price of Rs. 1,70,000/-. It was further alleged in the plaint that one Munir Ahmad son of Nemat Ali, a brother of Mst. Bashiran Begum, the plaintiff/petitioner sold the suit property to the defendants/respondents vide Mutation No. 348 attested on 15.10.1991 at a price of Rs. 1,70,000/- which price was accepted and admitted by the plaintiff/petitioner; that the plaintiff/petitioner had got superior right of pre-emption, on all the three grounds i.e. Shafi-Shareek, Shafi-Khaleet and Shafi-Jaar, than the vendees/defendants who were strangers; that the plaintiff/petitioner was informed regarding the impugned sale on 20.1.1992 and after making Talb-i-Muwathibat she sent notices to the defendants/ respondents on 27.1.1992 through registered post acknowledgement due in presence of the witnesses; that several times the defendants/ respondents were asked to accept the sale consideration and hand over the suit property to the plaintiff/petitioner but they refused. So the present suit.
The defendants/respondents vehemently contested the suit by filing their written statement and on the divergent pleas of the respective parties, the trial Court framed almost five issues apart from relief. It is to be noted that original issues were framed on 5.11.1992 and Issue No.4-A was struck on 12.12.1998.
After recording the evidence of the respective parties, hearing their learned counsel and going through the record, the trial Court decreed the suit in favour of the plaintiff/petitioner against the defendants/respondents leaving the parties to bear their own costs vide judgment and decree dated 25.1.2001.
Dissatisfied with the said judgment and decree, defendants/respondents preferred appeal in the Court of Addl. District Judge, Rahimyarkhan and the said Court after hearing the learned counsel for the respective parties and going through the record dismissed the same leaving the parties to bear their own costs on 14.7.2001. Aggrieved by this judgment and decree the defendants/respondents filed Civil Revision No. 534/2001/Bwp before the Lahore High Court, Bahawalpur Bench and a learned Judge in Chambers of the said Court after hearing the respective counsel for the parties and perusal of the record accepted the revision petition, set aside the judgments and decrees of the two Courts below dated 25.1.2001 and 14.7.2001, respectively and as a result thereof dismissed the suit of the pre-emptor/petitioner with no order as to costs. Hence this Civil Appeal.
Learned counsel for the appellant mainly argued that mentioning of date, place and time in the plaint regarding making of Talb-i-Muwathibat, is not the requirement of law and stressed that the dictum laid down in the case of Haji Noor Muhammad Vs. Abdul Ghani and 2 others (2000 SCMR 329) shall apply. He placed reliance on the case of Altaf Hussain Vs. Abdul Hameed (a) Abdul Majeed through legal heirs and another (2000 SCMR 314).
Learned counsel for the defendants/respondents contended that the pre-emptor/petitioner was bound to disclose in her plaint the date, place and time of making Talb-i-Muwathibat and also in the notice of Talb-i-Ishhad and that the requirement of making Talb-i-Muwathibat and Talb-i-Ishhad was not fulfilled as required by the law and the pre-emptor/petitioner in her statement while appearing in Court as PW-6 had not uttered even a single word in this regard. He also made reference to the cases of Fazal Subhan and 11 others Vs. Mst. Sahib Jamala and others (PLD 2005 SC 977), Akbar Ali Khan and others Vs. Mukamil Shah and others (2005 SCMR 431) and Azmatullah through L.Rs. Vs. Mst. Hameeda Bibi and others (2005 SCMR 1201).
We have heard the learned counsel for the respective parties and with their help have also perused the available record. The High Court has met with all these references with sound and plausible reasons. It is to be noted that this controversy has been finally settled by a Full Bench of this Court comprising five Hon'ble Judges in Civil Appeal No. 1951/2000 decided on 12.12.2006 in case of Mian Pir Muhammad and another Vs. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302), wherein all these authorities and references have been plausibly discussed and it was held that in a suit for pre-emption mentioning of date, place and time of making Talb-i-Muwathibat, in the plaint, is mandatory because in the absence of proper date, place and time, the time given in Section 13(3) of the Punjab Pre-emption Act, 1991 (hereinafter referred as the Act) for making Talb-i-Ishhad which is 14 days, cannot be correctly calculated. It is necessary that as soon as the pre-emptor acquires knowledge of sale of pre-empted property, he would make immediate demand about his desire and intention to assert his right of pre-emption without slightest loss of time and after making Talb-i-Muwathibat in terms of Section 13(2) of the Act, the pre-emptor has another legal obligation to perform i.e. Talb-i-Ishhad as soon as possible after making of Talb-i-Muwathibat, but not later than two weeks from the date of knowledge/performance of Talb-i-Muwathibat. The mentioning of date, place and time in the plaint in a suit for pre-emption is mandatory regarding Talb-i-Muwathibat because from such date the time provided by the statute for making of Talb-i-Ishhad i.e. 14 days, can be calculated. If there is no mention of date, place and time of knowledge about sale and making of Talb-i-Muwathibat, then it would be very difficult to give effect to Section 13(3) of the Act and there is every possibility that instead of allowing letter of law to remain in force, the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-i-Muwathibat in his statement in Court and then on the basis of the same, try to justify the delay, if any, occurred in the performance of Talb-i-Ishhad. Performance of both these Talbs is a sine qua non for getting a decree in a pre-emption suit. This Court has approved the view that a plaint wherein date, place and time of making of Talb-i-Muwathibat and date of issuing notice of Talb-i-Ishhad in terms of Section 13 of the Act, is not provided, it would be fatal for the pre-emption suit. The Hon'ble Bench of five Judges has dissented from the cases of Haji Noor Muhammad Vs. Abdul Ghani and 2 others (2000 SCMR 329), Altaf Hussain Vs. Abdul Hameed alias Abdul Majeed through Legal Heirs and another (2000 SCMR 314) and has approved the view expressed in the cases of Haji Muhammad Saleem Vs. Khuda Bakhsh (PLD 2003 SC 315) and Fazal Subhan and 11 others Vs. Mst. Sahib Jamala and others (PLD 2005 SC 977). According to the dictum laid down by the larger Bench of this Court mentioned above, the requirement of Talbs with requisite details in the plaint is also essential even in the pending cases.
In the case in hand, in Para 5 of the plaint, the plaintiff has only mentioned the date which is 20.1.1992 but no other information regarding knowledge about sale and making of Talb-i-Muwathibat, has been provided by her. Strangely enough she while appearing in Court as PW 6, has not uttered even a single word regarding the time, place and date of making Talb-i-Muwathibat. In the light of the above mentioned dictum of this Court, the judgment of the High Court is based on sound reasons and needs no interference. Appeal in hand is accordingly dismissed with no order as to costs.
(J.R.) Appeal dismissed.
PLJ 2008 SC 775
[Appellate Jurisdiction]
Present: Saiyed Saeed Ashhad, Muhammad Akhtar Shabbir &
Syed Sakhi Hussain Bukhari, JJ.
MEHR KHAN etc.--Appellants
versus
Mst. BASAEE etc.--Respondents
Civil Appeal No. 545 of 2006, decided on 6.5.2008.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 23.10.2001 passed in C.R. No. 667-D of 1991).
Specific Relief Act, 1877 (I of 1877)--
----S. 8--Suit for possession--Decree of Court--Validity--Claim of plaintiff was that on the basis of demarcation proceeding, defendants were in illegal possession--Held: Demarcation proceedings had been conducted by the Revenue Officer accompanied by village officers, Qanungo & revenue patwari--Detail of proceedings were entered in rapat Roznamcha Waqiati--No objection was raised at the time of production of certificate copy of roznamcha--Entries of demarcation proceedings were subsequently in corporated in Register Khasra Girdawari and Register of Records of Rights showing illegal possession of defendants/appellants--Plaintiffs/respondents had successfully proved their case--No misreading or non reading was pointed out--Appeal dismissed. [Pp. 777 & 778] A, B, D, E & G
Civil Procedure Code, 1908 (V of 1908)--
----O. XIII, R. 4--Admitted documents--Evidenciary value--Held: A document admitted in evidence without objection, can be taken into consideration. [P. 7778] C
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 49--Long standing entries in revenue record--Evidenciary value--Held: Long standing entries in the revenue record, specially in the Register of Record of Rights, do carry presumption of truth and cannot be controverted by mere oral evidence unless proved otherwise by sufficient and convincing evidence. [P. 7778] F
PLD 1968 SC 140; PLD 1971 SC 516; NLR 1984 SCJ 324; 1979 SCMR 625; AIR 1934 Lah. 309 & 1990 SCMR 725, ref.
Mr. Altaf Elahi Sh., ASC for Appellants.
Rana Muhammad Anwar Khan, ASC for Respondents.
Date of hearing: 6.5.2008.
Judgment
Muhammad Akhtar Shabbir, J.--This appeal, by leave of the Court, is directed against the judgment dated 23.10.2001, passed by a learned Single Judge of the Lahore High Court, Lahore, in Civil Revision No. 667-D of 1991.
The brief resume of the case is that plaintiff Sultan Mehmood, predecessor-in-interest of Respondents No. 1 to 6, instituted a suit for possession of the land (property in dispute) measuring 12 kanals 16 marlas situated in Khasra No. 505 Mouza Wandhi Bhamberanwali,. Tehsil and District, Mianwali, against the defendants-appellants herein, asserting in the plaint that the defendants-appellants have encroached upon the suit land. The suit was contested by the appellants who preferred their written statement. From the factual controversies appeared on the pleadings of the parties, the learned trial Court framed various issues. After recording, appreciating evidence of the parties, the trial Court decreed the suit, vide judgment and decree dated 11.03.1986. The judgment and decree of the trial Court was challenged through two appeals (Civil Appeal Nos. 33 and 37 of 1988) before the Additional District Judge, Mianwali, who vide judgment dated 15.03.2008, accepted both the appeals, set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiffs. The plaintiffs-respondents then filed Civil Revision No. 667 of 1991 before the Lahore High Court which was accepted vide the impugned judgment and the judgment of the learned Additional District Judge was set aside and that of Civil Judge, Mianwali, decreeing the suit of Sultan Mehmood dated 11.03.1986 restored. Hence, this appeal.
The learned counsel for the appellants contended that the High Court has based its judgment on a report of "Roznamcha Wakiati" (Daily Diary) of Revenue Patwari to which no presumption of truth is attached. Further contended that the Revenue Officer who made the demarcation of the property has not been produced by the plaintiffs to establish the demarcation report. Further argued that no sufficient evidence is available on record to prove the encroachment/illegal possession of the appellants over the property in dispute.
While on the other hand, the learned counsel for the respondents vehemently opposed the arguments of the learned counsel for the appellants contending that respondents-plaintiffs produced oral as well as documentary evidence in support of their version and the entries made in the revenue record showing the encroachment made by the appellants have not been challenged by the appellants.
We have heard the learned counsel for the parties and perused the available record with their assistance.
The controversy in the case that requires determination by this Court is whether the appellants were the encroachers of the land in dispute belonging to the Plaintiffs-Respondents No. 1 to 6. The respondents in support of their version produced oral as well as documentary evidence. They asserted in their plaint that a demarcation proceeding has been conducted by the Revenue Officer who after demarcation came to the conclusion that the land measuring 12 kanals 16 marlas was under the illegal occupation of the appellants. The demarcation proceedings of the land were conducted by the Revenue Officer accompanied by Village Officers, Qanungo and Revenue Patwari. After completing the measurement proceedings, the Revenue Patwari entered a report in "Register Roznamcha Wakiati", copy of which is available on the file as Ex.P.2, containing the details of proceedings. It is a certified copy of the "Register Roznamcha Wakiati" maintained by the Revenue Patwari who is a public servant. Article 49 of the Qanun-e-Shahadat Order, 1984, contemplates that "an entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept is itself a relevant fact." At the time of production of document (Ex.P.2) in the Court, the appellant-defendants did not raise any objection and the trial Court admitted the same. It is settled I proposition of law by this Court that a document when admitted in evidence without objection from the other side, it can be taken into consideration, as laid down in the cases of Abdullah v. Abdul Karim (PLD 1968 SC 140), Mohd. Saleem v. Mohd. Akram (PLD 1971 SC 516) and Mst. Murrian v. Suleman (NLR 1984 SCJ 324).
After the demarcation proceedings, entries were incorporated in the Register Khasra Gardawari and the Register of Record of Rights showing the appellants as "Tajawaz Kunindgan" (illegal occupants). The Register of Record of Rights pertaining to the years 1981-82, 1983-84 as well as Khasra Gardawari still contains such entries. The demarcation had been conducted on 01.08.1981 and the suit was instituted by the predecessor-in-interest of the respondent Sultan Mehmood in the year 1987 on the basis of this measurement of land. The appellants-defendants did not challenge the demarcation of the land made by the Revenue Officer before the next higher revenue/colonies hierarchy nor challenged the same through the civil suit, and up till now, the entries showing the appellants as illegal occupants over the land in dispute are intact. The long standing entries in the revenue record specially in the Register of Record of Rights do carry presumption of truth and cannot be controverted by mere oral evidence unless proved otherwise by sufficient and convincing evidence as laid down in the cases of Hakim Khan v. Aurangzeb & another (1979 SCMR 625), Sundar Singh v. Chhajju Khan (AIR 1934 Lahore 309) and the Evacuee Trust Property Board & others v. Haji Ghulam Rasul Khokhar & others (1990 SCMR 725). The plaintiffs-respondents have successfully proved their case. The documentary evidence containing the entries qua the appellants have not been controverted by the appellants. They kept silent over their right and remained in a state of dormancy for such a long time.
The learned High Court, after appreciating the evidence of the parties, based its findings on legitimate conclusion drawn from the evidence and correctly set aside the judgment passed by the lower appellate Court. The learned counsel for the appellants has not been able to point out any misreading or non-reading of evidence by the learned High Court. We do not find any infirmity or error of law in the impugned judgment of the High Court which is unexceptionable.
For the foregoing reasons, this appeal being devoid of any merit is dismissed.
(J.R.) Appeal dismissed.
PLJ 2008 SC 779
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, Muhammad Musa K. Leghari & Muhammad Akhtar Shabbir, JJ.
MAZLOOM HUSSAIN--Appellant
versus
ABID HUSSAIN and 4 others--Respondents
Civil Appeal No. 1140 of 2007, decided on 22.4.2008.
(On appeal from the judgment of the Lahore High Court Rawalpindi Bench dated 15.4.2003 passed in C.R. No. 455 of 1996).
West Pakistan Land Revenue Act, 1967 (XVII of 1967)--
----S. 52--Contitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Presumption of truth--Entries in record of rights--Held: Where a presumption of truth is attached to a document, it cannot be discarded unless proved otherwise by convincing and cogent evidence and the burden of proof that the entries in record of rights were wrong, is on the party who alleges it--Appellant had successfully established his version by producing oral as well as documentary evidence for which High Court could not rightly advert to its legal aspect--Appeal accepted. [P. 782] A & B
1979 SCMR 625; AIR 1934 Lah. 309; 1990 SCMR 725 &
1977 SCMR 334, ref.
Mr. Muhammad Younis Bhatti, ASC for Appellant.
Mr. Abdul Rehman Siddiqui, ASC for Respondents No. 1 & 2.
Ch. Akhtar Ali, ASC for Respondents No. 3 to 5.
Date of hearing: 22.4.2008.
Judgment
Muhammad Akhtar Shabbir, J.--Petition for Leave to Appeal No. 1277/2003 was filed against the judgment dated 15.4.2003 passed by the learned Lahore High Court, Rawalpindi Bench, Rawalpindi, out of which the present appeal has arisen.
Brief resume of the case is that plaintiffs Abid Hussain, Mst. Maqbool Jan (son and daughter of Fazal Hussain) instituted a suit against appellants and Respondents No. 3-5 for declaration to the effect that plaintiffs/respondents were owner, in a "Hisadari" possession of the land measuring 19 Kanals 13 Marlas situated in Khasra No. 1893, Khaiwat No. 159/367, Mouza Diryal, Tehsil Gojar Khan and the sale deed with respect to the land measuring 20 kanals 10 marlas of Khasra Nos. 1893 and 1909 of the said Mouza dated 13.3.1991 by appellant in favour of the Respondents No. 3-5 was illegal, against facts, collusive and ineffective qua the rights of Plaintiffs/Respondents No. 1-2. The defendants (Appellants and Respondents No. 3-5) contested the suit, filed their statements. From the pleadings of the parties, the learned trial Court framed various issues, after recording, appreciating the evidence of the parties, pro and contra, decreed the suit to the extent of land situated in Khasra No. 1893 in favour of the plaintiffs declaring the sale deed ineffective qua their rights and also passed an order restraining the appellants/defendants from interfering in the said khasra.
Feeling aggrieved the Appellants/Respondents No. 3-5 preferred an appeal before the Additional District Judge, Gojar Khan who accepted the appeal, vide his judgment dated 2.4.1996, reversed the findings of the trial Court and dismissed the suit. The Plaintiffs/Respondents No. 1-2 challenged the judgment of the appellate Court through the Civil Revision No. 455/1996 in the Lahore High Court, Rawalpindi Bench, Rawalpindi which was accepted. Hence this appeal.
The learned counsel for the appellant contended that the name of the appellant Mazloom Hussain is very much reflected in the column of ownership in the record of rights/Register Haqdaran Zameen for the year 1989-90 and as per the record, he is owner of 43 kanals in the said Khasra No. 1893. Further contended that long standing entries in the revenue record in favour of the appellant carries the presumption of truth.
While on the other hand, the learned counsel for Respondents No. 1 and 2 vehemently opposed the arguments of the learned counsel for the appellant and supported the judgment of the High Court.
We have heard the arguments of the learned counsel for the parties and perused the record with their assistance.
The question that boils down for determination before this Court is whether the appellant Mazloom Hussain was the owner of the property in dispute which he had sold in favour of Respondents No. 3 to 5 vide a registered sale-deed dated 13.11.1991. The parties have produced oral as well as documentary evidence in support of their respective versions. The contest between the parties is with regard to the entitlement and possession of the land belonging to Khasra No. 1893 (old 1667). The record of rights pertaining to year 1906-07 indicates the name of Barkhurdar and others in Column No. 5 of ownership with regard to Khasra No. 1893 (old 1667). The same entry in the column of ownership and possession continued in the revenue record up till 1961-62. The predecessor-in-interest of the appellant Barkhurdar died and his property devolved on his legal heirs and in this regard a Mutation No. 798 dated 19.01.1991 was attested in favour of Mst. Barkat Jan, widow and Mazloom Hussain appellant-son, copy of which is available on record as Exh.D.1. Mst. Barkat Jan, widow of Barkhurdar, mother of appellant, also died and her property also devolved on her only legal heir Mazloom Hussain, appellant herein, vide revenue mutation (Ex.D.2). As per record of rights for the year 1965-66 (Ex.P.9), the name of Barkhurdar, father of the appellant, is also emerging in column of ownership and Mir Zaman son of Noor Bakhsh was the cultivator under Barkhurdar.
From minute scrutiny of documentary evidence produced by the parties, it reflects that Barkhurdar, predecessor-in-interest, was the owner in possession of Khasra No.
The long standing entries in the revenue record were made in his favour. The said property acquired by the appellant as legal heir from his parents had been transferred in favour of the vendees Respondents No. 3 to 5 through registered sale-deed dated 13.11.1991.
As per the provision contained in Section 52 of the West Pakistan Land Revenue Act, 1967, the presumption of truth is attached to the entries in the record of rights and periodical records. This provision is reproduced hereinunder for further ready reference:--
"52. Presumption in favour of entries in record-of-rights and periodical records. An entry made, in a record-of-rights in accordance with the law for the time being in force, or in a periodical record in accordance with the provisions of this Chapter and the rules made thereunder, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. "
"The entries in jamabandis, as is obvious, carried a statutory presumption of truth under Section 44 of the Punjab Land Revenue Act XV of 1887 and Section 52, West Pakistan Land Revenue Act XVII of 1967."
The documents produced by the Plaintiff/Respondents No. 1-2 also correspond with evidence produced by the appellant. As against the aforesaid entries, mere bald verbal statements of the kind can hardly cut any ice. Even otherwise, the documentary evidence cannot be rebutted by oral evidence. Another case Mt. Wallan v. Fazla & others (AIR 1939 Privy Council 114) can also be referred in this behalf.
Where a presumption of truth is attached to a document, it cannot be discarded unless proved otherwise by convincing and cogent evidence and the burden of proof that the entries in the record of rights are wrong, is on the party who alleges it. Reliance can be placed in this context on the cases of Sundar Singh v. Chhajju Khan (AIR 1934 Lahore 309) and The Evacuee Trust Property Board & others v. Haji Ghulam Rasul Khokhar & others (1990 SCMR 725).
The appellant has successfully, by producing oral as well as documentary evidence, established his version. The learned High Court has not adverted to the above legal aspect of the case. The reliance was placed by the learned High Court on the case of Karim Bakhsh v. Zulfiqar (1977 SCMR 334) which is distinguishable, from the present case inasmuch as it was with regard to the presumption of correctness attached to the entries in khasra gardawari, wherein it was held by this Court that presumption of correctness is not attached to the khasra gardawari unlike those appearing in the jamabandies. The case is not applicable to the proposition in hand.
In view of the above discussion, we find that the impugned judgment of the High Court is not sustainable in law. We, therefore, by allowing this appeal, set aside the impugned judgment and decree passed by the High Court and restore that of the lower appellate Court/Addl. District Judge, Gujar Khan.
(J.R.) Appeal accepted.
PLJ 2008 SC 783
[Appellate Jurisdiction]
Present: Saiyed Saeed Ashhad & Sheikh Hakim Ali, JJ.
BASHIR AHMAD--Appellant
versus
M/s. MUHAMMAD SALEEM, MUHAMMAD SIDDIQUE & CO. (REGD.) and others--Respondents
Civil Appeal No. 1652 of 2005, decided on 22.4.2008.
(On appeal from the judgment dated 29.6.2000, passed by the Lahore High Court, Lahore in Civil Revision No. 1720 of 1986)
Transfer of Property Act, 1882 (IV of 1882)--
----S. 52--Constitution of Pakistan 1973, Art. 185(2)--Principle of lis pendens--Dishonest litigant multiplies the cases--Appellant was not originally party to the previous proceedings but he jumped during the pendency of civil revision before High Court--No independent & separate right to claim an opportunity of hearing, contest or to be impleaded in the proceedings was there, as he had not entered into the process of the litigation through permission of Court--Moreover he had put his claim through exchange & not through sale of disputed land--Held: Appellant had no independent right to claim the setting aside of the impugned judgment of High Court--Appeal dismissed. [P. 786] A & B
Land Reforms Regulations 1972 (MLR No. 115)--
----Para 26--Wet Pakistan Land Reforms Regulations 1959 (MLR No. 64), Para 27--Bar of jurisdiction--Held: Bar of jurisdiction of Civil Court was to be extended when Land Commission or its delegates were shown empowered by these Regulations to entertain and adjudicate upon an application regarding a dispute between private parties, otherwise, it could not be invoked and applied--Disputed mutations had been sanctioned by "Land Revenue Authorities" and not by "Land Reforms Authorities", so it could not be challenged before those authorities--In such situation impugned order was competently challenged and adjudicated by Civil Court--Appeal dismissed. [Pp. 787 & 789] C & E
Punjab Land Reforms Rules, 1972--
----R. 12--W.P. Land Reforms Rules 1959, R. 11--Review--Limitation for--Held: Review application was to be filed within 10 and 20 days respectively--As review application was filed after more than 8 years of the attestation of mutation, as it was badly time barred. [P. 788] D
1986 MLD 431, ref.
Raja Muhammad Ibrahim Satti, ASC for Appellant.
Mr. Taqi Ahmad Khan, ASC for Respondent No. 1.
Respondents No. 2 to 7 ex-parte.
Date of hearing: 22.4.2008.
Judgment
Sheikh Hakim Ali, J.--A society of just people promotes justice while a dishonest litigant multiplies the cases by his destructive efforts. The case in hand is the manifestation of second category of person, who had pleaded the violation of provision of Martial Law Regulation of 1959, for his own ends, after having sold out the land by himself, for valuable consideration. He made it an excuse for his evil and nefarious design to retrieve the land sold by him.
Facts and events of the instant case are expanding over a span of 41 years, which had commenced when Abdul Hakeem, predecessor-in-interest of Respondents No. 2 to 6, sold out 7 kanals 12 marlas of land, out of his total holding of 42 kanals 19 marlas, situated in Chak No. 67/JB, Tehsil and District, Faisalabad, through Mutation No. 454, sanctioned on 13.11.1967 for an amount of Rs. 9,500/- for the construction of a house and for establishing a Poultry Farm. This sale was made in favour of Muhammad Ramzan, present Respondent No. 7. Thereafter aforementioned Respondent No. 7, Muhammad Ramzan, agreed to sell the aforementioned land in favour of M/s Muhammad Saleem, Muhammad Siddique and Co. (Regd.) through an agreement to sell dated 8.1.1970 to which Abdul Hakeem was also a signatory of it as a marginal witness. This agreement was transformed into a completed sale and became evident in the form of Mutation No. 637 attested on 14.6.1970. In the year 1975, Abdul Hakeem, the vendor filed an application before the Assistant Commissioner/Collector, Lyallpur, for review of these Mutations No. 454 dated 13.11.1967 and 637 sanctioned on 14.6.1970, on the ground that Mutation No. 454 dated 13.11.1967, was sanctioned in contravention of the provision of MLR No. 64 (1959), as Muhammad Ramzan purchaser was not an owner in the Chak, therefore, both these mutations might be cancelled. Upon this petition, Assistant Commissioner/Collector prepared a report on 23.4.1975 and transmitted it to the District Collector with prayer for grant of permission to review these mutations, which permission was granted by the learned Deputy Commissioner/District Collector on 25.4.1975, within two days from the receipt of the aforesaid report. The aforesaid Assistant Commissioner/Collector, upon review cancelled the above noted mutations and got sanctioned two Mutations No. 898 and 899 for return of the above noted land in dispute in favour of Abdul Hakeem. Ultimately, after a long chain of litigation in revenue hierarchy, Deputy Commissioner/District Collector, Faisalabad passed the order on 23.6.1981, upholding Mutation Nos. 898 and 899, which had cancelled the earlier sale transactions amongst Abdul Hakeem, Muhammad Ramzan and M/s M. Saleem & Co. This order of District Collector became the cause of present litigation as M/s M. Saleem and Co. instituted the suit to obtain declaration that plaintiff was owner in possession of the land in dispute and the order dated 23.6.1981 passed by D.C/District Collector was illegal, void, etc. with grant of permanent injunction restraining Defendant No. 1, Abdul Hakeem, for acting upon the impugned order and claiming any right, title to the land or proclaiming himself owner of it. This suit was contested by the parties by tooth and nail. Learned Civil Judge dismissed the suit on 26.2.1985. Appeal carried against that judgment and decree also failed before the learned District Judge on 5.7.1986. But, before learned High Court, plaintiff was granted the relief as the civil revision therein succeeded on 29.6.2000 and the suit of the plaintiff was decreed. But present appeal after grant of leave has been filed by Bashir Ahmed, instead of successors-in-interest of Abdul Hakeem.
It is also worth mentioning that Abdul Hakeem earlier to the above noted suit, had also instituted a suit challenging the mutations of sale but had ultimately withdrawn it.
It is pertinent to point out that Bashir Ahmed, the present appellant, had entered into this arena of litigation before the learned High Court, when he had made an exchange of his land in lieu of the disputed land with Abdul Hakeem, the aforementioned vendor, through Mutation No. 2205 dated 3.3.1985. Meanwhile, Abdul Hakeem expired and his legal representatives were impleaded during the pendency of revision petition, before the learned High Court.
Raja Muhammad Ibrahim Satti, learned ASC appearing on behalf of appellant, Bashir Ahmed, submits that the learned High Court has set aside the concurrent findings of both the learned Courts below, which was not permissible in the eye of law. Further submits that Assistant Commissioner/Collector was not made party to the suit although his order dated 23.6.1981 was being assailed in it. Even Bashir Ahmed was also not impleaded in the suit, therefore, the suit was defective and was liable to be dismissed. He has challenged the validity of judgment of the learned High Court, by stating that the learned civil Court including the High Court had got no jurisdiction to set aside the orders passed by Land Reforms Authorities. He has referred to Para 27 of the Land Reforms Regulation 1959 (MLR-64) and Para 26 of M.L.R. No. 115 (Land Reforms of 1972) which have prohibited the exercise of jurisdiction by any Court including the High Court and the Supreme Court, with regard to any order made thereunder (under the Land Reforms Regulations of 1959 or of 1972). Referring to clause (d) of sub-para (2) of Para 32 of the Land Reforms Regulations of 1972 (MLR-115), the learned counsel submits that the investigation, legal proceedings or remedies can be instituted, continued or enforced even after repeal of MLR No. 64 (1959) under the aforementioned sub-para of the Land Reforms Regulation of 1972. Therefore, the order of Deputy Commissioner/District Collector dated 23.6.1981 could not be questioned in the hierarchical set up of civil Courts. The impugned judgment delivered by the learned Single Judge in Chamber of the High Court may be declared without jurisdiction by setting aside that and the judgments and decrees of the learned Civil Judge and the learned Additional District Judge, may be upheld and affirmed.
Conversely, learned counsel for Respondent No. 1 has opposed the arguments of appellant's learned counsel. As per learned counsel, Bashir Ahmed, appellant had made an exchange of the land in dispute through Mutation No. 2205 on 3.3.1985, with Abdul Hakeem, during the pendency of the present litigation, therefore, he had got no right to be impleaded and heard in the case. As regards the other contentions raised by the appellant's learned counsel, he has supported the reasons contained in the impugned judgment of the learned High Court.
We have heard both the learned counsel at length, examined the record and have given our deeper thoughts to the contentions of both the learned counsel. It is interesting to note that Bashir Ahmed who had allegedly made an exchange of the land through Mutation No. 2205 dated 3.3.1985, was not originally party to the previous proceedings as well as at the time of institution of the present suit in the civil Court. He had jumped into the proceedings during the revision pending before the learned High Court after his predecessor-in-interest, Abdul Hakeem, had substituted him for his own stead to contest. Therefore, Bashir Ahmed has got no independent and separate right to claim an opportunity of hearing, contest, or to be impleaded in the proceedings, as he had not entered into the process of this litigation through the permission of the Court. Section 52 of the Transfer of Property Act, which has brought into existence the rule of lis pendens with its clear intent on this point was prohibiting to take this contest by claiming an independent right to the proceedings. As stated above, Bashir Ahmed has come into picture after the institution of the suit, while Abdul Hakeem or his successors-in-interest from whom he claims exchange, have not joined hands with him to file the instant appeal. In other words, Abdul Hakeem or his successors-in-interest have displayed their satisfaction over the impugned judgment delivered by the learned High Court. Therefore, the present appellant, Bashir Ahmed, has got no independent right to claim the setting aside of the impugned judgment and cannot be allowed to do so. It may be kept in view that exchange is being claimed by Bashir Ahmed, not the sale of the land in dispute.
Even otherwise, we are not satisfied with the attitude and conduct of Abdul Hakeem in whole of the proceedings. He was the person who had sold out the land in dispute to Muhammad Ramzan, for a valuable consideration in the year 1967. We have also noted that in the agreement dated 8.1.1970, which was entered between Muhammad Ramzan and M/s Muhammad Saleem, Muhammad Siddique and Co. (Regd.), he was also signatory to it as a marginal witness. After happening of all these events, Abdul Hakeem had no legs to stand so as to commence the proceedings for cancellation of Mutation Noos. 454 and 637 dated 13.11.1967 and 14.6.1970, respectively, by filing a Miscellaneous Application for the review of these mutations. He was privy to the contract of sale, which sale was upheld when his suit for declaration challenging that sale was also dismissed, after he had withdrawn it as admitted by DW. 1 attorney of Abdul Hakeem, in his statement in an earlier round of litigation. Moreover, this application for review of the mutations, mentioned above, was clearly and badly barred by time, if examined from the angle of the provision of Section 163 of the West Pakistan Land Reforms Regulation of 1967 or keeping in view the Rule 11 of the West Pakistan Land Reforms Rules of 1959, or Rule 12 of the Punjab Land Reforms Rules of 1972.
Questions arise as to whether against Mutation No. 454 dated 13.11.1967 and Mutation No. 637 dated 14.6.1970 provisions of the Land Reforms Regulation of 1959 or of 1972, could be invoked so as to brand it having been sanctioned in violation of the provision of Martial Law Regulation or the Land Reforms Authorities had got the jurisdiction to declare it as such and to set aside these mutations? Answer to these questions was provided in a learned Division Bench judgment reported in 1984 CLC (Kar) 737 (Saifuddin v. Member, Federal Land Commission) in which it was held that both the above mentioned Regulations had not provided any forum to entertain an application filed by private persons to examine the validity of a private alienation, to hold it that it had reduced the prescribed subsistence or economic holding.
Bar of jurisdiction of civil Court, as provided in Para 27 of 1959 MLR and Para 26 of 1972 MLR was to be extended when Land Commission or its delegatees were shown empowered by these MLRs to entertain and adjudicate upon such application, upon a dispute between private parties, otherwise, it could not be invoked and applied. It is also worth notable that the Land Revenue Authorities had sanctioned the disputed Mutations, therefore, the order of sanctioning of mutation having not been passed by the Land Reforms Authorities could not be challenged before those authorities. From the perusal of application filed by Abdul Hakeem, no such jurisdiction of Land Reforms Authorities was ever invoked by him. The impugned order dated 23.6.1981 has also not displayed any such power of any Land Reforms Authority having been exercised by the Revenue authority. It is also worth consideration that the Deputy Commissioner/Collector, Faisalabad, when had passed the order on 23.6.1981, he had got no power of review under Land Reforms Rules. Rule 12 of the Punjab Land Reforms Rules of 1972 granting power of review was put to an end on 30.4.1975. It is also evident from the reading of these Rules that Rule 11 of the West Pakistan Land Reforms Rules of 1959 and Rule 12 of the Punjab Land Reforms Rules of 1972, it was incumbent for a party interested to seek review of an order passed, to file a review petition within 10 days and 20 days, respectively, under these Rules, from the date of an impugned order. Admittedly, the application for the review was filed by Abdul Hakeem after more than eight years of the attestation of Mutation No. 454 dated 13.11.1967. Therefore, it can be safely held that power of review could not be exercised under any provision of Land Reforms Regulation by the Land Reforms Authorities in the present case. The tenor of the impugned order itself displays that Section 163 of the West Pakistan Land Reforms Act was being sought to be applied to review the mutations in dispute. As noted above, this section was providing a period of ninety days limitation for filing of review petition from the impugned sanction of the mutation. If the provision of Section 163 of the West Pakistan Land Reforms Act, was invoked, even then the petition was hopelessly barred by time and could not be entertained by the Assistant Commissioner/Sub-Divisional Collector or the Deputy Commissioner/ District Collector. No application for the condonation of delay was filed and no request for the condonation of the delay was made in that behalf by the applicant. Valuable rights having accrued to Muhammad Ramzan and his subsequent vendee could not be taken away, on the basis of a time barred application, which was clearly based on malafide and upon the dishonest conduct of Abdul Hakeem petitioner. The aforesaid Abdul Hakeem was not entitled to be granted any right to get these mutations cancelled. From the first transaction, he had benefited himself by receiving an amount of Rs. 9,500/- from Muhammad Ramzan. He having represented himself to the vendee impliedly if not explicitly that the transfer of sale was not illegal. Therefore, the provision of MLRs could not clothe him with a right to challenge it afterward. He had also consented in the sale transaction being made by Muhammad Ramzan through Mutation No. 637 in favour of M/s. Muhammad Saleem, Muhammad Siddique and Co. (Regd.). Such dishonest person should have been discouraged to get the sale transaction cancelled, wherefrom he had benefited himself. If the plea of such person is accepted, it would in fact tantamount to grant him premium for his own fraud which he was going to commit with his vendee. Equity also does not allow such a course to be adopted. 1986 MLD 431 (Noor Samad v. Muhammad Aslam) can be cited to support this view.
As noted above, the District Collector had no power of review to exercise it under any Land Reforms Regulations or under West Pakistan Land Revenue Act, 1967 to pass the impugned order of 23.6.1981, therefore, the above order could competently be challenged before the learned civil Court and no provision of the Land Reforms Regulations, it may be Para 27 of the MLR of 1959 or Para 26 of MLR-115 of 1972, particularly after these provisions having been validated by the Constitution of Pakistan 1973, and partaking an ordinary law of the land, could not bar the learned civil Court to entertain such suit and adjudicate upon the vires of order dated 23.6.1981 of the learned D.C./District Collector, Faisalabad.
As regards objection of the learned counsel that the Deputy Commissioner/District Collector was not impleaded as a party in the civil suit, suffice it to say that the Deputy Commissioner/District Collector had got no interest in the land or in suit proceedings, as the matter was between private parties and the interest of the Government was not involved therein, so the suit was rightly entertained and decided by the learned Court below without his impleadment. No such objection was also raised in the written statement that Deputy Commissioner/District Collector was a necessary party to the proceedings of the suit.
Accordingly, we have found no force in the arguments of the learned counsel for the appellants. Consequently the appeal is dismissed with no order as to costs.
(J.R.) Appeal dismissed.
PLJ 2008 SC 789
[Appellate Jurisdiction]
Present: Saiyed Saeed Ashhad, Mian Hamid Farooq &
Sheikh Hakim Ali, JJ.
MUHAMMAD ISHFAQUE (deceased) through His
Legal Heirs--Appellants
versus
CH. MUHAMMAD NAWAZ etc.--Respondents
C.A. Nos. 649 & 650 of 2003, decided on 7.5.2008.
(On appeal from the judgment dated 1.10.2002, passed by the Lahore High Court, Lahore in C.R. No. 26/95 and in C.R. No. 27/95).
Pakistan (Administration of Evacuee Property) Act, 1957--
----Ss. 22 & (41)--Displaced Persons (Compensation & Rehabilitation) Act, 1958, Ss. 22 & 25--Evacuee property auctioned & P.T.O. issued--Subsequent sale to appellant--Respondent filed suit against treatment of the nature of property as `evacuee'--Suit concurrently dismissed--High Court reversed finding in civil revision--Validity--Treatment by Settlement Department of property as an evacuee property and all other subsequent material events, which had not been specifically pleaded in the plaint, nor objected in evidence--No prayer for declaring them null and void was taken--Respondents had kept mum and had never initiated any proceeding before the Custodian--Under S. 22 & 25 of the Act 1958, Civil Court had no jurisdiction to decide such controversy--Moreover suit was filed after a long time being hopelessly barred by limitation--Appeal accepted.
[Pp. 794, 795 & 796] A, C, D & E
Civil Procedure Code, 1908 (V of 1898)--
----O. VI, Rr. 2 & 10--Material facts--Particulars of fraud--Mentioning in plaint--Held: Vague ambiguous and generalized pleas cannot fulfill the requirements of provision of O. VI, R. 2 of CPC and if fraud was committed or documents were fake or fraudulent, such material particulars should be clearly entered into pleadings. [P. 794] B
2001 SCMR 1350, 1968 SCMR 131, 1984 SCMR 912 &
1991 SCMR 829, ref.
Mr. Gulzarin Kiani, ASC & Ch. Akhtar Ali, AOR for Appellants.
Khawaja Muhammad Farooq, ASC for Respondents No. 1-3, 5-6 (all respondents in C.A. No. 650/03).
Ex-parte for Respondent No. 4 (in C.A. No. 649/03).
Mr. Mumtaz Hussain, Naib Tehsildar, Chakwal for Respondents No. 7 (in C.A. No. 649/03).
Date of hearing: 21.4.2008.
Judgment
Sheikh Hakim Ali, J.--Both these civil appeals have arisen from one consolidated judgment of the learned Lahore High Court, Rawalpindi Bench, in which parties, disputed property and questions of law and facts, are the same, therefore, both these civil appeals are being disposed of through this lone judgment.
A vacant plot, measuring 05 Marlas 148 sq.ft., situated in the city of Chakwal, adjacent to Bhon Road, is the property in dispute, which was claimed by two parties, Muhammad Ishfaque, the appellant, now deceased and the respondents on the other hand, as successors-in-interest of Risaldar Fateh Muhammad.
Facts forming background to the present appeals are that the Settlement Department treating the above mentioned open vacant plot, as a building site, included it in the list of vacant plots to be auctioned publicly and got this list published in the year, 1961. Conditions of auction published on 31.12.1961 are Mark-A. But ultimately, it was put to public auction, and the same was purchased by Mst. Hameeda Begum, in the auction of 1963. The auction was confirmed by AS & RC, Rawalpindi on 6.04.1967. PTO No. 600855 (Ex.P.8) was issued on that date in her favour. Mst. Hameeda Begum got the amount of Rs. 4500/-, the auction money adjusted through her compensation book and PTD (Ex.P.9) was issued in her favour on 30.10.1971. The map (Ex.P.10) of the building site along with its detail was prepared by Patwari of the Settlement Department concerned. This open plot purchased by Mst. Hameeda Begum from the Settlement Department was sold out by her to Muhammad Ishfaque, the present appellant, through an agreement to sell dated 08.09.1972. Suit on the basis of that agreement to sell, was filed by Muhammad Ishfaque, against Mst. Hameeda Begum in the Civil Court, to get declaration that the plot in question was owned and possessed by him, as he had purchased it from Mst. Hameeda Begum, defendant and that she had no concern with the plot in dispute. In that suit, plaintiff had also sought prayer for grant of permanent injunction, restraining defendant not to interfere into his possession. This suit was decreed on the basis of compromise on 25.09.1972, by the learned Civil Judge, Chakwal in favour of Muhammad Ishfaque plaintiff. On 25.05.1991, Mst. Mehr Bhari and others, the successors-in-interest of aforementioned Risaldar Fateh Muhammad instituted a suit against the Province of Punjab and Sheikh Muhammad Ishfaque, to obtain declaration that the disputed plot was owned and possessed by them and the defendants had no concernment with that land along with issuance of permanent injunctions. As a counterblast, Muhammad Ishfaque also filed a suit with the same prayers in his favour, against successors-in-interest of Risaldar Fateh Muhammad, namely, Ch. Muhammad Nawaz etc. the present respondents. Both these suits were consolidated by the learned Civil Court, and the unified issues were framed and the parties were directed to produce evidence. Oral as well as documentary evidence was produced by both the parties during the trial of the suit. Learned Civil Judge on 13.07.1992, decreed the suit of Sheikh Muhammad Ishfaque, while the suit of Mst. Mehr Bhari and others was dismissed. Appeals filed by Mst. Mehr Bhari and others against those judgments and decrees were dismissed by the learned Additional District Judge, Chakwal on 11.10.1994, while the civil revisions filed by respondents, Mst. Mehr Bhari and others, were allowed by the learned Judge of the Lahore High Court, Rawalpindi Bench on 01.10.2002. Hence the above noted appeals by Muhammad Ishfaque.
Learned counsel for the legal representatives of Muhammad Ishfaque, deceased submits that Mst. Hameeda Begum had purchased the plot in dispute in the year 1963, in auction, the possession of which was also taken by her from the Settlement Department. She had transferred it to Muhammad Ishfaque for Rs. 8500/-. Suit was filed by Muhammad Ishfaque and decree was passed in his favour, confirming the sale having been made by Mst. Hameeda Begum. Possession was also delivered to Mst. Hameeda Begum in the year 1963 and to her alienee in the year 1972, but the suit by Mst. Mehr Bhari & others, was filed in the year 1991, after about 19 years from the decree and 24 years from the date of issuance of PTO, therefore, the suit was badly time barred and could not be decreed. Further submits that in the suit of Mst. Mehr Bhari & others, decree dated 25.09.1972; in favour of Muhammad Ishfaque; auction of the plot in favour of Mst. Hameeda Begum; PTO dated 6.04.1967 and PTD of 30.10.1971, were never challenged; prayer for recovery of possession was never asked, although it was with the appellant since its purchase. Plot in question was an evacuee urban building site of about 5 Marlas, which was rightly treated by Settlement Department, as such and disposed of through public auction. Its determination as evacuee nature cannot be questioned or upset in the Civil Court, especially after the repeal of Evacuee Laws. Concurrent findings of facts recorded by two learned Civil Courts, could not be upset in the revisional jurisdiction of limited scope.
Learned counsel has also referred to sub-section (3) of Section 2, sub-section (2) of Section 3, Sections 7 to 10, 22 and 41 of Pakistan (Administration of Evacuee Property) Act, 1957, Section 2(4), Pakistan Rehabilitation Act, 1956, Sections 3, 22, 25, Schedule, para III, 13, 14 (relating to building sites) of Displaced Persons (Compensation and Rehabilitation) Act, 1958; Evacuee Property & Displaced Persons Laws (Repeal) Act, 1975, and to the entries of Settlement record of rights of 1939-40; jamabandies ranging from 1942-43 to 1987-88 and the other documentary and oral evidence, to contend that the plot in dispute was an urban plot (building site) situated in Chakwal City. It was evacuee in nature and was falling in the definition of "Evacuee Property" and was treated completely as such, by the Settlement Department and disposed of through public auction, which was never got declared as Muslim Property by respondents or their predecessor-in-interest from the learned Custodian or objected to against its treatment and allotment at the relevant time. So, it could not be declared Muslim property by the learned High Court in revisional jurisdiction, particularly after the repeal of Evacuee Laws.
Contrary to it, learned counsel for respondents has submitted that plot in question was a Muslim owned property which was owned by Risaldar Fateh Muhammad, the predecessor-in-interest of Mst. Mehr Bhari, etc, and it could not be treated by Settlement authorities as evacuee. He has referred to entries of jamabandies (Ex.P. 13 to Ex.P.25) to support his contention and to display that in Column No. 3 of cultivation, "Kalu Ram Singh" was entered as "Ghair Mustakil" cultivator while in Column No. 8 of the Lagan, he was noted as "Bila Lagan Ba Tassawer Bai" which entries were clearly depicting, at the most, entries of adverse nature of his possession, not conferring right upon Settlement Department, to treat it as an evacuee property and to transfer it to any one. Entries could not be read as declaring evacuee "Kalu Ram Singh" owner of the plot in dispute because the entries of Lagan and those of cultivation columns could not be allowed to carry preference as compared to entries of the owners column. In these circumstances, a declaration of ownership on the basis of above noted entries, was essential from the learned Custodian by the Settlement Department or its predecessor, Kalu Ram Singh. He has referred to provision of Sections 22 to 41 of the Pakistan (Administration of Evacuee Property) Act, 1957. He has cited the followings judgments also:--
"2001 SCMR 1350 (Muhammad Ismail Vs. Abdul Haq and others. 1968 SCMR 131 (Lala and another Vs. Mst. Jante) 1984 SCMR 912 (Shamshad and others Vs. Mukammil Shah and others.) 1991 SCMR 829 Ali Akbar and others Vs. Malook and others."
Further submits that all the documents of PTO and PTD were fake, and based on fraud. Settlement Department could not treat such plot an evacuee property. Therefore, the judgment of learned Judge in Chamber of the Lahore High Court, Rawalpindi Bench may be upheld.
After hearing the learned counsel and scrutinizing the record, we have given our anxious thought to the propositions and questions, raised in the case. We have noted with concern that in the suit instituted by Mst. Mehr Bhari and others, inclusion of plot in dispute in the list of properties/plots/building sites to be auctioned by the Settlement Department as far back as in the year 1961; the issuance of PTO (Ex.P.8), on 6.04.1967, payment of price of property purchased through auction by Mst. Hameeda Begum through her compensation book; issuance of PTD on 30.10.1971 (Ex.P.9); the map of the evacuee building site/plots prepared by Settlement Patwari (Ex.P. 10), copy of register CSC-IV (Ex.P.12) of Village Chakwal, prepared for evacuee plots, particularly with regard to the plot in dispute by the Settlement Department; agreement to sell between Mst. Hameeda Begum and Muhammad Ishfaque (Ex.P.1), suit filed by Muhammad Ishfaque against Mst. Hameeda Begum on 20.09.1972 (Ex.P.3) consenting written statement filed by Mst. Hameeda Begum in that suit on 25.09.1972 (Ex.P.4); statement of Mst. Hameeda Begum recorded on 25.09.1972 giving consent in favour of Muhammad Ishfaque; judgment dated 25.09.1972 by learned Civil Judge, Chakwal upon that consent (Ex.P.6); decree of the even date in the aforementioned suit (Ex.P.7) are the material documents and events, which cannot be assimilated by mere mentioning in the suit of Mst. Mehr Bhari or in the written statement filed in the suit of Muhammad Ishfaque by her that no PTO or PTD was ever issued in favour of Mst. Hameeda Begum or if proved, to be considered as based on fraud without power, and jurisdiction; etc. as these facts and documents must have been challenged with clear and specific objections in the pleadings. Treatment by Settlement Department of the property in dispute as an evacuee property, and all the above noted material events, which had followed thereafter were not challenged specifically in the suit, filed by Mst. Mehr Bhari and others. We have noted that these important events and material documents, upon which evidence was also led by Muhammad Ishfaque were not objected to by Mst. Mehr Bhari and others, when these documents were produced into evidence nor these were prayed to be declared null and void in the suit filed by Mst. Mehr Bhari and others. Vague, ambiguous and generalized pleas cannot fulfill the requirements of provision of Order VI, Rule 2 of the C.P.C. which has required a plaintiff to state the material facts in clear terms and if fraud was committed or documents were fake or fraudulent, how those were so? was to be clearly entered into the pleadings, according to Rule 10 of Order VI of the C.P.C. Suit of Mst. Mehr Bhari and others had lacked these requirements of law. The official record of the Settlement Department and the above mentioned overwhelming documentary evidence expanding from the year 1961 to 1972 cannot be considered to be based on fraud or fake in nature. It can be safely deduced from the above noted documentary evidence, consisting of official record of Settlement Department as well as of the Civil Court that Settlement Department had treated this vacant plot to be an evacuee property, and had allotted it to Mst. Hameeda Begum, who had paid the price of the plot through her compensation book and the plot in question was sold to Muhammad Ishfaque as far back as in the year 1972, when the decree affirming the sale transaction between Mst. Hameeda Begum and Muhammad Ishfaque was passed. This transaction of sale and documents of important nature were of vital importance and must not have been ignored to be challenged by Mst. Mehr Bhari and others in their suit. Due to failure of this requirement, the conclusion would be that we would have to hold that the Settlement Department had treated it as an evacuee property before the year 1961. The slackness of Mst. Mehr Bhari and others or their predecessor-in-interest, Risaldar Fateh Muhammad, to claim the aforementioned property as Muslim one, goes to establish the fact that they had no objection with regard to the treatment of this property as an evacuee property. The reference to Sections 22/41 of the Pakistan (Administration of Evacuee Property) Act, 1957, as pleaded by learned counsel for respondents, has gone against their own version. Why respondents and their predecessor-in-interest had kept mum and not filed proceedings to get such declaration from the learned Custodian that the plot in dispute was a Muslim owned and not an evacuee property. The treatment of plot as an evacuee property before the year 1961 or even thereafter, before the repeal of the Evacuee Laws, has sealed the fate of respondents due to bar of provision of Sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (which shall be noted as "The Act" hereafter). According to Section 22 of the above noted Act, the treatment of property in dispute as an evacuee property by the Settlement Department would be final, while Section 25 of the aforementioned Act, provides that the learned Civil Court would have no jurisdiction to upset it. There is another important fact of the case which is floating on the surface. The suit for obtaining declaration with regard to their ownership by respondents could be competent, when the order of treatment and the disposal of the property in dispute by the Settlement Department was challenged and was got set aside by or from a competent forum, which exercise was not performed by the respondents. The respondents, it appears, were perhaps cognizant of this important defect, because of their suit badly barred by time against the treatment of the property in dispute as an evacuee, its public auction and transfer. It was, therefore, that they had not challenged it in their suit. The suit was clearly barred by time against that allotment. The suit filed by Mst. Mehr Bhari in the year 1991 against the treatment and disposal of the property in dispute was hopelessly barred by time. The suit of the respondents was rightly dismissed by the learned trial Court as upheld by the learned appellate Court. We cannot hold the treatment of plot in dispute to be void or without jurisdiction, because the respondents have failed to lay down the foundation in their case, to challenge these material and important events. Failure to dispute these important events/orders raises adverse presumption as regards to the correctness of their version and as to the truthful nature of the case of respondents. They cannot be granted discretionary relief of declaration by the learned Civil Court in the above noted circumstances. Appellant, Muhammad Ishfaque, has been shown a bona fide purchaser in the year 1972, from the above documents and evidence. It cannot be believed that he had not obtained the possession of the plot in dispute in the year 1972, when he had purchased it from Mst. Hameeda Begum. The agreement of tenancy dated 17.11.1985 by Saeed Ahmed, the statement on oath of the tenant, who had appeared as PW-2, the statement of marginal witnesses of that agreement of tenancy (Ex.P.2) by Shaukat Iqbal (PW-3) are the hardcore facts, which could not be disputed by the respondents and could not be believed as fake and fraudulent by us. Therefore, the suit of the respondents without claiming possession was not maintainable.
We have also considered the entries of permanent Settlement record of rights of the year of 1939-40 (Ex.P.13) and the entries thereafter contained in the jamabandies, which were continuing with more or less in the same position in the next periodical record of jamabandies. In Column No. 3 of this permanent record of right (Settlement of 1939-40), the following entries have been found therein "Ghulam Muhammad S/o Hayat and Fateh Muhammad S/o Mawaz Khan" "Malekan Qaabza Ba Hissa Braber" Samandar Khan etc. "Mundarja (entered) Khata 407, Hissa Daaran Shamilat". Upon strength of this entries, in Column No. 3 (Ex.P.13), respondents are claiming their ownership upon the plot in dispute. Words "Malekan Qaabza" "Hissa Daaran Shamilat" have and could not be explained by the learned counsel for the respondents. As to how these words could confer upon them right of absolute ownership with regard to the plot in dispute to Fateh Muhammad, particularly when he had been shown along with another person Ghulam Muhammad, "Malekan Qaabza with equal share". In other words, these entries do not depict absolute ownership of the plot in dispute vesting with the respondents' predecessor-in-interest. In fact, these entries were referring to a right to hold possession, in favour of these two persons in equal share i.e, "Ghulam Muhammad and Fateh Muhammad", while Samandar Khan and others were shown co-sharers of Shamalat lands. If these entries are believed to convey the right of ownership for the sake of arguments, even then, respondents could not claim ownership rights upon the complete plot of 5 Marlas 148 sq.ft., as they were recorded having half share of right to hold possession" of the plot in dispute. In these above noted circumstances, it was essential for them to get them declared as absolute owners of the plot in dispute from the learned Custodian in which they had failed. Therefore, their suit was rightly dismissed by the two learned Courts below i.e. the learned trial as well as the appellate Court.
Keeping in view the above noted reasons and discussions, we are of the view that the impugned judgment of the learned Lahore High Court, Rawalpindi Bench requires to be set aside and the suit of Muhammad Ishfaque merits to be decreed by dismissing the suit of Mst. Mehr Bhari and others, respondents. Accordingly, we restore the judgment of the learned appellate Court i.e. District Judge, upholding that of learned trial Court with no order as to costs.
(J.R.) Appeals accepted.
PLJ 2008 SC 797
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Ijaz-ul-Hassan &
Mian Hamid Farooq, JJ.
Mst. SALEEMA BIBI--Appellant
versus
ADDITIONAL COMMISSIONER (REVENUE)/SETTLEMENT COMMISSIONER (LAND) etc.--Respondents
Civil Appeal No. 1858 of 2002, decided on 15.4.2008.
(On appeal from the judgment dated 24.7.1998 passed by Lahore High Court, Lahore, in W.P. No. 154-R/1985).
Transfer of Property Act, 1882 (IV of 1882)--
----S. 41--Transfer by ostensible owner--In the earlier round of litigation, High Court had declared the order of Settlement Commissioner (Lands) was without lawful authority--In consequence thereto, notwithstanding the withdrawal of units from the district of original allotment, the right of ownership accrued in favour of appellant, could not be disturbed through the device of transfer of Units and since the subsequent order of allotment was without lawful authorities to the extent of land owned by appellant, such order would have no effect on her right, title & interest in the disputed land--Appeal accepted. [Pp. 799 & 800] A
Sardar Shahzad Shaukat, ASC for Appellant.
Respondents: Ex-parte.
Date of hearing: 15.4.2008.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal, by leave of the Court, has been directed against the judgment dated 24.7.1998 passed by Lahore High Court, Lahore, whereby Writ Petition Bearing No. 154-R/1985, filed by the appellant, involving the dispute of land was dismissed. Despite service, no one appeared on behalf of the respondents, therefore, they are proceeded against ex-parte.
"3. It is, inter-alia, contended;
(a) That in appeal before the Additional Settlement Commissioner which was decided on 20.5.1965, the petitioner was not made party, therefore, she was condemned unheard;
(b) That the petitioner had purchased the land from the allottee whose claim was never held to be in-genuine through sale-deed as far back as 30.4.1964 therefore, the said allottee could not have got his units transferred to some other village to deprive the petitioner of her valuable right as owner thereof, though it was possible may be in case of cancellation of the allotment of the allottee on the ground of fraud in obtaining the allotment in excess of verified claim or no claim, therefore, the petitioner could not have been deprived of the land purchased by her before the allotment after confirmation of the same in favour of Muhammad Shafi and he could not in such a case get the units transferred and even if the units were transferred to some other village, the allotment in that village should have been cancelled instead of depriving the petitioner of her valuable rights who had purchased the same with valuable consideration without notice bona fidly.
Leave is granted to consider inter-alia the above contentions. Till the disposal of the appeal, possession of the petitioner over the land in dispute shall not be disturbed or interfered with."
Mr. Shahzad Shaukat, learned ASC, counsel for the appellant has contended that the appeal filed by Ali Hussain and Muhammad Iqbal (locals) was time barred and was liable to be dismissed alone on the above ground. The learned counsel submitted that order of cancellation of allotment of Respondents No. 3 and 4 by the Additional Settlement Commissioner was without lawful authority and further the order passed by the revisional authority was not in accordance with the judgment of High Court dated 1.6.1981 passed in Writ Petition No. 1905-R/1976.
Having heard the learned counsel for the appellant and perused the record with his assistance, we have found that revisional order was not based on sound principles as the revisional authority without considering the material available on record in proper manner passed the order and the legal defect in the order escaped the notice of the High Court. The Settlement Commissioner, in the post remand proceedings, without giving due consideration to the points raised before him rejected the revision petition in a perfunctory manner and similarly, the observation of the High Court that the question relating to the validity of the order passed by the appellate authority in appeal decided in the earlier round attained finality by virtue of the judgment dated 01.04.1981 passed by the High Court in Writ Petition No. 1905-R/76, filed by the appellant, was the result of misreading of true facts on record. This may be pointed out that in the earlier round of litigation writ petition was accepted by the High Court whereby the order of the Settlement Commissioner was set aside and case was remanded for decision afresh of the revision petition in which appellant had challenged the order dated 26.5.1965 and consequently, the contention of learned counsel for the appellant that in the facts of the present case in the background, Section 41 of the Transfer of Property Act, 1882, would come to the rescue of the purchaser has sufficient force and no exception could be taken to the judgment of the High Court in the earlier round of litigation wherein it was held that order dated 21.8.1976 passed by the Settlement Commissioner (Lands) was without lawful authority. In consequence thereto, notwithstanding the withdrawal of units from the District of original allotment, the right of ownership already accrued in favour of appellant could not be disturbed through the device of transfer of Units and since the subsequent order of allotment passed by the settlement authorities was without lawful authority to the extent of land owned by the appellant, therefore, would have no effect on her right, title and interest in the land subject matter of the dispute. These are the reasons for our short order of even date, which is read as under:--
"For the reasons to be record later, this appeal is allowed, the impugned judgment dated 24.7.1989 passed by the Lahore High Court, Lahore is set aside and in consequence thereto, the appellant is declared to be lawful owner of the property."
(J.R.) Appeal accepted.
PLJ 2008 SC 800
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan, Mian Hamid Farooq &
Syed Zawwar Hussain Jafferi, JJ.
Subedar SARDAR KHAN (deceased) through L.Rs.
and others--Appellants
versus
MUHAMMAD IDREES etc.--Respondents
Civil Appeals No. 1087 and 1775 of 2002, decided on 23.4.2008.
(On appeal from the judgment dated 6.6.2002 of the Lahore High Court, Lahore passed in RFA No. 56 of 1988).
Supreme Court Rules, 1980--
----O. XII, R. 2--Constitution of Pakistan, 1973, Art. 185(2)(d)--Time barred appeal--Condonation of delay--Appeal was filed beyond 38 days of limitation--Similar questions of law arising out of common judgment were also involved in another appeal--Delay condoned.
[P. 505] A
Constitution of Pakistan, 1973--
----Art. 185(2)(d)--Specific Relief Act, (I of 1877)--West Pakistan Border Area Regulation (MLR 9), 1959 Schedule III, Para 6(b) & 9--Suit for specific performance of the agreement--Bar of N.O.C. under Para 6(b) of the Schedule--Appeal before Supreme Court--Agreement in favour of respondent was prior in point of time--There was no evidence on record showing that he was not a suitable person for settlement in the border area or that he was declared as an undesirable person by any competent authority--High Court while dealing with the condition of scheme, had rightly observed that said condition was imposed with a defence point of view, only--Judgment of High Court did not suffer any legal infirmity--Decree of suit for specific performance upheld--Appeals dismissed.
[Pp. 805, 806 & 807] B, C, D & E
1987 SCMR 753; PLD 1975 SC 397; PLD 2002 SC 514; 2004 SCMR 630; 1980 SCMR 314 & 1989 SCMR 135, ref.
Ch. Muhammad Ashraf Wahlah, ASC for Appellants (in C.A. No. 1087 of 2002).
Ch. Muhammad Ashraf, ASC for Respondent No. 1 (in C.A. No. 1087 of 2002).
Ch. Muhammad Abdullah, ASC for Respondent No. 2 (in C.A. No. 1087 of 2002).
Ch. Muhammad Abdullah, ASC for Appellant (in C.A. No. 1775 of 2002).
Ch. Muhammad Ashraf, ASC for Respondent No. 1 (in C.A. No. 1775 of 2002).
Ch. Muhammad Ashraf Wahlah, ASC for Respondent No. 2 (in C.A. No. 1775 of 2002).
Date of hearing: 10.4.2008.
Judgment
Mian Hamid Farooq, J.--We through this single judgment propose to decide two appeals (CAs. 1087 & 1775/2002), as identical questions of law are involved in both the cases, they are between the same parties and have arisen out of the single judgment.
Afore-noted direct appeals, under Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan, proceed against the single judgment dated 6.6.2002, whereby the learned Division Bench of the Lahore High Court, Lahore allowed the Appeal (RFA. No. 56/1988) filed by Respondent No. 1 (Muhammad Adrees), judgment and decree passed by the trial Court dated 23.12.1987 was set aside and his suit for specific performance of agreement was decreed, while the suit filed by Respondent No. 2 (Ghulam Farid) was dismissed.
Facts of both the cases, as comprehensively capitulated in the impugned judgment are reproduced below:--
"On 29.4.1984 the appellant filed a suit against the Respondent No. 1. In the plaint it was stated that the Respondent No. 1 agreed to sell the suit land measuring 190 kanals 11 marlas mentioned in para one of the said plaint (Civil Suit No. 383/84) to the appellant for a consideration of Rs. 4,00,000/- received
Rs. 2,00,000/- by way of earnest and executed agreement dated 8.7.81, and authorize him to recover the products of the land. Under the said agreement the Respondent No. 1 promised that he will execute a sale-deed in favour of the appellant after getting N.O.C. from the GHQ and shall received the balance amount; that the Respondent No. 1 has not done the needful. A decree for specific performance was accordingly prayed for. The suit remained pending for some time when on 14.5.85 the general attorney of the Respondent No. 1 made a statement admitting the suit of the appellant. It was accordingly decree on the same date with the condition that the balance of
Rs. 2,00,000/- will be deposited by the appellant within 30 days. The said amount was deposited and thereafter the sale-deed was executed by the Court on 26.4.86 and was registered on 27.4.86 in favour of the appellant.
On 29.5.85 the Respondent No. 2 (Ghulam Farid) filed an application under Section 12(2) C.P.C. In this application it was stated that the agreement between the appellant and the Respondent No. 1 is illegal as the Respondent No. 1 has not obtained a prior permission from the competent officers for selling the land. It was then stated that the Respondent No. 1 has also entered into an agreement with the Respondent No. 2 on 5.2.84 for the sale of land and has received a sum of Rs. 2,00,000/- in the manner stated in para-4 of the said application that the Respondent No. 2 has also filed a suit for cancellation of the said agreement in favour of the appellant on 10.9.84 which is pending; that the attorney of the Respondent No. 1 has proceeded to concede the suit without the consent of Respondent No. 1; that the said power of attorney has been cancelled by Respondent No. 1 on 22.5.85; with these averments it was stated that the decree has been obtained by fraud and be set aside. The application was contested by the appellant who objected that the Respondent No. 2 has no locus standi to file the said application and that no fraud stand made out upon the reading of the application. It was further pointed out that the agreement in favour of the appellant was prior in time. The learned trial Court vide order dated 21.9.87 allowed the said application and set aside the decree. The suit was directed to be heard and decided on its merits.
Against this order the appellant filed a civil revision which was returned by a learned ADJ, Narowal on 14.3.89 consequently it was presented in this Court as C.R.1239/89.
On 16.9.85 the Respondent No. 2 filed the said suit referred to above. In the plaint it was stated that the said suit land was allotted to the Respondent No. 1 under MLR 9 of 1959; that the land can be transferred only after obtaining an NOC from GHQ; that the appellant is not a military person and that the Respondent No. 2 has learnt that Respondent No. 1 had agreed to sell the land to the appellant vide agreement dated 8.7.81; that term of the agreement was that within two months NOC will be obtained from the GHQ and if for some reason the NOC could not be attained the earnest money will be returned; that the appellant himself cancelled the agreement later on; that vide agreement dated 5.2.84 the Respondent No. 1 agreed to sell the land to the Respondent No. 2 for a consideration of Rs. 3,35,000/- and received a sum of Rs. 1,50,000/- as detailed in para-4 of the plaint; that under terms of the agreement since the Respondent No. 1 has not complied with the terms thereof he is liable to pay damages to the Respondent No. 2 in the sum of Rs. 50,000/-; that the Respondent No. 1 had also obtained NOC for selling the land to the Respondent No. 2; that on 9.5.84 the Respondent No. 1 got scribed a sale-deed but the appellant filed a suit and obtained a stay order and as such the sale was not completed that another sum of Rs. 50,000/- was also received by the Respondent No. 1 from Respondent No. 2 as detailed in para-8 of the plaint making a total of Rs. 2,00,000/-. There is then a strange statement in this plaint in para-9 that the Respondent No. 1 while filing written statement in the Court received another amount of Rs. 35,000/- from the Respondent No. 2 and acknowledged the same in his written statement; that on 12.9.84 the Respondent No. 2 had filed a suit for cancellation of agreement wherein a written statement was filed by the defendants in the case and the date was fixed on 27.5.85 and on 14.5.85 the suit filed by the appellant was got decreed by consent; that petition under Section 12(2) C.P.C. was filed which is pending; that the agreement and the decree dated 14.5.85 are liable to be set aside and cancelled as the agreement was made without approval of the GHQ. With these averments a decree for cancellation of agreement dated 8.7.81, consent decree dated 14.5.85 was prayed for and a decree for specific performance of agreement dated 5.2.84 was sought. It was further prayed that damages in the sum of Rs. 50,000/- be also awarded against the Respondent No. 1. The Respondent No. 2 contested the suit by filing written statement. It was stated that the appellant himself is an army personnel and is exempt from the said condition of getting prior approval of GHQ.
Now after setting aside the said decree dated 14.5.85 under Section 12(2) C.P.C., both the suits were consolidated".
The learned trial Court framed necessary issues, recorded evidence of the parties and in the ultimate analysis decreed the suit filed by Respondent No. 2 (Ghulam Farid), subject to payment of balance amount of Rs. 1,00,000/-, while suit filed by Respondent No. 1, (Muhammad Idrees), was dismissed, vide consolidated judgment and decree dated 23.12.1987. Respondent No. 1 filed the appeal (RFA No. 56/1988) and the Division Bench of Lahore High Court, Lahore, decided the said appeal along with respondent's revision petition (CR.No. 1239/1989) through single impugned judgment dated 6.6.2002, hence the present appeals.
Ch. Muhammad Ashraf Wahlah Advocate, learned counsel for the appellant (In Civil Appeal No. 1087/2002), while referring to para-6(b) of the Scheme promulgated on 20.4.1961, under paragraph-9 of Schedule-Ill to West Pakistan Border Area Regulation (MLR 9) (hereinafter referred to as Scheme) submitted that as in this case no objection certificate was required from the Deputy Commissioner before finalization of the sale, which was refused by the competent authority, and GHQ did not approve the transaction, therefore, agreement to sell favouring Respondent No. 1 (Muhammad Idrees) lost its efficacy and could not be specifically enforced. He has further submitted that Muhammad Idrees, on 4.8.1982, filed an application before District Armed Services Board for withdrawal of his name as purchaser for facilitating the appellant to return his earnest money, therefore, principle of estoppel would be operative against Respondent No. 1. He has added that the judgments referred to by the High Court in the impugned judgment are not applicable in the present case. Ch. Muhammad Abdullah, Advocate, representing Respondent No. 2 (Ghulam Farid), adopted the arguments of Ch. Muhammad Ashraf Wahlah Advocate, however, added that Muhammad Idrees challenged the vires of para-6 of the Scheme before the Lahore High Court through constitutional petition (WP. No. 66-R/1995), which was dismissed on 16.10.1997, therefore, in view of the said para of the Scheme, he was not eligible for the transfer of the land. He, when pointed out that his appeal was barred by 38 days, stated that as the identical appeal (CA. 1087/2002) arising out of the same judgment, which is within time, is being adjudicated upon and the consolidated judgment is under challenge in both the appeals, therefore, the delay in filing the appeal (CA. 1775/2002) be condoned. He has relied upon the case of Pakistan Television Corporation v. S. Ahtramullah (1987 SCMR 753). Contrarily, Ch. Muhammad Ashraf Advocate, representing Respondent No. 1 (Muhammad Idrees), submitted that as the agreement favouring Respondent No. 1 stood admitted and he was not declared as "undesirable person" by any competent forum, therefore, his suit was rightly decreed. He, referred to Section 19 of Colonization of Government Lands (Punjab) Act, 1912 (hereinafter called as Act) to support the impugned judgment by submitting that Subedar Sardar Khan had become full owner of the questioned property, therefore, there was no legal impediment for completing the sale. He has further submitted that the appeal filed by Ghulam Farid is barred by time, therefore, it be dismissed. His next contention is that Subedar Sardar Khan sold the questioned land to Muhammad Idress, got the consideration price and he is precluded from raising the plea that the agreement of Muhammad Idrees could not be enforced, and the principle of pari delicto is applicable in this case.
We have heard the learned counsel for the parties and examined the available record. Firstly, adverting to the question of limitation, as the appeal (CA. 1775/2002) filed by Ghulam Farid is barred by 38 days. Since similar questions of law arising out of common judgment dated 6.6.2005 are also involved in another appeal (CA. 1087/2002) and we propose to decide both the appeals through single judgment, therefore, we condone the delay in filing the appeal. Reference can be made to the judgments reported as Mehreen Zaibun Nisa v. Land Commissioner, Multan and others (PLD 1975 SC 397), Pakistan Television Corporation (ibid), Sheikh Muhammad Rashid v. Majid Nizami, Editor-in-chief The Nation and Nawa-e-waqt (PLD 2002 SC 514) and Water and Power Development Authority through Chairman, WAPDA House, Lahore v. Abbas Ali Malano and another (2004 SCMR 630).
Almost all the material facts, viz Subedar Sardar Khan (vendor) agreed to sell the questioned land for consideration in favour of Muhammad Idrees (vendee) through a lawful agreement dated 8.7.1981; the receipt of a sum of Rs. 20,0000/- by the vendor as earnest money; the vendor was willing to perform his part of the agreement but for the bar contained in para-6(b) of the Scheme; Subedar Sardar Khan also agreed to sell the same land to Ghulam Farid, vide agreement dated 5.4.1984 and Ghulam Farid never raised plea of "bona fide purchaser for consideration" at any stage, stand admitted. The only pivotal question around which whole of the controversy revolves is as to whether the suit for specific performance, filed by Respondent No. 1 (Muhammad Idrees), on the basis of an agreement to sell dated 8.7.1981, could be dismissed in view of the bar of no objection certificate contained in para-6(b) of the Scheme. Undoubtedly his admitted agreement was prior in point of time. The said crucial question has properly been dealt with and decided by the learned High Court in view of the evidence available on record and the law applicable thereto. It has not been established on record that Respondent No. 1 is not a "suitable person" for settlement in the border area or he was declared as an "undesirable person" by any competent forum having jurisdiction. The appellants failed to place on record any material to show that at the time of execution of agreement to sell between Subedar Sardar Khan and Muhammad Idrees any other Military personnel was willing to purchase the land. Learned counsel for the appellant has not been able to demonstrate as to how Respondent No. 1 is unfit, not suitable and undesirable person for settlement in the Border Area. We do not see any cogent, realistic and reasonable cause for refusal to award a no objection certificate to Respondent No. 1 by the competent authority. The learned High Court while dealing with the aforesaid condition of the Scheme has rightly observed that the said condition was imposed with a defence point of view. Thus, the learned High Court has adequately safeguarded the interest for the defence purpose and has rightly taken care of the situation by holding "if at any time the appellant is found to be a person not fit to hold the land from defence point of view appropriate proceedings can be taken of course after notice to the appellant and giving him a chance to explain". In view whereof, the purpose for which said para of the Scheme was incorporated has duly been addressed to. As regards the judgments relied upon by the learned High Court, we find that although the said judgments were rendered with reference to the prohibition contained in Section 19 of the Act as well as para-25, MLR 64 of 1959, yet principles of law enunciated in those judgments are fully applicable in the case in hand. This Court in the case of Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others (1980 SCMR 314), has held that the petitioner entering into an agreement for transfer of the land, undertook to complete the formalities of the sale and parted with possession after receiving consideration could not be allowed to rely upon the provisions of para-25 of MLR 64 of 1959 or Section 19 of the Act so as to non-suit the purchaser. It has been held in the case of Rajab Ali v. Mst. Aisha and others (1989 SCMR 135) that the petitioner, who sold the land to Respondent No. 1 through an agreement, received consideration amount and delivered possession of land, cannot challenge the said transaction or resile from it on the ground that there is some prohibition contained in law for the sale/transfer of the property. The dictum laid down in the said cases is completely attracted to the facts and circumstances of the present case and the learned High Court has rightly relied upon those cases.
Now dealing with the plea of estoppel on the basis of letter dated 4.8.1982, the varsity and genuineness whereof has been challenged by the learned counsel for Respondent No. 1. We find that the said letter was not produced in evidence by the appellant either before the learned trial Court or before the High Court, inasmuch as, no application for permission to lead additional evidence was filed at any stage. The said letter is neither a proved document nor admitted in evidence, as contemplated under the law, thus no reliance could be placed upon it at this belated stage, especially when the allegedly signatory of the letter has denied the said letter. Furthermore, Respondent No. 1 was not confronted with the said letter at any point of time during the proceedings.
Now adverting to the judgment passed by learned Division Bench in constitutional petition (WP. No. 66-R/1995) and heavily relied upon by Ch. Muhammad Abdullah Advocate. Respondents No. 1 challenged the vires of the Scheme on the ground that the Scheme was promulgated without any lawful authority. It was held by the Lahore High Court in the said case that inconsistency if any in the Regulation and the Scheme was removed by promulgation of the Ordinance III of 1981 and "this had a definite purpose behind it as it was necessary to save the border belt from being occupied by undesirable persons, it being a sensitive area and therefore, the control of General Headquarter with regard to the alienations of the lands situated there was not only expedient but also in the national interest". So the ratio of the said judgment is that the purpose of the said para of the Scheme is to restrain "undesirable" persons to occupy or purchase the land situated in the border "belt". The vendee was neither adjudicated upon nor declared as "undesirable" "or not a suitable person" to settle in the border belt by any forum of competent jurisdiction. In the absence of any adjudication, it cannot be held that Respondent No. 1 is either an "undesirable person" or "not a suitable person" and "unfit" to occupy the land in border belt. The said judgment is of no help to the appellant.
In the above perspective, we are satisfied that the learned High Court rightly reversed the findings of the learned trial Court on Issue Nos. 3, 4, 5 & 7 and no exception could be taken of those findings.
Now coming to the next limb of the case, whereby the learned High Court decided the revision petition (CR. 1239/1989). We find ourselves in complete agreement with the findings of the learned High Court, as contained in para-14 of the impugned judgment, whereby, it was held that no case of fraud or mis-reprsentation was made out for setting aside the decree. We are not persuaded to take a different view than of the learned High Court. It appears appropriate to reproduce para-14 of the judgment, which reads as under:--
"Coming to the said civil revision. We do find ourselves in agreement with the learned counsel that the decree could have been set aside only on the ground stated in Section 12(2) C.P.C. No case of fraud or mis-representation stood made out on the reading of the said application. So far as the ground for setting aside the decree is concerned, it is not at all a ground envisaged by Section 12(2) C.P.C. but pertained to the merits of the case. In any case since both the matters have been re-heard, tried and decided the said order impugned in CR.No. 1239/87 loses significance. However since the sale-deed had been executed and registered in favour of the appellant we will dispose of the C.R. with the observation that the said sale-deed shall stand restored and shall be deemed to be valid and in operation".
PLJ 2008 SC 808
[Revisional Jurisdiction]
Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir & Zia Perwez, JJ.
Syed IBNE HUSSAIN--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary, Establishment Division and others--Respondents
C.R.P. No. 91 of 2002, decided on 27.3.2008.
(On review from judgment dated 30.5.2002 of this Court, passed in
Civil Appeal No. 1495 of 1999, on appeal from judgment dated 22.10.1997 of the Federal Service Tribunal, Islamabad, passed in
Appeal No. 569 (R) of 1996).
Police Service of Pakistan (Composition and Cadre) Rules, 1985--
----R. 6--Constitution of Pakistan, 1973, Art. 212(3)--Changed occupational group and appointed inducted into police service--Petitioner while serving as Majors in Pakistan were allocated DMG in Civil Service of Pakistan and not relieved by Pakistan Army--Seniority would be reckoned from date of his induction into police service and would be governed by occupational Groups and Services (Probation Training and Seniority) Rules, 1990--Validity--Representation was filed to P.M. claiming benefit of three years service rendered in Pakistan Railway towards seniority which was rejected--Service appeal was also dismissed by Federal Service Tribunal--Appeal was also dismissed by Supreme Court--Revision petition--No regular policy for induction of officers of armed forces into civil services--Held: Petitioner being an army officer, on his induction into civil service, could have been allocated only DMG, Foreign Service Group as per revised policy--Federal Government itself realized and rectified its mistake by accepting his representation for induction in Police Service but refused his due place of seniority--No legal justification for Government to deprive him of his seniority from date he was inducted but was wrongly allocated--Discriminatory treatment placed army officer could not be meted out when he was not at fault--Petitioner was entitled to have seniority reckoned from the date he was inducted in civil service as if he had been originally allocated police service--Civil revision and appeal were allowed.
[Pp. 811 & 812] A, B & C
1981 SCMR 501.
Syed Ali Hassan Gilani, ASC and Ch. Akhter Ali, AOR for Petitioner.
Raja Muhammad Irshad, DAG and Mr. Iftikhar Anjum, SO (Estt. Division) for Respondents No. 1 & 2.
Mr. Khalid Paracha, Inspector (Legal) on behalf of Saud Aziz Respondent No. 5.
Date of hearing: 27.3.2008.
Judgment
Faqir Muhammad Khokhar, J.--The petitioner and other officers, while serving as Majors in the Pakistan Army, were selected and allocated District Management Group, in the Civil Service of Pakistan, vide order dated 5.7.1989, issued by the Establishment Division, Government of Pakistan. However, they were not relieved by Pakistan Army. By another letter, dated 24.9.1989, issued by the Establishment Division, certain army officers were inducted into Police Service of Pakistan (Grade-18) whereas the petitioner was allocated occupational group of Railways. Upon acceptance of his representation, the Establishment Division, by letter dated 28.7.1992, changed his occupational group and appointed/inducted him into Police Service of Pakistan in terms of Rule 6 of Police Service of Pakistan (Composition and Cadre) Rules, 1985. It was, however, stipulated therein that his seniority in Basic Pay Scale 18 would be reckoned from the date of his induction into Police Service of Pakistan and that he would be governed by Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990. He accepted his induction/appointment on the same day. The Establishment Division, issued notification dated 4.8.1992 whereby on induction/appointment in the Police Service of Pakistan (BPS-18) he was allocated to Government of N.W.F.P. He made a representation to the Prime Minister of Pakistan thereby claiming benefit of his three years civil service rendered in Pakistan Railways from 1989 to 1992 towards his seniority as a P.S.P officer. The same was rejected on 13.10.1996. Therefore, he preferred Service Appeal No. 569 of 1996, before the Federal Service Tribunal, which was dismissed by judgment dated 22.10.1997. His Civil Appeal No. 1495 was also dismissed by this Court, vide impugned judgment dated 30.5.2002. Hence this review petition.
The learned counsel argued that under the existing policy dated 10.2.1980 (as amended) of the Federal Government, on his induction into the civil service, the petitioner was required to be allocated only the District Management Group or Foreign Service Group or Police Service of Pakistan. The error committed by the Government was rectified in the year 1992 in relation to the petitioner who had been illegally allocated Railways Group. Therefore, he could not be deprived of his seniority for the service he had rendered from 1989 to 1992 in Pakistan Railways for which he was not at fault. There was no question of any estoppel against law as his induction from army to civil service was to be made in accordance with the policy framed by the Government. Therefore, his seniority and appointment as a P.S.P Officer (BS-18) was to be reckoned from 4.10.1989 when he was inducted in the Railways Group. It was lastly argued that there was an error apparent on the face of record in the impugned judgment dated 30.5.2002, of this Court.
On the other hand, the learned Deputy Attorney General for Pakistan, frankly conceded that the petitioner could not be made to suffer in his career of service merely because the Federal Government had itself committed a mistake of allocating the petitioner to Railways Group instead of Police Service of Pakistan being a serving Army Officer as per its existing policy on the subject.
We have heard the learned counsel for the petitioner as well as the learned Deputy Attorney General for Pakistan at length and have also perused the available record with their assistance. Previously, there was no regular policy for induction of officers of the armed forces into civil services. It was on 7th March, 1974 that the appointment of one major Mian Zaheer Ahmed as Superintendent of Police in Grade-18 was made with the approval of the Prime Minister of Pakistan. He was confirmed as such on 27.10.1976. In the meantime, the then Prime Minister of Pakistan constituted a special committee comprising Secretaries of Cabinet, Defence, Labour and Works, Industries and Establishment Division, for the purpose of rehabilitation of defence personnel on their release from service particularly after the return of P.O.Ws. The committee in its meeting dated 11.4.1974 observed that both serving and retired army officers were being considered for posting in the District Management Group, Tribal Pool and the Police. It was decided that the names of suitable officers of the rank of Major and Lieutenant Colonel would be considered for absorption in the Police Service of Pakistan and that even the retired officers of the armed forces would be eligible to appear in the lateral entry examination for the senior posts in the central secretariat.
A number of army officers were inducted into the Police Service of Pakistan by notification dated 15.11.1976. A question of seniority of such army officers viz-a-viz other appointees in the Police Service of Pakistan came up for consideration. The President decided that the army officers inducted in the Police Service of Pakistan would have their seniority from the date of their induction and not from the date of their regularization. The assignment of seniority to the army officers from the date of their induction was upheld by this Court in the case of Jehangir Mirza, Senior Superintendent of Police, Lahore and another versus Government of Pakistan through Secretary, Establishment Division and others (PLD 1990 SC 1013). Needless to observe that even in India, there is practice in vougue for the appointment of defence personnel to civil service of Union and State Governments and their seniority is computed from the date of appointment into the defence service. See the case of G. Rabinathan versus State of Karnataka and others (AIR 1995 SC 1474).
The Establishment Division issued O.M. No. 14/5/78-D.III, dated 10.2.1980, whereby the President was pleased to lay down instructions to regulate the induction of officers of the Armed Forces of Pakistan into the civil service. Admittedly, the petitioner being an army officer, on his induction into civil service, could have been allocated only the District Management Group, Foreign Service Group or Police Service of Pakistan as per revised policy instructions issued by the Establishment Division vide O.M. No. 1/19/80 (P.T)/C.P-V dated 1.3.1982. The Federal Government itself realized and rectified its mistake by accepting his representation for his induction in the Police Service of Pakistan in the year 1992 but refused his due place of seniority. There was no legal justification for the Government to deprive him of his seniority as a P.S.P Officer from the date he was inducted in grade-18 but was wrongly allocated the Railways Group. The discriminatory treatment viz-a-viz other similarly placed army officers could not be meted out to him particularly when he was not at fault.
It would be useful to reproduce the following observations made by late Mr. Justice B.Z Kaikaus, a former Judge of this Court, in the case of Imtiaz Ahmad versus Ghulam Ali and others (PLD 1963 SC 382 at Page 400):--
"I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance, defeats substantive rights, is defective to that extent. The ideal must always be a system that gives to every person what is his.
I am unable to place the mistakes committed by the Administration on the same footing as mere accidents. The difference is that in one case the harm caused to a party being the result of a mistake committed by the Administration there is an obligation on our part to undo it as far as that is possible. There is no such obligation in the case of an accident. In relation to Courts there is a well known saying that the act of Court will not prejudice anybody. I do not see why the principle of this maxim does not apply to the whole machinery of the Administration of which the Courts are only a part. No mistake committed by this machinery should prejudice any person as far as that can be helped...................... It cannot be the intention of the law that rights of persons should be affected by the mistakes committed by public officers.....................We must put the parties in the same position as they would have been if no mistake had been committed by the administration as long as we can do that."
Reference may also be made to the case of Islamic Republic of Pakistan versus Abdul Qadir Haye and others (1981 SCMR 501). Mr. Abdul Qadir Haye, basically a member of Police Service of Pakistan, was suspended from service. However, on his reinstatement he was posted out of Police Service of Pakistan and was allocated another group namely Office Management Group. His lien in the Police Service was also terminated. He represented against the termination of his lien whereupon the President of Pakistan was pleased to transfer him to the Police Service of Pakistan and to restore him to the same position in the Police Service of Pakistan. In the meantime, some provincial police officers were absorbed in the Police Service of Pakistan and were promoted to Grade-19 in preference to Mr. Haye. He successfully challenged their promotion before the Federal Service Tribunal. It was held that he was entitled to be considered for promotion along with his other batch mates and by ignoring him the error was committed when his other batch mates were promoted. Therefore, a direction was issued for consideration of his promotion case as well. This Court affirmed the judgment of the Federal Service Tribunal.
In our view, the petitioner was entitled to have his seniority as P.S.P Officer (Grade-18) reckoned from the date he was inducted in civil service in grade-18 in the year 1989 in terms of para 15 of Establishment Division O.M. No. 14/5/78-D,III dated 10.02.1980 as if he had been originally allocated the Police Service of Pakistan. In the peculiar facts and circumstances, the Occupational Groups and Service (Probation, Training and Seniority) Rules, 1990, would not come in his way. The impugned judgment merits to be reviewed.
For the foregoing reasons, this civil review petition and Civil Appeal No. 1495 of 1999 are allowed. The impugned judgment dated 30.5.2002, passed by this Court and judgment dated 22.10.1997 passed by the Federal Service Tribunal are set aside. Consequently, the petitioner would be assigned seniority as P.S.P. Officer (BS-18) from the date he had been allocated the Railway Group. No order as to costs.
(M.R.Q.) Revision allowed.
PLJ 2008 SC 813
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
Syed MUHAMMAD HASSAN SHAH and others--Appellants
versus
Mst. BINAT-E-FATIMA & another--Respondents
Civil Appeal No. 1407 of 2001, decided on 31.3.2008.
(On appeal from the judgment dated 19.4.2001 in R.S.A. No. 162 of 1989 passed by the Lahore High Court, Lahore).
Civil Procedure Code, 1908 (V of 1908)--
----O. XLI, R. 27--Application for production of additional documents at Appellate Court--Application was not decided but appeal was decided--Dismissal by High Court on the ground that since adequate opportunity to produce evidence at trial was afforded to petitioner--Private documents could not have been allowed to be prdouced at later stage--Documents in-question were not within his knowledge at trial stage was not found sufficient--Validity--Held: Where the parties fails to produce documents necessary for just decision of the case or fails to request for proper examination of disputed documents, then the Court would have ample power to do the needful, so as to advance justice rather then injustice--Concept of bar against filling the gaps was no more available in Pakistan jurisprudence and the law. [P. 817] A & C
Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, R. 27--Production of additional evidence--Rules of produce--Hindrance in providing justice--Application for production of additional evidence was rejected by High Court--Validity--Rules of procedure are not made for purpose of hindrance in proving justice--Power available under Order XLI Rule 21 of CPC is not meant to cater needs of a particular party but is available for exercise by the Appellate Court in appropriate cases where need for taking additional evidence appears essential to Court for just decision of the case--Held: If Appellate Court which is competent to record additional evidence, acts illegally or with material irregularity and on that account factual error is committed then in a fit & proper case, additional evidence can be admitted in revision even if it is found essential for just decision of the case--Appeal as well as application was allowed. [P. 818] E, F & G
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 85--Envelop, bore postal stamp--Proved of--Except the notice all other documents were certified copies of public record and were thus "Public documents" within purview of Art. 85 of Qanun-e-Shahadat Order, while the envelop containing notice, bore postal stamp and therefore, could have been conveniently proved. [P. 819] H
Civil Procedure Code, 1908 (V of 1908)--
----O.XLI, R. 27--Additional evidence--Deficiency of lacunas--Application for production of additional evidence was rejected by High Court--Fill up lacunas or making up deficiency--Power available under Order XLI, Rule 27 of CPC though cannot be exercised in allowing a party to fill up lacunas or making up deficiency in a case as it was to be exercised cautiously and sparingly yet, where the evidence sought to be prdouced before the Court has a direct bearing on an important issue in the case and controversy is not likely to be resolved without taking further evidence--Held: Court must take additional evidence in order to render a just decision in the case--Appeal for production of additional evidence allowed. [P. 817] D
Civil Procedure Code, 1908 (V of 1908)--
----S. 100 & O. XLI, R. 27--Second Appeal--Additional evidence--A litigant was not entitled to produce additional evidence as a matter of course particularly in second appeal. [P. 817] B
1998 SCMR 671 & 1992 SCMR 1778.
Mr. Muhammad Akram Sheikh, Sr. ASC and Mr. M.A. Zaidi, AOR for Appellants.
Mr. Zafar Iqbal, ASC and Ch. Akhtar Ali, AOR for Respondent No. 1.
Nemo for Respondent No. 2.
Date of hearing: 31.3.2008.
Judgment
Ch. Ejaz Yousaf, J.--This appeal by way of leave is directed against judgment dated 19.4.2001 passed by a learned Single Bench of the Lahore High Court, Lahore, whereby RSA No. 162 of 1989 filed by the appellant was dismissed.
Facts of the case, in brief, are that on 21.2.1982 a suit for specific performance in respect of land measuring 173 kanals 1 marla was filed by the appellants against Respondent No. 1 and her mother, of whom she is the sole heir, on the averments that Respondent No. 1 and her mother Mst. Rabia Bibi owned the disputed land which included surrendered land measuring 1039 kanals and 6 marlas. On 26.6.1972 "an agreement to sell" the land in question, was executed by them in favour of Appellant No. 1 Syed Muhammad Hassan Shah and Syed Sajjad Haider, predecessor-in-interest of Appellants No. 2 to 5. According to the terms of the agreement, price of the surrendered land was Rs. 46,800/- out of which two vendors had already deposited a sum of Rs. 38,999/- while balance amount of Rs. 7,801/- including tax was to be paid by the appellants and it had to be considered as earnest money. In was agreed that in all a sum of Rs. 56,000/- would be paid by the appellants and in lieu thereof Respondent No. 1 would convey the suit land to them. Though, as claimed by the appellants possession of the suit land was transferred to them yet, since Respondent No. 1 failed to abide by the terms and conditions of the agreement in question, therefore, they were compelled to file the suit for specific performance of the contract. The suit was contested and execution of the agreement to sell was denied by Respondent No. 1, hence, as many as 8 issues were framed on divergent pleadings of the parties. The suit was dismissed vide judgment and decree dated 8.12.1987 primarily on Issue No. 4 which was in the term, as to whether the suit in its present form was not maintainable. No other issue was, however, decided by the trial Court The aforementioned judgment and decree was attacked by the appellants in appeal, whereas a revision was also filed by Respondent No. 1 seeking dismissal of the suit on all the issues. Both the appeal as well as the revision were disposed of by the First Appellate Court, vide the consolidated judgment dated 26.6.1989 who after appreciating the entire evidence, came to the conclusion that execution of the sale agreement was not duly proved and therefore the appellants were not entitled for the decree for specific performance. Regarding Issue No. 4, the first appellate Court found that there was no defect in the form of the suit. Accordingly finding on the said issue was reversed. Judgment and decree of the First Appellate Court, was assailed before the High Court through RSA No. 162 of 1989 which was dismissed vide the impugned judgment, hence this appeal.
It has been mainly contended by Mr. Muhammad Akram Shaikh, Sr. ASC, learned counsel for the appellants that during pendency of appeal before the First Appellate Court, an application under Order XLI Rule 27 was filed wherein it was, on the basis of attached documents, pleaded that since Respondent No. 1, through the documents in question had admitted execution of the agreement to sell, whereas at the trial it was denied, therefore, the appellants may be allowed to produce the same. The application remained pending before the said Court and no order thereon was passed even at the time of decision of the appeal. In the circumstances, an application i.e. CMA No. 1-C of 1996 for production of the documents in question, by way of additional evidence, was again filed in the High Court which was dismissed primarily on the ground that since the documents in question were not produced at the trial, therefore, the appellants were estopped to produce the same at later stage in order to fill the gaps and if allowed it would cause delay in disposal of the case. Learned counsel has maintained that since production of documents attached with the application under Order XLI, Rule 27 CPC, were essential for complete and fair adjudication of the matter, enabling the Court to decide the issues involved properly, therefore, the learned Single Judge in chambers ought to have allowed the application particularly when the documents in question were certified copies of the judicial proceedings and their authenticity and genuineness was beyond doubt. The learned counsel has added that it was essential for the learned Judge to have disposed of the application for additional evidence by a specific order and not by taking over all view of the case without any reference to the issues framed in the suit. He has further contended that the impugned judgment being vague and indefinite does not comply with the requirements of Order XLI Rule 31 CPC as it was obligatory for the learned Judge to record points for determination before rendering the decision. It is further his grievance that the First Appellate Court while upsetting the findings on Issue No. 4 regarding maintainability of the suit should have remanded the case to the trial Court as its failure to do so, had deprived the appellants a forum of appeal and the learned Judge in High Court has also gone wrong in law by endorsing the decision.
Mr. Zafar Iqbal, learned counsel for Respondent No. 1, on the other hand, while controverting the contentions raised by learned counsel for the appellants has submitted that since the application for production of additional evidence was filed at a belated stage and intention behind the same was to fill in the gaps in evidence, therefore, it was rightly rejected by the learned Judge in Chambers. He has added that since sufficient evidence, on record, was available therefore, the First Appellate Court was justified in deciding the suit itself despite the fact that learned trial Judge had given decision on Issue No. 4 only. Learned counsel has, however, not disputed that a similar application for production of additional evidence filed by the appellants in the first appellate Court remained pending and no order was passed thereon.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the relevant record minutely, with their assistance.
As to the first contention raised by the learned counsel for the appellant that application for taking additional evidence was unjustifiably rejected by the High Court, it may be mentioned here that reasons primarily weighed with the learned Judge in rejecting application for production of additional evidence were, that since adequate opportunity to produce evidence at trial was afforded to the petitioner, therefore, documents in question which were `private documents' could not have been allowed to be produced at a later stage as otherwise it would have caused delay in disposal of the case. The explanation offered by the petitioner that documents in question were not within his knowledge at the trial stage too, was not found sufficient. While relying on the case of Abdul Hameed and 14 others Vs. Abdul Qayyum and 16 others (1998 SCMR 671) and distinguishing the instant case from Zar Wali Shah's case (1992 SCMR 1778) the learned Judge was further pleased to observe that a litigant was not entitled to produce additional evidence as a matter of course particularly in second appeal. It would be worthwhile to mention here that in Abdul Hameed's case (supra) production of documents at appellate stage was disallowed by the Court for the reason that material already available on record was found sufficient in view of the statement made by the petitioner Noor Din as DW-1 in the suit whereas in Zar Wali's case (supra) it was laid down by this Court that where one or the other party fails to produce all the material or documents necessary for just decision of the case or fails to request for proper examination of the disputed documents/signatures, then the Court would have ample power to do the needful so as to advance justice rather than injustice, it was further held in that case that concept of bar against filling the gaps was no more available in Pakistan jurisprudence and the law; including, the precedent law on Islamic principles.
It may be noted here that power available under Order XLI, Rule 27 CPC though cannot be exercised in allowing a party to fill up lacunas or making up deficiency in a case as it has to be exercised cautiously and sparingly yet, where the evidence sought to be produced before the Court has a direct bearing on an important issue in the case and the controversy is not likely to be resolved without taking further evidence, the Court must take additional evidence in order to render a just decision in the case. In such a situation, as it was in the instant case where decision on Issue No. 4 only was rendered by the trial Court and the rest of the issues remained undecided, a duty is cast upon the Court to collect further evidence so as to decide the case effectively, as rules of procedure are not made for the purpose of hindrance in providing justice. It would also be not out of place to mention here that power available under Order XLI, Rule 27 of CPC is not meant to cater the needs of a particular party but is available for exercise by the Appellate Court in appropriate cases where need for taking additional evidence appears essential to the Court for just decision of the case. In this view we are, in addition to Zar Wali Shah's case (supra), fortified by the following reported judgments:--
(i) M/s Muhammad Siddiq Muhammad Umar and another Vs. The Australasia Bank Ltd. (PLD 1966 SC 684);
(ii) Mehr Allah Ditta Vs. Muhammad Ali (PLD 1972 SC 59);
(iii) Fazal Jan Vs. Roshan Din (PLD 1992 SC 811);
(iv) Mst. Bakhshi Vs. Fazal Muhammad (1989 SCMR 2005);
(v) Muhammad Yousaf Vs. Mst. Maqsooda Anjum (2004 SCMR 1049).
What to speak of taking additional evidence at appellate stage in the case of Ghulam Muhammad Vs. Muhammad Aslam (PLD 1993 SC 336) it was, while referring the cases of Haji Muhammad Zaman Vs. Zafar Ali Khan and others (PLD 1986 SC 88); Mohabbat Vs. Asadullah Khan and others (PLD 1989 SC 112) and Malik Mir Bashi and others Vs. Haji Allah Khan and others (1999 SCMR 2504) held that "if the Appellate Court which is competent to record additional evidence, acts illegally or with material irregularity and on that account factual error is committed then in a fit and proper case additional evidence can be admitted in revision even if it is found essential for just decision of the case".
"That the appellants seek permission to ¦produce, those documents by way of additional evidence. The following documents are required to be produced by way of additional evidence:--
(a) Certified copy of grounds of review petition dated 21.1.82, filed by Bint-e-Fatima (respondent in appeal).
(b) Certified copy of order dated 18.7.82 of Collector passed on Review Petition.
(c) Certified copy of grounds of appeal dated 24.11.83 filed by Bint-e-Fatima respondent before Commissioner/Faisalabad Division.
(d) Notice dated 27.5.81, from Naseer Khusru Jaffari attorney of Bint-e-Fatima along with original registered envelop through which the notice was sent."
Bare reading of the above would show that except the notice at Sr. No. (d), all the other three documents were certified copies of "public record" and were thus "public documents" within the purview of Article 85 of the. Qanun-e-Shahadat Order, 1984, while the envelop containing notice at serial (d) too, bore postal stamp and therefore, could have been conveniently proved.
Since all the documents sought to be proved by way of additional evidence were relevant to the controversy in hand i.e. as to whether the agreement to sell dated 26.6.1972 was executed by the respondents? Therefore, in our view production thereof before the Court was essential for just decision of the case. In the circumstances application filed by the appellant ought to have been allowed by the learned Judge in Chambers particularly when a similar application filed by them in the First Appellate Court remained undecided as is explicit from perusal of para 11 of the memo of appeal before the First Appellate Court. The contention therefore, has force in it.
In view of our findings on the above argument, the rest of the contentions need not to be attended to lest it may prejudice the case of either of the parties before the trial Court.
Upshot of the above discussion is that this appeal as well as the application filed by the appellant for production of additional evidence are allowed, impugned judgments and decrees of both the Courts below are set-aside and the case is remanded to the trial Court for its decision afresh in accordance with law. Learned counsel for Respondent No. 1 has submitted that since it is an old matter, therefore, learned trial Judge may be directed to dispose of the case at an early date. We are inclined to allow the request. The trial Court is directed to decide the case within a period of two months from the receipt hereof, positively.
(M.R.Q.) Appeal allowed.
PLJ 2008 SC 820
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
SAID REHMAN & others--Appellants
versus
Mst. SARDAR BEGUM & others--Respondents
Civil Appeal No. 1375 of 2002, decided on 13.3.2008.
(On appeal from the judgment dated 8.5.2001 of the Peshawar High Court, Peshawar passed in WP No. 212/98).
Ejectment--
----Relationship of landlord and tenant--Evidence remained un-shattered--In rent cases only relationship of landlord and tenant is to be seen and not the title or ownership--When relationship of landlord and tenant has been established then there is no need for placing on record ownership documents. [P. 822] A
Ownership--
----Valid ground for maintaining the ownership--Sanction by the Municipal Corporation for the proposed reconstruction is also a valid ground for maintaining the ownership of the respondents as the same cannot be obtained by a stranger. [P. 822] B
Mr. Waseemuddin Khattak, ASC for Appellants.
Mr. M. Asif, ASC for Respondents.
Date of hearing: 13.3.2008.
Order
Abdul Hameed Dogar, HCJ.--This appeal with leave of this Court is directed against judgment dated 08.5.2001 passed by learned Division Bench of Peshawar High Court, Peshawar whereby Writ Petition No. 212 of 1998 filed by respondents was accepted and eviction of appellants was ordered.
Briefly stated, facts giving rise to the filing of instant appeal are that respondent Mst. Sardar Begum filed three separate ejectment applications Bearing No. 67/RC/1988 (new No. 4/RC of 1996), 68/RC/1988 (new No. 5/RC of 1996) and 69/RC/1988 (new No. 6/RC of 1996) against appellants, namely, Muhammad Yaqub, Qaim Khan and Said Rehman alias Gul and others respectively with regard to suit Building No. 1466 situated in Mohallah Borian Bufan, Hashtnagri, Peshawar on the grounds of default in payment of rent, personal needs and for reconstruction of the suit premises. The proposed site plan/necessary sanction from the Municipal Corporation was annexed with the petition. The appellants were summoned but they refused to appear as such, ex-parte ejectment order was passed against them. Later on, appellants filed applications for setting aside ex-parte decree which was allowed on 01.4.1989 subject to payment of cost of Rs. 50/-. Whereafter, appellants filed written statements and denied the relationship of landlord and tenant. The learned Rent Controller after framing of issues and hearing learned counsel for the parties accepted the ejectment applications vide judgment dated 02.10.1996 and held that relationship of landlord and tenant do exist in between the parties. Feeling aggrieved, appellants filed Appeals No. 75/RA, 76/RA and 77/RA of 1996 before the learned Additional District Judge, Peshawar which were accepted vide single judgment dated 17.1.1998 and the ejectment order passed by the learned Rent Controller was set aside. This judgment was assailed by respondents through Writ Petition No. 212 of 1998 before learned Peshawar High Court, Peshawar which was allowed vide impugned judgment as stated above.
Leave to appeal was granted by this Court on 23.10.2002 to appreciate the evidence.
We have heard Mr. Waseemuddin Khattak, learned counsel for the appellants and Mr. M. Asif, learned counsel for the respondents at length and have gone through the record and proceedings of the case in minute particulars.
It is contended by learned counsel for the appellants that learned High Court has not appreciated the factual and legal aspects of the matter in its true perspective, which resulted in miscarriage of justice. According to him, only one writ petition was filed against three appeals, as such the same was not maintainable. He further contended that only evidence relied in all the ejectment applications was the statement of Muhammad Saeed Khan, Advocate who was not a witness in all three cases and he was only examined in one case (67/RC/1988). It is further contended that no document of ownership was produced by respondents to substantiate their claim that they were owners of the disputed premises and rent was ever paid to them by any of the tenants. He further contended that learned High Court acted contrary to the settled principle of law that reappraisal of evidence that too in writ petition on the statement of interested witness is not warranted. In support, he placed reliance on the case of Ali Muhammad v. Muhammad Mansha & others (1991 MLD 1572).
On the other hand learned counsel appearing on behalf of respondents controverted above contentions and supported impugned judgment.
We have anxious thought to the arguments raised at the bar. The contention of the learned counsel for the appellants that respondents were not owners of disputed property has no force for the reasons that Muhammad Saeed, Advocate who was a marginal witness of the rent deed had categorically stated in his examination in chief that he was the scriber of the deed executed by the respondents in favour of appellants on 13.7.1972. Another marginal witness, namely, Sabir Hussain also supported the deed and verified his signature as marginal witnesses. Both the witnesses were subject to cross-examination but their evidence remained un-shattered. It is settled principle of law that in rent cases only relationship of landlord and tenants is to be seen and not the title or ownership. When the relationship of landlord and tenant has been established then there is no need for placing on record ownership documents. The sanction by the Municipal Corporation for the proposed reconstruction is ground is also a valid ground for maintaining the ownership of the respondents, as the same cannot be obtained by a stranger. The Learned High Court has passed an elaborate judgment by discussing each and every aspect of the matter. The case law cited by learned counsel for the appellants is not relevant in the facts and circumstances of the case.
In view of above, we do not find any non-reading or misreading of the evidence in the impugned judgment warranting interference by this Court, which is maintained. The appeal being devoid of force is dismissed with no order as to costs.
(M.R.Q.) Appeal dismissed.
PLJ 2008 SC 822
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan &
Zia Perwez, JJ.
Agha MUZAMIL KHAN and others--Petitioners
versus
CONSOLIDATION OFFICER, LAHORE and others--Respondents
Civil Petition No. 1875 of 2005, decided on 12.2.2008.
(Against the order/judgment dated 18.4.2005 passed by the Lahore High Court, Lahore in I.C.A. No. 30/2005).
Constitution of Pakistan, 1973--
----Art. 185(3)--Consolidation of Holdings Act, 1960--Law Reforms Ordinance, 1972, S. 3--Leave to appeal--Consolidation scheme--Petitioners filed Constitutional petition seeking direction to revenue officer exercising power for correction of entries in revenue record which was disposed of--Intra Court Appeal dismissed being not maintainable--Assailed--Question of--Right of appeal--Validity--Order passed by the revenue officer is immune from challenging during the consolidation and no Court including the High Court can exercise jurisdiction in respect of the right of a person pending finalization of the consolidation scheme and also has not been able to satisfy Supreme Court that how in the present case, an ICA against the order of High Court was not competent or that without confirmation of consolidation scheme, the right of appeal would accrue in favour of an aggrieved party under Consolidation of Holding Act--Held: Case remanded to High Court for decision afresh of the writ petition on all questions involved therein. [Pp. 825 & 826] A & B
Syed Sharif-ud-Din Pirzada, Sr. ASC and Mr. Mehr Khan Malik, AOR for Petitioners.
Mr. S.M. Masood, ASC for Respondents No. 23, 24 to 29.
Mr. Zaka-ur-Rehman, ASC for Respondents No. 15 to 26, 28 & 29.
Nemo for other Respondents.
Date of hearing: 12.2.2008.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, has been directed against the judgment dated 18.04.2005, passed by a learned Division Bench of the Lahore High Court, Lahore, in an Intra Court Appeal arising out of a Writ Petition Bearing No. 6329 of 2000, which was disposed of by a learned single Judge in Chamber vide judgment dated 22.12.2004, with the observation that in the light of nature of dispute raised therein, writ petition was not maintainable and petitioner may avail the remedy of civil suit.
The brief facts giving rise to this petition in the background are that the petitioners filed a writ petition seeking direction to the concerned revenue officer exercising the power of Consolidation Officer, for the correction of the entries in respect of land subject matter of dispute in the revenue record of village Rai, Tehsil & District Lahore. The High Court vide order dated 22.12.2004 disposed of the writ petition with direction that writ petitioners may approach the appropriate forum for redressal of their grievance. The petitioners being aggrieved of this order, assailed the same in an ICA before a learned Division Bench of the Lahore High Court which was dismissed being not maintainable as well as on merits.
The subject matter of dispute is an evacuee land situated in two villages namely Rai and Rakh Rai which was purchased by the predecessor-in-interest of the petitioners from a non-Muslim vide registered sale-deed, on the basis of which a decree in a civil suit titled "Nawab Din vs. Inder Singh" was passed on 26.11.1948. The sale was confirmed by the Deputy Custodian vide order dated 17.01.1951 and on reconfirmation of the sale by the Custodian vide order dated 23.12.1951, it was given effect in the Jamabandi for the year 1959-60. The consolidation proceedings started in these two villages in 1960 and meanwhile revenue record of the said village was burnt as a result of which, the entries relating to the ownership of the predecessor-in-interest of the petitioners were not traceable, therefore, petitioners on failure to get appropriate relief from the Consolidation Officer, filed a constitution petition in the High Court which was dismissed on the sole ground that the factual controversy involved therein, could not be resolved without recording the evidence and since such an exercise could not be possibly undertaken in the constitutional jurisdiction, therefore, the petitioners should avail the remedy of civil suit. The ICA was dismissed firstly on the ground that it was not maintainable in terms of Section 3 of the Law Reforms Ordinance, 1972 and secondly the order passed by the High Court in writ petition was not suffering from any legal infirmity.
The learned counsel for the petitioners has contended that the relief sought in the writ petition was in respect of sanction of mutation of inheritance and incorporation of the names of the petitioners in the revenue record on the basis of mutation of sale and the entries in the Jamabandi, for the year 1959-60 but the learned Single Judge as well as the learned Division Bench in the High Court for misconception of law dismissed the writ petition and ICA with the observation that the matter involving factual controversy and also relating to the consolidation, was not challengeable in the constitutional jurisdiction of High Court. Learned counsel submitted that dispute in respect of the right, title and interest of the petitioners in the property was not as such in issue and the High Court without going into such questions could conveniently direct the revenue authorities for incorporation of entries in the name of petitioners on the basis of existing entries in the Jamabandi as well as the sale-deed and mutation of sale in question. The learned counsel submitted that the petitioners on the basis of documents of title, sought incorporation of their names in the revenue record and non-performance of the duty by the revenue authorities in accordance with law, would be questionable before the High Court in its Constitutional jurisdiction.
Learned counsel for the respondents, on the other hand, has contended that initially the constitution petition filed by the petitioners was allowed and a direction was issued to the revenue authorities for correction of entries in the revenue record but subsequently on an application, moved by the respondents under Section 12(2) CPC, the order passed in writ petition was recalled and since petitioner had no case on merits, therefore, the writ petition as well as ICA was rightly dismissed. Learned counsel submitted that some of the respondents in the present petition, died before the filing of writ petition in the High Court and some during the pendency of writ petition and ICA, but their legal heirs were not brought on record and consequently, no relief can be claimed or granted against them.
The subject matter of controversy between the parties relates to a property of an evacuee origin and as per claim of petitioners evacuee sold it in favour of their predecessor-in-interest. The sale at the first instance was confirmed by the Deputy Custodian and later was reconfirmed by the custodian. The petitioners in support of their claim also relied upon the decree of the Civil Court and a mutation of sale as well as the entries in the Jamabandi for the year 1959-60. The main assertion raised in support of this petition before us is that evacuee land would continue to have its separate character and could not be mixed with the non-evacuee land for the purposes of consolidation, therefore, refusal of revenue officer exercising the power of consolidation officer to incorporate the entries in the name of petitioners in the column of ownership on the ground that during the consolidation proceedings no new entry could be made in the revenue record, was not legal.
Learned counsel for the respondents has not been able to show us the order of the confirmation of consolidation scheme in the village or that land in dispute was also subject matter of such scheme. The learned counsel also has not been able to satisfy us that an order passed by the revenue officer is immune from challenging during the consolidation and no Court including the High Court can exercise jurisdiction in respect of the right of a person pending finalization of the consolidation scheme and also has not been able to satisfy us that how in the present case, an ICA against the order of learned single Judge in the High Court was not competent or that without confirmation of consolidation scheme, the right of appeal would accrue in favour of an aggrieved party under Consolidation of Holding Act, 1960. These fundamental questions involved in the present case were neither answered by the High Court nor learned counsel for the parties have been able to give satisfactory answer with reference to the record and law on the subject. The learned counsel for the respondent also has not been able to satisfy us that for what reason the case would fall within the ambit of Section 12(2) CPC and in what manner, the order was obtained from the High Court in the writ petition through fraud and misrepresentation to attract the provision of Section 12(2) CPC which is invokeable only in case in which an order is obtained through fraud or misrepresentation or if an order is passed without jurisdiction whereas in the present case, nothing has been brought on record to show that the first order passed in the writ petition was questionable under Section 12(2) CPC. Be that as it may, we without commenting upon the merits of the case in either way, having come to the conclusion that writ petition was dismissed in perfunctory manner without proper appreciation of the questions raised therein and similarly ICA was decided on wrong premises, are inclined to dispose of this petition in the following manner:--
This petition to the extent of Respondents No. 9 to 12 and 63 is disposed of in terms of the compromise effected by the petitioners with these respondents whereas to the extent of remaining respondents, the judgment of the High Court in writ petition as well as in the ICA is set aside and the case is sent back to the High Court for decision of the writ petition afresh in terms of the short order passed on 12.2.2008 as under:-
"This petition to the extent of Respondents No. 9 to 12 and 63 in the light of statement made by Syed Sharif-ud-Din Pirzada, learned Senior ASC, counsel for the petitioner and Mr. S.M. Masood learned Senior ASC, counsel for the Respondents No. 9 to 12 and 63 that the petitioner and said respondents, having compromised, have settled the matter out of the Court, stands disposed of in terms of the compromise, whereas the remaining petition for the reasons to be recorded later, is converted into an appeal and subject to all just exceptions, is allowed. The impugned judgment is set aside and case is remanded to the High Court for decision afresh of the writ petition on all questions involved therein."
(M.R.Q.) Case remanded.
PLJ 2008 SC 827
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ch. Ejaz Yousaf &
Mian Hamid Farooq, JJ.
MUHAMMAD NADEEM ANWAR and others--Petitioners
versus
NATIONAL ACCOUNTABILITY BUREAU & others--Respondents
Civil Petitions No. 438 and 506 of 2007, decided on 25.2.2008.
(On appeal from the judgment dated 29.3.2007 of the Lahore High Court, Rawalpindi Bench in WP Nos. 2841 & 2946 of 2005).
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Preamble--NAB Ordinance was promulgated in order to provide effective measures for detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse and abuse of power or authority misappropriation of property, taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto--Object of NAB Ordinance as is evident in its preamble is to provide expeditious trial of the scheduled offences within the shortest possible time. [P. 830] A
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), S. 497--National Accountability Ordinance, (XVIII of 1999), S. 9(b)--Power to grant of bail--Bar of jurisdiction--Accused guilty of misappropriation embezzlement of Government funds--Direction NAB to register a case against accused--Statutory service of jurisdiction--Held: Superior Courts had power to grant bail under Art. 199 of Constitution, independent of any statutory source of jurisdiction, such as S. 497 of Cr.P.C.
[P. 830] B & C
PLD 2001 SC 607
Bail--
----Grant of bail cannot be with held as punishment on accusation of non-bailable offence against an accused. [P. 830] D
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 16--Charge--Determination--Expeditious & inexpensive trial--Entitlement to grant of bail--Right of an accused--Accused is entitled to expeditious and inexpensive access to justice, which includes a right to fair and speedy trial in a transparent manner without any unreasonable delay--Section 16 of the NAB Ordinance laying down criteria for day to day trial and its conclusion within 30 days--Held: If trial of the case is not concluded within 30 days from the date of submission of challan the accused would automatically become entitled to grant of bail. [P. 830] E
2005 SCMR 1666.
Mr. Wasim Sajjad, Sr. ASC for Petitioner (in C.P. No. 438/07).
Malik Muhammad Qayyum, Attorney General for Pakistan Mr. Muhammad Asghar Rana, Addl. PG NAB Mr. M.S. Khattak, AOR for Petitioner (in C.P. No. 438/07).
Sardar Muhammad Ishaq Khan, Sr. ASC for Petitioner (in C.P. No. 506 of 2007).
Malik Muhammad Qayyum, Attorney General for Pakistan, Mr. Muhammad Ashgar Rana, Addl. PG NAB and Mr. M.S. Khattak, AOR for NAB (in C.P. No. 506 of 2007).
Date of hearing: 25.2.2008.
Order
Abdul Hameed Dogar, HCJ.--Through this order, we intend to dispose of Civil Petitions No. 438 and 506 of 2007 filed against common judgment dated 29.3.2007 passed by learned Division Bench of Lahore High Court, Rawalpindi Bench, Rawalpindi whereby Writ Petition No. 2841 of 2005 filed by petitioner Javed Iqbal Qureshi and Writ Petition No. 2946 of 2005 filed by petitioner Muhammad Nadeem Anwar were dismissed and concession of bail was refused to them.
"11. That the evidence collected during the investigation establishes that the Accused Nos. 1 to 4 in connivance and collusion with each other fraudulently or dishonestly misappropriated/embezzled an amount of Rs. 596,631,405/-(Rupees five hundred ninety six million six hundred thirty one thousand for hundred and five only inclusive of markup) entrusted to IIBL. Moreover, the Accused No. 1 misused his authority to render benefit to the functionaries of IIBL and willfully failed to exercise his authority to prevent the grant of benefit which he could have prevented by exercising his authority. Further more, the accused by corrupt, dishonest or illegal means obtained for themselves pecuniary advantage and accused aided, abetted, assisted, and acted in conspiracy with each other for the commission of offence."
We have heard Mr. Waseem Sajjad, learned Sr. ASC for petitioner in CP No. 438 of 2007, Sardar Muhammad Ishaque Khan, learned Sr.ASC for petitioner in CP No. 506 of 2007 and Malik Muhammad Qayyum, learned Attorney General for Pakistan and Mr. Muhammad Asghar Rana, learned Addl.PG NAB on behalf of respondents at length and have gone through the record and proceedings of the case in minute particulars.
It is vehemently contended by learned counsel for the petitioners that petitioners are behind the bar for a considerable period and there is no likelihood for completion of trial in near future though this Court has directed the learned trial Court to proceed with the trial expeditiously and conclude the proceedings as early as possible preferably within a period of ninety days. According to them, out of 58 witnesses only 9 witnesses have been examined and the delay in concluding the trial is attributed to the prosecution. They further contended that in view of this aspect of the matter, bail of petitioners cannot be withheld in any event and there are grounds for further inquiry into the guilt of the petitioners within the meanings of Section 497(2) Cr.P.C. According to them, the transaction between the bank and this Court was transparent and in accordance with prevailing business practices. They further contended that petitioners have acted in good faith which fact is reflected in the balance sheets of the bank. They further contended that no amount has been recovered from the petitioners, as such no useful purpose could be served by retaining them in custody. According to them, if they are released from custody then they would be in a better position to settle the dispute and cooperate for the recovery of amount. They further contended that co-accused Muhammad Amin Farooqi and Zubair Ullah. Khan Bangesh have already been released on bail by this Court and Lahore High Court respectively although the allegations against them were of similar nature, therefore, on the rule of consistency the petitioners are also entitled to the grant of bail.
On the other hand, learned Attorney General for Pakistan appearing on behalf of NAB controverted above contentions and contended that in the facts and circumstances of the case petitioners are not entitled to grant of bail as they have misappropriated/embezzled huge amount of Rs. 2.817 billions. He further contended that there is sufficient material on record to connect the petitioners with the commission of offence.
This Court vide order dated 22.9.2006 had directed learned trial Court to proceed with the trial expeditiously and conclude the proceedings as early as possible, preferably within a period of ninety days. But according to the learned counsel for the petitioners only 9 witnesses out of 58 have been examined. In this view of the matter, we without touching the merits of the case are of the view that the allegations leveled against petitioners would only be determined at the conclusion of trial, which is not yet concluded. The NAB Ordinance was promulgated in order to provide effective measures for detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse and abuse of power or authority, misappropriation of property, taking of kickbacks, commissions and for matters connected and ancillary or incidental thereto. The object of NAB Ordinance as is evident in its preamble is to provide expeditious trial of the scheduled offences within the shortest possible time.
It was held in the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607) that superior Courts had the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction, such as Section 497 of the Cr.P.C. In the case of Muhammad Saeed Mehdi v. State (2002 SCMR 282) this Court had held that even under un-amended provisions of Section 9(b) of the NAB Ordinance, High Court had jurisdiction under Article 199 of the Constitution to grant bail in offences under NAB Ordinance in appropriate cases as bar of jurisdiction being in the nature of legislative enactment cannot take away its jurisdiction under Article 199 of the Constitution.
The object of criminal law is to ensure availability of the accused to face trial and not to punish him for offence allegedly pending final determination by a competent Court of law. It is well settled principle of law that grant of bail cannot be withheld as punishment on accusation of non-bailable offence against an accused. An accused is entitled to expeditious and inexpensive access to justice, which includes a right to fair and speedy trial in a transparent manner without any unreasonable delay. This intention has been re-assured in Section 16 of the NAB Ordinance laying down criteria for day to day trial and its conclusion within 30 days. But in the instant case such object does not appear likely to be achieved anywhere in the near future and would not constitute a bar for grant of bail to the petitioners. The truth or otherwise, of charges leveled against petitioners would only be determined at the conclusion of trial after taking into consideration the evidence adduced by both the parties. It was held by this Court in the case of Aga Jehanzeb v. NAB & others (2005 SCMR 1666) that if trial of case is not concluded within 30 days from date of submission of challan, accused would automatically become entitled to grant of bail.
In view of above discussion, we are of the view that petitioners are entitled to the grant of bail pending conclusion of trial. Accordingly, both the petitions are converted into appeal and are allowed. Appellants, namely, Muhammad Nadeem Anwar S/o Muhammad Habib Anwar and Javed Iqbal Qureshi son of Abdul Karim Qureshi are released on bail subject to furnishing surety in the sum of Rs. 1,00,00,000/- (Rupees one crore) each with two sureties each in the like amount to the satisfaction of the trial Court.
These are the reasons of our short order of even date.
(MRQ) Appeal allowed.
PLJ 2008 SC 831
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq & Muhammad Farrukh Mahmud, JJ.
PAKISTAN ATOMIC ENERGY COMMISSION and others--Appellants
versus
LAND ACQUISITION COLLECTOR and others--Respondents
Civil Appeal No. 954 of 2007, decided 26.3.2008.
(Against the judgment/order dated 18.11.1990 passed by the Lahore High Court, Rawalpindi Bench in ICA No. 19/90 in WP 1999/86).
Land Acquisition Act, 1894 (I of 1894)--
----S. 18--Right of authority--Entitlement to file a reference--Validity--Under law a local authority or company neither can file reference u/S. 18 of Land Acquisition Act, nor can prefer an appeal on decision made in reference. [P. 835] A
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 22-A, 18 & 50(2)--Pakistan Energy Commission Ordinance, 1965, S. 3--Entitlement to file reference--Assessment of compensation of built up property in excess to actual market value--Award was announced--Application for correction of award was filed--Validity--Request for reduction in quantum of compensation being exorbitant & review of assessment u/S. 12-A of the Act--Land Acquisition Collector declined request having become functus office--Reference dismissed--Challenge to--Petition was also dismsised by Intra Court Appeal--Maintainability of reference--Question of--Held: Neither was entitled file reference under Section 18 of the Land Acquisition Act, nor can prefer an appeal on the decision made in a reference--Provincial Government or local authority or company for which land is acquired may file cross objections u/S. 22A of the Act, in the reference filed by an interested person against award and Court in suitable cases--In exercise of its power under Land Acquisition Act, and may reduce the amount of compensation determined by Collector. [Pp. 835 & 836] B & C
Land Acquisition Act, 1894 (I of 1894)--
----S. 12-A--Scope--Correction of clerical mistake--S. 12-A of Land Acquisition Act, 1894 has limited scope to the extent of correction of clerical mistake or arithmetical error and no other change can be made by the Collector under S. 12-A of Land Acquisition Act, 1984.
[P. 836] D
Land Acquisition Act, 1894 (I of 1894)--
----S. 9(5)--Constitution of Pakistan, 1973, Art. 199--Right to file independent reference--Remedy of writ petition--Validity--Appellants had no right to file independent reference or avail the remedy of writ petition against the award no exception is taken to the view of the High Court dismissing writ petition. [P. 837] E
Raja Muhammad Ibrahim Satti, ASC and M.S. Khattak, AOR for Appellants.
Mr. Muhammad Ilyas Sheikh, ASC and Ch. Akhtar Ali, AOR for Respondents.
Date of hearing: 26.3.2008.
Judgment
Muhammad Nawaz Abbasi, J.--Pakistan Atomic Energy Commission, appellant, herein through this appeal, by leave of the Court, has assailed Award dated 18.1.1994 given by the Land Acquisition Collector in respect of land measuring 470 acres 3 kanals 9 marlas and houses, wells, shops, bazaars, etc. situated in villages namely Chirah and Harno Thanda Pani district Islamabad. The land was acquired for use of the appellant and total compensation paid to the land owners was to the tune of Rs. 18,051,148/-. In addition thereto, 15% compulsory charges were also paid.
"2. The learned counsel for the petitioners submits that petitioners have no alternate remedy under the provisions of the Land Acquisition Act to challenge the vires of the award or order of the Senior Civil Judge dated 4.3.1986. The petitioners have only right to file cross objections under Section 22-A of the Land Acquisition Act in the reference filed by the respondents/land owners. He further maintains that cross objection cannot be equated with appeal in terms of proviso of Section 3(2) of the Land Reforms Ordinance, 1972. He further maintains that Courts have no authority to add or substitute any word in the said provisions of law. Therefore, learned High Court was not justified to dismiss the ICA of the petitioners as not maintainable in terms of the aforesaid provisions of law. He further submits the order challenged by the petitioners (Award dated 18.1.84 and order dated 4.3.86) were not original order within the meaning of Section 3(2) of the Law Reforms Ordinance, 1972, as amended and it was not subject to the incident of appeal, revision/review and as such Intra Court Appeal against the judgment/order of the learned Single Judge of the High Court passed in constitutional petition was competent as the remedy of cross objection under Section 22-A of Land Acquisition Act is not parallel/equal to remedy of appeal, therefore, bar contained in proviso of Section 3 of Law Reforms Ordinance, 1972 was not attracted in the case in hand.
The learned counsel of the respondents has supported the impugned judgment and further submits that Land Acquisition Collector has announced composite award. Petitions/appeals filed by the Land Acquisition Collector with regard to the compensation award to the respondents qua the land in question were finalized by this Court vide judgment dated 26.1.2007 passed in Civil Appeal Nos. 1730 to 1734 of 2003 wherein the petitioners had challenged the award relating to super structure as evident from record of the said cases.
Leave is granted to consider, inter alia, the aforesaid submissions of learned counsel for the parties. Appeal shall be heard on the present record. Parties are at liberty to file additional documents. Office is directed to fix the appeal within four weeks in view of the circumstances of the case in hand."
Learned counsel for the appellants has contended that the land was acquired for Pakistan Atomic Energy Commission which was established under Pakistan Atomic Energy Commission Act, 1965 and under the law, the remedy of reference and appeal provided under Land Acquisition Act, 1894, was not available to the acquiring department, therefore, the award could be competently challenged before the High Court in writ petition and that learned Single Judge in the High Court was misdirected in holding that the appellants being not interested person within the meanings of Land Acquisition Act could not challenge the award. Learned counsel submitted that the view of the High Court that award having become final, the department had no other option except to give effect to the award was contrary to law and contended that the department being an aggrieved person had locus standi to invoke the Constitutional jurisdiction of the High Court in the matter. He submitted that Section 18 of the Land Acquisition Act would not effect the right of department of challenging the award in writ petition and added that Standing Order No. 28 was not confined only to the extent of interested persons rather it would equally be applicable to the acquiring agency or the Local Authority as the case may be, therefore, the appellants were wrongly non-suited. Learned counsel argued that in the precedent cases cited in support thereof, the awards were set aside by the High Court in the writ petitions brought before it by the interested persons, despite having an alternate remedy under the Land Acquisition Act, therefore, the question of maintainability of writ petition under Article 199 of the Constitution and the locus standi of the appellants, was to be determined accordingly and the appellants were to be treated at par to the interested person. The learned counsel argued that there was no bar for the High Court to take notice of the fraud in writ petition in the public interest and placing reliance on Military Estate Officer Vs. Assistant Commissioner Cum Collector (1997 CLC 556), The Murree Brewery Co. Ltd Vs. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others (PLD 1972 SC 279), Pakistan through Military Estate Officer Vs. Abdul Hayee Khan (PLD 1995 SC 418), Behram Khan Vs. Military Estate Officer (1988 SCMR 1160), has contended that High Court having not considered the matter in true prospect of law, has not exercised the jurisdiction in proper manner.
Mr. Muhammad Ilyas Sheikh, learned counsel for the respondents, on the other hand, in the light of law laid down by this Court in Iftikhar Hussain Shah Vs. Pakistan (1991 SCMR 2193), Land Acquisition Collector Vs. Muhammad Iqbal (1992 SCMR 1245), Pir Khan Vs. Military Estate Officer (PLD 1987 SC 485) and Pakistan through Military Estate Officer Vs. Abdul Hayee Khan (PLD 1995 SC 418), contended that ICA filed by the appellants before the High Court was incompetent as under Section 22-A of the Land Acquisition Act, appellants had the right of filing cross objections and Atomic Energy Commission being a Company in terms of Section 3(e) of the said Act read with Section 3 of Pakistan Energy Commission Ordinance, 1965, neither was entitled to file a reference under Section 18 of the Land Acquisition Act, 1894, nor could challenge the award in the writ jurisdiction of the High Court.
We have heard the learned counsel for the parties and perused the record with their assistance. Under the law a local authority or a company neither can file reference under Section 18 of the Land Acquisition Act, nor can prefer an appeal on the decision made in a reference. In the case of Pir Khan through his legal heirs Vs. Military Estate Officer, Abbottabad, etc. (PLD 1987 SC 485) various provisions of Land Acquisition Act were examined by this Court and while interpreting Section 50(2) of the said Act, it was held that the Act abridged the right of the local authority or the company to demand a reference under Section 18 of the Land Acquisition Act rather the provincial government, or local authority or a company, for which land is acquired, may file cross objections under Section 22-A of the Act in the reference filed by any interested person against the award and Court in a suitable case, may also reduce the compensation awarded by the Collector. Section 22-A was added in the Land Acquisition Act, 1894, through West Pakistan Ordinance No. 49 of 1961, to enable the local authority or a Company to file cross objections and sub-clause (5) in Section 9 of the Act, was added, providing that a government department, a local authority or a company can become party in the proceedings before the referee Court. Section 11 of the Act was also amended wherein after the word any interested person, the words a department of government, local authority or a company, were inserted. In consequence to the above amendment, the acquiring agency got the right of filing cross objections and is also entitled to be heard in an inquiry conducted by the Collector for determination of the amount of compensation. Section 22-A confers a right to the provincial government or a local authority or a Company for whose benefit the land is acquired to file cross objections in the reference under Section 18 of the Act and the referee Court in pursuance thereof and in exercise of its powers under the Act, may reduce the amount of compensation, determined by the Collector.
In the light of legal position discussed above, the appellants had the right of becoming a party in the proceedings before the referee Court in the reference filed by the land owners and also could file cross objections but they instead of availing the legal course, filed an application under Section 12-A for rectification of the award before the Land Acquisition Collector. Section 12-A has limited scope to the extent of correction of clerical mistake or arithmetical error and no other change can be made by the Collector under the Section. The appellants instead of becoming a party and filing cross objections in the reference filed by the land owners under Section 18 of the Land Acquisition Act, 1894, filed an independent incompetent reference before the referee Court at belated stage. The careful examination of various provisions of the Land Acquisition Act referred to above, would clearly show that the appellants had statutory right of filing cross objections in the references filed by the land owners and in case of rejection of the same further remedy could be availed whereas they without availing this efficacious remedy in the form of cross objections provided under the law, accepted the award and subsequently preferred to avail the remedy of writ petition before the High Court for modification of the award. The learned Single Judge in chamber in the High Court as well as the ICA Bench in the peculiar facts and circumstances of the present case, has correctly held that the appellants had no right to file an independent reference or avail the remedy of writ petition against the award and we would take no exception to the above view of the High Court.
In the light of foregoing reasons and the discussion, we do not find any legal or factual infirmity in the judgment of the High Court, calling for our interference and consequently, this appeal fails which is dismissed with no order as to costs.
(M.R.Q.) Appeal dismissed.
PLJ 2008 SC 837
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
MEMBER (ACE & ST) FEDERAL BOARD OF REVENUE, ISLAMABAD & others--Petitioners
versus
MUHAMMAD ASHRAF and 3 others--Respondents
Civil Petitions No. 332 to 335 of 2008, decided on 28.3.2008.
(On appeal from the judgment dated 12.12.2007 of the Federal Service Tribunal, Lahore passed in Appeals No. 223 (L)CS, 239 (L) CS, 240 (L)CS and 241(L)CS of 2002).
Government Servants (Efficiency and Discipline) Rules, 1973--
----S. 4(1)(b)(i)--Constitution of Pakistan, 1973, Art. 212(3)--Major penalty to extent of reduction to five stages in time scale--Guilty of causal and negligent attitude, procedural lapses and violation of instruction--Show-cause notice--Charges leveled against them were denied--Tribunal erred in modifying the penalties imposed upon respondents--Respondents were found guilty of intentional and purposeful dereliction while performing their duties--Validity--If a government servant is, on account of misconduct or inefficiency, reduced to a lower grade or post, or to a lower stage, the authority ordering such reduction shall state the period for which it shall be effective and it shall operate to postpone future increments--Held: Penalties imposed by authority upon respondents do not specify the length of time and thus is in clear violation of Fundamental Rule--Penalty for indefinite period is not provided in law as impugned penalties awarded to respondents were modified and reduced to time--Leave refused. [Pp. 842 & 843] A & B
Raja Muhammad Bashir, Sr. ASC with Mr. M.S. Khattak, AOR for the Petitioners.
Respondents not represented.
Date of hearing: 28.3.2008.
Order
Abdul Hameed Dogar, CJ.--Through this order, we intend to dispose of Civil Petitions No. 332, 333, 334 and 335 of 2008 involving common question of law and fact against common judgment dated 12.12.2007 passed by learned Federal Service Tribunal, Lahore whereby Appeals No. 223(L)CS, 239(L)CS, 240(L)CS and 241(L)CS filed by respondents were disposed of while modifying the penalty awarded to them.
Respondents, Mushtaq Ahmed and Dilawar Hussain, Inspectors
"1. You failed to detect the huge quantity of cotton jean cloth valuing Rs. 91,49,866/- which was cleared on 28.1.1999 from the Dryport in the garb of cotton/yarn waste vide bills of Entry Nos. 623 and 624 both dated 27.12.99 and No. 610 dated 23.12.99.
You were required under Standing Order No. 01/99 dated 01.4.99 to examine the above referred consignments along with the other members of the examination team but you intentionally avoided this requirement in violation of the said Standing Order.
You carried out 10% examination of the consignment stated to be done in the presence of examination team but without mentioning the name of the examination team which shows that the examination was done in the absence of the team constituted under Standing Order No. 1/99. The examination report endorsed on the bill of entry does not show the presence of the Superintendent (Imports) and Assistant Collector (Imports) at the time of examination.
You examined the consignment of bill of entry without totally destuffing the container. Thus you intentionally carried out this examination without observing the requirements of Examination Manual and Standing Order No. 1/00 dated 01.4.99 to help clandestine clearance of cotton jean cloth in the garb of cotton/yarn waste.
You did not observe the duties as prescribed in the import Examination Manual which led to the clandestine, removal of cotton jean cloth in the garb of cotton wastes.
You endorsed examination report on the bill of entry without destuffing the container completely and without carrying out 100% examination of the goods. On account of wrong examination of the consignment on your part due to above factors, cotton jean cloth worth millions of rupees was cleared in the garb of cotton waste.
You connived with the importer to clear the aforesaid quantity of cotton jean cloth clandestinely under the garb of cotton/yarn waste.
Respondent Shahid Mahmood
"1. You failed to detect the huge quantity of cotton jean cloth valuing Rs. 91,49,866/- which was cleared on 28.1.1999 from the Dryport in the garb of cotton/yearn waste vide bills of Entry Nos. 623 and 624 both dated 27.12.99 and
No. 610 dated 23.12.99.
You were required under Standing Order No. 01/99 dated 01.4.99 to examine the above referred consignments along with the other members of the examination team but you intentionally avoided this requirement in violation of the said Standing Order.
You completed the assessment of these bills of entry and ordered out of charge without pointing out that the requirement of joint examination under Standing Order No. 01/00 has not been met. This shows your connivance in this.
You failed to initiate/take penal action against the importer because of availability of excess weight in violation of SRO-1374(II)98 dated 18.12.99.
You carried out 10% examination of the consignment stated to be done in the presence of examination team but without mentioning the name of the examination team which shows that the examination was done in the absence of the team constituted under Standing Order No. 1/99. The examination report endorsed on the bill of entry does not show the presence of the Superintendent (Imports) and Assistant Collector (Imports) at the time of examination.
You examined the consignment of bill of entry without totally destuffing the container. Thus you intentionally carried out this examination without observing the requirements of Examination Manual and Standing Order No. 1/00 dated 01.4.99 to help clandestine clearance of cotton jean cloth in the garb of cotton/yarn waste.
You did not observe the duties as prescribed in the import Examination Manual which led to the clandestine, removal of cotton jean cloth in the garb of cotton wastes.
You endorsed examination report on the bill of entry without destuffing the container completely and without carrying out 100% examination of the goods. On account of wrong examination of the consignment on your part due to above factors, cotton jean cloth worth millions of rupees was cleared in the garb of cotton waste.
You connived with the importer to clear the aforesaid quantity of cotton jean cloth clandestinely under the garb of cotton/yarn waste.
Respondent Muhammad Ashraf
"1. You failed to detect cotton jean cloth valuing Rs. 91,49,866/- which was cleared on 28.1.1999 from the Dryport in the garb of cotton/yarn waste vide bills of Entry Nos. 623 and 624 both dated 27.12.99 and No. 610 dated 23.12.99 and was subsequently seized by Customs Intelligence, Faisalabad.
You intentionally endorsed 10% examination of three consignments of B/E No. 0610 dated 23.12.99 and No. 623 dated 27.12.99 and No. 621 dated 27.12.99 despite the fact that the consignments of waste ought to be examined 100%.
You were required under Standing Order No. 01/99 dated 01.4.99 to examine the above referred consignments along with the other members of the examination team but you intentionally avoided this requirement in violation of the said Standing Order.
You completed the assessment of these bills of entry and ordered out of charge without pointing out that the requirement of joint examination under Standing Order No. 01/99 has not been met. This shows your connivance in this clandestine clearance.
You failed to initiate/take penal action against the importer because of availability of excess weight in violation of SRO-1374(I)/98 dated 18.12.99.
You did not observe the duties as prescribed in the import Examination Manual which led to the clandestine, removal of cotton jean cloth in the garb of cotton wastes.
You connived with the importer to clear the aforesaid quantity of cotton jean cloth clandestinely under the garb of cotton/yarn waste.
They submitted their written replies and denied the charges leveled against them. The Inquiry Officer, on the conclusion of inquiry held them guilty of causal and negligent attitude, procedural lapses and violation of instruction of Standing Order No. 01/99. In pursuance whereof show-cause notices were issued to respondents, which were also replied. The Authority after going through the report of Inquiry Officer and defence of respondents vide order dated 24.4.2001 imposed major penalty under Section 4(1)(b)(i) of the Government Servants (Efficiency and Discipline) Rules, 1973 to the extent of reduction to five stages in time scale upon respondent Muhammad Ashraf, Superintendent and respondent Dilawar Hussain, Inspector. Whereas respondent Mushtaq Ahmed, Inspector was reverted to Head Clerk and respondent Shahid Mahmood, Deputy Superintendent was reverted to Inspector. Feeling aggrieved, they filed departmental appeals, which were rejected on 28.2.2002. The said orders were assailed in appeal before learned Federal Service Tribunal, Lahore, which were disposed of vide impugned judgment in the following terms:--
(a) The penalty awarded to Mr. Muhamamd Ashraf and Mr. Dilawar Hussain was modified and reduced to two stages in time scale for a period of two years.
(b) The penalty awarded to Mr. Mushtaq Ahmed and Mr. Shahid Mahmood was ordered to be effective only for a period of two years whereafter they shall stand restored to their original ranks.
We have heard Raja Muhammad Bashir, learned ASC appearing on behalf of petitioners at length and have gone through the record and proceedings of the case in minute particulars.
It is mainly contended by learned counsel for the petitioners that learned Tribunal has erred in modifying the penalties imposed upon respondents. According to him, it was established on record that respondents were found guilty of intentional and purposeful dereliction while performing their duties. He further contended that penalties imposed by Authority may be maintained as the same commensurate with the facts and circumstances of the case.
These petitions are barred by 6 days for which no plausible explanation has been furnished. However, we have heard learned counsel for the petitioners on merits. It was urged by the respondents that they would not press the appeals on merit but prayed for modification in the penalties as the same were harsh and they had been facing the agony of departmental proceedings for more than seven years, which factor was considered as a mitigating circumstance to lessen the punishment by the learned Tribunal. Much stress was made upon examining the competency of impugned orders of the Authority on the touchstone of Fundamental Rule 29 (Applicable to members of services under the rule-making control of the President) wherein it is mentioned that if a government servant is, on account of misconduct or inefficiency, reduced to a lower grade or post, or to a lower stage in his time-scale, the authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration, it shall operate to postpone future increments and if so, to what extent. This Court in the case of Auditor General of Pakistan & others v. Muhammad Ali and others (2006 SCMR 60) has held as under:--
"The element of bad faith and willfulness may bring an act of negligence within the purview of misconduct but lack of proper care and vigilance may not always be willful to make it a case of grave negligence inviting severe punishment. The philosophy of punishment is based on the concept of retribution, which may be either through the method of deterrence or reformation. The purpose of deterrent punishment is not only to maintain balance with the gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society, whereas the concept of minor punishment in the law is to make an attempt to reform the individual wrong doer. In service matters, the extreme penalty for minor acts depriving a person from right of earning would definitely defeat the reformatory concept of punishment in administration of justice."
Admittedly, the penalties imposed by the Authority upon respondents do not specify the length of time and thus is in clear violation of Fundamental Rule 29. The penalty for indefinite period is not provided in law as such the impugned judgment whereby penalties awarded to the respondents were modified and reduced to time as mentioned above was the proper approach in law. Accordingly, we do not find any illegality or impropriety in the impugned judgment, which is maintained. The petitions being devoid of force are dismissed and leave to appeal refused.
(M.R.Q.) Leave refused.
PLJ 2008 SC 843
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq & Muhammad Farrukh Mahmud, JJ.
SIKANDAR and 3 others--Appellants
versus
FEDERAL LAND COMMISSION, ISLAMABAD CAMP AT LAHORE and 3 others--Respondents
Civil Appeal No. 469 of 1999, decided on 1.4.2008.
(On appeal from the judgment dated 8.10.1996 passed by Division Bench of the Lahore High Court, Lahore, in Writ Petition No. 4430/1996).
West Pakistan Land Reforms Regulations, 1959--
----MLR 64--Para 18(3) & 32(4)--Cultivating possession before promulgation of MLR 64--Question of entitlement. [P. 844] A
Constitution of Pakistan, 1973--
----Art. 199--West Pakistan Land Reforms Regulations, 1959--M.L.R. 64--Cultivating possession of land--Remand of case in writ jurisdiction-- Scope--Validity--High Court may pass appropriate order on merit in respect of legal rights of the parties involved therein in exercise of its Constitutional jurisdiction and should not remand the case to a lower forum which may not serve any purpose except to prolong the litigation. [P. 848] B
Mian Fazal-e-Mehmood, Sr. ASC for Appellants.
Khawaja Saeed-ur-Zafar, ASC for Respondents (3-5).
Hafiz S.A. Rehman, Sr. ASC with Mr. M.S. Khattak, AOR and Qazi Muhammad Amin, Addl. A.G. Pb. for Respondent.
Ex-parte for Respondents No. 1 to 2.
Date of hearing: 1.4.2008.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal, by leave of the Court, has been directed against the judgment dated 8.10.1996 passed by Lahore High Court, Lahore, whereby the learned Judge in Chambers while dismissing the Writ Petition Bearing No. 4430 of 1996 filed by the appellants, directed the Deputy Land Commissioner for conclusion of the inquiry in terms of the order dated 19.10.1995 passed by Senior Member, Federal Land Commissioner within three months.
Sikander and three others challenged the order dated 19.10.1995, of the Senior Member, Federal Land Commission by invoking the constitutional jurisdiction with the please that the petitioners are admittedly found entitled to get the allotment of land as tenants of the resumed land as tenants of the resumed land and, therefore, entry which has been ordered to be held in the impugned order should not have been made basis for allotment in their favour. On enquiry, learned counsel frankly stated that if ineligible persons who are twenty one in number after the enquiry are held to be eligible then the right to the allotment of the land will be adversely affected. This being the position, the allotment to the determination of all the eligible tenants entitled to receive the allotment of the resumed land. We are also told that a civil revision (Cr. No. 3017/94) pertaining to a part of land in dispute is pending adjudication and the final determination cannot take place unless the said revision petition is not decided.
The remand orders are ordinarily not interfered with in constitutional jurisdiction specially when the decision so made by the competent authority by remanding the order is not challenged and controverted. It is true that the matter of allotment is pending for the last two decades but without consideration of the question of eligibility grant of allotments cannot taken place. In the circumstances, no justifiable exception can be take to the impugned order of the learned Senior Member, Federal Land Commission and interference in exercise of extra-ordinary constitutional jurisdiction is not warranted. We will, however, direct the Deputy Land Commission to whom the case is remanded to conclude the enquiry within three months. The office is also directed to put up the file of CR. No. 3017/1994 before the Chief Justice for fixation of the same for disposal. The writ petition is without merit and is hereby dismissed with no order as to costs."
"3. We are inclined to grant leave to consider the following questions:--
(i) Whether factually the appellants entitlement to the disputed land has been determined;
(ii) If the answer of the above question is in the affirmative, whether the learned Senior Member, Federal Land Commission by his order dated 19.10.1995 was justified in remanding the case; and
(iii) Whether the learned Division Bench was justified to maintain the above order. Leave to appeal is accordingly granted."
Learned counsel for the appellants contended that FLC on the basis of wrong assumption of law and facts, remanded the case to the DLC and High Court without properly appreciating the matter in true prospect, passed the impugned judgment through misreading of the record. Learned counsel submitted that the judgment rendered by the High Court in a slipshod manner, was suffering from serious infirmity of patent errors on record which caused miscarriage of justice as the order dated 19.10.1995 passed by Senior Member, Federal Land Commission, was suffering from legal defect of mis-appreciating the correct legal and factual position, which has caused serious prejudice to the appellants as after determination of their eligibility as genuine claimants, there was no justification for remand of case and in any case except the appellants, there was no other genuine claimant. Learned counsel asserted that since the right of the appellant for allotment of resumed land, was established on record, therefore, the High Court was under legal obligation to dispose of the writ petition on merits and not to maintain the remand order.
Learned counsel for the respondents, on the other hand has vehemently contended that the learned High Court has rightly dismissed the writ petition and this Court may not interfere in the conclusion arrived at by the High Court on a question of fact.
The observation of the High Court regarding interference in remand order in writ petition particularly in a case which involves factual inquiry is correct but at the same time, this is settled principle that in a case in which facts are not as such disputed, the High Court may pass appropriate order on merit in respect of legal rights of the parties involved therein in exercise of its constitutional jurisdiction and should not remand the case to a lower forum which may not serve any purpose except to prolong the litigation. In the present case, we find that basic facts were admitted and the High Court instead of remanding the case to the Land Commission Authorities could conveniently decide the question of entitlement of the parties on the basis of the facts available on record. The Deputy Land Commissioner after remand of the case by the Federal Land Commission having conducted a thorough inquiry prepared the list of eligible persons and passed order accordingly, therefore, subject to all just exceptions apparently no further enquiry was required to be conducted. The judgment rendered by the High Court in a slipshod manner without appreciating the legal and factual aspects of the case in the light of material available on record and determining the right of allotment of resumed land, was not correct exercise of the jurisdiction.
In the light of the facts and circumstances of the case in the background, the High Court was required to determine the question of eligibility of the parties in letter and spirit and instead of remanding the case back to the Land Commission Authorities should have passed an appropriate order on merits on the basis of available record.
In consequence to the forgoing discussion, we allow this appeal, set aside the impugned judgment and remand the case to the High Court for decision of the writ petition on merits afresh in accordance with law. There shall be no order as to costs.
(M.R.Q.) Appeal allowed.
PLJ 2008 SC 849
[Shariat Appellate Jurisdiction]
Present: M. Javed Buttar, Chairman; Ch. Ejaz Yousaf, Dr. Allama Khalid Mahmood &
Dr. Rashid Ahmed Jullundhari, JJ.
YASIN alias GHULAM MUSTAFA--Petitioner
versus
STATE--Respondent
Jail Petition No. 74(S)/2004, decided on 14.12.2007.
(On appeal from the judgment dated 16.6.2004 in J.Cr.A. No. 319/I of 2003 passed by the Federal Shariat Court at Lahore).
Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)--
----Ss. 10(2) & 16--Constitution of Pakistan, 1973, Arts. 185(3) & 203-DD--Abduction of woman--Conviction and sentence recorded against accused--Accused was acquittal from charge of murder--Challenge to--Leave to appeal--Appreciation of evidence--Accused was convicted merely on suspicion for committing zina prior to marriage--Validity--No evidence on record to prove that deceased had been previously married to another person nor to prove that accused and the deceased were committing zina prior to their marriage--Evidence was grossly deficient to prove that she had been abducted by the accused--Appeal allowed. [Pp. 852 & 853] A, B, E & F
Criminal trial--
----Suspicion--Legal value--Held: Suspicion howsoever strong it may be cannot take place of proof. [P. 853] C
Administration of Criminal Justice--
----Appreciation of evidence--Critaria for conviction--Held: Conviction cannot be based on any other type of evidence howsoever, convincing it may be, unless direct or substantive evidence is available--Even guilt of an accused cannot be based merely on high probabilities that may be inferred from the evidence in a particular case. [P. 853] D
1984 PSC 640; 1988 MLD 1501; PLD 2003 SC 56; PLD 1970 SC 10; 1991 SCMR 463 & 1997 SCMR 290, ref.
Hafiz Hifzur Rehman, ASC for Petitioner.
Mr. Muhammad Saddiq Khan Baloch, DPG Punjab for State.
Date of hearing: 30.11.2007
Judgment
Ch. Ejaz Yousaf, J.--This Jail Petition for leave to appeal is directed against the judgment dated 16.06.2004 passed by learned Single Bench of the Federal Shariat Court, whereby Appeal Bearing No. 319/I of 2003 filed by the petitioner against his conviction and sentences under Sections 10(2) and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as "the Ordinance") was dismissed.
Facts of the case, in brief, are that on 10.6.2001 report was lodged by one Muhammad Aslam son of Nazeer Ahmad with Police Station Sahuka, Burewala, District Vehari, wherein it was alleged that the complainant's sister namely Mst. Zainab Bibi was married with one Muhammad Yaqoob s/o Shahamand Khan but rukhsati had not taken place for want of dowry and she was residing with him. Petitioner who was on visiting terms with the complainant, developed illicit relations with his afore-named sister and taking advantage of the same abducted her with the help and connivance of Mst. Salma Bibi daughter of Khair Din and Mst. Zohran, daughter of Lakhu. Efforts through punchayat were made for the return of Mst. Zainab Bibi but it remained unfruitful. Regarding delay in lodging the FIR, it was stated that since initially the complainant remained busy in search of Mst. Zainab Bibi and subsequently the accused party had promised to return her hand, but later on refused to do the needful, therefore, he could not lodge the report earlier. On the stated allegations, formal FIR Bearing No. 124/01 was registered at the said Police Station under Section 16/10 of the Ordinance and investigation was carried out in pursuance thereof. During investigation Zahoor Ahmad s/o Mian Ahmad and Mst. Zohran Bibi d/o Lakhu were found innocent while Khair Muhammad was arrested and sent to judicial lockup.
It would be pertinent to mention here that on receiving information that dead body of Mst. Zainab Bibi, was lying in the Health Centre of Chak No. 25/KB, supplementary statement was also got recorded by the complainant on 10.3.2002. It was alleged therein that on receiving information about the death of his sister, the complainant had rushed to the said place and found that the petitioner was also present there who, on the query made disclosed that Mst. Zainab Bibi had given birth to a female child and as a result of complications she died due to neglect of care. The petitioner, though, initially fled away leaving the dead body of Mst. Zainab Bibi, in the Health Centre but afterwards was arrested and challaned to the Court for trial.
At the trial charge under Sections 16/10 of the Ordinance and 302/34 PPC was framed against the accused persons to which they pleaded not guilty and claimed trial. In order to prove the charge and substantiate the allegations leveled against the accused persons, prosecution produced ten witnesses in all. PW-1 Dr. Nasreen Ateeq Bajwah, had conducted postmortem examination on the dead body of Mst. Zainab Bibi; PW-2 Shah Behram, Constable to whom last worn clothes of the deceased were handed over by the Doctor after postmortem examination; PW-3 Nazeer Ahmad, who had registered the FIR; PW-4 Muhammad Iqbal, ASI, the Investigating Officer; PW-5 Allah Ditta, ASI, who had recorded the supplementary statement of the complainant; PW-6 Muhammad Aslam, the complainant, PW-7 Mumtaz, who had on 8.4.2001 seen the petitioner taking away Mst. Zainab Bibi in a car; PW-9 Dr. Masood Nisar Rana, who had medically examined the petitioner qua the potency test; and PW-10 Javed Ahmed, ASI, who had recorded the statement of the complainant. On completion of the prosecution evidence, statements of accused persons under Section 342 Cr.P.C. were recorded. In his above statement, the petitioner took the plea of valid marriage in his defence and stated that Mst. Zainab Bibi had accompanied him with her free will and consent and married him later on. He did not opt to appear as his own witness in terms of Section 340(2) Cr.P.C. but produced some documents i.e. Ex.DE Affidavit of Mst. Zainab Bibi, Ex.DF copy of plaint in the suit for jactitation of marriage filed by Mst. Zainab Bibi against Muhammad Yaqoob, Ex. DG attested copy of Writ Petition No. 19 of 2002 and Ex. DH Nikahnama regarding marriage between the petitioner and Mst. Zainab Bibi.
On conclusion of the trial, the learned Trial Judge convicted the petitioner under Section 16 of the Ordinance and sentenced him to seven years R.I. along with a fine of Rs. Ten thousand or in default to undergo R.I. for one month. He was also convicted under Section 10(2) of the Ordinance and sentenced to undergo R.I. for ten years along with a fine of Rs. Ten thousand or in default to further undergo R.I. for one month. Both the sentences were ordered to run concurrently. Benefit of Section 382-B Cr.P.C. was also afforded to the petitioner. However, he was acquitted from the charge under Section 302/34 PPC as in the opinion of the trial Court, no evidence with regard to murder of Mst. Zainab Bibi was produced by the prosecution. Rest of the accused persons were however, acquitted of the charge.
We have heard Hafiz Hifzur Rehman, learned counsel for the petitioner and Mr. Muhammad Saddiq Khan, learned Deputy Prosecutor General for the State.
Learned counsel for the petitioner has mainly contended that the plea of valid marriage taken in defence by the petitioner was not disbelieved by the learned trial Court and he was convicted merely on suspicion for committing zina prior to their marriage. He has urged that the conclusion drawn by both the Courts below that since the occurrence took place on 8.4.2001 and as per nikahnama Ex.DH, nikah was performed on 16.6.2001 and for the intervening period the petitioner and the deceased remained together without any legal bond, therefore presumably they were committing zina was patently unjustified. He has maintained that an iota of evidence was not available to believe that the petitioner committed zina with the deceased prior to their marriage and it was also not established that both remained together. He prayed that in the circumstances, the petitioner deserve to be acquitted of the charge.
Mr. Muhammad Saddiq Khan Baloch, learned Deputy Prosecutor General, on the other hand has stated that since Mst. Zainab Bibi was already in the wedlock with one Muhammad Yaqoob, therefore her marriage with the petitioner was void, and therefore, the petitioner was liable for the offence. He added that since the petitioner himself had admitted that in between the period from 8.4.2001 to 16.6.2001, the parties were not in the wedlock, therefore, the petitioner was rightly convicted of the offence. He, however, candidly conceded that no evidence was available to prove that during the aforementioned period they were living together or committing zina. Having been questioned as to whether any evidence or proof with regard to alleged nikah of deceased Mst. Zainab Bibi with Muhammad Yaqoob, was produced at the trial, he further conceded that neither nikahnama with regard to Mst. Zainab's previous nikah was produced nor any witness was got examined to prove the same.
We have given our anxious consideration to the respective contentions of learned counsel for the parties and have also gone through the available record with their assistance, minutely.
It may be pointed out here that in the complaint though it was stated that Mst. Zainab Bibi was previously married with one Muhammad Yaqoob, yet neither any evidence was produced to prove the factum of her nikah with Muhammad Yaqoob, nor any document, especially the nikahnama with regard to said marriage was produced. On the contrary, certain documents including Ex. DH, the nikahnama were tendered in evidence by the petitioner. Though the witnesses of nikah were not produced at the trial, yet, since execution of these documents was not challenged by the opposite side, therefore authenticity thereof was not under jeopardy.
Admittedly no evidence on record is available to believe that the petitioner and deceased Mst, Zainab Bibi were committing zina prior to their marriage though she abandoned her house on 8.4.2001. Record is silent to the effect that both were living together even, therefore, we see force in the contention raised by learned counsel for the petitioner that in the absence of any evidence it could not have been presumed that the petitioner committed zina with the deceased.
It is well settled that suspicion howsoever strong it may be, by itself cannot take place of proof. This view receives support from the following reported judgments:--
(i) Bhugdomal Gangaram & others v. State of Gujrat (1984 FSC 640);
(ii) State of U.P. v. Krishna Gopal & another (1988 MLD 1501);
(iii) Vijant Kumar and others v. State through Chief Ehtesab Commissioner, Islamabad and others (PLD 2003 SC 56);
It is also an established principle of the administration of criminal justice that conviction cannot be based on any other type of evidence howsoever, convincing it may be, unless direct or substantive evidence is available. Even, guilt of an accused cannot be based merely on high probabilities that may be inferred from evidence in a particular case. In this view we are fortified by the following reported judgments:--
(i) Muhammad Luqman v. The State (PLD 1970 SC 10);
(ii) Muhammad Noor v. Member-I, Board of Revenue, Balochistan and others (1991 SCMR 463) ;
(iii) Qalb-e-Abbas alias Nehola v. The State (1997 SCMR 290);
In the instant case, evidence is grossly deficient to prove that petitioner and deceased Mst. Zainab Bibi, prior to their marriage were committing zina and that she was abducted by the petitioner, therefore in our view both the Courts below have gravely erred in recording conviction against the petitioner on both counts.
(J.R.) Appeal allowed.
PLJ 2008 SC 854
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
SYED FAKHAR IMAM--Petitioner
versus
CHIEF ELECTION COMMISSIONER OF PAKISTAN
& others--Respondents
Civil Petition No. 398 of 2008, decided 25.4.2008.
(On appeal from the order dated 6.3.2008 of the Lahore High Court, Lahore passed in WP No. 1891/08).
Representation of the People Act, 1976 (LXXXV of 1976)--
----Ss. 52 & 103-AA--Constitution of Pakistan, 1973--Arts. 185(3) & 225--Leave to appeal--Returned candidate in official gazette--Barred of--Competent forum--Determination--Petitioner filed an application u/S. 103-AA of Representation of the People Act, 1976 before Chief Election Commission which was dismissed--Assailed--High Court disposed of with observation that he may approach competent forum--Validity--Evidence produced by petitioner and witnesses was vague, sketchy and devoid of any substance to inspire confidence--Petitioner failed to furnish full particulars with names, places and time of alleged corrupt or illegal practice or any other illegal act to get verdict in his favour--Held: After publication of the name of respondent as a returned candidate in official gazette the only remedy available to petitioner was to file an election petition as provided under S. 52 of Representation of the People Act, 1976 before Election Tribunal--S. 52 of Representation of the People Act, is expressed in negative form to exclude the jurisdiction of all other forums, including Election Commission to call in-question validity of an election, by contesting candidate for that election, except by an election petition to be presented to Commissioner within forty five days of publication in official gazette of returned candidate--Further held: Order of Election Commission was not liable to be interfered through a Constitutional petition--Petition was barred by Art. 225 of Constitution of Pakistan--Leave refused. [P. 858] A, B & C
Constitution of Pakistan, 1973--
----Arts. 199 & 225--Representation of the People Act, (LXXXV of 1976), S. 103-AA--Jurisdiction of High Court--Election petition--Change of polling staff--High Court disposed of the petition with observation that he may approach a competent Election Tribunal by filing constituted election petition--Validity--Held: High Court in its jurisdiction under Art. 199 of Constitution cannot grant relief in view of provision of Art. 225 of the Constitution and Representation of the People Act, 1976. [P. 858] D
PLD 1989 SC 396, rel.
Constitution of Pakistan, 1973--
----Art. 185(3)--Representation of the People Act, (LXXXV of 1976), S. 103-AA--Leave to appeal--Discretionary jurisdiction--Interest of justice--Application u/S. 103-AA of Representation of the People Act, was dismissed by Chief Election Commission--High Court was also disposed of the petition with observation that he may approach a competent Election Tribunal by filing a properly constituted election petition--Validity--Order of High Court is a just, fair and proper which is calculated to advance the interest of justice and, therefore, the present appeal was not a fit case for exercise of our discretionary jurisdiction to leave grant to appeal--Leave was refused. [P. 858] E
Mr. Maqbool Ellahi Malik, Sr. ASC & Mr. Arshad Ali Ch., AOR for Petitioner.
In Person for Respondents No. 2, 5 & 6.
Date of hearing: 25.4.2008.
Order
Abdul Hameed Dogar, HCJ.--This petition for leave to appeal is filed against order dated 6.3.2008 passed by learned Division Bench of Lahore High Court, Lahore whereby W.P. No. 1891 of 2008 filed by petitioner Syed Fakhar Imam was disposed of with the observation that he may approach a competent Election Tribunal by filing a properly constituted election petition wherein all these questions will be gone into and decided in accordance with law.
Briefly stated, facts giving rise to the filing of instant petition are that petitioner and Respondents No. 2-7 contested election for the National Assembly, NA-156 Khanewal, held on 18.2.2008. The Respondent No. 2 won the election by securing 71381 votes whereas petitioner secured 58271 votes. Feeling aggrieved, on 26.2.2008 petitioner filed application under Section 103-AA of the Representation of People Act, 1976 (hereinafter referred to as "the Act of 1976") before the learned Chief Election Commissioner of Pakistan alleging grave illegalities and irregularities committed by the returned candidate/Respondent No. 2 during the process of election and prayed that the election may be declared as void. The said application was dismissed on 28.2.2008 by the learned Election Commission. This order was assailed by petitioner before learned Lahore High Court, Lahore through Writ Petition No. 1891 of 2001, which was disposed of vide impugned order as stated above.
We have heard Mr.Maqbool Ellahi Malik, learned Sr.ASC for the petitioner and Respondent No. 2 appearing in person at length and have gone through the record and proceeding of the case in minute particulars.
Learned counsel for the petitioner vehemently contended that petitioner filed application to the Election Commission under Section 103-AA of the Act of 1976 along with affidavits of some polling officer supporting the version of petitioner that illegal and corrupt practices were committed by or at the behest of returned candidate/Respondent No. 2 which badly affected the result of election. According to him, even the Presiding Officers at concerned polling stations were transferred and appointed before elections in violation of mandatory provisions of Section 9 of the Act of 1976. He contended that the application of applicant was dismissed by the Election Commission on 28.2.2008 without providing opportunity of being heard, which is against the principles of natural justice. He contended that under Section 103-AA of the Act of 1976, the Chief Election Commissioner acting as Tribunal may exercise powers to declare a poll void before expiration of 60 days and even after publication of name of returned candidate in official gazette. He further contended that there are two parallel forums available for trial of the same grievance, firstly under Section 103-AA of the Act of 1976 requiring summary trial by the Chief Election Commissioner having the powers of Tribunal and secondly, a regular trial in manner provided under Section 52 of the Act. of 1976 to be read with Article 225 of the Constitution of Islamic Republic of Pakistan, 1973. He further contended that proceedings under Section 103-AA of the Act of 1976, involving summary inquiry, provisions of Qanoon-e-Shahadat Order as well as principles of natural justice should be dispensed with by the learned Election Commission. He contended that there is a complete failure to exercise jurisdiction by learned Election Commission under Section 103-AA of the Act of 1976 which has prejudiced the case of petitioner. In support, he placed reliance on the cases of Mir Ghalib Domki v. Election Commission of Pakistan & others (PLD 2006 Karachi 314), Syed Saeed Hassan v. Pyar Ali & others (PLD 1976 SC 6) and Agha Ghulam Ali v. Election Commission & others (PLD 1991 Karachi 396).
On the other hand Respondent No. 2 appearing in person controverted above contentions and supported the impugned order. He contended that no rigging, irregularity or any untoward incident has happened in the constituency. He referred to consolidated statement of the results of the count furnished by the Presiding Officers and pointed out that the allegations with regard to change of staff at his behest has no force as out of five polling station he lost in two.
We have considered the arguments advanced by learned counsel for the parties. For better appreciation it would be appropriate to reproduce Section 103-AA of the Act of 1976, which reads as under:--
"103-AA. Power of Commission to declare a poll void,--
(1) Notwithstanding anything contained in this Act, if, from facts apparent on the face of the record and after such summary inquiry as it may deem necessary, the Commission is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll in any constituency ought to be declared void, the Commission, may make a declaration accordingly and, by notification in the official Gazette, call upon that constituency to elect a member in the manner provided for in Section 108.
(2) Notwithstanding the publication of the name of a returned candidate under sub-section (4) of Section 42, the Commission may exercise the powers the powers conferred on it by sub-section (1) before the expiration of sixty days, after such publication; and, where the Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final, subject to a decision of a Tribunal.
(3) While exercising the powers conferred on it by sub-section (1), the Commission shall be deemed to be a Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter VII, regulate its own procedure.
The perusal of above provisions reveal that the Commission shall be deemed to a Tribunal to which an election petition has been presented. Respondent No. 2 appearing in person has placed on record letter No. F.11(157)/2008-LAW dated 18th March, 2008 whereby Chief Election Commission has referred the election petition titled "Syed Fakhar Imam vs. Muhammad Raza Hayat Hiraj and others" relating to Constituency No. NA-156 Khanewal-I to Hon'ble Mr. Justice Hasnat Ahmed Khan, Judge, Lahore High Court, Lahore/Election Tribunal for trial and disposal in accordance with law.
The complaints received by the Commission were not corroborated by any reliable material. The evidence produced by petitioner and his witnesses was vague, sketchy and devoid of any substance to inspire confidence. Moreover, he had failed to furnish full particulars with names, places and the time of alleged corrupt or illegal practice or of any other illegal act as alleged by him to get a verdict in his favour.
It is well settled principle of law that alter the publication of the name of the respondent as a returned candidate in the official gazette the only remedy available to the petitioner was to file an Election Petition as provided under Section 52 of the Act of 1976 before the Election Tribunal appointed under Section 57 of the Act of 1976. The case law cited by learned counsel for the petition does not apply to the facts of the present case. Section 52 of the Act 1976 is expressed in the negative form to exclude the jurisdiction of all other forums, including the Election Commission to call in question the validity of an election, by a contesting candidate for that election, except by an Election Petition to be presented to the Commissioner within forty five days of the publication in the official gazette of the returned candidate. It would be advantageous to reproduce 52 of the Act of 1976, which reads as under:--
"52. Election petition.--No election shall be called in question except by an election petition made by a candidate for that election.
(2) An election petition shall be presented to the Commissioner within [forty five days) of the publication in the official gazette of the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or sub-Treasury in favour of Commissioner, under the prescribed head of account, as security for the costs of the petition, a sum of one thousand rupees.
The submissions made by learned counsel for the petitioner did not make a case for interference in the impugned order. Furthermore, the order of the Election Commission was not liable to be interfered through a Constitution Petition. Irrespective of above, petition was barred by Article 225 of the Constitution.
As regards the claim of the petitioner for change of polling staff is concerned no substantial material has been placed on record. The learned High Court in its jurisdiction under Article 199 of the Constitution cannot grant relief in view of provisions of Article 225 of the Constitution and the Act of 1976 as held in the case of Election Commission of Pakistan v. Javed Hashmi (PLD 1989 SC 396). In our opinion the order of the learned High Court is a just, fair and proper which is calculated to advance the interest of justice and, therefore, this is not a fit case for exercise of our discretionary jurisdiction to grant leave to appeal.
In view of above discussion, the petition being devoid of force is dismissed and leave to appeal is refused.
(R.A.) Leave refused.
PLJ 2008 SC 859
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
FAHEEM AHMED FAROOQUI--Appellant
versus
STATE--Respondent
Crl. A. No. 61 of 2008, decided on 23.4.2008.
(On appeal against judgment dated 3.10.2007 of the High Court of Sindh, Karachi passed in Spl. A.T.A. No. 4 of 2007).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 365-A--Anti-Terrorism Act, 1997--S. 7(c)--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Ingredients of offences punishable u/S. 365-A, PPC and S. 7(c) of Anti-Terrorism Act, were not attracted--Appreciation of evidence--Conviction and sentence recorded against accused by Anti-Terrorism Court and co-accused was acquitted--Appeal was dismissed by High Court--Recovery of abductee--Effect of--Prosecution failed in its primary duty--Evidence was highly discrepant and suffers from serious infirmities and contradictions--Validity--Appellant stated that abductee was required in connection with interrogation of a case--Appellant/accused demanded specific amount for release of abductee--Complainant handed over an envelope of cash to accused and were apprehended by Police--Held: Neither abductee was recovered from custody of accused nor there was evidence regarding passing of ransom amount to accused--No case of abduction of kidnapping was made out and ingredients of offences punishable u/S. 365-A, PPC and S. 7(c) of Anti-Terrorism Act, 1997 were not attracted in the present case--Further held: While extending benefit of doubt in favour of accused in given facts and circumstances--Appeal was accepted. [P. 862] A
Benefit of Doubt--
----Purpose of--No reiteration--For the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of reasonable and prudent mind regarding truth of the charge makes the whole case doubtful--Burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against accused beyond any shadow of doubt--Accused was acquitted.
[P. 863] B
Mr. Muhammad Ashraf Kazi, ASC for Appellant.
Mr. M. Qasim Mirjat, AAG for Respondent.
Nemo for Complainant.
Date of hearing: 23.4.2008.
Judgment
Ijaz-ul-Hassan, J.--This criminal appeal, with leave of the Court granted on 29.2.2008, arises out of judgment dated 03.10.2007 delivered by learned High Court of Sindh, at Karachi, whereby Spl. Anti-Terrorism Appeal No. 4 of 2007 filed by appellant has been dismissed and judgment dated 22.2.2007 passed by learned Judge, Anti-Terrorism Court, Karachi in Special Case No. 32 of 2005 has been maintained.
The prosecution story, as given in the FIR registered on the statement of Rasheed
Hamdani complainant, briefly stated is, that on 30.9.2005, Mst. Daulat, P.W, alongwith her son Fahad
Hamdani and two daughters, was present in her Flat
No. 209 in Gulshan-e-Iqbal', Karachi, when at about 3.30 p.m., someone knocked at the door. Mst. Daulat responded the call. Fahad Hamdani also followed her. On opening the door, they saw a person wearingShalwar' `Qamiz' standing out side. He introduced himself as Faheem
Ahmed Farooqi, D.S.P Crime Branch, Karachi and stated that Fahad Hamdani was required in connection with interrogation of a case and he should accompany him to the Police Station. He took Fahad Hamdani in a private car. After two hours, Mst. Daulat received a telephone call from Fahad Hamdani telling her that the police wanted to involve him in four murder cases and she should contact her brother Muhammad Yaqoob
(absconding accused) for his release. He also stated that Faheem
Ahmed Farooqui, demanded Rs.800.000/- in this regard.
After sometime Muhammad Yaqoob contacted Mst. Daulat stating that the police demanded Rs.8000.000/- for the release of Fahad
Hamdani and the amount should be arranged. She informed her husband complainant Rasheed Hamdani, P.W., serving as Vice President, at Habib Bank Plaza Branch, Karachi, about it. She also narrated the story to the officials of Citizen Police Liaison Committee. (CPLC) At about 12.00 midnight, Ahmed Chinay and Najeeb
Danawala, officials of CPLC came to her residence to apprise them of the situation. In the meanwhile, Muhammad Yaqoob
(absconding accused) contacted complainant and told him that a deal was made and the amount was reduced from Rs.800.000/- to Rs.200.000/- and Altaf Hussain (acquitted co-accused) will collect the amount. Altaf Hussain visited the residence of complainant to receive the amount. The complainant informed the police about it. The police arranged a raiding party. On arrival of Altaf Hussain, where CPLC officials were also present, the complainant handed over an envelope containing cash amount of Rs. 40,000/- and a cheque of Rs. 1,60,000/- to Altaf Hussain. On leaving the flat, the CPLC officials, police and complainant followed Altaf Hussain.
On reaching under the bridge of NIPA Chorangi, Altaf Hussain got down from the motorcycle and delivered the envelope to the person sitting on the driving seat of the car parked there.
Thereafter, Fahad Hamdani alighted from the said car and sat on the motorcycle with Altaf
Hussain. They were chased and apprehended by the police. Fahad Hamdani took them to a bungalow known as "Tima Sunrise
City" and informed the police that he was confined in the said bungalow. The police recorded statement of complainant, which was incorporated in FIR No. 506/2005 dated 01.10.2005 under Section 365-A PPC read with Section 7 of the Anti-Terrorism
Act, 1997.
The police prepared `mashirnama' of the place of recovery and place of abduction of Fahad Hamdani. The police also visited the office of Faheem Ahmed Farooqui and secured the interrogation repot. The appellant was arrested and produced before a Magistrate who carried out an investigation parade in Family Court premises. Mst. Daulat and Fahad Hamdani P.Ws identified appellant to be the culprit. After usual investigation, police submitted challan in the Court against appellant and acquitted co-accused, to face trial.
At the trial, the prosecution in order to prove its case produced as many as 10 witnesses in all. The appellant and acquitted co-accused in their statements recorded under Section 342 Cr.P.C. denial the prosecution allegations and claimed to have been falsely charged. The appellant stated that he was placed under suspension on 27.9.2005. He was not feeling well, as such, he proceeded to his native place `Draza Sharif', Taluka Gambat, District Khairpur. His condition deteriorated and he was shifted to Taluka Medical Science Hospital Gambat, where he remained under the treatment of Dr. Ghulam Rasool Memon. The medical certificate was sent by his brother Naeem Ahmed Farooqui to Deputy Superintendent Police, Industrial Crime Unit (ICU), Investigation Zone Karachi. He also stated that he was not arrested by the police on 20.10.2005. In fact he voluntarily appeared before Deputy Superintendent Police Ch. Aslam on 19.10.2005. The appellant and co-accused neither examined themselves on Oath as required under Section 340 (2) Cr.P.C. nor produced evidence in their defence.
Learned Judge, Anti-Terrorism Court, Karachi on having completed the trial vide a judgment dated 22.2.2007 extended benefit of doubt to co-accused Altaf Hussain and acquitted him while appellant Faheem Ahmed Farooqui was convicted and sentenced to suffer imprisonment for life. His property was also forfeited to the State. He was, however, given benefit of Section 382-B Cr. P.C.
Appellant feeling aggrieved thereby, preferred appeal which was dismissed by a learned Division Bench of the Sindh High Court, at Karachi and maintained the judgment of the trial Court as detailed here-above.
We have heard Mr. Muhammad Ashraf Kazi, learned counsel for the appellant and Mr. M. Qasim Mirjat, learned Additional Advocate General, representing the State. We have also re-examined the entire evidence with their able assistance.
Learned counsel for the appellant empathetically contended that ingredients of offences punishable under Section 365-A, PPC and Section 7(e) of the Anti-Terrorism Act, 1997 are not attracted in this case; that evidence brought on record is full of contradictions and inconsistencies and is not sufficient to connect the appellant with the commission of crime; that identification parade has not been conducted fairly and properly and that the evidence has been disbelieved qua Altaf Hussain co-accused whereas, the same set of evidence has been made basis of conviction of the appellant, resulting in gross miscarriage of justice.
As against that, learned Additional Advocate General, appearing on behalf of the State, controverted the arguments of learned appellant's counsel and supported the impugned judgment maintaining that the learned trial Court as well as learned High Court on the appraisal of evidence and material placed before them came to the conclusion that appellant was responsible for the crime. Their decision on the question of facts not open to challenge in this Court, in the absence of any illegality, misreading or non-reading of evidence.
Having considered the available evidence from all coroners, we are of the view that prosecution has miserably failed in its primary duty to establish the case and bring guilt home to the appellant beyond reasonable doubt. The evidence produced by the prosecution is highly discrepant and suffers from serious infirmities and contradictions and except the bare allegations in the FIR, there is nothing incriminating on the file to connect the appellant with the commission of crime. It may be observed that neither Fahad Hamdani, alleged abductee has been recovered from the custody of the appellant nor there is evidence regarding passing of the ransom amount to the appellant. The mere assertion of the complainant that appellant had a hand in the affair and he is author of the crime, without a positive attempt on his part to substantiate the same, is of no consequence. We find force in the submission of learned counsel for the appellant that no case of abduction or kidnapping is made out and ingredients of offences punishable under Section 365-A, PPC and Section 7(e) of the Anti-Terrorism Act, 1997 are not attracted in this case. Fahad Hamdani P.W. clearly stated at the trial that appellant took him in his care to his house, located in Fatima Sunrise City, Karachi. He was sitting outside the bungalow within the compound for about 35/40 minutes where chowkidar was also present. From the above alleged acts of the appellant, it is quite clear and evident that the alleged detention of the abductee was to extort illegal gratification and not the ransom amount. So far as identification parade is concerned, same is held after six days of the arrest of the appellant and without satisfying the requirements of law.
Adverting to the contention of learned counsel for the appellant, we find that on the available evidence co-accused had been acquitted by the trial Court, whereas, the same set of evidence against the appellant has been believed and relied upon, against whom no appeal has been filed neither by the complainant party nor by the State. When attention of learned Assistant Advocate General was drawn to this aspect of the matter, he had no plausible reply to make.
It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt.
In view of the above discussion, while extending benefit of doubt in favour of the appellant in the given facts and circumstances of the case, he has been found entitled to earn acquittal. Consequently, the appeal is accepted, the impugned judgment dated 03.10.2007 of the High Court of Sindh, Karachi, is set aside and the appellant is acquitted of the charge. He shall be released from jail, forthwith, if not wanted in any other cause.
These are the detailed reasons of our short order dated 23.4.2008.
(R.A.) Accused acquitted.
PLJ 2008 SC 864
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
NASEEB KHAN--Petitioner
versus
DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, LAHORE & another--Respondents
C.P. No. 466 of 2008, decided on 26.5.2008.
(On appeal from the judgment dated 23.1.2008 passed by learned Federal Service Tribunal in Appeal No. 397(R)/2007).
Removal from Service (Special Powers) Ordinance, 2000 (XVII of 2000)--
----Ss. 3 & 5--Constitution of Pakistan, 1973--Art. 212(3)--Dismissal from service--Charge of misconduct as stipulated in S. 3 of Ordinance 2000--Full fledged enquiry is to be conducted in order to give an opportunity to civil servant to clarify his position--Appeal was dismissed being barred by time--Validity--Principle of natural justice--Major penalty was imposed--Regular inquiry is to be conducted and opportunity of defence and personal hearing is to be provided to civil servant proceeded against held by Supreme Court--Held: Civil servant has been condemned unheard and major penalty of dismissal from service has been imposed upon him without adopting the required and mandatory procedure resulting in manifest in justice--Petition allowed. [Pp. 866 & 867] A & B
2004 SCMR 316 & 2003 SCMR 2007.
Mr. Abdul Rehman Siddiqui, ASC with Mr. Arshad Ali Chaudhry, AOR for Petitioner.
Mr. Qamar Zaman Clerk, Litigation Branch for Respondents.
Date of hearing: 26.5.2008.
Judgment
Ijaz-ul-Hassan, J.--Through instant petition under Article 212 (3) of the Constitution of the Islamic Republic of Pakistan, 1973, Naseeb Khan, petitioner, seeks leave against judgment dated 23.1.2008 of learned Federal Service Tribunal, Islamabad whereby appeal of the petitioner, challenging his dismissal from service, has been dismissed, in limine, being barred by time.
Precisely stated facts of the case as gathered from the record are, that petitioner joined service of respondent department as Junior Commercial Assistant Booking (BS-5) on 26.3.1998 and served as such for 14 years. On 10.11.2001 due to demise of his wife, petitioner proceeded on leave. Petitioner was on leave when his father expired on 31.12.2001. According to the petitioner on 26.5.2002, he reported back but he was not allowed to resume duty and issued a show cause notice alongwith statement of allegations for remaining absent from duty without prior permission. The petitioner preferred representation/ appeal which was rejected vide order dated 13.5.2006. Feeling aggrieved, petitioner filed appeal before the Federal Service Tribunal, Islamabad which has been dismissed in limine, as stated above vide judgment impugned herein.
Mr. Abdur Rehman Siddiqui, learned Advocate, appearing for the petitioner argued that learned Tribunal has overlooked the settled law regarding limitation against a void order while dismissing petitioner's appeal as time barred particularly when petitioner's departmental representation was not rejected on the question of limitation and that major penalty of dismissal from service has been imposed upon the petitioner without holding regular inquiry into the matter and without affording opportunity of defence to the petitioner.
We find substance in the submissions of learned counsel for the petitioner. It has been contemplated under Section 5 of the Removal from Service (Special Powers) Ordinance, 2000 that in case of charge of misconduct as stipulated in Section 3 of the Ordinance, a full fledge enquiry is to be conducted in order to give an opportunity to the Civil Servant to clarify his position. Section 5 of the Ordinance is reproduced below for facility sake:--
"Power to appoint an Inquiry officer or Inquiry Committee.--
(1) Subject to the provisions of sub-section (2), the competent authority shall, before passing an order under Section 3, appoint an inquiry Officer or Inquiry committee to scrutinize the conduct of a person in Government service or a person in corporation service who is alleged to have committed any of the acts or omissions specified in Section 3. The Inquiry officer or, as the case may be, the inquiry Committee shall--
(a) communicate to the accused the charges and statement of allegations specified in the order of inquiry passed by the competent authority;
(b) require the accused within seven days from the day the charge is communicated to him to put in written defence;
(c) enquire into the charge and may examine such oral or documentary evidence in support of the change or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witnesses against him; and
(d) hear the case from day to day and no adjournment shall be given except for special reasons to be recorded in writing and intimated to the competent authority.
(2) Where the inquiry officer or as the case may be, the Inquiry Committee is satisfied that the accused is hampering, or attempting to hamper, the progress of the inquiry he or it shall record a finding to that effect and proceed to complete the inquiry in such manner as he, or it, deems proper in the interest of justice.
(3) The inquiry Officer or as the case may be the Inquiry committee shall submit his, or its findings and recommendations to the competent authority within twenty-five days of the initiation of inquiry.
(4) The competent authority may dispense with the inquiry under sub-section (1) if it is in possession of sufficient documentary evidence against the accused, or for reasons to be recorded in writing, it is satisfied that there is no need of holding an inquiry.
(5) Where a person who has entered into plea bargaining under any law for the time being in force, and has returned the assets or gains acquired through corruption or corrupt practices voluntarily, the inquiry shall not be ordered:
Provided that show-cause notice shall be issued on the basis of such plea bargaining to such person informing of the action proposed to be taken against him and the grounds of such action requiring him to submit reply within fifteen days of the receipt of the notice. On receipt of the reply, the competent authority may pass such orders as it may deem fit".
In case of imposing a major penalty, the principle of natural justice requires that a regular enquiry is to be conducted in the matter and opportunity of defence & personal hearing is to be provided to the civil servant proceeded against as held by this Court in the case of Pakistan International Airlines Corporation versus Ms. Shaishta Naheed (2004 SCMR 316) and Inspector General of Police, Karachi and 2 others versus Shafqat Mehmood (2003 SCMR 2007).
Keeping in view the facts and circumstances of the case, we find that petitioner has been condemned unheard and major penalty of dismissal from service has been imposed upon him without adopting the required and mandatory procedure, resulting in manifest in justice.
In view of the above, this petition is converted into appeal and allowed accordingly. The impugned judgment of the Service Tribunal, Islamabad, is set-aside and petitioner is re-instated in service. However, his intervening period shall be treated as leave without pay. The department, may conduct a regular inquiry into the charges against the appellant, if so desired. No order as to costs.
(R.A.) Appeal allowed.
PLJ 2008 SC 867
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
Haji DILDAR KHAN, (since died) and another--Appellants
versus
STATE--Respondent
Crl. A. No. 293 of 1998, decided on 5.5.2008.
(On appeal from the judgment dated 6.11.1998 passed by the Full Bench of the Lahore High Court, Lahore in crl. Original No. 57 of 1998).
Constitution of Pakistan, 1973--
----Art. 204--Contempt of Court Act, 1976--S. 3--High Court holding appellants guilty of Contempt of Court and conviction and sentence--Challenge to--Appellant started shouting in Court room--Appellants/ advocates were directed to stop interfere in proceedings but they did not stop and used contemptuous language against judges--Appellants were found guilty of contempt of Court--Held: Appellant/Advocate has placed himself at mercy of Supreme Court stating that he has highest regard for superior judiciary of Pakistan and cannot even think of committing contempt of Court--Advocate has neither any intention to commit contempt of Court nor have ever done so--If any remarks of the appellant have given impression of disrespect to any judge of High Court, he feel sorry for the same and regret the same--In view of apology tendered by appellant and having regard to facts--Appeal was allowed. [P. 869] A
Haji M. Rafi Siddiqui, AOR for Appellant No. 2 (with in person).
Mr. M. Siddique Khan, DPG for State.
Date of hearing: 5.5.2008.
Judgment
Ijaz-ul-Hassan, J.--Above titled appeal has been filed by the appellants calling in question judgment dated 6.11.1998 passed by learned larger Bench of the Lahore High Court, Lahore, holding appellants guilty of contempt of Court and convicting and sentencing them accordingly.
(I) Haji Dildar Khan, to four months S.I. and a fine of
Rs. 4000/-, or in default whereof, to further undergo S.I. for one month.
(II) Hanif Tahir, to 15 days S.I. and a fine of Rs. 1000/-, or in default whereof to undergo further S.I. for seven days.
(III) The convicts were held entitled to "A" Class in Jail.
(IV) It was also directed that a reference be made to the Punjab Bar Council under Section 41 of the Legal Practitioners and Bar Council Act, 1973 for initiating proceedings in respect of misconduct/indiscipline on the part of the appellants.
(V) Licences of the appellants to practice as Advocates, till the final decision by the Bar Council, under Section 41 of the Legal Practitioners and Bar Council Act, 1973 were also suspended.
The appeal filed by appellants was dismissed for nonappearance and non-prosecution by order dated 16.5.2001. The same was restored by order dated 25.4.2008.
It may be mentioned at the very out set that Haji Dildar Khan, Appellant No. 1, expired during pendency of the appeal. The appeal to his extent stands abated.
Muhammad Hanif Tahir, Appellant No. 2, appeared in person and contended that the contempt proceedings were conducted in total disregard of existing law, relating to contempt of Court, i.e. the contempt of Court Ordinance 1998; that the show-cause notice issued to the appellants was absolutely vague, ambiguous and did not contain the contemptuous conduct and that learned larger Bench proceeded to punish the appellants without framing the charge as required by Section 7(1) of the Contempt of Courts Act, 1976, denying the appellants their right of defence. In support of contentions, reliance was placed on Syed Masroor Ahsan and others versus Ardeshir Cowasjee and others, (PLD 1998 SC 823). Concluding the arguments, appellant invited our attention to para III of the impugned order dated 6.11.2008 and tried to reiterate that on the one hand, appellant has been found for lesser punishment in view of words uttered by him, whereas on the other hand, appellant has been dealt with severely without any justifiable reason.
Mr. M. Siddique Khan, learned Deputy Prosecutor General, representing the respondent, supported the impugned judgment.
The appellant has placed himself at the mercy of this Court stating that he has highest regard for the superior judiciary of Pakistan and cannot even think of committing contempt of Court. He has neither any intention to commit contempt of Court nor have ever done so. If any remarks of the appellant have given the impression of disrespect to any learned Judge of the Bench, he feel sorry for the same and regret the same.
In view of the apology tendered by the appellant and having regard to facts and circumstances of the case, we allow the appeal, and set aside the conviction and sentence awarded to the appellant. The licence of the appellant to practice as an Advocate stands restored. We make no order as to costs.
(R.A.) Appeal allowed.
PLJ 2008 SC 870
[Appellate Jurisdiction]
Present: Sardar Muhammad Raza Khan & Nasir-ul-Mulk, JJ.
UMER SAID etc.--Petitioners
versus
DISTRICT EDUCATION OFFICER (FEMALE), SECONDARY
SWAT etc.--Respondents
C.P. Nos. 563-P to 565-P of 2004, decided on 16.8.2006.
(On appeal from the judgment dated 18.5.2004 of the NWFP Service Tribunal, Peshawar passed in Appeal Nos. 2460, 2461 and 2262/1997).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Reinstatement with back benefits, termination being void ab initio--Entitlement--Validity--Appointments against land being tantamount to sale of public office for property which is not only against the Constitution but also not conducive to public interest--Termination of an employee is void ab initio, they become entitled to reinstatement with back benefits and cannot, despite such decree, be left at the mercy of the department for adjustment, which may or may not occur or which may or may not be possible--Tribunal was, therefore, unlawful and amounted for giving no relief to the successful appellants--Held: Competent authority has in flagrant disregard of the verdict of Supreme Court, had terminated the service of petitioners because they could not donate lands to procure job--Petitioners are reinstated with effect from the date of their removal, with back benefits. [P. 871] A & B
1993 SCMR 1287 (ref.)
Mr. Afridi Khan, ASC with Mr. Mir Adam Khan, AOR for Petitioners.
Mr. Khushdil Khan, Additional AG, NWFP for Respondents.
Date of hearing : 16.8.2006.
Judgment
Sardar Muhammad Raza Khan, J.--Umer Said, Yousaf Khan and Ali Akbar having been appointed as Class-IV employees in the Education Department on 1.9.1995, 15.6.1993 and 17.4.1993 respectively, their services were terminated on 19.7.1997 on the only ground that they were not the donors of land to the department. Through the impugned judgment dated 18.5.2004, the learned NWFP Service Tribunal Peshawar accepted their appeals against such termination but directed the department to adjust the appellants against Class-IV vacancies, as and when occur.
The department has not challenged the judgment aforesaid but present appellants have come to this Court seeking leave to appeal on the simple ground that once their terminations were declared void ab initio, they were bound to be reinstated with all back benefits.
The learned Additional Advocate General informed that the petitioners have accordingly been adjusted with effect from 18.10.2004. Be that as it may, the fact remains that their readjustment was a fresh appointment for all intents and purposes, having not accounted for the period between 1997 to 2004.
This Court in 1993 SCMR, 1287 has categorially observed that the policy of making appointments against land grants is tantamount to the sale of public office for property, and further, that it was not only against the Constitution but also not conducive to public interest. We reiterate that such appointments are void ab initio Amazingly, in the instant cases, the competent authority has, in flagrant disregard of the aforesaid verdict of this Court, had terminated the services of the petitioners because they could not donate lands to procure the job.
Once it is held that the termination of an employee, is void ab initio, they become entitled to reinstatement with back benefits and cannot, despite such decree, be left at the mercy of the department lor adjustment which may or may not occur or which may or may not be possible. The conclusion arrived at by the learned Tribunal was, therefore, unlawful and amounted to giving no relief to the successful appellants. Consequently, the petitions in hand, after conversion into appeals, are hereby accepted and the petitioners are reinstated with effect from the date of their removal, with back benefits.
(J.R.) Appeal Accepted.
PLJ 2008 SC 871
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq & Muhammad Farrukh Mahmud, JJ.
MUHAMMAD HASHIM BABAR--Petitioner
versus
ELECTION COMMISSION OF PAKISTAN, through Secretary
and others--Respondents
Civil Petition No. 317 of 2008, decided on 12.3.2008.
(On appeal from the judgment dated 6.3.2008 passed by Peshawar High Court, Peshawar, in W.P. No. 239/2008).
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 52--Constitution of Pakistan, 1973, Arts. 199 & 185(3)--Leave to appeal--Alternate remedy of election petition--Respondent was declared successful--Official result after consolidation would be announced--Application for recounting of result had become infructuous--Challenged through Constitutional petition--Petition was not maintainable--Assailed--Power of judicial review of High Court--Held: Election authorities failed to discharge their statutory duty, is not curtailed for mere reason that alternate remedy of election petition u/S. 52 of Act, 1976, can be availed. [P. 875] A
PLD 1989 SC 396; 1994 SCMR 1299; PLD 2005 SC 52 and
2006 SCMR 1713
Constitution of Pakistan 1973--
----Arts. 199 & 225--Represetnation of the People Act, (LXXXV of 1976), S. 52--Bar of jurisdiction--Issuance of notification of result of election--Remedy of constitution petition--Bar of jurisdiction--Held: After issuance of notification of the result of election, dispute arising out of election should be brought before election tribunal u/S. 52 of Representation of People Act, by way of an election petition and remedy of constitution petition under Art. 199 is not a proper remedy but bar of jurisdiction contained in Art. 225 of Constitution may not be absolute to oust jurisdiction of High Court under Art. 199 of Constitution in all matters directly or indirectly with election--Further held: Constitutional jurisdiction of High Court can be invoked particularly in the cases in which a pure question of law is raised in constitution petition and question of fact is raised in Constitution petition and question of fact or mixed question of law and fact is not involved. [P. 875] B
Constitution of Pakistan, 1973--
----Art. 199--Constitutional petition--Nature of dispute--Jurisdiction of High Court--Election matter due to bar--Validity--Question relating to exercise of jurisdiction by High Court under Art. 199 of Constitution in election matter due to bar in Art. 225 of Constitution must be determined in light of facts and circumstances of each case as concept of bar of jurisdiction of High Court may not be in wisdom of Constitution--Held: In light of nature of controversy, the petitioner instead of invoking the Constitutional jurisdiction of High Court, should avail the remedy of election petition. [P. 878] C
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 52--Constitution of Pakistan, 1973, Art. 225--Question of jurisdiction--Recount or count of rejected votes--Held: If petitioner avails the remedy of election petition u/S. 52 of Representation of the People Act, before Election Tribunal established in terms of Art. 225 of Constitution--Question relating to recount or count of rejected votes, as the case may be as preliminary issue and without decision of the same in possible short time, will no proceed on merits--Petition disposed of. [P. 879] D
2006 SCMR 1713 ref.
Syed Iftikhar Hussain Gillani, Sr. ASC & Mr. Mehr Khan Malik, AOR for Petitioner.
Dr. Babar Awan, ASC for Respondents.
Date of hearing: 12.3.2008.
Judgment
Muhammad Nawaz Abbasi, J.--This petition for leave to appeal is directed against the judgment dated 6.3.2008 passed by the Peshawar High Court, Peshawar, whereby the Writ Petition No. 239/2008 filed by the petitioner against the consolidation of result prepared by the Returning Officer NA-3, Peshawar, on 20.3.2008, was dismissed as not maintainable.
The facts in the background in the small compass, are that the petitioner contested the election for the seat of National Assembly from constituency N.A.-3, Peshawar-III and as per his claim, he was leading candidate in the result being received from the different polling stations whereas Noor Alam Khan, Respondent No. 4, was following him but later said respondent was declared successful. The petitioner when on 19.2.2008 contacted Returning Officer, he was informed that official result after consolidation would be announced on 20th February, 2008, therefore, the petitioner on the same day moved an application under Section 39(6)(a) of the Representation of People Act, 1976, for recount of the entire ballot papers of the constituency before the consolidation of result. However, the Returning Officer while expressing his inability to entertain such an application, advised the petitioner to approach the District Returning Officer and on the next day on query made by the counsel of the petitioner from Returning Officer about the fate of the application, he was told that after consolidation of result, drawn on Form XVI the application for recounting became infructuous. The petitioner in this background filed a writ petition Bearing No. 239/2008 in the High Court at Peshawar seeking declaration that the consolidation of results prepared by the Returning Officer on Form XVI on 20.2.2008 without proper disposal of the application filed by him under Section 39(6)(a) of the Representation of People Act, 1976 for recount was illegal, improper and without lawful authority. The High Court having considered the matter, in detail, dismissed the writ petition vide order dated 6.3.2008 with the observation that writ petition was not maintainable and petitioner has assailed this order of the High Court before this Court in the present petition.
Learned counsel for the petitioner placing reliance on Abdul Majeed Khan Vs. District Returning Officer (2006 SCMR 1713) has contended that an order passed by an Election authority at any stage before the publication of the notification of official result, if is an order of the nature which materially effected the right of a party and is a patent illegal order, the High Court must not refuse to exercise the power of judicial review in its constitutional jurisdiction under Article 199 of the Constitution. Learned counsel submitted that failure of the Returning Officer not to decide the application moved by the petitioner under Section 39(6)(a) of the Representation of People Act, 1976, before consolidation of final result, would amount refusal of the exercise of jurisdiction vested in him under the law and dismissal of writ petition by the High Court with observation that in view of Section 52 of the Representation of People Act, 1976, read with Article 225 of the Constitution, the remedy under Article 199 of the Constitution, would not be available was in utter disregard of the law and mandate of the Constitution. The next contention of the learned counsel was that according to the un-official result, the petitioner obtained 26201 votes and Respondent No.4 having obtained 27038 votes had a lead of 837 votes but 2566 votes were rejected and in view of the objection of the petitioner, the Returning Officer in all fairness, was required to consolidate the final result after determination of the status of rejected ballot papers through recount in presence of contesting candidates or their agents but the Returning Officer having not discharged his statutory duty committed grave illegality which was overlooked by the High Court in perfunctory manner. In nut-shell learned counsel submitted that in the given facts, the order passed by the Returning Officer and subsequent order passed by the Election Commission of Pakistan on 24.2.2008, whereby the application of the petitioner under Section 103-AA of Representation of People Act, 1976, was rejected summarily was illegal and the same illegality was repeated by the High Court by dismissing the writ petition on the ground that same was not maintainable.
Dr. Babar Awan, learned ASC, counsel for the respondents, on the other hand, has submitted that the statement of the Court pertaining to the different polling stations was prepared in accordance with law on the basis of which result was consolidated, therefore, in the peculiar facts and circumstances of the present case, the petitioner instead of agitating the matter before this Court should avail the proper remedy of election petition provided under Section 52 of the Representation of People Act, 1976. The learned counsel submitted that in any case, in view of the bar of jurisdiction contained in Article 225 of the Constitution, the election dispute could not be raised before the High Court in its constitutional jurisdiction under Article 199 of the Constitution, therefore, dismissal of writ petition was unexceptional.
The sole question requiring consideration in this petition relates to the exercise of jurisdiction by the Returning Officer under Section 39(6)(a) of the Representation of People Act, 1976, and the validity of publication and issue of notification of official result without disposal of such an application. Learned counsel placing reliance on Election Commission of Pakistan Vs. Javaid Hashmi (PLD 1989 SC 396) & Abdul Majeed Khan Vs. District Returning Officer (2006 SCMR 1713) has contended that the power of judicial review of the High Court under Article 199 of the Constitution in the cases in which the election authorities failed to discharge their statutory duty, is not curtailed for mere reason that alternate remedy of election petition under Section 52 of the Representation of People Act, 1976, can be availed. The learned counsel for the respondent, on the other hand, placing reliance on Commission of Pakistan Vs. Javaid Hashmi (PLD 1989 SC 396) as well as Ghulam Mustafa Jatoi Vs. Additional District and Sessions Judge (1994 SCMR 1299), Ayatullah Dr. Imran Liaquat Hussain Vs. Election Commission of Pakistan (PLD 2005 SC 52) & Abdul Majeed Khan Vs. District Returning Officer (2006 SCMR 1713), has submitted that writ petition in such cases may not be the proper remedy.
There is no cavil to the proposition that after issuance of notification of the result of election, a dispute arising out of election should be brought before the Election Tribunal under Section 52 of the Representation of People Act, 1976, by way of an election petition and the remedy of constitution petition under Article 199 is not a proper remedy but the bar of jurisdiction contained in Article 225 of the Constitution may not be absolute to oust the jurisdiction of the High Court under Article 199 of the Constitution in all matters, directly or indirectly concerned with the election. The constitutional jurisdiction of the High Court can surely be invoked in certain situations, particularly in the cases in which a pure question of law is raised in the constitution petition and a question of fact or mixed question of law and fact is not involved. This Court in Abdul Majeed Khan Vs. District Returning Officer (2006 SCMR 1713) held as under:--
"The language used in Rule 36(3) would clearly indicate that the Presiding Officer if he finds that such ballot-paper should not have been so excluded then he should have counted it as a valid ballot-paper in favour of contesting candidate. Essentially when there is no marking aid rubber stamp, no conclusion can be drawn that it has been validly used. Therefore, Returning Officer who, in fact was influenced by the direction of the District Returning Officer, had looked these ballot-papers over-consciously and wrongly included these votes in favour of Respondent No. 5. As has been pointed out hereinabove that whenever there is such an illegality or an order has been passed without jurisdiction and its effect is to disfranchise the candidate, then petition under Article 199 can be maintained."
"6. This is settled law that the Returning Officer in the scrutiny of nomination papers and Election Tribunal in appeal against the rejection of nomination papers can go into all questions of qualification and disqualification of a person relating to his candidature in the summary proceedings and in continuation thereto, the High Court also in its constitutional jurisdiction can entertain the question of rejection or acceptance of nomination papers in the cases in which the disqualification of a person to contest the election, is apparent and can be decided without any factual inquiry. In the present case, the petitioner on the basis of his intermediate certificate allegedly issued to him by the Board of Intermediate and Secondary Education, Lahore, appeared in BA examination of the University of Punjab and the University by virtue of its rules, having gone into the question of eligibility of the petitioner to appear in BA examination at a subsequent stage, revised his result, therefore, the contention of the learned counsel that Election Tribunal under Article 225 of the Constitution, has exclusive jurisdiction to adjudicate the dispute arising out of election process, has no substance. This is correct that in the normal circumstances, the election dispute is challengeable only by an election petition on completion of election process and filing of writ petition at an intermediate stage, may not be justified but there is distinction between Articles 225 and Article 199 of the Constitution. The power of Election Tribunal constituted under Article 225 is confined to the extent of election disputes which may also include qualification and disqualification of a candidate whereas Article 199 of the Constitution is not as such controlled by Article 225 of the Constitution in all matter at all stages of election rather the High Court in exercise of its constitutional jurisdiction may in suitable cases exercise all powers to correct a legal error, defect or disability and has much wider power to that of the power of the Tribunal constituted under Article 225 of the Constitution of Islamic Republic of Pakistan. There is no cavil to the proposition that to avoid multiplicity of litigation and conflict of opinion, High Court may not interfere in the matters arising out of election dispute falling within the scope of Article 225 of the Constitution but nevertheless the jurisdiction of High Court under Article 199 is not ousted for the mere reason that the matter can be brought before the Election Tribunal at an appropriate stage. There is no departure to the rule that there is limited scope of interference of the High Court under Article 199 in an election matter at an intermediate stage, which can be decided by the Election Tribunal but this rule, as such, may not be applicable to be pressed into service to permit a person to enter in the process of election who does not fulfill requisite qualification, therefore, the interference of the High Court during the process of scrutiny of nomination papers in a case in which disqualification of a person is floating on the surface of record is not objectionable instead non-interference of High Court in such a case in its Constitutional jurisdiction, would amount to allow a person who is not qualified to be elected or become Member of the Parliament to contest the election and disturb the whole process. Article 225 of the Constitution, provides that no election to the house of Parliament or Provincial Assembly can be called in question except through election petition before the Tribunal constituted thereunder but the rule envisages therein may not be invariably applicable to all situations at all stages, rather in exceptional case High Court may under Article 199 of the Constitution, interfere to uphold the constitutional mandate. In the case of Election Commission of Pakistan vs. Javed Hashmi (PLD 1989 SC 396), question was raised regarding jurisdiction of High Court under Article 199 vis Article 225 of the Constitution to exercise jurisdiction in election matters at an intermediate stage and it was held that High Court had no jurisdiction to exercise power in such matters under Article 199 of the Constitution. The controversy in the said case related to the appointment of Presiding Officer, Assistant Presiding Officer, Returning Officer and the High Court taking cognizance under Article 199, declared the appointments of polling staff made by the Returning Officer illegal and Returning Officer was directed to make fresh appointments in consultation with District Returning Officer. The interference in the matter of appointment of polling staff was certainly an administrative affair of the election process which was within the exclusive domain of Election Commission and similarly a dispute concerning with the election, would definitely be subject matter of election petition whereas the question relating to the qualification and disqualification of a person would essentially be a pre-requisite to enter into process of election and if a person is not qualified to contest the election, the interference of the High Court against the order of acceptance of his nomination papers would not be in conflict to the provision of Article 225 of the Constitution. The power under Article 199 of the Constitution no doubt can be placed on higher footing to that of power emanating from Article 225 of the Constitution and notwithstanding the fact that two Articles have independent scope, the power of the High Court under Article 199 is not curtailed by the mere fact that question of law brought before the Court directly or indirectly related to the election dispute rather the High Court has to determine the question of its jurisdiction in the light of facts of a case before it and the point involved therein.
The relief claimed in the constitution petition related to the candidature of the petitioner and the precise objection was that he was not a graduate to contest the election. This is not desirable to interrupt the election process except in the manner provided under the law but one cannot agree to the proposition that in case of substantial question of law arising in the election process, the same cannot be at all interrupted by the High Court at the intermediate stage and a blanket ban of jurisdiction should be read into Article 225 of the Constitution to every legitimate challenge of every kind of illegal order passed by an election authority. The order passed by the election authorities beyond the scope of law are not immune from challenge and correction by the High Court under Article 199 of the Constitution and High Court in doing so, must exercise jurisdiction subject to normal rule therefore no hard and fast rule can be made that what type of errors and actions of election authorities are immune from challenge before the High Court at an intermediate stage and in what type of error and action, the interference is possible rather it depends upon the facts of each case, that what type of dispute is brought before the High Court at an intermediate stage and in the light thereof High Court has to decide the question of its jurisdiction."
In view of the legal position explained above and the nature of dispute, the question relating to the exercise of jurisdiction by the High Court under Article 199 of the Constitution, in election matters due to bar contained in Article 225 of the Constitution, must be determined in the light of facts and circumstances of each case as concept of complete bar of jurisdiction of the High Court may not be in the wisdom of the Constitution. Be that as it may, in the present case, the Election Commission as well as the High Court having undertaken the exercise of examination of record observed that in the light of nature of controversy, the petitioner instead of invoking the constitutional jurisdiction of the High Court, should avail the remedy of election petition and we also in the light of facts of the present case and the propositions, raised by the learned counsel for the parties have not been able to differ with the High Court.
The grievance of the petitioner, notwithstanding the question of jurisdiction of the election authorities and the High Court, was confined only to the extent of consolidation of result and the recount of the rejected votes, therefore, we without commenting upon the merits of the case in either way, dispose of this petition with direction that if the petitioner avails the remedy of election petition under Section 52 of the Representation of People Act, 1976, before the Election Tribunal established in terms of Article 225 of the Constitution, the Tribunal at the first instance will consider the question relating to the recount or count of rejected votes, as the case may be as preliminary issue and without decision of the same in possible short time, will not proceed on merits. With the above observation, this petition stands disposed of.
(R.A.) Petition disposed of.
PLJ 2008 SC 879
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Mian Hamid Faqoor & Muhammad Farrukh Mahmud, JJ.
Syed NAYYAR HUSSAIN BUKHARI--Petitioner
versus
DISTRICT RETURNING OFFICER, NA-49, ISLAMABAD
and others--Respondents
Civil Petition No. 316 of 2008, decided on 13.3.2008.
(On appeal from the order dated 29.2.2008 of the Islamabad High Court, Islamabad, passed in W.P. No. 33 of 2008.
Representation of People Act, 1976 (LXXXV of 1976)--
----Ss. 52, 103 & 103-AA--Constitution of Pakistan 1973, Arts. 199 & 185(3)--Legality of the election commissioner--Request for re-counting of ballet papers of all polling stations before the consolidation of final result was rejected--Rejected ballet papers had been included--Polling agents of the petitioner were not allowed to participate in the process of counting--Petition was dismissed on the ground of non maintainability--Held: Application of the petitioner was not considered in proper exercise of jurisdiction and similarly the High Court dismissed the writ petition in a perfunctory manner--Petition disposed of--Election Commission can conveniently take notice of an irregularity committed during process of election in an appropriate case in exercise of its power u/S. 103 r/w S. 103-AA of Representation of the People Act--Further held: High Court in a suitable case can interfere in order passed by election authorities during election process in its Constitutional jurisdiction.
[Pp. 885 & 886] A, B & C
1994 SCMR 1299 + 2006 SCMR 1713 PLD 2005 Sc 52 + 1994 SCMR 1299, Relied.
Syed Asghar Hussain Sabzwari, ASC alongwith Petitioner in person and Ch. Muhammad Akram, AOR for Petitioners.
Mr. Waseem Sajjad, Sr. ASC and Ch. Akhtar Ali, AOR for Respondents.
Date of hearing: 13.03.2008
Order
Muhammad Nawaz Abbasi, J.--This petition has been directed against the judgment dated 03.03.2008, passed by a learned Division Bench of the Islamabad High Court, Islamabad, in the writ Petition Bearing No. 33 of 2008, filed by the petitioner (Syed Nayyar Hussain Bukhari), a candidate in the general elections for the seat of National Assembly (NA-49, Islamabad-II), whereby he questioned the legality of the order dated 20.7.2008 of the Election Commission of Pakistan, and the order dated 23.02.2008 passed by the Returning Officer by virtue of which his request for recounting of the ballot papers of all the polling stations before the consolidation of the final result, was rejected.
The ground urged for recounting of the entire ballot papers of the constituency was that during the initial count, the rejected ballot papers at certain polling stations were wrongly included in the count and the polling agents of the petitioner were also not allowed to participate in the process of counting. The application filed by the petitioner in this behalf was rejected by the Returning Officer whereupon he moved a similar application to the Election Commission of Pakistan which was also rejected on the short ground that from the material available on record, no substantial reason for recounting of the ballot papers was spelt out. The petitioner being aggrieved of the above orders, filed a constitution petition in the Islamabad High Court and the petition was dismissed in the light of the judgment of this Court in Election Commission of Pakistan Vs. Javaid Hashmi (PLD 1989 SC 396) with the observation that after establishment of Election Tribunal in terms of Article 225 of the Constitution, the petitioner may avail the remedy of election petition before the Election Tribunal.
Syed Asghar Hussain Sabzwari, learned ASC, counsel for the petitioner has contended that the request of the petitioner for recounting of the ballot papers under Section 39(6)(a) of the Representation of People Act, 1976, on the ground mentioned therein, was quite reasonable and legal which was rejected by the Returning Officer in an arbitrary manner and further Election Commission of Pakistan also without taking notice of the illegality committed by the Returning Officer, summarily rejected the application of the petitioner for recounting of the ballot papers in complete departure to the mandate of law. Learned counsel taking us to the orders in question, submitted that the refusal of the High Court to interfere in the matter would amount to perpetuate the illegality committed in the consolidation of result under Section 39 of the Representation of People Act, 1976 and notwithstanding the provision of Article 225 of the Constitution, the order passed by the Returning Officer was subject to the correction by the Election Commission of Pakistan in exercise of its powers under Section 103 read with 103-AA of Representation of People Act, 1976, and by the High Court in exercise of the power of judicial review under Article 199 of the Constitution.
Mr. Waseem Sajjad, learned Sr. ASC, counsel for the returned candidate, however, has opposed this petition with the assertion that the Returning Officer after taking into consideration the facts and circumstances of the case in detail, passed a well reasoned order and no valid ground was made out for interference either by the Election Commission of Pakistan or the High Court rather the petitioner on the basis of general assumption sought recounting of entire constituency without pointing out any particular instance of illegality or irregularity in the initial count at any polling station, therefore, in the facts leading to this petition in the background, the petitioner could neither avail the remedy of writ petition nor has been able to make out a case before this Court for interference and instead of agitating recounting at this stage can unhesitantly avail the appropriate remedy of election petition provided under the law.
The general law is that the High Court should not interfere in the election disputes in its constitutional jurisdiction and this Court in Javed Hashmi's case supra has emphasized that in view of the bar contained in Article 225 of the Constitution, the High Court is not supposed to exercise its jurisdiction under Article 199 of the Constitution in election matters. The same view was expressed in Ghulam Mustafa Jatoi vs. Additional District & Sessions Judge (1994 SCMR 1299) with the observation that in exceptional cases the jurisdiction of the High Court under Article 199 of the Constitution can be invoked and same principle was followed in Ayatullah Dr. Imran Liaquat Hussain Vs. Election Commission of Pakistan (PLD 2005 SC 52) but we may point out that the concept of absolute bar of jurisdiction of the High Court in election matters is based on misconception of law. The power of judicial review of the High Court is certainly not available as an alternate remedy in the election matter but if the aggrieved person has no other remedy, the bar of jurisdiction contained in Article 225 of the Constitution, may not affect the jurisdiction of the High Court to entertain a petition involving question of law or interpretation of law in respect of an election dispute.
This Court in Abdul Majeed Khan v. District Returning Officer (2006 SCMR 1713), in an identical situation, held as under:--
"Thus for the foregoing reasons, under the circumstances of the case, DRO under Rule 36(6) has jurisdiction only to direct the Returning Officer for recounting of the votes subject to the conditions prescribed therein and so far Returning Officer is concerned he had to exercise the jurisdiction lawfully keeping in view the provisions of Rules 30(6)(ii), therefore, for such reasons a candidate cannot be allowed to be disfranchised and subject to availability of these conditions writ petitions under Article 199 of the Constitution would be competent particularly in view of the fact the Returning Officer had not left undecided any question for the decision of the Tribunal as has been discussed hereinabove. As a result of above discussion, petition is converted into appeal and allowed."
"Generally in an election process the High Court cannot interfere by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court."
In Civil Petition No. 1 of 2008, Ch. Muhammad Arif Hussain Vs. Rao Sikandar Iqbal and others, decided vide judgment dated 10.1.2008, this Court held as under:--
"6. This is settled law that the Returning Officer in the scrutiny of nomination papers and Election Tribunal in appeal against the rejection of nomination papers can go into all questions of qualification and disqualification of a person relating to his candidature in the summary proceedings and in continuation thereto, the High Court also in its constitutional jurisdiction can entertain the question of rejection or acceptance of nomination papers in the cases in which the disqualification of a person to contest the election, is apparent and can be decided without any factual inquiry. In the present case, the petitioner on the basis of his intermediate certificate allegedly issued to him by the Board of Intermediate and Secondary Education, Lahore, appeared in BA examination of the University of Punjab and the University by virtue of its rules, having gone into the question of eligibility of the petitioner to appear in BA examination at a subsequent stage, revised his result, therefore, the contention of the learned counsel that Election Tribunal under Article 225 of the Constitution, has exclusive jurisdiction to adjudicate the dispute arising out of election process, has no substance. This is correct that in the normal circumstances, the election dispute is challengeable only by an election petition on completion of election process and filing of writ petition at an intermediate stage, may not be justified but there is distinction between Article 225 and Article 199 of the Constitution. The power of Election Tribunal constituted under Article 225 is confined to the extent of election disputes which may also include qualification and disqualification of a candidate whereas Article 199 of the Constitution is not as such controlled by Article 225 of the Constitution in all matter at all stages of election rather the High Court in exercise of its constitutional jurisdiction may in suitable cases exercise all powers to correct a legal error, defect or disability and has much wider power to that of the power of the Tribunal constituted under Article 225 of the Constitution of Islamic Republic of Pakistan. There is no cavil to the proposition that to avoid multiplicity of litigation and conflict of opinion, High Court may not interfere in the matters arising out of election dispute falling within the scope of Article 225 of the Constitution but nevertheless the jurisdiction of High Court under Article 199 is not ousted for the mere reason that the matter can be brought before the Election Tribunal at an appropriate stage. There is no departure to the rule that there is limited scope of interference of the High Court under Article 199 in an election matter at an intermediate stage, which can be decided by the Election Tribunal but this rule, as such, may not be applicable to be pressed into service to permit a person to enter in the process of election who does not fulfill requisite qualification, therefore, the interference of the High Court during the process of scrutiny of nomination papers in a case in which disqualification of a person is floating on the surface of record is not objectionable instead non-interference of High Court in such a case in its Constitutional jurisdiction, would amount to allow a person who is not qualified to be elected or become Member of the Parliament to contest the election and disturb the whole process. Article 225 of the Constitution, provides that no election to the house of Parliament or Provincial Assembly can be called in question except through election petition before the Tribunal constituted thereunder but the rule envisages therein may not be invariably applicable to all situations at all stages, rather in exceptional case High Court may under Article 199 of the Constitution, interfere to uphold the constitutional mandate. In the case of Election Commission of Pakistan vs. Javed Hashmi (PLD 1989 SC 396), question was raised regarding jurisdiction of High Court under Article 199 vis Article 225 of the Constitution to exercise jurisdiction in election matters at an intermediate stage and it was held that High Court had no jurisdiction to exercise power in such matters under Article 199 of the Constitution. The controversy in the said case related to the appointment of Presiding Officer, Assistant Presiding Officer, Returning Officer and the High Court taking cognizance under Article 199, declared the appointments of polling staff made by the Returning Officer illegal and Returning Officer was directed to make fresh appointments in consultation with District Returning Officer. The interference in the matter of appointment of polling staff was certainly an administrative affair of the election process which was within the exclusive domain of Election Commission and similarly a dispute concerning with the election, would definitely be subject matter of election petition whereas the question relating to the qualification and disqualification of a person would essentially be a pre-requisite to enter into process of election and if a person is not qualified to contest the election, the interference of the High Court against the order of acceptance of his nomination papers would not be in conflict to the provision of Article 225 of the Constitution. The power under Article 199 of the Constitution no doubt can be placed on higher footing to that of power emanating from Article 225 of the Constitution and notwithstanding the fact that two Articles have independent scope, the power of the High Court under Article 199 is not curtailed by the mere fact that question of law brought before the Court directly or indirectly related to the election dispute rather the High Court has to determine the question of its jurisdiction in the light of facts of a case before it and the point involved therein.
The relief claimed in the constitution petition related to the candidature of the petitioner and the precise objection was that he was not a graduate to contest the election. This is not desirable to interrupt the election process except in the manner provided under the law but one cannot agree to the proposition that in case of substantial question of law arising in the election process, the same cannot be at all interrupted by the High Court at the intermediate stage and a blanket ban of jurisdiction should be read into Article 225 of the Constitution to every legitimate challenge of every kind of illegal order passed by an election authority. The order passed by the election authorities beyond the scope of law are not immune from challenge and correction by the High Court under Article 199 of the Constitution and High Court in doing so, must exercise jurisdiction subject to normal rule therefore no hard and fast rule can be made that what type of errors and actions of election authorities are immune from challenge before the High Court at an intermediate stage and in what type of error and action, the interference is possible rather it depends upon the facts of each case, that what type of dispute is brought before the High Court at an intermediate stage and in the light thereof High Court has to decide the question of its jurisdiction."
In the light of the judgment of this Court referred above, it is difficult to agree with the proposition that in all election matters at all stages, the jurisdiction of the High Court under Article 199 of the Constitution or that of Election Commission of Pakistan, a Constitutional forum is completely ousted by virtue of Article 225 of the Constitution. We therefore, hold that Election Commission of Pakistan can conveniently take notice of an irregularity/illegality committed during the process of election in an appropriate case in exercise of its powers under Section 103 read with Section 103-AA of Representation of People Act, 1976. Similarly the High Court in a suitable case can interfere in the order passed by the election authorities during the election process in its Constitutional jurisdiction under Article 199 of the Constitution.
The learned counsel for the petitioner without disputing the legal position that the question relating to the recounting of ballot papers can also be adjudicated by the Election Tribunal in an election petition, notwithstanding the order passed by the Election Commission of Pakistan under Section 103-AA of Representation of People Act, 1976, submitted that so long the order passed by the Returning Officer and Election Commission of Pakistan are holding field, the issue relating to the recounting, may have no significance in the election petition. This may be seen that the orders in question were passed at a stage when election process had not yet come to an end, therefore, these orders may have no effect on the subsequent proceedings in the statutory remedy of election petition available under the law in which the proceedings have to be culminated on the basis of its own merits.
Be that as it may, adverting to the question relating to the recounting of ballot papers by the Returning Officer under Section 39 of the Representation of People Act, 1976, and under Section 103-AA of the ibid Act by the Election Commission of Pakistan, we find that the application of the petitioner in this behalf was not considered in proper exercise of jurisdiction and similarly the High Court dismissed the writ petition in a perfunctory manner, therefore, the petitioner may either approach the Election Commission of Pakistan afresh under Section 103-AA of Representation of People Act, 1976, or avail the remedy of election petition under Section 52 of the ibid Act. In view of the above, notwithstanding the judgment of the High Court and the order passed by Returning Officer as well as Election Commission of Pakistan, we direct that subject to all just exceptions, the concerned forum to be chosen by the petitioner, shall decide the matter quite independently on its own merits without being influenced by the orders assailed before us or by this order and also at the first instance, will decide the matter relating to the recounting of the ballot papers as preliminary issue within the possible short time.
This petition with the above observations, stands disposed of.
(R.A.) Petition disposed of.
PLJ 2008 SC 886
[Appellate Jurisdiction]
Present: M. Javed Buttar, Mian Hamid Farooq &
Sheikh Hakim Ali, JJ.
MUHAMMAD LATIF--Appellant
versus
STATE--Respondent
Crl. A. No. 157 of 2003, out of J.P. No. 39 of 2002, decided on 10.3.2008.
(On appeal from the judgment dated 3.9.2001, passed by the Lahore High Court, Rawalpindi Bench, in Crl. A. No. 255-T/1999).
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302 & 201--Anti-Terrorism Act, 1997, S. 7-1(A)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Tripple murder--Conviction and sentence recorded against accused--Sentence was affirmed by High Court--Assailed--Un-witnessed occurrence--No person was nominated in F.I.R.--Appreciation of evidence--Motive--Validity--No case of motive was set up by prosecution in F.I.R.--Clue of motive was given out by accused for commission of such heinous crime of murder of three human beings, when he confessed his guilt before witnesses--Held: Upon circumstantial evidence, one cannot be convicted and awarded penalty of death--No bar or hindrance to pass sentence upon a killer of three human beings when chain of guilt is found not be broken and irresistible conclusion of guilt is surfacing from evidence which connected accused with commission of that offence without doubt--Appeal dismissed. [P. 893] B & C
Extra-judicial Confession--
----Corroborative and cogent evidence--Extra-judicial confession made before persons from whom accused considered to be valuable persons for his assistance could not be disbelieved, when they had deposed it on oath before the Court--Disclosue of offence from mouth of accused had let to other corroborative and cogent evidence proving the commission of offence by accused. [P. 894] D
Words & Phrases--
----Motive--Black Law Dictionary (6th Edition). [P. 892] A
2001 SCMR 726 + 2001 SCMR 73 + 2004 SCMR 1676+ PLD 2004 SC 563 + PLD 2006 SC 354 + PLD 2007 SC 453, Ref.
Mr. Javed Aziz Sindhu, ASC. for Appellant.
Mr. Muhammad Ilyas Siddiqui, ASC. for Complainant.
Nemo for State.
Date of hearing: 06.03.2008
Judgment
Sheikh Hakim Ali, J.--A murderer of three lives, one of them an innocent baby of four months and two other women, is the appellant of present appeal, who has assailed the convicting judgment dated 03.09.2001, delivered by learned Lahore High Court, Rawalpindi Bench, which has affirmed the penalty of death, pronounced upon the appellant, by learned Judge Special Court-II, Anti Terrorism Court Rawalpindi on 23.10.1999.
The beginning of instant criminal case was the result of a statement made by one Muhammad Nazir S/o Fazal Hussain, caste Awan, resident of Farid Kasar, Tehsil and District, Chakwal, which was narrated by him to S.I./SHO, Chakwal Police Station, on 23.04.1999, (vide Exh.P.A). registered at the Police Station at No.71 in the register of First Information Report, under Section 302 of the PPC. As per version of Muhammad Nazir, his sister Mst. Begum Noor was married to Subedar Murid Hussain, who was residing in Mohallah Umerabad, Tehsil Chakwal, since 14/ 15 years ago. Murid Hussain had expired about one year before the incident, whose two sons Sajid Mehmood and Tahir were in service at Karachi. The elder son namely, Sajid Mehmood was married one year before with Mst. Samina Begum from whose womb baby, namely, Aqsa was born, who was of four/five months of age, alive and residing with Mst. Begum Noor. On 23.04.1999 Muhammad Saeed Komhar was sent to inform Mst. Begum Noor with regard to death, having taken place in Farid Kasar Village. But up on his return, it was apprised by him to the informant that house of Mst. Begum Noor was locked. At about 3:00 p.m., when funeral prayer was offered in Village Farid Kasar and Mst. Begum Noor had not arrived in that village, the informant felt perturbed, so he reached the house of Mst. Begum Noor to discover as to why she had not arrived. He found the outside gate locked and smoke of fire was billowing out from inside the house. He immediately with the assistance of neighbours and others namely, Iftikhar Hussain (PW-2) and Muhammad Bashir (PW-11), unlocked the house, with their help opened the door, and disconnected the Electricity and Gas connections. Through telephonic message, he informed the Fire Brigade, the staff of which had reached at the spot with Tank and the Fire was extinguished. After that, they found in the house dead bodies of his sister Mst. Begum Noor, Mst. Samina Begum, daughter-in-law of aforementioned Mst. Begum Noor and baby, namely, Aqsa, whose throats were found cut. As the murderer was not known, so no person was nominated in the aforesaid FIR. Upon the imparting of those information, investigation had commenced. On 27.04.1999 when Zafar-ul-Islam, member of District Council, Chakwal and Amir Muhammad Khan Lambardar, were present in the house of Muhammad Nazeer for offering Fateh Khawani of his deceased sister, Muhammad Latif, the present accused asked the aforementioned witnesses to give him sometime for having a talk of very important nature. When they came to the drawing room (Baithak) of Amir Muhammad Khan, aforesaid Muhammad Latif, the present appellant, disclosed there, the commission of the offence of murder of Mst. Begum Noor, Mst. Samina Begum and the minor Aqsa. Upon this disclosure, both these persons escorted the appellant to the Police Station but in the way SHO Mansaf Khan met them, to whom the accused was handed over. After usual investigation, the police, found guilty the accused for the commission of offence of killing of three human beings, so he was sent up to face the trial before the learned Judge Special Court-II, Anti Terrorism, Rawalpindi.
After the accused was charge sheeted on 15.9.1999, the prosecution produced as many as 19 witnesses, whose names are given as under:--
Muhammad Nazir (PW-1)
Iftikhar Hussain (PW-2)
Zafar-ul-Islam (PW-3)
Amir Muhammad Khan (PW-4)
Saeed Asghar (PW-5)
Muhammad Aslam (PW-6)
Muhammad Sharif (PW-7)
Khalil Ahmed (PW-8)
Safdar Hussain (PW-9)
Sajid Mehmood (PW-10)
Muhammad Bashir (PW-11)
Dr. Bushra Naz (PW-12)
Dr. Munir Ahmed Langa (PW-13)
Muhammad Hafeez (PW14)
Ghulam Mustafa (PW-15)
Muhammad Yousaf (PW-16)
Mansaf Khan (PW-17)
Raja Sultan Fiaz Kayani (PW-18)
Muhammad Ashraf (PW-19)
The statement of Muhammad Latif under Section 342 of the Cr.P.C. without oath was recorded on 15.10.1999. He also produced two witnesses namely, Abdur Rehman and Ahmed Din, who had appeared as DW-1 and DW-2 in defence evidence. The evidence of both these witnesses is with regard to the gentleman reputation of the accused. Learned Judge Special Court-II, Anti-Terrorism Rawalpindi on 23.10.1999 found the appellant guilty for the commission of a terrorist act and had convicted him under Section 7-1 (A) of the Anti Terrorism Act 1997 and punished him with death. Appellant was also convicted under Section 302-B, of the PPC and punishment of death was awarded to him on three counts. He was further ordered to pay compensation of Rs.200,000/- to the legal heirs of the each deceased or to suffer simple imprisonment of 6 months against each default to pay the compensation. He was further convicted under Section 201 of the PPC with rigorous imprisonment for a term of 7 years and with a fine of Rs. 10,000/-. In default to pay the amount of fine to suffer simple imprisonment for two years. This judgment, which was pronounced upon the appellant by learned Judge Special Court-II, Rawalpindi on 30.10.1999 was appealed against in the Lahore High Court, Rawalpindi Bench, from where the same became the fate of the appellant, as the sentence was affirmed by the learned Judges of the Division Bench of the aforementioned Court, on 3.09.2001. Hence, this Jail Petition No.39 of 2002, which was where-after converted into Criminal Appeal No.57 of 2003 by granting of leave.
Although appeal is barred by 130 days but for the safe administration of criminal justice, the delay has been ignored and condoned.
Learned counsel appearing on behalf of the appellant on state expense has made the following submissions to obtain acquittal or in the alternative conversion of the death sentence to that of life imprisonment of the appellant:--
(i) The occurrence was un-witnessed, therefore, for the safe administration of justice the appellant might have been acquitted.
(ii) Appellant has been convicted upon circumstantial evidence, which may be best but it cannot bring conviction of the petitioner as the appellant was not connected with the commission of the above noted offences.
(iii) Punishment of death is uncalled for in the instant case as the prosecution has failed to prove the motive for the commission of offence, therefore, it may be treated as mitigating circumstance for conversion of death sentence to life imprisonment.
(iv) Alleged Extra judicial confession of the appellant before Zafar-ul-Islam (PW-3) Member, District Council and Amir Muhammad Khan, Lambardar of Farid Kasar (PW-4) being a weakest piece of evidence should not have been believed to award capital punishment of death.
(a) There was no enmity with the appellant of the informant. It was, therefore, appellant was not nominated in the FIR from the inception. It was the disclosure made by the appellant himself before impartial and independent witnesses (PW-3) Zafar-ul-Islam, Member District Council and Amir Muhammad Khan (PW-4), Lambardar Farid Kasar, respectively, who had produced him before the SHO concerned.
(b) Upon the information which the appellant had given to the police, fruit chat was recovered, which was found containing tranquilizer, which was administered by the appellant to Mst. Begum Noor and Mst. Samina Sajid, the unfortunate victims of the occurrence.
(c) After examination of the dead bodies of Mst. Begum Noor and Mst. Samina Sajid from their stomach tranquilizer was also detected.
(d) Blood stained churry (P-15) got recovered by the appellant himself from the house in question. The blood found upon the churry was found to be of human origin by the report of Chemical Examiner.
(e) Blood stained Shalwar (P-5) was also got recovered by the appellant from his own house of Village Rawalzar, which was also found blood stained.
(f) Four gold bangles, which were removed by the appellant from the arm of Mst. Samina Sajid were sold to Al-Hafeez, a Gold Smith at Taxila (PW-14), which fact was also disclosed and those were got recovered by him.
(g) The last seen evidence of Iftikhar Hussain (PW-2) who had noticed Muhammad Latif accused putting lock on the outer gate of the door of the house of Mst. Begum Noor on 03.04.1999.
(h) All the PWs were independent witnesses having no aim or purpose to implicate the accused or to make statements against the accused. Appellant having committed murder of three human lives was not entitled to acquittal, accordingly, the learned counsel has prayed for dismissal of the appeal by maintaining the sentences awarded to the appellant.
I have scanned the record of the case and considered the arguments of learned counsel. Before dilating upon the other parts of argument of the learned counsel, I would like to discuss the last point first, raised by the learned counsel for the appellant that the prosecution has failed to prove the motive for the commission of the offence.
Before proceeding to discuss the latest Case Law on the subject, I shall prefer to note the definition of "motive". According to Black Laws Dictionary (6th Edition), the motive has been defined "an idea, belief or emotion that impels or incites one to act in accordance with his state of mind or emotion." "It is the inducement which impels or leads the mind to indulge in a criminal act." "Motive" is said to be the moving course, the impulse, the desire that induces criminal action on the part of accused."
To say it in my words, "motive" can be defined as the energetic source of the mind which provides propelling force and gives an impetus to perform any action or to do any act. To elaborate it further these emotions are, in other words found concealed in the thoughts and mind of an accused, which remains secret and concealed till their exposure through spoken words or actions and these can be adjudged from the events occurred or to have taken place or going to happen at a relevant given time. To be more specific on this subject, it is the cause, manner and method of thoughts in the mind of a person for performing an action, which is hidden in his mind. Therefore, the motive is primarily known to the accused and not to the complainant or to an informant or any other witness of the occurrence unless it is impliedly or explicitly expressed. The aforesaid person, in fact, can explain and convey the action which are performed by him in the commission of an offence. In fact, the others express their conclusions drawn from the happenings and events occurring or narrations supplied to them at the relevant moment, incidents or occurrences, which can be considered the causes and reasons for the commission of an offence by an accused. The actuality which is the real cause or force for the commission of an offence is truly known to an accused. The others actually adjudge it and give out the name to the cause or reason to the doing of an act or series of acts of an accused person from the happenings or reproduce the spoken words, if those became known to them from the accused or any other one. Seen from this angle, in fact, the real motive is known to the accused and not to the other person, who ornaments those actions by their own opinions or from hearings.
Therefore, the old rule of failure of prosecution to prove the motive, took the change through the judgments of the Superior Courts with the passage of time. Now-a-days, lack, absence, inadequacy, weakness, or the motive, if any, set up by the prosecution and failure to prove it or the motive is shrouded in mystery, are not the grounds to withhold penalty of death or to order the sentence of life imprisonment, if the prosecution has succeeded to prove its case beyond any doubt or suspicion with regard to the commission of the offence.
The following judgments upon this subject from this Apex Court are of worth considerations:--
2001 SCMR 726 [Nawaz Ali and another Vs. The State), 2001 SCMR 73 (Muhammad Ashraf Vs. The State), 2004 SCMR 1676 [Federal Government Ministry of Defence Vs. Sepoy Liaqat Ali), PLD 2004 SC 563 (Mukhtar Ahmad and others Vs. The State), PLD 2004 SC 44 (Muhammad Akbar and another Vs. The State), PLD 2006 SC 354 (Khurram Malik and others Vs. The State and others), PLD 2007 SC 453 (Mst. Nazakat Vs. Hazrat Jamal and another).
I have also noted that no case of motive was set up by the prosecution in the FIR as no person was nominated as an accused in the FIR. Appellant was not involved for the commission of murder of the two ladies and the baby in the FIR. In fact, the clue of motive was given out by accused himself for the commission of this heinous crime of murder of three human beings, when he had confessed his guilt before PW-3 Zafar-ul-Islam, and Amir Muhammad Khan PW-4, therefore, the prosecution cannot be allowed to suffer for that.
As far the contention of the learned counsel that upon circumstantial evidence, one cannot be convicted and awarded the penalty of death, this plea is also misconceived because there is no bar or hindrance to pass the sentence upon a killer of three human beings when the chain of guilt is found not to be broken and irresistible conclusion of the guilt is surfacing from the evidence, which is connecting the accused with the commission of that offence without any doubt or suspicion. If the circumstantial evidence brought on the record is of such nature than the conclusion would be in the shape of conviction and no other conclusion shall be drawn by any stretch of imagination in such a case, for the guilt of the accused, penalty of death or life imprisonment shall be a normal event. The following judgments can be cited with benefits for this proposition:--
2004 SCMR 331 (Khuda Bukhsh Vs. The State), 2007 SCMR 58 (Faisal Vs. The State), 2007 SCMR 518 (Sheraz Tufail Vs. The State), 2007 SCMR 525 (Israr Ali Vs. The State), 2007 SCMR 78 (Binyamin alias Khari and others Vs. The State), 2007 SCMR 808 (Ghulam Nabi Vs. The State), 2007 SCMR 876 (Muhammad Akhtar Vs. The State).
(i) Informant had not nominated the appellant in the FIR for the commission of the offence. This fact itself shows that the informant had no ill-will or malice to implicate the accused in the commission of this offence, otherwise he could have easily ascribed the role of at least suspicion of the commission of offence to the appellant in the FIR at the very inception.
(ii) There is last seen evidence of PW-2, Iftikhar Hussain, who had noted the appellant locking the outer door of the house of Mst. Begum Noor on 03.04.1999, after the incident had taken place. Amazingly, this statement of PW-2, Iftikhar Hussain was not cross-examined although opportunity was given to the accused. The legal consequence of having not cross-examined this material fact is commonly known to all and sundry that the material facts of that piece of evidence is admitted correct.
(iii) The appellant had himself disclosed the commission of the offence to PW-3, Zafar-ul-Islam, Member, District Council, Chakwal and Amir Muhammad Khan PW-4, Lambardar of Village Farid Kasar. Both these witnesses were also cross-examined and it was not brought on the record that these witnesses were hostile towards the accused. Amir Muhammad Khan (PW-4) was of 68 years of age and had no reason to involve the appellant in such a grave commission of offence.
Their evidence has been found consistent and the accused has not been able to shake their credence, therefore, the extra judicial confession made before these persons, from whom the appellant considered to be valuable persons for his assistance could not be disbelieved, when they had deposed it on oath before the Court. In fact, this disclosure of offence from the mouth of appellant had led to other corroborative and cogent evidence proving the commission of offence by the accused, which are as under:--
(a) It was the appellant who had disclosed that he had administered fruit chat consisting of tranquilizer to the deceased ladies. The fruit chat was recovered at his pointation and sent to chemical examiner from where opinion was in affirmation. This fact of administering intoxicated fruit chat to the deceased ladies was further strengthened when the body of these ladies were exhumed and from their stomach, the tranquilizer contents were discovered by the expert. Both these information were conforming to exclusiveness kind of information, which was disclosed by the accused himself, otherwise these could and were not known to the prosecution before itself disclosures.
(b) Appellant had led to the recovery of blood stained churry (P-15) from a place, which was exclusively in his knowledge i.e. den of hens (Darba). This blood stained churry was also got examined from the expert who had found upon it the human blood. This natured evidence was disclosing exclusive and specific knowledge of the accused which was also an incriminating piece of evidence.
(c) Appellant had got himself recovered the blood stained shalwar from his house, which was situated in village Rawalzar. This was also another corroborative piece of evidence. This blood stained Shalwar was also examined by the Chemical Examiner, who had reported to have found human blood on it.
(d) Four gold-bangles, which were worn by Mst. Samina Sajid at the time of her murder, were taken away by the appellant and sold to Muhammad Hafeez, a Gold Smith at Taxila. It is important to note that main Bazar Taxila is a far away city from the place of occurrence, which is the city of Chakwal. Muhammad Hafeez had got no enmity against the accused so as to involve falsely the appellant in the case. Muhammad Hafeez had appeared as (PW-14) and had identified the appellant, the person who had sold those gold-bangles. It is worth mentioning at this juncture, that the presence of the appellant at Taxila was also explained on the record when we found that sister of appellant was married there in the city of Taxila.
(e) When the accused was arrested on 27.04.1999 a receipt
(P-6) dated 23.04.1999 issued by Al-Hafeez Jeweller of Taxila for the sale of bangles was recovered from the personal search of the accused, which was thereafter verified by (PW-14) Muhammad Hafeez Gold Smith owner of Al-Hafeez Jewellers of Taxila.
to deprive a soul from his berth is the most sinful act;
to take the life of a human being is the most reprehensible, satanic act;
as the death of one human is the death of whole of the
Humanity;
life of human being is a precious gift of Almighty Allah, The
Creator of Universe.
no one can be allowed to snatch it away through his vicious
act.
(T.A.F.) Appeal dismissed.
PLJ 2008 SC 896
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ., Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
CHAIRMAN PAKISTAN ENGINEERING COUNCIL, ISLAMABAD and others--Petitioners
versus
MUHAMMAD MAJID HANIF and others--Respondents
C.P.L.A. Nos. 42 & 224 to 227 of 2008, decided on 5.3.2008.
(On appeal from the judgment dated 6.12.2007 in W.Ps. No. 2615-2006/BWP, 1693-2007/BWP, 1716-2007/BWP, 1745-2007/BWP and 1948-2007/BWP passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur).
Educational Institution--
----Respondent get admission in B.Sc (Electronics Engineering) Course in University College of Engineering and Technology, in year 1999 and they were declared successful--Respondents applied to different organizations to obtain for jobs but they were disappointed to know that Pakistan Engineering Council (PEC) had not accorded accreditation to the College --PEC issued the required accreditation for the students who joined the institution in the year 2003 and onward--Petitions were allowed--Assailed--PEC was responsible for such on omission rather there was slackness on its part to impart reply of acceptance or refusal to university with regard to the year of which session it had commenced from 1999 onward and that it was duty of PEC to accord permission of accreditation or to decline it with reasons--University College of Engineering and Technology was no lacking requirements necessary for grant of accreditation--Validity--Lacking in requisite qualifications--Held: High Court was right in saying that inaction on the part of the petitioner was the main cause and future of those students who were not at fault and had studied for full four years by toiling day and night to gain success could not have been allowed to be marred or destroyed by the petitioner's refusal to accredit the College without any reason--Petitions dismissed. [P. 900] A & B
Hafiz S. A. Rehman, Sr. ASC with Mr. M. A. Zaidi, AOR, for Petitioners.
Mr. Muhammad Ozair Chughtai, ASC/AOR, for Private Respondents.
Date of hearing: 05.3.2008
Judgment
Ch. Ejaz Yousaf, J.--By this common judgment we intend to dispose of all these five petitions which are directed against a common judgment dated 6.12.2007 passed by the learned Single Judge of the Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby the Writ Petitions filed by the private respondents were allowed.
Facts of the case in brief are that private respondents had got admission in B.Sc. (Electronics Engineering) Course in University College of Engineering and Technology, Islamia University, Bahawalpur (hereinafter referred to as the said College), in the year, 1999. After studying for four years they, in 2003, were declared successful by the Islamia University of Bahawalpur (hereinafter referred to as the said University). Thereafter the private respondents applied to different organizations to obtain services/jobs but were disappointed to know that Pakistan Engineering Council (hereinafter referred to as PEC) had not accorded accreditation to the said College. Private respondents, therefore, approached the Respondents No. 2 & 3, when it transpired that the Islamia University although had been striving hard for the accreditation with PEC but PEC despite visiting the said College, had not issued the required accreditation for those students who had joined aforesaid institution in the year 1999, except for the academic year 2003 and onwards. Having been left with no remedy, the private respondents approached the High Court by way of Constitutional Petitions referred to herein above which were allowed vide the impugned judgment, hence these petitions.
Hafiz S.A. Rehman, Sr. ASC, learned counsel for the petitioners has submitted that PEC is a statutory body constituted by PEC Act, 1976. The preamble of the Act clearly states that the Council shall regulate the engineering profession with the vision that the engineering profession shall function as a key driving force for achieving rapid and sustainable growth in all national, economic and social fields. The Council also maintains realistic and internationally relevant standard of professional competence and ethics for engineers, technologist and technicians and also licence them to competently and professionally promote and uphold the standards. The Council also functions as an apex body to encourage and promote the pursuit of excellence in engineering profession and regulates the quality of engineering education, the practice of engineering and technology. Jurisdiction/authority to accredit the engineering programme of Universities and registered engineers as such rests solely with the petitioners under Sections 10 and 14(1) of the PEC Act, 1976. He added that after learning about the announcement made by the Prime Minister of Pakistan regarding establishment of Engineering College at Bahawalpur, the PEC had informed the Vice Chancellor of the said University, i.e. the Respondent No. 2, about the pre-requisites and mandatory requirements of the accreditation vide letter dated 26.2.1999. In May 2000, they were again informed to apply for accreditation on AC-1 Form of PEC and they were also provided guidelines for establishment of engineering Programme in Pakistan. In June 2000, the acting Principle of Respondent No. 3 confirmed that they were arranging staff and equipments for the college, therefore they would submit prescribed proforma for accreditation afterwards. However, the college without seeking accreditation/registration with PEC started admission before hand on their own peril and responsibility. PEC received their first application on 18.3.2003 vide their letter dated 11.3.2003 along with partial fee. In May 2003, PEC informed that their accreditation visit would be carried out in June 2003 to ascertain as to whether the institution/college fulfils the required criteria for accreditation, but the PEC was restrained from visiting the institution. In July 2003, PEC again informed the Principal that further delay in visit would affect adversely and advised them to provide technical information immediately. In August 2003, their AC-1 Form was returned due to lack of teaching faculty. Thereafter, neither Respondent No. 3 nor Respondent No. 2 applied for accreditation until 18.11.2006 when they applied for accreditation of their BSc. Electronics Engineering Programme only for 2003 which programme was provisionally allowed for accreditation in 2003, but the earlier programme of 1999 onwards was continued by the college unlawfully and illegally without any facility and without teaching material equipment as was required under the regulations, consequently, PEC's accreditation team informed Respondent No. 3 that visit will be carried out during 2nd - 3rd week of February 2007 and immediately thereafter. He further added that prior to starting of Bachelor of Engineering classes, Respondents No. 2 & 3 were well informed of the mandatory requirement of accreditation by PEC under Section 10 of PEC Act, 1976 that accreditation of an engineering programme by PEC was mandatory. It was also mandatory for every employer to assign professional engineering work to only those who were registered with PEC as required under Section 27 of PEC Act, 1976. He maintained that in the circumstances, the High Court had gone wrong in law by directing the petitioners to allow accreditation to the said College, for the years 1999 to 2003, as it could not have assumed power which was vesting in the petitioners exclusively.
Mr. Muhammad Ozair Chughtai, learned counsel for the private respondents, on the other hand while controverting the contentions raised by learned counsel for the petitioners, submitted that B.Sc. course in the University College of Engineering & Technology, Islamia University, Bahawalpur, was started pursuant to an announcement and direction made by the Prime Minister of Pakistan. Eversince its inception, the University was striving hard to get accreditation with the PEC, however, the needful was avoided by the petitioners on one pretext or the other until 2007, when in consequence of accreditation & Quality Evaluation Committee's (EA & QEC) meeting held on May 2 & 3 of 2007, University College of Engineering and Technology, Islamia University, Bahawalpur, was accorded one year intake of Batch, 2003 only however, nothing was mentioned about the students who had joined the said College, in the year 1999 and thereafter. He maintained that the said College was treated discriminately by the PEC inasmuch as that Dawood College of Engineering and Technology, Karachi, NFC Institute of Engineering & Technological Training, Bahauddin Zikaria University, Multan, Pakistan Navy Engineering College, Karachi and so many other institutions were accorded accreditation by the PEC with retrospective effect, but the respondent College was not accorded accreditation from the year 1999 i.e. from the date of their application. The private respondents and other students who had joined the said College in the year, 1999 and thereafter, were deprived of the benefit of which they were entitled, resultantly they were refused jobs. He added that same issue came up for consideration in the case of CECOS University of I.T. & Emerging Sciences, Peshawar, in Writ Petition No. 119/2004 titled "Pervaiz Afzal and others versus Pakistan Engineering Council and others" filed in the Peshawar High Court which was accepted on 5.8.2004 and the PEC, in compliance of that order, implemented the decision. He maintained that in the circumstances of the case, the impugned judgment was unexceptionable.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case, minutely with their assistance.
Admittedly, respondent College was granted accreditation by the PEC in the year 2003 but with the intake of Batch 2003 only and nothing was mentioned with regard to the students who had joined the said College in the year, 1999 and thereafter. The learned Judge in the High Court while taking notice of the situation has, in the impugned judgment, unequivocally held that PEC was responsible for such an omission rather there was slackness on its part to impart reply of acceptance or refusal to the University College of Engineering and Technology, Islamia University, Bahawalpur with regard to those years of which session it had commenced from 1999 onward and that it was the duty of the PEC to accord permission of accreditation or to decline it with reasons and to inform the said College about its decision but their inaction adversely affected future of the students besides damaging reputation of the institution and that grant of accreditation for one year by the PEC is indicative of the fact that the University College of Engineering and Technology, Islamia University, Bahawalpur, was not lacking the requirements necessary for the grant of accreditation.
It is not disputed by the petitioners that University College of Engineering and Technology, Islamia University, Bahawalpur, had applied for accreditation initially in the year 1999, whereafter the matter remained under consideration, as correspondence was being made by the parties. As stated above, Respondent No. 3, was granted accreditation in the year 2007 with the intake of batch of 2003 only, meaning thereby that accreditation was not prospective but it was with retrospective effect. It has been contended on behalf of the petitioners that since the institution was lacking in requisite qualifications/facilities prior to 2007, therefore, accreditation could not have been afforded but the argument has the germs of its own destruction for the simple reason that if the College was lacking in requisite qualifications, Prior to 2007, say in the year 2006, as to how then accreditation could have been accorded retrospectively with the intake of the batch of 2003? The decision made by the petitioner, therefore, leads to the clear inference that in the year 2003, too the institution was not lacking in the requisite qualifications of teaching material and equipments. In our view, therefore, the learned Judge in the High Court was right in saying that inaction on the part of the petitioner was the main cause and future of those students who were not at fault and had studied for full four years by toiling day and night to gain success could not have been allowed to be marred or destroyed by the petitioner's refusal to accredit the College without any reason. We have specifically questioned the learned counsel for the petitioners as to how accreditation was accorded to the other universities, retrospectively, but he is unable to answer the query.
Upshot of the above discussion is that we see no merit in these petitions which are accordingly dismissed and leave declined.
(R.A.) Petitions dismissed.
PLJ 2008 SC 901
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Muhammad Moosa K. Leghari, JJ.
FEDERATION OF PAKISTAN through Secretary, Govt. of Pakistan Establishment Service Tribunal, Islamabad and another--Petitioners
versus
Flt. Lt. FARRUKH RASHID (R) and another--Respondents
C.P. No. 645 of 2007, decided on 4.12.2007.
(On appeal from the judgment dated 8.5.2007 of the Federal Service Tribunal, Islamabad passed in Appeal No. 1410(R) CS/05).
Constitution of Pakistan, 1973--
----Arts. 185(3) & 212(3)--Service matter--Dismissal from service--Leave to appeal--Termination orders were set aside by Service Tribunal--Reinstatement of civil servant with all consequential benefits--Respondent stood first in the list of the qualified PAF officer--Petitioner did not recommended--Constitutional petition was accepted--ICA was dismissed--Show-Cause Notice "as to why his appointment having become irregular in view of decision--Law Division advised establishment to withdraw show-cause notice but the service of the respondent was terminated--Validity--Held: Respondent was entitled to continue his service being nominee of PAF with Punjab domicile--His appointment was valid on merit and on the basis of quota based policy--Supreme Court has in fact, agitated his own right of appointment based on principle of quota policy vested right was created in favour of respondent--No justification to ignore opinion of law Justice Division--Leave refused.
[Pp. 906 & 907] A
Principle of Locus Poentientiae--
----Maxim "Locus Penitential" Order having taken legal effect and created certain rights cannot be withdrawn or resend. [P. 906] B
Ms. Nahida Mehboob Ellahi, DAG with Mr. M.S. Khattak, AOR a/w, Mr. Ali Abid, JS Estb. Div., Syed Asghar Ali Shah, DS, Estb Div, Ch.Mubarik Ali, DS (Legal) FPSC and Mr. M. Nawaz, Director for Petitioners.
Mr. Muhammad Munir Peracha, ASC for Respondent No. 1.
Nemo for Respondent No. 2.
Date of hearing: 04.12.2007 .
Order
Abdul Hameed Dogar, CJ.--This petition for leave to appeal is directed against judgment dated 08.5.2007 passed by learned Federal Service Tribunal, Islamabad whereby Appeal No. 1410(R)CS of 2005 filed by appellant Respondent No. 1 was accepted. His termination orders were set aside and he was reinstated into service with effect from the date of the impugned order with all consequential benefits subject to an affidavit by Respondent No. 1 that he was not gainfully employed during the intervening period.
"13. In view of above this WP is allowed and the respondents are directed to apply the principles of para of the summary referred to hereinabove uniformly to the case of induction of the officers of the Armed Forces of Pakistan to the available two posts of FSP and two posts of PSP for the year 2001 in supersession of the recommendations made by the FPSC through its Memorandum No. 2/24/2002-CSS dated 29.10.2002. While so doing, the FPSC shall also keep in mind the provisions of Para 6 of the minutes of the meeting dated 10th September 1991 referred to above as it will apply to the allocation of vacancies in the instant case. As the matter has already been protracted, the process shall be expedited."
The above decision was not challenged as such Establishment Division made appointments based on merit as under:--
S.No. Merit No. Name Department Domicile
1 Capt. M. Usman Iqbal Pak Army NWFP
2 Capt. Sulman Babar Pak Army Punjab
6 Flt. Lt. Farrukh Rasheed PAF Punjab
8 Lt. Muhammad Hilal Navy NWFP
The offer of appointment was given to Respondent No. 1 by the Establishment Division vide their Letter No. 2(2)2003-E-3(Police) dated 11.07.2003 which was accepted by him and reported for Common Training Programme (CTP) on 28.7.2003 at the Civil Service Academy, Walton, Lahore. Lt. Muquddus Haider of Pakistan Navy who was not issued offer of appointment filed ICA No. 135 of 2003 against the judgment of the learned Lahore High Court, Rawalpindi Bench which was dismissed in limine on 17.9.2003. Feeling aggrieved, he filed Civil Petition No. 2016 of 2003 before this Court which was allowed on 20.10.2004 with the following direction:
"In view of the above reasoning we find that the impugned judgment of the High Court cannot be sustained in law which is consequently set aside and the petition is converted into appeal and allowed. Petitioner Muquddus Haider s/o Sajjad Haider shall be adjusted in PSP Cadre in 2001 Batch and he shall be sent for relevant training accordingly in the concerned Academy."
This judgment was challenged by Respondent No. 1 through Civil Review Petition No. 263 of 2004 before this Court which was dismissed on 7.4.2005.
"9. On the other hand, learned Standing Counsel for Federation alongwith Muhammad Naseem, S.O. Establishment Division, have vehemently opposed the arguments of learned counsel for the petitioner, contending that the merit list was prepared by the FPSC and the petitioner had not been recommended by the FPSC; that the petitioner had obtained the judgment had been set aside by the Hon'ble Supreme Court of Pakistan and that order of the Apex Court is final, hence, the matter cannot be reopened.
I have heard the learned counsel for the parties and gone through the record with their kind assistance.
Since the matter had already been dealt with by the Hon'ble Supreme Court of Pakistan and the judgment of this Court had been set aside, therefore, the criteria determined by the High Court is no more in the field. The present petitioner was respondent before the Hon'ble Supreme Court of Pakistan in Civil Petition No. 2016 of 2003 and after considering the contentions of the parties the full bench of Hon'ble Judges of Apex Court gave its verdict against the petitioner. The judgment of the Supreme Court is binding on all Courts of the country as provided in Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, and it is the judicial dignity to abide by the dictum laid down by the Highest forum of the country.
The another aspect of the case is that the controversy involved in the matter pertains to the terms and conditions of a civil servant and in view of the bar contained in Article 212 of the Constitution, this Court lacks jurisdiction to entertain this petition.
In view of the judgment of the Hon'ble Apex Court, I need not comment upon the merits of the case as the controversy raised by the petitioner has already been settled by the Hon'ble Supreme Court of Pakistan. Further the contentions raised by the learned counsel for the petitioner before this Court were available to the petitioner at the time of decision of Review Petition by the Apex Court. Hon'ble Supreme Court of Pakistan had not directed the petitioner to approach the High Court afresh for the determination of his right.
For the foregoing reasons, this writ petition having no force is dismissed. However, petitioner may, if so advised avail of the alternate remedy under the law."
In pursuance of above directions, Respondent No. 1 filed Appeal
No. 1410(R)CS of 2005 which was allowed by the learned Tribunal vide impugned judgment as stated above.
We have heard Ms. Nahida Mehboob Ellahi, learned DAG who appeared alongwith Mr.Ali Abid, Joint Secretary, Establishment Division for the petitioners and Mr. Muhammad Munir Peracha, learned counsel for Respondent No. 1 at length and have gone through the record and proceedings of the case in minute particulars.
Learned DAG vehemently contended that in view of judgment dated 20.10.2004 of this Court passed in Civil Petition No. 2016 of 2004 and the dated 7.4.2005 passed in Civil Review Petition No. 263 of 2003, the controversy raised by Respondent No. 1, the matter could not be agitated and raised for decision again which is hit by the principle of res-judicata. The judgment passed by learned Service Tribunal is against the law and facts and circumstances of the case. She further contended that under Article 189 of the Constitution, the judgment of this Court is binding upon all Courts and no Tribunal or Authority can ignore this constitutional provision. According to her, as per existing policy in force since 1991 officers of the Armed Forces below 32 years of age, irrespective of their rank are eligible for induction in BS-17 in the DMG, PSP and FSP against 10% of the annual vacancies on the recommendation of the FPSC on the basis of provincial/regional quotas. In October 2002 FPSC recommended four candidates, namely, Capt. Muhammad Usman Iqbal Jadoon from NWFP, Capt. Salman Babar from Punjab, Lt. Muquddus Haider from Sindh (U) and Flt. Lt. Muhammad Arif from AJ&K which were approved by the Prime Minister. She further stated that for the year 2001 only four vacancies were available for the Armed Forces Officer for induction in Civil Services and one vacancy allocated to each regional group. As such only one seat was available against the quota of Punjab. She further contended that quota is a concession and not a right, the allocation of seats is made on provincial/regional basis according to the induction policy enforced since 1991.
On the other hand learned counsel for Respondent No. 1 controverted the above contentions and supported the impugned judgment. He contended that this Court had not directed the Establishment Division to terminate the services of Respondent No. 1 as the direction was only to accommodate Lt.Muquddus Haider who fell in the category. According to him as per decision of FPSC in the meeting held on 10.1.1991 provincial/regional quota for Punjab was 50% of the seats and inter services quota required one seat for PAF, one for Navy and rest for the Army. He further-contended that there existed a vacancy for PAF as Flt. Lt. M. Arif belonging to AJK domicile and recommended by FPSC was not offered appointment after the decision of learned Lahore High Court on the basis of merit, consequently there was no representation of the Air Force in the 2001 induction. Respondent No. 1 rather was terminated though entitled to continue in service as a nominee of the PAF with Punjab domicile against the seat misallocated to AJK. It was held in the legal opinion tendered by Law and Justice Division and final opinion rendered by Attorney General for Pakistan that two seats were allocated to Punjab and Respondent No. 1 was already working on the seat of Punjab.
As per decision of the FPSC in the meeting held on 10.1.1991 provincial/regional quota for Punjab was 50 % of the seats and the Inter Services quota required one seat for PAF, one for Navy and rest for the Army. Admittedly, Flt. Lt. M. Arif belonging to PAF with AJK domicile who was recommended by the FPSC was not offered appointment after the decision of the learned Lahore High Court, consequently there was no representation of the PAF in the 2001 induction. It has been held by learned High Court in Writ Petition No. 1002 of 2005 that petitioner may, if so advised, avail of the alternate remedy under the law. The alternate remedy in this case involving terms and conditions of services is the Tribunal to the exclusion of any other forum which the appellant has chosen to avail. The controversy with regard to misallocation of quota was neither settled in any of the judgments delivered in this case so far nor the said judgment dated 21.6.2005 of the learned Lahore High Court categorically ruled out the scope of its further examination. This view is amply supported by law division and learned Attorney General for Pakistan. In view of this the matter is not hit by the principle of res-judicata. The instant case is with regard to allocation for Punjab amongst the three Services. Admittedly Punjab gets 50% vacancies as against one seat having actually been allocated by FPSC to Punjab which amounts to 25%. The claim of appellant that even after reversal of the policy of merit and restoration of quota policy Respondent No. 1 still entitled to a vacancy of Punjab going to PAF on the basis of Inter Services merit after withdrawal of the other competitors. Rather his services were terminated though he was entitled to continue in service as a nominee of the PAF with Punjab domicile against the seat
PLJ 2008 SC 907
[Shariat Appellate Jurisdiction]
Present: Mr. Justice M. Javed Buttar, Chairman, Ch. Ejaz Yousaf, Dr. Allama Khalid Mahmood & Dr. Rashid Ahmed Jullundhari, JJ.
GUL NASEEB--Petitioner
versus
STATE--Respondent
Jail Petition No. 5 (S) of 2006, decided on 11.12.2007.
(On appeal from the judgment dated 25-01-2006 passed by the Federal Shariat Court in J. Cr. A. No.69/I of 2005)
Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979)--
----S. 17(4)--Pakistan Penal Code, (XLV of 1860), S. 396 & 34--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Conviction and sentence recorded against accused by trial Court--First appeal was dismissed by Federal Shariat Court--Challenge to--Appreciation of evidence--Confessional statement--Statements of both PWs coupled with evidence of recoveries and the medical evidence lead to such irresistible conclusion that the confessional statement made by the petitioner contained true account of the occurrence. [P. 911] A & B
Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979)--
----S. 17(4)--Pakistan Penal Code, (XLV of 1860), Ss. 396 & 34--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Conviction and sentence recorded against accused by trial Court--Appeal was dismsised by First Appellate Court--Challenge to--Common intention--Accused was not charged u/S. 34, PPC for sharing common intention with other accused persons to commit the offence of decoity yet, since he had been convicted u/S. 396, PPC for the offence of dacoity in course whereof murder took place which offence requires participation at least five persons in view of Sectioon 391, PPC it implies that the principle contained in Section 34 PPC was pressed into service--Held: Where the accused had no intention to commit murder though part of conspiracy to commit some other offence or where fatal shot was not attributed to the particular accused, he was either exonerated from the charge or sentence inflicted on him was reduced--Leave granted. [Pp. 912 & 913] C & E
PLD 1960 SC PAK 254, 1969 SCMR 454, 1985 SCMR 1422 and
1993 SCMR 1934, ref.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 34--Joint liability--Principle of joint liability laid down by Section 34, PPC is dependent on existence of common intention energizing the accused to commit a criminal act in furtherance of such intention but an accused not aware of the intention of his companions to commit murder though sharing intention to commit another offence in their company, cannot be saddled with the liability of murder.
[P. 912] D
Mr. Niaz Ahmad Rathore, ASC for Petitioner.
Mr. Mahmood Ahmad Shaikh, ASC on behalf of AG NWFP for State.
Date of hearing: 11.12.2007.
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against the judgment dated 25.1.2006 passed by a Division Bench of the Federal Shariat Court, whereby appeal filed by the appellant against his conviction and sentence under Section 396 PPC recorded by Sessions Judge/Zilla Qazi, Kohistan Dassu, was dismissed.
Briefly stated, the prosecution case as gathered from the available record is that a case under Section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, was registered at P.S. Doobair, District Kohistan vide FIR Ex-PA on 5.12.2001 as per Murasila/report of PW-8 Faqir Hussain ASI. It was alleged in the report that the complainant was on gasht duty and as he reached Bazar Jamal he learnt that a dead body of a person was lying on Kalooz Banda/Sundar Nala. He therefore, immediately rushed to the spot and find a dead body lying on the road side. Gul Naseeb petitioner and one Anwar were present near the dead body. On the query made, Gul Naseeb disclosed that deceased Haji Abdul Tawab had a factory of plastic footwear in Batgram. He loaded shoes in the Datsun pickup and went to Challas on 4.12.2001. On 5.12.2001, while they were on their way back home, about 7.00 p.m., three persons, who were present on the road, cautioned the vehicle to stop. No sooner the vehicle was halted, then one of the aforementioned three persons pulled Haji Abdul Tawab out of the vehicle and carried out his body search. His waistcoat, containing some money in it, was forcibly snatched. On Haji Abdul Tawab's disclosure that he had identified the said culprit, one of the culprits fired at Haji Abdul Tawab who, as a result died instantly. Since it was alleged by the complainant that the story put forth by the petitioner appeared to be suspect, therefore he was joined in the investigation, in course whereof he confessed his guilt, and therefore, was produced before Illaqa Qazi who recorded his confessional statement, whereas the remaining accused persons remained at large and could not be apprehended.
Charge was accordingly framed to which the petitioner pleaded not guilty and claimed trial. The prosecution, in order to prove the charge and substantiate the allegations leveled against the petitioner, produced nine witnesses in all. PW-1 Ali Asghar is the witness of recovery memo Ex.PW-1/1, whereby blood-stained clothes of the deceased containing bullet mark, were taken into possession by the police. PW-2 Khawaja Muhammad had escorted the dead body to the hospital Batgram for postmortem examination. PW-3 Anwar is a witness of the occurrence. He had accompanied the deceased from Batgram to Challas and was also with him on the return journey. PW-4 Shah Jehan was an employ of the hotel at Kalooz Banda where, deceased along with aforementioned two eye-witnesses had stopped on their way back home. PW-5 Muhammad Tariq, ASI, had registered the FIR on the basis of the report. PW-6 Muhammad Javed, at the trial had deposed that in his presence investigating officer had taken into possession the vehicle No.PRJ-2818 belonging to the deceased along with duplicate copy of a permit, a note book and other documents along with a sum of Rs. 13,000/-. PW-7 Dr. Shah Alam had on 6.12.2001 conducted postmortem examination on the dead body of the deceased. PW-8 Faqir Hussain, ASI, had sent the report i.e. (Ex.PA/1) to the police station on the basis whereof FIR was subsequently registered. PW-9 Mr. Muhammad Ibrahim, Illaqa Qazi, had recorded confessional statement of the petitioner. On conclusion of the prosecution evidence the petitioner was examined under Section 342 Cr.P.C. In his above statement the petitioner denied the charge and pleaded innocence. He, however, failed to lead any evidence in his defence or to appear as his own witness under Section 340(2) Cr.P.C. After hearing learned counsel for the parties, learned trial Judge convicted the petitioner and sentenced him to the punishment as under;
U/S. 396 PPC Imprisonment for life with a fine of Rs. 50,000/- and in default to further undergo two years R.I. Benefit of Section 382-B Cr.P.C. was also afforded to the petitioner.
Being aggrieved the petitioner filed appeal before the Federal Shariat Court, which was dismissed vide the impugned judgment, hence, this petition.
We have heard Mr. Niaz Ahmad Rathore, ASC for the petitioner and Mr. Mehmood Ahmad Sheikh, ASC on behalf of AG NWFP and have also gone through the available record with their assistance.
Mr. Niaz Ahmad Rathore, learned counsel appearing for the petitioner has urged that the petitioner was involved in the crime merely on suspension as the evidence was deficient to warrant conviction; that since the confessional statement was inculpatory, therefore, conviction could not have been recorded on the basis thereof; that if at all, the confessional statement and the prosecution evidence was to be believed, even then the sentence inflicted on the petitioner was on the higher side because he was not sharing common intention with other accused person to kill the deceased. Neither he had abetted the offence of murder nor had he any knowledge that the deceased would be killed. He added that as per confession of the petitioner, it was absconding accused Doraj who fired at the deceased and the petitioner's role was limited to simply stopping the vehicle at the signal made by the absconding accused persons, for the purpose of robbery.
Mr. Mehmood Ahmad Sheikh, learned ASC, on the other hand while controverting the contentions raised by the learned counsel for the petitioner has submitted that since guilt of the petitioner was fully brought home at the trial, through independent and reliable evidence, therefore, the impugned judgment was unexceptionable. He, however, candidly conceded that he would have no objection if, keeping in view the role attributed to the petitioner in the crime, the sentence of imprisonment inflicted on him is reduced.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties. As regards the first contention raised by the learned counsel for the petitioner that since the evidence was deficient, therefore, the petitioner could not have been convicted for the offence, it may be pointed out here that the prosecution case is primarily based on the confessional statement of the petitioner recorded by PW-9 Illaqa Qazi Mr. Muhammad Ibrahim on 6.12.2001, who has at the trial testified the same to be voluntary and truthful. The confessional statement in question finds corroboration from the statement of PW-3 Muhammad Anwar and PW-4 Shah Jehan, the evidence of recoveries and the medical evidence. The petitioner in the said confessional statement had admitted inter-alia, that he was on friendly terms with the absconding co-accused Doraj. On 4.12.2001 the deceased asked him to take him to Challas for selling goods there. They went to a Petrol Pump in the Datsun . In the meanwhile Doraj met him and inquired about his destination. Doraj was a professional dacoit. He conspired with him to stop the vehicle on the next day on their return journey so that the deceased could be robbed of the cash. On the next day they reached near Kalooz Banda hotel at about 7.00 p.m. When they, after taking meal in the hotel, started journey, Doraj and his companions signaled them to stop at some distance. He i.e. the petitioner, halted the vehicle, whereupon Haji Abdul Tawab was pulled out of the vehicle by Doraj. Deceased was deprived of his waistcoat containing money and since the deceased stated that he had recognized the culprits, Doraj fired at him with his pistol thereby killing him at the spot. It would be pertinent to mention here that confessional statement of the petitioner is fully corroborated on all material points by the testimony of PW-3 Muhammad Anwar, who had at the trial, given eye-witness account of the occurrence. Corroboration to both i.e. the confessional statement as well as to the testimony of PW-3 is also available from the statement of PW-4 Shah Jehan who, at the trial, had categorically stated that the deceased along with PW-3 and the petitioner, on his way back home had stopped in the hotel where, he was employed and that subsequently when he, on coming to know that the deceased was killed by the dacoits, had reached at the place of occurrence then found that the petitioner was missing though he came back after some time. Statements of both PWs 3 and 4 coupled with evidence of recoveries and the medical evidence lead to this irresistible conclusion that the confessional statement made by the petitioner contained true account of the occurrence and therefore was rightly believed by both the Courts below, the contention, therefore, has no force.
As to the contention of the learned counsel for the petitioner that since the confessional statement was inculpatory, therefore, it could not have been taken as an incriminatory piece of evidence against the petitioner, we find that so far as conspiracy and involvement of the petitioner qua the offence of dacoity is concerned, the contention on its face appears to be devoid of force because the petitioner himself has in the confessional statement, in clear terms, admitted that he fell in league and conspired with the absconding accused persons to rob the deceased. Though a minor role i.e. stopping the vehicle in pursuance of the conspiracy was attributed to him yet, the petitioner being in active connivance with the absconding accused persons in the offence of dacoity, in our opinion, was vicariously liable for the offence.
Adverting to the next contention raised by the learned counsel for the petitioner that since the petitioner was not sharing common intention with the other accused persons to kill the deceased, therefore, the sentence inflicted on him does not commensurate with gravity of the offence, it may be pointed out here that though in the instant case, the petitioner was not specifically charged under Section 34 PPC for sharing common intention with other accused persons to commit the offence of dacoity yet, since he has been convicted under Section 396 PPC for the offence of dacoity in course whereof murder took place, which offence requires participation of at least five persons in view of Section 391 PPC, therefore, it implies that in petitioner's case the principle contained in Section 34 PPC was pressed into service. It may be noted here that principle of joint liability laid down by Section 34 PPC is dependent on existence of common intention energizing the accused to commit a criminal act in furtherance of such intention but an accused not aware of the intention of his companions to commit murder though sharing intention to commit another offence in their company, cannot be saddled with the liability of murder. Further, any intention within the meaning of Section 34 PPC hints at a pre-arranged plan and therefore, application thereof requires proof to the effect that criminal act was done pursuant to the pre-arranged plan. In the circumstances of the instant case, we find that so far as the offence of dacoity is concerned, though liability of the petitioner was joint with other accused persons, because it was committed pursuant to a pre-arranged plan yet, he, in our view, was not liable for the offence of murder because as per evidence on record, neither it was included in the original plan nor was the petitioner aware of the intention of Doraj who fired at the deceased and killed him.
In a number of cases where the accused had no intention to commit murder though part of conspiracy to commit some other offence or where fatal shot was not attributed to the particular accused, he was either exonerated from the charge or sentence inflicted on him was reduced. Reference, in this regard may usefully be made to the case of Ghulam Qadir v. The State (PLD 1960 SC Pak. 254), in which original plan was only to abduct a girl. One of the accused Muqarrab Shah stood outside the house, others went in, pulling girl outside in courtyard and killed her. The plea taken by accused Muqarrab Shah, in his confession, was that though he had agreed to join for the purpose of helping principal accused to take the girl away yet, he was not party to the intention which formed in the mind of Ghulam Qadir at the spot to do away with the girl by killing her and in support of this he said that immediately first blow was struck he himself ran away. It was laid down that though accused standing outside was responsible for the completed offence of abduction, yet he was not liable for the offence of murder. In the case of Hassan v. The State (1969 SCMR 454), accused persons were charged under Sections 148, 302/149 and 307/149 PPC. On conclusion of the trial one of the appellant's son was convicted under Section 302 PPC and sentenced to death for his individual act. However, the appellant along with another son was convicted under Section 326 read with Section 34 of the Pakistan Penal Code. On appeal to the Supreme Court it was held that in order to support a conviction under that section mere presence of the accused at the place of occurrence was not sufficient, and there must have been proof of some overt act done in furtherance of the common intention on the part of each accused, and since the appellant went to the place of occurrence empty handed and there was no evidence that he had assaulted any body, therefore he was not liable for the offence. Conviction and sentence recorded against him in the circumstances was, set-aside. In the case of Pervaiz Akhtar v. The State (1985 SCMR 1422), wherein appellant Pervaiz Akhtar had reached at the place of occurrence when principal accused Mehmood had already inflicted knife blows to deceased persons, namely, Safdar and Faiz Alam. The trial Court while assessing the role of the appellant in the crime held that Faiz Alam had died as a result of injury sustained by him at the hands of accused Mehmood while the appellant had only caused three such injuries on the non-vital parts of the body which were simple in nature. On the question of his vicarious liability the trial Court held that though he had shared common intention on the spur of moment yet, this conclusion could hardly be drawn upon the assumption of his role in the crime. The High Court also came to the same conclusion that it was Mehmood, who was responsible for the death of two deceased persons but failed to distinguish the case of the appellant on the ground of his sharing the common intention. It was held by the Supreme Court that the appellant was only guilty of the lesser offence under Section 324 PPC because arrival of the appellant later at the place of occurrence along with other two accused who were empty handed and his causing simple injuries at the spur of the moment after inflicting fatal blows upon the deceased intentionally, show that he did not share common intention to kill the deceased. Conviction of the appellant was, therefore, altered from Section 302 PPC read with Section 34 PPC to Section 324 PPC and he was sentenced to undergo three years R.I. along with the sentence of fine. In the case of Piran Ditta v. The State (1993 SCMR 1934), appellant Piran Ditta had allegedly inflicted a sota blow to Khan Muhammad on his head as a result of which he fell to the ground and thereafter the appellant disassociated himself. The appellant Piran Ditta along with other co-accused was convicted under Section 302 PPC and sentenced to imprisonment for life. On appeal to the Supreme Court it was though held that appellant could have, safely, been burdened that violent blow on the head was likely to cause death of the deceased yet, since fatal blow was not inflicted by him, therefore, his case fell within the ambit of Section 304 Part II of the PPC. Accordingly his conviction was altered from Section 302 PPC to that of Section 304, Part II of the PPC and his sentence was reduced to ten years R.I. from imprisonment for life. In the case of Kuppan and others v. State of Tamil Nadu (AIR 2000 SC 3510(1), father, mother and their son were involved in causing grievous hurt on head of injured. Father, found to have caused head injury, was convicted under Section 326 IPC. Infliction of 1« year sentence on the son under Section 324 PPC however, was found excessive as the grievous hurt inflicted on the head of the injured was attributed to the father only. In the case of Jawad Ayoub and others v. Muhammad Farid (2005 P.Cr.LJ. 1294), which has a close resemblance to the instant case, accused, namely, Sadaqat Hussain was charged along with others under Section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979). Since in the course of dacoity murder was also committed, therefore principal offenders, namely, Muhammad Taslim and Muhammad Farid were sentenced to life imprisonment each, however, Sadaqat Hussain, was sentenced to undergo only ten years R.I., because, as per his confessional statement, he had joined the other accused persons for the purpose of dacoity only and had no intention to kill the deceased.
Though under Section 111 PPC when an act is abated and a different act is done, the abettor is liable for the act clone, in the same manner and to the same extent as if he had directly abetted it yet, in view of the proviso tagged to the main provision, the condition precedent for application of Section 111 PPC is that the act done should be the probable consequence of the abatement and committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment. Here, it would be advantageous to reproduce the relevant provision which reads as follows:--
"111. Liability of abettor when one act abetted and different act done.--When an act is abetted and a different act is done, the abettor is liable for the act done, in the same manner and to the same extent as if he had directly abetted it:
Proviso. Provided the act done was a probable consequence of the abetment, and was committed under the influence of the instigation, or with the aid or in pursuance of the conspiracy which constituted the abetment."
Since, in the instant case the evidence is deficient to attract any of the necessary ingredients detailed in the above proviso, therefore, the contention raised by the learned counsel for the petitioner appears to have force in it.
(W.I.B.) Leave allowed.
PLJ 2008 SC 915
[Review Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Muhammad Moosa K. Leghari & Ch. Ejaz Yousaf, JJ.
RAZAKAR HUSSAIN SHAH--Petitioner
versus
D.I.G. etc.--Respondents
C.R.P. No. 05 of 2005 in C.A. No. 05/2003, decided on 16.1.2008.
(Review on the judgment of this Court dated 09-12-2004 in CA 5/2003).
Constitution of Pakistan, 1973--
----Art. 188--Punjab Police (Efficieny & Discipline) Rules, 1975, R. 12--Review--Scope--Narrow & limited--Rectification of error--Charge of unauthorized absence--Recommendation imposed major penalty of reduction in pay in one stage--Show-cause notice--Dismissal from service--Appeals were dismissed--Assailed--Held: Power of review has to be exercised quite sparingly and only in exceptional cases, in which some important aspect of the matters escaped the notice of Supreme Court or was not considered, and such error was apparent in the judgment under review--Inspector General of Police, acted beyond his authority while re-examining the charges, of which the petitioner was exonerated by the inquiry officer and the act was further confirmed by competent authority--In the show-cause notice and in order of dismissal no reasons have been recorded for enhancing such penalty. [P. 923] A, B & C
Mr. Wasim Sajjad, Sr. ASC Assisted by Mr. Idrees Ashraf, Advocate with Mr. Ashraf Ali Ch., AOR for Petitioner.
Qazi Muhammad Amin, Addl. A.G. Pb., Raja Muhammad Saeed Akram, Asst, AG and Mr. Muhammad Arshad, Insp. Legal Okara for Respondents.
Date of hearing: 16.1.2008.
Order
Muhammad Moosa K. Leghari, J.--Petitioner seeks review of the judgment dated 9.12.2004 passed by this Court recorded in CA 05/2003 arising out of CP 1658/2002.
Meanwhile Inspector-General of Police, Punjab taking cognizance of the matter for the reasons that the appellant still being a probationer served him a show-cause notice dated 3.11.2000 requiring him to show-cause as to why he should not be discharged from police service. However, on receipt of reply submitted by the petitioner, Inspector-General of Police, Punjab on 3.2.2000 remanded the case to Deputy Inspector-General of Police, Punjab, Lahore Range for holding an inquiry within contemplation of the rules.
Pursuant where to the Superintendent of Police, Range Crime, Lahore was appointed as Inquiry Officer. The Inquiry Officer exonerated the petitioner of charges appearing at Serial No. (i) to (v) while holding him guilty of the charge mentioned at Serial No. (vi) on account of his unauthorized absence and recommended for awarding him minor penalty on that count vide his report dated 16.4.2001. The Authority i.e. Deputy Inspector-General of Police, Lahore Range, however disagreeing with the recommendation imposed major penalty of reduction in pay by one stage vide his order dated 17.8.2001.
On a representation submitted by the petitioner, Additional Inspector-General of Police, Punjab felt that the punishment so awarded was incommensurate with the gravity of the charges, therefore he issued a show-cause notice dated 24.01.2002 to the petitioner under Rule 12 of the Police Rules ibid which culminated into dismissal of the petitioner from the service on 20.3.2002.
The petitioner challenged the order of his dismissal from service before Punjab Service Tribunal who vide judgment dated 23.9.2002 dismissed the appeal. Leave to appeal was granted on 7.1.2003 and ultimately the appeal was dismissed. Hence this Review Petition. Vide order 12.12.2007 after hearing learned counsel for the petitioner, notices were issued to the respondents.
We have heard Mr. Wasim Sajjad, Sr. ASC on behalf of the petitioner and Qazi Muhammad Amin, Addl. A.G. Pb. on behalf of the official respondents.
It is contended on behalf of the petitioner that under Rule 12 of Punjab Police Rules, the Inspector-General of Police was not competent to revise the order of Competent Authority with regard to the charges which were not proved against the petitioner, in which he was exonerated by the Inquiry Officer and the Authority concurred with those findings of Inquiry Officer. It is argued that the charges against the petitioner as mentioned in para (i) to (v) of the charge-sheet were not proved in the inquiry as such he was found not guilty and was exonerated. The only charge which was proved against the petitioner was contained in para-(vi) with regard to his unauthorized absence, for which the Inquiry Officer recommended the minor penalty which was, however, enhanced by the Authority and converted into major penalty. It is stressed that the show-cause notice issued to the petitioner under Rule 12 did not speak of the charge mentioned at para (vi) of the charge-sheet whereas it referred to the charges mentioned in para (i) to (v) of the charge-sheet and the major penalty was awarded on those charges, which were not proved against the petitioner in the inquiry. On the above premises it is argued that the Inspector-General of Police had no authority to revise the order in respect of the charges which were not proved against the petitioner. Thus the order passed by Inspector-General of Police was incompetent and without lawful authority. In support of above contention learned counsel has placed reliance upon the judgment in the case of Inspector General of Police Vs. Habibur Rehman Abro (2005 SCMR 654). It is further emphasized that though the above ground was taken in CPLA filed before this Court and was pressed during the hearing but to the misfortune of the petitioner the above legal ground escaped the notice of this Court and was not adverted to in the judgment sought to be reviewed. Thus an error of law has occurred necessitating the review of the judgment.
Learned Additional Advocate General appearing for the respondents is at pains, as he has not been able to rebut the contentions with regard to competence and powers of Inspector-General of Police under Rule 12 of the Punjab Police Rules to revise the order of authority by converting the exoneration of a police personnel into guilty. He however, vociferously contends that the charges of unauthorized absence, which were fully proved against the petitioner also constituted misconduct and warranted extreme penalty of dismissal from service as such order passed by Inspector-General of Police was competent and legal.
We have anxiously considered the arguments advanced before us, perused the material placed on record and have examined the rules with reference to the relevant case law.
Admittedly the petitioner was served with a charge-sheet dated 14.10.2000 containing the following allegations :--
(i) On 17.7.2000 the Superintendent of Police, Kohat received a tip-off that a Police Inspector of District Sheikhupura, Punjab would come to Darra Adam Khel with a stolen Toyota Corolla Motor Car and exchange it with another stolen Honda Civic Motor Car through notorious car receiver Noor Jamal alias Mama of Darra Adam Khel. After a carefully planned operation, the said brand new Toyota Corrolla Motor Car No. VRF/2525 was intercepted on Pindi Road with following inmates:--
(a) Razakar Hussain Shah s/o Sardar Ali r/o Ghattala, Sheikhupura
(b) Zulfiqar Ali Shah s/o Sadique Ali r/o Dera Mutwana, Muridke, Sheikhpura
(c) Babar Hussain s/o Muhammad Ishaq r/o Ghattala, Sheikhupura
(ii) You Razakar Hussain Shah claimed to be a PCS Police Inspector of district Sheikhupura while Zulfiqar Ali Shah claimed to be a Police Constable No. 1627 of District Sheikhupura. The car was sent to FSL for chemical examination. Chemical result shows tampering in chassis number and Engine number. Hence, case FIR No. 577 dated 21.7.2000 u/S. 419/420/468/471 PPC P.S Saddar District Kohat was registered.
(iii) During interrogation you Inspector Razakar Hussain Shah divulged that you were working for Brigadier (Retd) Zulfiqar Dhillon r/o Narang Mandi, a leading PML, MPA who also served as Provincial Minister in the previous regime. About two months back the said motor car was purchased by the said politician at Darra Adam Khel through an Excise Inspector Amjad Chatta presently posted at Multan. The latter had promised the officer that he would provide original registration certificate for the said vehicle. At the behest of Brig. Zulfiqar, you had personally come to Darra Adam Khel to collect the vehicle which was duly delivered to the purchaser. However, Amjad Chatta flatered in his promise and could not furnish the registration certificate. By this time, the news of the Ex-Minister being in possession of stolen car had leaked out and the Brigadier desperately wanted to get rid of the motor car. Amjad Chatta refused to refund the money but through Noor Jamal of Darra Adam Khel he arranged to change the motor car with a Honda Civic Model 2000 Bearing Registration No. CA-1528.
(iv) While you Inspector Razakar Hussain Shah were on your way to Darra Adam Khel to execute the deal you Razakar Hussain Shah were apprehended by Kohat Police.
(v) Mr. Muhammad Nasrullah Khan, Magistrate Section 30 District Sheikhupura vide his order dated 20.7.2000 also observed another misconduct of you Razakar Hussain Shah, Inspector U.T., Police Station Sadar Sheikhupura. According to this order, one Akhtar Mehmood was kept in illegal custody and was ultimately involved in a false case vide FIR No. 415/2000 u/S. 3/4/4/79 PEHO. He was produced before the Area Magistrate on 13.7.2000 for physical remand. The ¦ physical remand was refused by the Court and he was directed to be kept in judicial custody. You Inspector Razakar Hussain Shah, instead of sending him to judicial custody, kept him at P.S. Sadar Sheikhupura and maltreated him.
(vi) You Inspector Razakar Hussain Shah had been absent from duty vide daily diary Report No. 19 dated 20.7.2000 P.S. Sadar Sheikhupura. (one week prior to entry of the said D.D. report). You are a probationer and crossed your limits and committed a blunder in the beginning of your service career and as such brought a bad name to the Police Department."
In pursuance of the above charge-sheet an inquiry was conducted against the petitioner. The Superintendent of Police, Range Crime, Lahore who was appointed as Inquiry Officer submitted his report dated 16.4.2001 which concluded in the following terms:--
"Taking into the consideration the explanation of the defaulter Inspector, evidence came before the undersigned and the report received from SSP/Kohat, the allegations mentioned in Para No. i, ii, iii, iv & v of the charge sheet were not proved, as no incriminating material was available. However as far as Para No. vi of the charge sheet regarding his absence from duty from 15th July to 20th August, 2000 is concerned, defaulter Inspector could not submit a plausible explanation (as he was in judicial lock-up) He had no answer for leaving station without prior permission of the authority. On this count minor punishment is recommended."
However, the Authority i.e. DIG disagreeing with the recommendations of the Inquiry Officer imposed major penalty of reduction in pay by one stage on the petitioner on 17.8.2001.
"2. On the basis of above misconduct DIG Lahore Range served you a Charge Sheet No. 52122/GC dated 14.10.2000 and awarded you major penalty of reduction in pay by one stage vide his orders Endst: No. 39426 27/PA dated 17.08.2001.
After going through the relevant record it is established that the orders of the DIG Lahore Range are liable to be looked into afresh by the punishment awarded by the DIG Lahore Range is not commensurate with the gravity of the misconduct attributed to you.
In view of the above, you are called upon to show-cause in writing within 7 days of the receipt of this notice as to why the order of the DIG Lahore Range awarding you the punishment of reduction in pay by one stage may not be modified and converted into another major punishment, including dismissal as provided under Section 4(1)(b) of the rules ibid.
Your explanation should reach the undersigned within the stipulated period failing which it shall be presumed that you either have no defence to offer or have declined to offer the same and you accept the charges and in that eventuality, further action will be taken accordingly. You may also come up for personal hearing, if you desire."
As an ultimate consequence of above show-cause notice issued to the petitioner under Rule 12 (ibid), the petitioner was awarded major penalty of dismissal from service vide order dated 20.3.2002. A perusal of the show-cause notice would reveal that it contains the allegations mentioned in Para (i) to (vi) of the charge sheet. The reading of Para 8 and 9 of the dismissal order clearly shows that whole case of the petitioner including the charges mentioned in Para (i) to (v) was re-opened and re-examined by the Additional Inspector-General of Police, Punjab, Lahore as it will be evident from the reading of the relevant paragraphs of the order which are reproduced herein below:--
On the other hand, if the whole case is examined minutely it becomes clear as to how some of the influentials of our society are involved in criminal activities with the active connivance of such police officers and even on exposure of their illegalities not only save themselves but also save the skins of their disciples.
The explanation tendered by the defaulting Inspecting in response to the charge mentioned in Para (i) to (v) above also does not appear to be satisfactory as the defaulting Inspector confirms the allegation of maltreating the accused when he says that the jail Authorities did not receive the accused, asked for medical examination and the accused was confined in the jail after medical examination by a medical board.
For the sake of convenience and ready reference it will be appropriate to re-produce hereunder Rule 12 of the Punjab Police (Efficiency & Discipline) Rules, 1975:--
"12. Revision.--(i) The Inspector-General, Additional Inspector-General, a Deputy Inspector-General of Police or a Superintendent of Police may call for the record of awards made by their subordinates and confirm, enhance, modify or annul the same, or make further investigation or direct such to be made before passing orders.
(ii) If an award of dismissal is annulled, the officer annulling it shall state whether it is to be regarded as suspension followed by re-instatement, or not. The order should also state whether service prior to dismissal should count for pension or not.
(iii) In all cases in which officers proposed to enhance an award they shall, before passing final orders, give the defaulter concerned an opportunity showing cause, either personally or in writing, why his punishment should not be enhanced.
On perusal of the above Rule, it will be abundantly clear that the Inspector-General, Additional Inspector-General, Deputy Inspector-General or Superintendent of Police may call for record of awards made by their subordinates and confirm, enhance, modify or annul the same, or make further investigation or direct such to be made before passing orders.
It will thus be seen that Rule 12 (ibid) authorizes and empowers the officers enumerated therein to call for record of the awards made by their subordinates and confirm, enhance, modify or annul the same. Meaning thereby that under the mandate provided in Rule 12 (ibid) the higher officers of the department are competent to call for record of the proceedings in which an official of the department has been held guilty of the charges and has been awarded some penalty for the purpose of confirming it, enhancing it, modifying it or even annulling it but they will have no authority to revise the orders whereby an official has been exonerated of the charges. The above proposition with regard to Sindh Police (Efficiency & Discipline) Rules, 1988 which are para materia to the Punjab Police Rules, came to be examined by a learned Division Bench of this Court in the case of Inspector-General of Police Vs. Habibur Rehman Abro (2005 SCMR 654) wherein following observations were made:--
"Learned
Additional Advocate-General was at pains to defend the action taken against the respondent, laying much emphasis on the expression "may call for the record of awards made by their subordinates and confirm, enhance, modify or annul the same or make further investigation or direct such to be made before passing orders." Learned Law Officer is of the view that the expression
"modify or annul the award" would include the power to convert a finding of not guilty' into finding ofguilty' or to alter the finding of exoneration into finding of proved guilty. We are not inclined to agree with the interpretation placed by him. Use of expression regarding awards, in our view, would tend to show that some punishment or penalty ought to have been inflicted by a subordinate officer upon an employee calling for confirmation, enhancement, modification or annulment thereof. On an overall understanding of the rule, upon which reliance is being placed, we are of the view that it is difficult to agree with the submission that the rule authorizes an
Inspector-General, Additional Inspector-General, Deputy Inspector-General of
Police or a Superintendent of Police to convert finding of `not guilty' into finding of guilty. Intention of the law-makers is obvious when we refer to clause (a) of Rule 16.28 of Rules, 1934, which expressly empowers superior
Police Officers to inflict any penalty specified in Rule 16.1 of the said
Rules, in any case, in which no punishment has been inflicted. The omission of this clause from the latest Rules clearly tends to signify the intention of the
Legislature that Appellate and revisional Authorities are no longer vested with power to alter the finding of exoneration of charge into a finding of guilt.
Indeed, in appropriate cases, remedy is always available with department by way of an appeal before the proper forum established under the law but the intention, as interpreted by learned Additional Advocate-General, in our view is not spelt out from the language employed by the Legislature in the rule quoted hereinabove."
We are of the considered view that opinion expressed by the learned Bench of this Court in the above titled case is legally valid being based on provisions of law as such must be followed and fortified. Resultantly we are of the opinion that Inspector-General of Police, Punjab acted beyond his authority while re-examining the charges, of which the petitioner was exonerated by the Inquiry Officer and the act was further confirmed by the competent authority.
Adverting to the contentions raised by learned Additional Advocate General, Punjab with regard to awarding penalty of dismissal from service on the charge of unauthorized absence suffice it to say that except that it finds mention in the show-cause notice and in order of dismissal no reasons have been recorded for enhancing such penalty. Even it has not been discussed in the two orders passed by the Inspector-General of Police, as such the same could not be made the basis for enhancing the punishment and awarding the harsh penalty of dismissal from service imposed upon the petitioner. The arguments thus being without substance, stand repelled.
We are mindful that the scope of review under Article 188 of the Constitution read with the Supreme Court Rules, is quite narrow and limited. The power of review has to be exercised quite sparingly and only in exceptional cases, in which some important aspect of the matter escaped the notice of Supreme Court or was not considered, and such error was apparent in the judgment under review.
So far as the petition in hand is concerned, it will be noted that the bare reading of the petition for leave to appeal would reveal that a specific ground was taken by the petitioner, which appears as Point No. 1(c) in the petition and has been described in the following manner:
"(c) Whether the findings of the Enquiry Officer exonerated the petitioner from allegations made in Para i to v and concurred and affirmed by the Deputy Inspector-General of Police, could be reopened by the Additional Inspector-General of Police Punjab and whether he was competent to do so and if he was not and it is submitted with respect that there was not at all completely to do so, whether the order passed by him could be said to be legal?"
However, on perusal of the judgment passed by this Court, it transpires that such ground was not taken note of while recording the judgment. Neither the import and scope of Rule 12 (ibid) was examined nor the extent of its applicability to the case of the petitioner was considered. On noticing that it was an important point of law which escaped the notice of this Court while recording the judgment, and needed rectification of the error, we feel obliged to review the judgment dated 9.12.2004.
(W.I.B) Petition allowed.
PLJ 2008 SC 924
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MUHAMMAD ANWAR and others--Petitioners
versus
MUHAMMAD SULTAN and others--Respondents
C.P. for to A. No. 763 of 2007, decided on 3.3.2008.
(Against Judgment dated 16-04-2007 passed by Peshawar High Court, Circuit Bench, D.I. Khan in C.R. No. 159/2006 (PAN)).
NWFP Pre-emption Act, 1987--
----S. 13--Civil Procedure Code, (V of 1908), O.VI, R. 5--Talb-e-muwathibat--Non mentioning of date time, place and name of witnesses--Plaint wherein the date, place and time of talb-e-muwathibat and date of issuing the notice or performance of talb-e-ishhad in terms of Section 13 of Act is not provided it would be fatal for the pre-emption suit--Requirements--Held: In plaint the pre-emptors/petitioners had not mentioned the date, time and place of performance of talb-e-muwathibat--It was not disclosed as to when and how, the petitioners got the knowledge of sale transaction--It was also not established that immediately after getting the knowledge, petitioners had made talb-e-muwathibat in accordance with provisions of S. 13 of NWFP Pe-emption Act--Further held: Plaint wherein the date, place and time of talb-e-muwathibat and date of issuing the notice of performance of talb-e-ishhad in terms of S. 13 of Pre-emption Act, it not provided it would be fatal for pre-emption suit--No illegality or irregularity in impugned judgment as well as in concurrent findings of fact recorded by Courts below warranting interference by Supreme Court--Leave refused.
[Pp. 926 & 927] A, B & C
PLD 2007 SC 302, 2000 SCMR 314, PLD 2003 SC 315 and
PLD 2005 SC 977, ref.
Raja Abdul Ghafoor, AOR for Petitioners.
Nemo for Respondents.
Date of hearing: 3.3.2008.
Judgment
Ijaz-ul-Hassan, J.--Through instant petition, petitioners seek leave against judgment dated 16-4-2007 passed by learned Peshawar High Court, Circuit Bench D.I. Khan dismissing in limine C.R. No. 159/2006 filed by petitioners, upholding concurrent findings of fact recorded by the Courts below.
Facts relevant for disposal of this petition are, that by virtue of sale Mutation No. 9724, attested on 28-3-1992, Mst. Anwari Begum sold suit land in favour of respondents Muhammad Sultan and Muhammad Waseem for sale price of Rs. 100,000/-. The petitioners instituted suit on 25-7-1992 in the Court of Senior Civil Judge, D.I. Khan for possession through pre-emption of suit land. The suit was resisted on all grounds, legal as well as factual. Relevant issues were framed and after recording evidence of the parties, learned trial Judge, dismissed the suit vide judgment and decree dated 23-7-2005 holding that requirements of Section 13 of the NWFP Pre-emption Act, 1987 were not fulfilled. An appeal was preferred there against before learned District Judge, D.I. Khan, which did not succeed. The same was dismissed by judgment dated 4-3-2006. The revision petition filed before learned High Court also met the same fate by judgment dated 16-4-2007, impugned herein.
Appearing on behalf of the petitioners, Raja Abdul Ghafoor, learned Advocate-On-Record, contended with vehemence that finding on Issue No. 6 are against the record of the case and the law applicable thereto. The Courts below have not properly attended to this aspect of the case, which was instituted way back in July, 1992 where there was no interpretation of Section 13 of the NWFP Pre-emption Act, 1987 by the superior Courts requiring the pre-emptor to state in the plaint date, time and place of making `Talb-e-Muwathibat'.
We regret, there is no weight in the submission of learned counsel for the petitioners. It stands established from the material on record that in the plaint the pre-emptor petitioners had not mentioned the date, time and place of performance of Talb-e-Muwathibat'. It is also not disclosed as to when and how, the petitioners got the knowledge of sale transaction in question. It is also not established on record that immediately after getting the knowledge, petitioners had madeTalb-e-Muwathibat' in accordance with the provisions of
Section 13 of the NWFP Pre-emption Act, 1987. In Mian Pir Muhammad and another vs. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302), this Court observed as follows:--
"Now we would consider the two judgments pronounced by this Court by larger Benches of equal strength in the cases of Haji Noor Muhammad v. Abdul Ghjani and 2 others (2000 SCMR 329) decided on 27-10-1999 and Altaf Hussain v. Abdul Hameed alias Abdul Majeed through legal heirs and another (2000 SCMR 314) decided on 15-11-1999, wherein the consensus was that in view of the law of pleadings, it is not necessary to give the details including the date, place and time of performance to Talb-e-Muwathibat. With utmost respect it is observed that while expressing the above view this Court did not take into consideration in detail the, importance and implication of the word immediate as has been provided in Explanation I to Section 13 of the Act 1991 otherwise there was every possibility of arriving at the view which we are intending to take in this case. However, we agree and endorse the view taken in both the judgments that there is no necessity of mentioning the name of witnesses because then it would be a departure from the ordinary law of pleading as provided in Order 6 Rule 5, CPC as evidence is not required to be noted in the pleadings and only necessary details are to be furnished for the purpose of making out a prima facie case to establish that a cause of action has accrued for invoking the jurisdiction of the Court for the redressal of grievance. Subsequently, a number of judgments were delivered including in the cases of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315) and Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977), wherein it was held that furnishing the date and time and place in the plaint is necessary to establish the performance of `Talb-i-Muwathibat'. Therefore, we endorse the view taken in the judgments and approve that a plaint wherein the date, place and time of Talb-i-Muwathibat and date of issuing the notice of performance of Talb-i-Ishhad in terms of Section 13 of the Act is not provided it would be fatal for the pre-emption suit."
(W.I.B.) Leave refused.
PLJ 2008 SC 927
[Original Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, M. Javed Buttar, Ijaz-ul-Hassan, Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari, Ch. Ejaz Yousaf, Muhammad Akhtar Shabbir & Zia Perwez, JJ.
WAJIHUDDIN AHMED--Petitioner
versus
CHIEF ELECTION COMMISSIONER and others--Respondents
Const. Petition No. 73 of 2007 and Crl. Original Petition No. 51 of 2007 in C.P. No. 73 of 2007, decided on 19-11-2007.
Constitution of Pakistan, 1973--
----Arts. 184(3), 41(6) & 8 to 28--Cahpter 1 Part II--Constitutional petitions--Presidential election--Question of validity and jurisdiction--Maintainability--Held: Question involved in the matter of election of the President did not relate to any of the fundamental rights guaranteed in Para ii, Chapter 1 of the Constitution--Petitions under Art. 184(3) of the Constitution were not maintainable' even otherwise, in view of clause (6) of Art. 41 of Constitution, the validity of the election of the president cannot be called in-question by or before any Court. [P. 934] A
PLD 2002 SC 857 and PLD 2005 SC 719, ref.
Mr. M.S. Khattak, AOR for Petitioner (in both petitions)
Nemo for Respondent No. 1.
Malik Muhammad Qayyum, Attorney General for Pakistan, Ms. Nahida Mehboob Ellahi, DAG, Raja Niaz Ahmed Rathore, DAG, Haji Muhammad Rafi Siddique, ASC, Roy M. Nawaz Kharal, ASC, Mr. M. Aslam Nagi, ASC, Raja Abdur Rehman, ASC and Mr. Arshad Ali Ch., AOR for Respondent No. 2.
Syed Sharifuddin Pirzada, Sr. ASC, Raja Muhammad Ibrahim Satti, ASC and Mr. Arshad Ali Ch., Respondent No. 3.
Not represented for Respondents Nos. 4-7.
Date of hearing: 19.11.2007.
Order
Abdul Hameed Dogar, HCJ.--The Chief Election Commissioner of Pakistan/Returning Officer (Respondent No. 1), by notification dated 20th September, 2007, issued schedule of election of the President of Islamic Republic of Pakistan, in pursuance of Paragraphs 1 and 3 of the 2nd Schedule read with clause (3) of Article 43 of the Constitution. The petitioner is a former Judge of this Court. The petitioner, the Respondent No. 3, General Pervaiz Musharraf, President of Pakistan and Respondents No. 4 to 7 filed their nomination papers for the election. The scrutiny of the nomination papers of the candidates was held on 29.9.2007. The petitioner filed objections in writing to the candidature of the Respondent No. 3 by raising a number of Constitutional and legal questions. The Chief Election Commissioner of Pakistan, by the impugned order dated 29.9.2007, turned down the objections of the petitioner and accepted the nomination papers of Respondent No. 3. The operative part of the impugned order reads as under:--
"2. The first objection was to the effect that the current Assemblies were not competent to re-elect the candidate for another term of five years on Constitutional, legal and moral grounds as they had already endorsed his present term of five years and their own term was on the verge of expiration. The objection is devoid of force as it is not augmented by any explicit or implicit embargo contained in the Constitution that an electoral college cannot elect the same person as President twice during its one and the same term. Besides, the objection is squarely negated by the express command contained in Article 41(4) of the Constitution that election to the office of the President shall be held not earlier than sixty days and not later than thirty days before the expiration of the term of President in office. The term of the President in office shall expire on 15th November, 2007, therefore, there can be no cavil with the proposition that election to the office of the President must be held between 15th September to 15th October, 2007. The timeframe is indubitably mandatory. Obviously, the electoral college in existence during that period will be competent to elect the President and postponement of the Presidential election till formation of a new electoral college will be a Constitutional deviation too glaring to be overlooked or condoned. As regards the morality-related ground, it will suffice to say that it is by none well settled that ethical notions and moral grounds cannot be used as a springboard to strike down a provision of law or whittle down a provision of the Constitution. There is no dearth of case law on the subject. However, it will be enough to mention an oft-quoted authority on the subject which is reported as Brig. (Retd.) F.B. Ali V. The State (PLD 1975 SC 506). Last but not the least, the objection is paradoxical inasmuch as the Objectors on the one hand have assailed the competency of the current assemblies to re-elect the President and taken the stance that the present Assemblies do not constitute a valid electoral college and on the other have filed nomination papers seeking election to the office of the President from the same electoral college.
The second objection related to one of the disqualifications listed under Article 63 as Paragraph (d) of Clause (1) and one of the conditions of President's office contained in Article 43(1) of the Constitution. The precise objection was that under the mentioned provisions of the Constitution the candidate is precluded from seeking re-election to the office of the President in uniform while holding the office of profit as Chief of the Army Staff. The objection cannot prevail for reasons that are not far to seek. Firstly, the objection is not available at all in the light of interpretation of Article 41(2) of the Constitution made in Qazi Hussain Ahmed v. General Pervaiz Musharraf (PLD 2002 SC 853) and Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719) that a candidate for the office of the President is only required to be qualified to be elected as a member of the Parliament and is not hit by the disqualifications contained in Article 63 of the Constitution. Secondly, the disqualification contemplated under paragraph (d) of clause (1) of Article 63 is not attracted in the face of person-specific provisions of the President to Hold Another Office Act, 2004, which has been validated by the Supreme Court of Pakistan in the case of Pakistan Lawyers Forum supra, with the observations that it is not liable to be struck down as ultra vires of Article 43 of the Constitution. As regards the bar contained in Article 43 of the Constitution it will be pertinent to point out that it applies to the President in office and not to a candidate for the office of the President. Moreover, Article 43 of the Constitution is presently dormant on account of the overriding effect of the non obstante clauses contained in Article 41(7) and (8) of the Constitution, as held in the case of Pakistan Lawyers Forum, and will get resurrected in due course of time. The said judgment, apart from the Constitution, allows the candidate to hold two offices, namely, President and Chief of the Army Staff simultaneously for a specific period of time, which has not yet expired.
The third objection was that the candidate having remained President for two consecutive terms, firstly from 20th June, 2001 to 15th November, 2002 and secondly from 16th November, 2002 onwards, was not eligible for the third term under Article 44(2) of the Constitution which precludes a person from holding office of the President for more than two consecutive terms. The objection is misconceived. The first term is to be excluded from the tally having not been enjoyed as a result of election and being traceable to an extra-Constitutional step which had made itself manifest through Proclamation of Emergency (Amendment) Order, 2001 (Chief Executive's Order No. 2 of 2001) and President's Succession Order, 2001 (Chief Executive's Order No. 3 of 2001).
The fourth objection was that the candidate was not qualified to contest the election as he was not sagacious, righteous and non-profligate and honest and ameen within the contemplation of Article 62 (f) of the Constitution as he had not fulfilled the commitment made on the electronic media on 24th December, 2003, to give up the office of the Chief of Army Staff by 31st December, 2004. The objection is remarkable in weakness only. The matter is certainly debatable and there is nothing on the record from which the terms and conditions of the commitment or the circumstances under which it was made or not fulfilled could be gathered. It is also not known as to why the failure to fulfill the commitment was not subjected to any legal challenge. Besides, the matter has lost significance by efflux of time and falls within the ambit of a past and closed transaction. In any case, even if the quoted instance from the distant past, which does not appear to be free from political overtones and spirit of national interest, is presumed to have left any mark on the mentioned qualification of the candidate its effect has been offset by the undertaking given by his counsel in the apex Court recently that if elected he will doff his uniform before taking oath of office.
The fifth objection was that being Chief of the Army Staff, the candidate cannot be the President as the post of Chief of the Army Staff is not excluded from the definition of the service of Pakistan under Article 260 of the Constitution. Moreover, as a member of the Armed Forces he had made an oath under Article 244 of the Constitution not to engage in political activities. The objection is not tenable in view of the observations made in the case of Pakistan Lawyers Forum that on the strength of the non obstante clauses contained therein clauses (7) and (8) of Article 41 override Articles 260 and 244 as well as the oath contained in the Third Schedule. The said judgment still hold the field having not been revisited so far. It will not be out of place to mention here that Constitution Petitions titled: "Jamat-e-Islami versus Federation of Pakistan (Civil Petitions No. 58, 59, 61 and 63 and 68) filed in the Supreme Court of Pakistan to challenge the validity of dual office of the candidate, which enjoys the blessings of the Parliament, have been dismissed as not maintainable.
The next objection related to the educational qualification of the candidate. It was contended that the candidate was not qualified to be elected as a member of the National Assembly as he was not a graduate within the meanings of Article 8A of the Conduct of General Elections Order, 2002. The objection turned out to be unfounded and frivolous when Mr. Wasim Sajjad pressed into service two original degrees, attested copies placed on the file of Nomination Paper No. 1 of the candidate, according to which the candidate had obtained degree of Bachelor of Science (Honours) in "War Studies" from the University of Balochistan, Quetta, and degree of Master of Science in `War Studies' from Quaid-e-Azam University, Islamabad, in the year 1980 and 1983 respectively.
The last objection also related to the issue of qualifications and disqualifications. It was urged that the candidate was not eligible to contest election as he suffered from disqualifications enumerated under paragraph (k), (o) and (g) of clause (1) of Article 63 of the Constitution. The objection is sans substance as it ignores the settled law based on the interpretation of Article 41 (2) of the Constitution, mentioned earlier, that a candidate for the office of the President is only required to be qualified to be elected as a member of the National Assembly and is not hit by the disqualifications embodied in Article 63 of the Constitution. Needless to add that it is also firmly settled that qualifications and disqualifications are two separate concepts having distinct connotations and are not interchangeable."
The Election Commission of Pakistan by notification dated 29.9.2007, announced the names of validly nominated candidates. The petitioner felt aggrieved and filed Constitution Petition No. 73 of 2007 before this Court under Article 184 (3) of the Constitution of Islamic Republic of Pakistan calling in question the validity of impugned order dated 29.9.2007, passed by the Chief Election Commissioner of Pakistan.
Pursuant to order dated 5.10.2007 of this Court, the polling of election was held on 6.10.2007. The Respondent No. 3 was reported to have secured the highest number of valid votes i.e 57% of total number of votes and 99% of the votes cast in election. This petition was previously heard for a number of days but hearing could not be concluded. In the meantime, the Proclamation of Emergency, Provisional Constitution Order and Oath Of Office (Judges) Order, 2007, were promulgated on 3.11.2007. As a result thereof, the composition of Bench of this Court was changed.
When the petition was taken up for hearing today i.e 19.11.2007, Mr. M.S Khattak, learned Advocate-on-Record for the petitioner presented before the Full Court two applications dated 10.11.2007 and 19.11.2007, wherein, prima facie, derogatory and contemptuous language was used. Soon after the learned AOR had started addressing the arguments in support of the applications he realized that he was running a risk of being proceeded against. He, therefore, tendered unconditional apology in writing as well as orally for submission of both the applications and withdrew the same with permission of this Court. He further stated that he had no instructions to argue Constitution Petition No. 73 of 2007 and Criminal Original Petition No. 51 of 2007. He was repeatedly asked to argue the same but he showed his inability to perform his legal duty which he owed to the Court as laid down in the cases of Messrs Pearl Builders (Pvt) Ltd. Versus Ardsher Cowasjee and others (PLD 2003 SC 946), Dr. Saleem Javed and others versus Mst. Fauzia Nasim and others (2003 SCMR 965) and Habib-Al-Wahab Alkhairi and others versus Commissioner, Rawalpindi Division and others (PLD 1992 SC 587).
Be that as it may, we find that the impugned order dated 29.9.2007, was passed by the Chief Election Commissioner of Pakistan in the light of the well reasoned judgments of this Court in the cases of Qazi Hussain Ahmed versus General Pervaiz Musharraf (PLD 2002 SC 857) (by a 9 Member Bench) and Pakistan Lawyers Forum versus Federation of Pakistan (PLD 2005 SC 719) (by a 5 Member Bench). In the case of Qazi Hussain Ahmed (supra), it was held as under:--
"It was also urged that under Article 62 of the Constitution, which contains qualifications for being elected as a member of the National Assembly, which are also the qualifications for election to the office of the President, cannot be read into Article 41 (2) of the Constitution. The said Article only provides that the President must be a person qualified to be elected as Member of the National Assembly. The disqualifications listed in Article 63 cannot be read into Article 41 (2) in view of the judgment of this Court in Aftab Shaban Mirani versus President of Pakistan (1998 SCMR 1863) which upheld the judgment of the Lahore High Court in the case reported as Muhammad Rafiq Tarrar versus Justice Mukhtar Ahmad Junejo (PLD 1998 Lahore 414). The same view was also expressed in Muhammad Shahbaz Sharif versus Muhammad Iltaf Hussain (PLD 1995 Lahore 541).
In Pakistan Lawyers Forum (supra), it was laid down that:--
"69. The provisions of Article 63 (1) (d) have been made applicable to the continuation in office of the President after 31 December 2004 by virtue of the proviso to clause (7) of Article 41, which was inserted by the 17th Amendment.
Any other clause or paragraph of Article 63 of the course does not apply to the President since it is settled law that the President is only required to be qualified to be a member of Parliament (as Provided by the Article 62) and is consequently not hit by the disqualifications contained in Article 63 of the Constitution. The argument of the petitioners that the President is subject to all the disqualifications contained in Article 63 of the Constitution ignores the settled law on this point as discussed and upheld most recently in the Qazi Hussain Ahmed's case.
The argument that the COAS could not have assumed the office of the President because of the definition of the "Service of Pakistan" in Article 260 and the disqualifications in respect of such persons contained in Article 63 is untenable as these have no application to the President.
The argument that on account of the oath made by him as a member of the Armed Forces under Article 244 read with the Third Schedule to the Constitution disqualified the COAS from being the President is misconceived. It overlooks the fact that clauses (7) and (8) of Article 41 carry non obstante clauses and these are to have effect notwithstanding anything contained in the Constitution. Clauses (7) and (8) of Article 41, therefore, override Article 244 and the oath in the Third Schedule like they override Articles 43 and 260 of the Constitution.
Since Article 63 (1) (d) has now been made specifically applicable to the continuance in office by the President after 31st December, 2004 through the proviso, it is, therefore, clear that the President would be disqualified from continuing in office qua President if he was to hold an office of profit in the service of Pakistan, except `an office declared by law not to disqualify its holder'. All that has happened in the instant case is that by virtue of Another Office Act, parliament has declared that the office of the COAS is an office, which does not disqualify its holder. The President is, therefore, not barred by the proviso to clause (7) of Article 41 from continuing in office as both the Chief of Army Staff (COAS) and the President because the position of COAS has been declared by law not to disqualify its holder as expressly contemplated by Article 63 (1) (d)."
In our opinion, the President General Pervez Musharraf, the Respondent No. 3 was qualified for and did not suffer from any disqualification, under the Constitution or/and the law, for presidential election, 2007. The view taken by the Chief Election Commissioner is un-exceptionable.
As to the question of maintainability of this petition, it would suffice to follow the majority judgment of this Court in the recent case of Jamat-e-Islami versus Federation of Pakistan (Constitution Petition No. 59 of 2007 decided on 28.9.2007) wherein it was held that "the questions involved in the matter of election of the President did not relate to any of the fundamental rights guaranteed in Part II, Chapter I of the Constitution (Articles 8 to 28). Therefore, the petitions under Article 184 (3) of the Constitution were not maintainable." Even otherwise, in view of clause (6) of Article 41 of the Constitution, the validity of the election of the President cannot be called in question by or before any Court.
For the foregoing reasons, Constitution Petition No. 73 of 2007 and Criminal Original Petition No. 51 of 2007 are hereby dismissed. Consequently, the interim stay order dated 5.10.2007 of with-holding the issuance of final notification of the result of election of the returned candidate to the office of the President is hereby vacated. The Chief Election Commissioner of Pakistan and Federal Government are directed to take all the necessary steps by 1st December, 2007, for final announcement of the result of the presidential election and issuance of public notification in accordance with the Constitution and the law. As already undertaken in writing on 18.9.2007 before this Court by Syed Sharifuddin Pirzada, learned Senior ASC for the Respondent No. 3 and Malik Muhammad Qayyum, learned Attorney General for Pakistan, the President General Pervez Muhsarraf shall relinquish the office of the Chief of Army Staff before taking oath of office of President of Islamic Republic of Pakistan, for the second term.
(W.I.B.) Petition dismissed.
PLJ 2008 SC 935
[Appellate Jurisdiction]
Present: Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
TARIQ MEHMOOD--Appellant
versus
DISTRICT POLICE OFFICER TOBA TEK SINGH & another--Respondents
Civil Appeal No. 23 of 2006, decided on 29.2.2008.
(On appeal from the judgment dated 4.8.2004 in Appeal No. 203/04, passed by the Punjab Service Tribunal, Lahore).
Government Servants (Efficiency & Discipline) Rules, 1973--
----Rr. 5 & 6--Constitution of Pakistan, 1973, Art. 212(3)--Reduction of rank--Appeal was dismissed by Federal Service Tribunal--Procedure of inquiry--Penalties--Neither evidence was recorded nor civil servant was afforded opportunity to rebut--Validity--If major penalty is required to be imposed on any Government employee, then procedure as laid down in Rule 6 of the E&D Rules, 1973 is required to be adhered to--No major penalty can be imposed on a civil servant unless his guilt is properly inquired in to by appointing an inquiry officer or an inquiry committee within the purview of Rule 5 of the Efficiency & Discipline Rules, 1973 and the accused is served with a proper show-cause notice or charge sheet containing statement of allegations on which the penalty is proposed to be inflicted--Appeal allowed. [Pp. 936, 937 & 938] A & B
Malik Saeed Hassan, Sr. ASC for Appellant.
Ex-parte for Respondents.
Date of hearing: 29.2.2008.
Judgment
Ch. Ejaz Yousaf, J.--This appeal by leave of the Court is directed against judgment dated 04.08.2004 passed by the Federal Service Tribunal, Lahore, whereby appeal filed by the petitioner against imposition of major penalty by reduction in rank was dismissed.
Facts of the case, in brief are that the appellant was awarded major penalty of reduction in rank from ASI to that of Head Constable by Respondent No. 1 vide order dated 16.4.2003 on the basis of show-cause notice dated 17.1.2003, dispensing with regular inquiry. The allegation against the petitioner was that he, during investigation of the case FIR No. 163, dated 20.11.2002 u/S. 337-A (1)(2)/34 PPC, registered at P.S. Aroti, had obtained a sum of Rs. 3500/- as gratification from complainant Muhammad Ali s/o Sultan. The appellant preferred departmental appeal before Respondent No. 2 which remained unfruitful and was dismissed vide order dated 9.1.2004. Being aggrieved, the appellant approached the Federal Service Tribunal but in vein. The appeal filed by him was dismissed, vide the impugned judgment, hence this petition.
It has been mainly contended by the learned counsel for the petitioner that since reduction in rank was a major penalty within the purview of Section 4(b)(i) of the Government Servants (E&D) Rules, 1973 (hereinafter called as "E&D Rules, 1973), hence regular enquiry could not have been dispensed with in the case of the appellant. It is further his grievance that before imposition of major penalty, neither any evidence was recorded nor the appellant was afforded opportunity to lead his defence, hence, it being in contravention of Section 6 of the E&D Rules, 1973 the impugned judgment is not sustainable.
Though none despite service has appeared on behalf of the respondents yet, while giving our anxious consideration to the contentions raised by the learned counsel for the appellant, we have carefully perused the record of the case.
No doubt, reduction in rank is one of the major penalties prescribed by Rule 4(1)(b)(i) of the E&D Rules, 1973. The said rule reads as follows:--
Penalties.--(1) The following are the minor and major penalties, namely:--
(a) Minor Penalties:
(i) ....................
(ii) ....................
(iii) ....................
(iv) ....................
(b) Major Penalties:
(i) Reduction to a lower post or time-scale, or to a lower stage in time-scale;
(ii) .....................
(iii) .....................
(iv) .....................
It appears from the record that though in pursuance of show-cause notice personal hearing was afforded to the appellant by the enquiry officer on 7.4.2004 yet, neither any evidence was recorded or taken by him nor the petitioner was afforded opportunity to rebut the same. It is well settled that if major penalty is required to be imposed on any Government employee, then procedure as laid down in Rule 6 of the E&D Rules, 1973 is required to be adhered to. The relevant provision reads as under:--
"6. Procedure to be observed by the Inquiry Officer and Inquiry Committee: Where an Inquiry Committee is appointed, the authorized officer shall--
(1) Frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration.
(2) Require the accused within a reasonable time, which shall not be less than seven days or more than fourteen days from the day the charge has been communicated to him, to put in a written defence and to state at the same time whether he desires to be heard in person.
(3) The Inquiry Officer or the Committee, as the case may be shall inquire into the charge and may examine such oral documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witness against him.
Here it would also be advantageous to have a glance at Rule 5 of the E&D Rules, which empowers the Authorized Officer to direct enquiry against Government Servant through an Inquiry Officer or an Inquiry Committee which reads as under:--
"5. Inquiry Procedure: (1) The following procedure shall be observed when a government servant is proceeded against under these rules:--
(i) In case where a government servant is accused of subversion, corruption or misconduct, the authorized officer may require him to proceed on leave or, with the approval of the authority, suspend him;
Provided that any continuation of such leave or suspension shall require approval of the authority after every three months;
Provided further that where the authority is President or Prime Minister the powers of the authority under this clause shall be executed by the Secretary, Establishment division.
(ii) The authorized officer shall decide whether in the light of facts of the case or the interest of justice an inquiry should be conducted through an Inquiry committee. If he so decides, the procedure indicated in Rule 56 shall apply.
(iii) If the authorized officer decides that, it is not necessary to have an inquiry conducted through an Inquiry Committee, he shall--
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and
(b) given him a reasonable opportunity of showing cause against that action:
Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity.
(iv) On receipt of the report of the Inquiry Officer or Inquiry Committee or where no such Officer or committee is appointed, on receipt of the explanation of the accused, if any, the authorized officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty he shall pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge and statement of all allegations served on the accused, the explanation of the accused the findings of the Inquiry Officer or Inquiry Committee, if appointed and his own recommendations regarding the penalty to the imposed. The authority shall pass such orders as it may deem proper.
(2) The exercise or powers under clauses (i) and (iv) of sub-rule (1) by the authorized officers in the Pakistan Missions abroad shall, unless already so provided, always be subject to the approval of the authority."
A bare perusal of the aforesaid provisions lead to the conclusion that no major penalty can be imposed on a Government Servant unless his guilt is properly inquired into by appointing an inquiry officer or an inquiry committee within the purview of Rule 5 of the E&D Rules, 1973 and the accused is served with a proper show-cause notice or charge sheet containing statement of allegations on which the penalty is proposed to be inflicted. Law is well settled in this regard. In the case of Jan Muhammad v. The General Manager, Karachi Telecommunication Region (1993 SCMR 1440), the appellant was served with a charge sheet on the ground that he had disobeyed order of his superior which amounted to misconduct. He submitted his reply. After formal investigation order of compulsory retirement from government service was passed. It was held that Order of compulsory retirement was not sustainable as inquiry was not held in accordance with procedure laid down under Rule 6 of the E&D Rules, 1973, the order, therefore, was set-aside. In the case of Ghulam Muhammad Khan v. Prime Minister of Pakistan & others (PLD 1994 SC 222), while referring to the case of Nawab Khan & another v. Government of Pakistan through Secretary, Ministry of Defence & others (1996 SCMR 802), it was held that there is a marked distinction between Rule 5 and Rule 6 of the E&D Rules, inasmuch as under the former Rule, a regular inquiry can be dispensed with, whereas the latter rule envisages conducting of regular inquiry which would necessitate the examination of witnesses in support of the charges brought against the accused civil servant, his right to cross-examine such witnesses and his right to produce evidence in rebuttal. The question, as to whether the charge of a particular misconduct needs holding of a regular inquiry or not, would depend on the nature of the alleged misconduct. If the nature of the alleged misconduct was such on which a finding of fact could not be recorded without examining the witnesses in support of the charge or charges, the regular inquiry could not be dispensed with. In the case of Rashid Mehmood versus Additional Inspector-General of Police and 2 others (2002 SCMR 57) the appellant was acquitted from a criminal charge by the trial Court. Despite acquittal, he was proceeded against by the department on the ground that since, he had become criminal minded, therefore, was unfit to be retained in service. On finalization of the proceedings, the appellant was dismissed from service. The Service Tribunal maintained the decision of the departmental authority. Appeal was preferred to the Supreme Court which was allowed and it was held that regular inquiry having not been conducted by the departmental authority, there were no basis to hold that the civil servant was guilty of misconduct. Judgment passed by the Service Tribunal was accordingly set aside and the authority was directed to reinstate the appellant in service with back benefits. What to speak of holding of an inquiry prior to imposition of major penalty, in the case of Inspector General of Police v. Shafqat Mehmood (2003 SCMR 207), it was held that failure to associate civil servant with inquiry conducted against him would render the proceedings as unsustainable. In the said case, respondent was dismissed from service on the basis of registration of a criminal case, whereas the judgment of the trial Court, whereby the respondent was acquitted, was not considered by the department. It was born out from the record that regular inquiry, as required under Sindh Police (H&D) Rules, 1988, was not conducted, however, a fact finding committee, to investigate the matter, was constituted in which respondent was not even allowed to participate.
The Tribunal, after careful consideration and following the rule laid down by this Court in the case of Rashid Mehmood v. Additional Inspector General of Police and others (2002 SCMR 57), (supra) allowed the appeal which was up held by this Court.
(M.S.A.) Appeal accepted.
PLJ 2008 SC 940
[Appellate Jurisdiction]
Present: M. Javed Buttar, Muhammad Qaim Jan Khan & Sheikh Hakim Ali, JJ.
MUHAMMAD ASHIQ and another--Petitioners
versus
WATER AND MANPOWER DEVELOPMENT AUTHORITY, LAHORE through its Chairman, WAPDA House
and others--Respondents
Civil Petition No. 1634 of 2005, decided on 11.3.2008.
(On appeal from the judgment dated 28.2.2005 and 2.3.2005 passed by the Lahore High Court, Lahore, in ICA No. 575 of 2003).
Land Acquisition Act, 1894, (I of 1894)--
----Ss. 4 & 17(4)--Constituion of Pakistan, 1973, Art. 185(3)--Leave to appeal--Notification for acquiring the land of the petitioner--Challenge to--Question of acquisition of the land for the public purpose or not raised--Held: Explicit words of acquisition of land in dispute, by Government at the public expense in the notification under Section 4 of the land Acquisition Act, 1894 are sufficient to hold that the land was being acquired by the government for the purpose of construction of WAPDA offices and residential colony--Notification issued under Section 4 of the Land Acquisition Act, in fact empowers the provincial government and its officers specially or generally to enter-upon the lands, to take its survey and to perform other acts as contained--Notification issued and published is a preliminary step which facilitates the Government and its officers not only to perform survey of the land yet to decide and determine as to which piece of land was finally required to be acquired and the land to be left ultimately for the purpose of acquisition, keeping in view the aim and purpose for which the land was being acquired--Leave refused. [Pp. 944 & 945] A & B
Dr. Muhammad Aslam Khaki, ASC for Petitioners.
Mr. Gul Zarin Kiayani, ASC for Respondent No. 1.
Qazi Muhammad Amin, Addl. A.G. for Respondents No. 2 & 3.
Date of hearing: 11.03. 2008
Judgment
Sheikh Hakim Ali, J.--Attempt to seek leave to appeal against the judgment of the learned Division Bench of the Lahore High Court dated 02.03.2005 delivered in ICA No. 575 of 2003, has been made through the instant Civil Petition by the petitioners, who had lost the battle of litigation to get their land released from the clutches of compulsory acquisition acquired by the respondents.
A Notification under Section 4 of the Land Acquisition Act, 1894, was got published in the Extra-ordinary Gazette of the Punjab dated 08.01.1986 by WAPDA for the construction of WAPDA Offices and Official Residential Colony in Village Khamba, Tehsil and District Lahore, through Collector of District Lahore. Land measuring 521 kanals 4 marlas initially was notified in the aforementioned notification to be acquired. But afterwards, a corrigendum notification was also issued on 07.08.1986, which was got published in the issue of the Punjab Gazette dated 09.08.1986. The area proposed to be acquired was reduced to the extent of 478 kanals 18 marlas. Notification of declaration as required under Section 6 of the Land Acquisition Act, 1894 had also flowed thereafter while notification dated 01.10.1986 under Section 17(4) of the above aforementioned Act, was gotten out by the Commissioner Lahore Division Lahore, which had appeared in the Punjab Gazette on 04.1.1986.
Two Writ Petitions Bearing No. 419 of 1978 and Writ Petition No. 512 of 1987 were filed before the Lahore High Court Lahore, challenging the vires of the aforementioned notification and the ensuing proceedings of acquisition on the ground that the land being acquired for WAPDA could not be held to have been acquired for public purpose because the WAPDA Corporative Housing Society was the ultimate beneficiary of these proceedings. Therefore, the acquisition were prayed to be declared as proceedings based on malafides. It was further pleaded that land of one Seth Abid and the Roti Corporation, which had fallen within the WAPDA Town Scheme was not included in and were left out from the acquisition proceedings, which was the proof and manifestation of malafides on the part of WAPDA, therefore, the acquisition proceedings might be declared invalid. Many other objections were also raised but the main and pivotal issue pleaded, was that the land was not being acquired for public purpose and that proceedings were based on malafides. The learned Judge in Chamber of the Lahore High Court, through a detailed judgment after discussing every aspect of the case partly allowed the writ petition through its judgment dated 15.10.2003 in the following terms:--
"For what has been stated above, both these writ petitions are partly allowed only to the extent of redetermination of compensation payable to the petitioner by the concerned Land Acquisition Collector while the proceedings for acquisition of the land in dispute are upheld."
Aggrieved from the aforementioned judgment of the learned Judge in Chamber passed on 15.10.2003, ICAs Nos.565/03 and 579/03 were filed in the same High Court, by the petitioners but the order/judgment of the learned Single Judge in Chamber was upheld by the learned Division Bench of the High Court by dismissing the appeals on 02.03.2005, hence this Civil Petition.
The main thrust of arguments, of the learned counsel for the petitioners is that the land was not acquired for public purpose and the acquisition proceedings was based on malafides. To prove as to how the acquisition proceedings were based on malafides, stress was laid upon the fact that the land of Seth Abid was left over from the acquisition process, although it was situated amidst the lands, surrounded by the lands of the petitioners, which were being acquired, therefore, it was a clear malafides on the part of WAPDA. The award was incomplete, and land initially noted in Section 4 Notification under Land Acquisition Act, 1894 could not be changed under Section 7 of the Land Acquisition Act, 1894. As per learned counsel the detail of the land was changed under the proceedings which were taken under Section 7 of the Land Acquisition Act. Even order was passed for the change of land and emergent taking of possession was done under Section 17(4) of the Land Acquisition Act 1894, therefore, the acquisition proceedings of the land in dispute were to be declared null and void. The learned counsel for the petitioners has also referred to the case of (The Murree Brewery Co. Ltd. Vs. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others) PLD 1972 SC 279.
Conversely, the learned counsel for the respondents submits that the land was acquired for public purpose as the land was required for the construction of offices and official residential colony for the employees of the WAPDA. There was urgency for the invocation and application of the Provision of Section 17(4) of the Land Acquisition Act, 1894. Enough material was produced before the learned Commissioner for this purpose of obtaining an immediate order for the delivery of possession, which discretion was exercised by the learned Commissioner after considering it, which could not be assailed before the learned High Court in writ jurisdiction, as it was founded upon subjective satisfaction of the Competent Authority. The counsel has referred to many judgments also. Some of it are noted below:--
"(NLR 1997 Revenue 8 (SC), 1997 CLC 812, AIR 1995 Punjab & Haryana 62, AIR 1991 Allahabad 330, AIR 1977 SC 183, AIR 1986 Madras 309, 1986 CLC 1841)."
Learned counsel for the respondents submits that the learned High Court has correctly dismissed the ICAs No. 565/03 and 579/03 through the impugned order/judgment.
"Whereas it appears to the Collector, Lahore District, Lahore that the land is likely to be required to be taken by the Government at the Public Expenses for public purpose namely for the construction of WAPDA Offices ad Official Residential Colony in the Village Khamba Tehsil and District Lahore, it is hereby notified that land in the locality described below is likely to be required for the above purpose."
We have found from the above noted para that the land was being acquired by the Government at the public expenses. Secondly, the land was being required for public purpose, namely, for the construction of WAPDA offices and official residential colony. This aim and purpose was again reiterated and declaration to that effect was also got published by the Provincial Government under Section 6 of the Land Acquisition Act 1894. According to sub-section (3) of Section 6 of Land Acquisition Act, 1894, the said declaration has got the presumption of conclusive evidence of the fact that the land was acquired for the public purpose. After the publication of this declaration, the presumption was to be rebutted by the present petitioners through sound material and cogent evidence. Mere plea that the land of Seth Abid and his relative was not acquired although it was situated within the area surrounded by the area to be acquired, could not lead to this conclusion and that the land was not being acquired for the public purpose or the acquisition was based on malafides. The explicit words of acquisition of land in dispute, by the Government at the public expense in the Notification under Section 4 of the Land Acquisition Act, 1894 are sufficient to hold that the land was being acquired by the Government for the purpose of construction of WAPDA offices and residential colony. The Government was to decide as to which land was suitable for its purpose. Therefore, no malafides could be attributed to the Government merely on this plea. The plethora of judgments have found place in the judgments of the learned Division Bench as well as the learned Single Judge in Chamber of the Lahore High Court, Lahore, which need not be repeated in this judgment.
As regard the contention of the learned counsel that emergency provision of Section 17(4) of the Land Acquisition Act, 1894 was invoked for securing the possession of land to be acquired, although there was no urgency to proceed in such a manner was not an objectionable act because it was the subjective satisfaction of the competent authority to apply those provision or not according to given circumstance, which was not to be allowed to be made available for scrutiny by this Court through the instant jurisdiction. The learned Division Bench of the Lahore High Court has dealt with this subject also in para-8 of its judgment. It was noted that Central Testing Laboratories were to be established urgently as the project was being implemented with the consultative assistance of UNDP in WAPDA Thermal Scheme. Therefore, this being an urgent requirement of aforementioned organization/ department, the notification issued under Section 17(4) of the Land Acquisition Act cannot be considered to be invalid proceedings.
The contention of the learned counsel for the petitioner that the details of land have been varied and amended under Section 7 and Section 17(4) of the Land Acquisition Act cannot be believed to be correct assertion as the learned counsel has failed to point out the amendments an the variations, which had occurred. Moreover the petitioners have failed to produce copy of document i.e. Notification issued under Section 6 of Land Acquisition Act, 1894 and the corrigendum issued by the Land Acquisition Collector. It may be explained here that notification issued under Section 4 of the Land Acquisition Act, in fact, empowers the Provincial Government and its officers specially or generally to enter-upon the lands, to take its survey and to perform other acts as contained in the above noted Section. In other words, the notification issued and published under this Section 4 of Land Acquisition Act, 1894 is a preliminary step which facilitates the Government and its officers not only to perform survey of the land yet to decide and determine as to which piece of land was finally required to be acquired and the land to be left ultimately for the purpose of acquisition, keeping in view the aim and purpose for which the land was being acquired. Therefore, the notification which was got published under Section 4 of the Land Acquisition Act, could not be termed as an ultimate and final decision of the Government to acquire the land notified in the aforementioned Notification.
For the reasons discussed above, we have found no merit in this Civil Petition, which is dismissed accordingly and leave refused.
(M.S.A.) Leave refused.
PLJ 2008 SC 945
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ and Muhammad Nawaz Abbasi, J.
COMMISSIONER OF INCOME TAX/WEALTH TAX, COMPANIES ZONES, PESHAWAR--Petitioner
versus
M/s RIVER SIDE CHEMICALS (PVT.) LTD. GADOON--Respondent
Civil Petition Nos. 827-829 of 2007, decided on 19.12.2007.
(On appeal from the judgment dated 12.6.2007 passed by Peshawar High Court, Peshawar, in T.R. No. 159/2003).
Income Tax Ordinance, 1979 (XXXI of 1979)--
----Clause 118-C, 122-C of Part-I to the second schedule--Constitution of Pakistan, 1973--Art. 185(3)--Leave to appeal--Question of--Whether the company was entitled to exemption under Clause 118-C, Part I to the second schedule of Income Tax Ordinance 1979, or not--Held: Grant of concession in the nature of exemption from payment of duties must be given strict interpretation and the person getting such benefit must satisfy all conditions for such exemption but once the required conditions are complied with, the exemption available to a person under the law cannot be taken away by the concerned authorities in their discretion--Petitions dismissed. [P. 950] A
Mr. Mumtaz A. Sheikh, Member F.B.R. for Petitioner (In all cases).
Nemo for Respondents (In all cases).
Date of hearing: 19.12.2007
Judgment
Muhammad Nawaz Abbasi, J.--These two connected petitions under Article 185(3) of the Constitution have been directed against the consolidated judgment dated 12.06.2007, involving common questions of law and facts, rendered by a learned Division Bench of the Peshawar High Court, Peshawar in Tax References.
We have considered all the relevant facts and materials. It has been noted that originally exemption was allowed under clause (118-C) of Second Schedule to the Income-Tax Ordinance, 1979. While for subsequent year it was allowed under clause (122-C) of Part-I of Second Schedule to the Ordinance. In order to remove this mistake a rectification application u/S. 156 of the Ordinance was filed to claim that respondent-company is exempt from payment of tax under clause (118-C) instead of clause (122-C). This application was turned down by assessing officer, while on appeal the first appellate authority accepted the plea of respondent-company and allowed exemption under clause (118-C) of Second Schedule to the Ordinance. Department later on approached the Income-Tax Appellate Tribunal and the matter was decided vide ITA No. 308(PB) of 96-97 dated 17.2.1997 once again in favour of respondent-company. Subsequently, a similar reference application u/S. 136(1) was also rejected by this Bench of the Tribunal. So, keeping this factual position of the case in view, where the question of exemption has been settled by this Tribunal and it has been held that the company is exempt under clause (118-C) of the 2nd Schedule to the Income-Tax Ordinance, 1979, the questions (i) & (ii) became infructuous.
As regards 3rd question, while placing reliance on the decision of Karachi Bench vide ITA No. 136/KB of 1998-99 dated 23.9.98 and ITA No. 284/KB of 99-2000 dated 11.12.99 this Bench of the Tribunal has held that income earned from bank deposits in the post production period is exempt from tax in the case of assessee.................................
Since, the legal position on the issue is absolutely clear, hence there is no need to refer this question to the Hon'ble High Court for its opinion. Therefore, the same is rejected.
Apart from it, these reference applications have been filed under sub-section (1) of Section 133 of the new Income-Tax Ordinance, 2001; while we are of the considered view that reference applications for assessment years under consideration should have been filed under sub-section (1) of Section 136 of the Income Tax Ordinance, 1979, for the reason that actually this Tribunal gave its fining u/S. 135 of the Income Tax Ordinance, 1979.
For the above reasons, these applications fail and are hereby rejected.
(i) Whether on the facts and in the circumstances of the case, the ITAT was legally justified to confirm the order of the CIT(A) who set aside the assessment on the issue of tax u/S. 80-D in the light of Honourable Supreme Court of Pakistan's decision on the grounds that the Honourable Supreme Court of Pakistan has deleted tax u/S. 80-D in those cases which are enjoying tax holiday u/S. 118-C whereas the case of the assessee enjoys tax holiday u/S. 122-C?.
(ii) Whether on the facts and in the circumstances of the case the ITAT, Peshawar was legally justified in holding that clause (122-C) of Part-I of the Second Schedule to the Income Tax Ordinance, 1979, is covered by Section 6 of the Protection of Economic Reforms Act, 1992, whereas the said act factually does not extend protection to the said clause?
(iii) Whether the ITAT, on the facts and circumstances of the case, was legally justified to delete tax u/S. 80-D whereas the Honourable Supreme Court of Pakistan had already given leave to appeal in a Civil Petition No. 2001 SCMR 563 in the case of M/s Zaman Cotton Mills whose income is also exempt u/S. 122 C?.
(iv) Whether on the facts and in the circumstances of the case, the L/ITAT, Peshawar was justified to direct the application of clause (118-C) of Part-I of the Second Schedule instead of clause (122-C) while assessee has already availed facilities u/S. 122-C?.
(v) Whether, the ITAT, on the facts and circumstances of the case, was legally justified to confirm the order of the CIT(A) by holding that interest income was business income and could not be subjected to tax whereas the same was taxable as a separate block of income u/S. 30 of the Income Tax Ordinance, 1979.
(vi) Whether the ITAT, on the facts and circumstances of the case, was legally justified to confirm the order of the L/CIT(A) whereas the Honourable Sindh High Court Karachi in the case of CIT Vs. Khairul Hayat Amin & Co. Limited has held that interest income is not a part of business income and is thus taxable u/S. 30 of the Income Tax Ordinance, 1979.
(vii) Whether, the ITAT, on the facts and circumstances of the case, was legally justified in holding that the reference application should have been filed u/S. 136(1) of the Income Tax Ordinance, 1979, instead of Section 133(1) of the Income Tax Ordinance, 2001, whereas the former statute stood repealed and the letter one had come into force w.e.f. 1.7.2002 by virtue of SRO 381(1)/2002 dated June 15, 2002 read with Section 238 of the Income Tax Ordinance, 2001?"
In the case in hand, the respondent/assessee's case was finally assessed by the learned Tribunal u/S. 118C and not under clause 122C, therefore, the judgment and order passed in Civil Appeal No. 1918/2000 Federation of Pakistan Vs. Zaman Cotton Mills is not applicable to the case in hand as no question of exemption under clause 122C was left to be resolved.
In Question No. I it has been mentioned that the assessee enjoys tax holiday under clause 122C. As mentioned above, the Tribunal has in clear words mentioned that the case of the assessee was finally assessed under clause 118C rather than clause 122C. With the said decision of the Tribunal, Questions No. I and II have become irrelevant and not entertainable. Question No. III has been answered in the above paragraphs.
Question No. IV being not part of the original Reference to the Tribunal, hence was not entertainable, however, for the clarification, it has been answered in the above paragraphs. Questions No. V to VI were either not pressed before the Tribunal or were not part of the original Reference, hence are not entertainable. All the questions are answered in the above terms.
(Part-I) to the schedule of Income Tax Ordinance, 1979, by the Deputy Commissioner Income Tax/Wealth Tax Companies Zone, Circle-2, Peshawar, on the start of commercial production whereas the assertion of the company was that it was entitled to the benefit of Section 118-C of the schedule to the Ordinance. The company thus filed an application under Section 156 of the Ordinance and on dismissal of this application, filed an appeal before Commissioner of Income Tax (A-I), Peshawar which succeeded and company was allowed benefit of Clause 118-C of the second schedule to the Income Tax Ordinance, 1979. The above order passed by the Commissioner in appeal was further upheld by the appellate Tribunal as well as by the High Court in tax reference.
The departmental representative placing reliance on the judgment in C.A. No. 1918/2000, Federation of Pakistan Vs. Zaman Cotton Mills (2001 SCMR 563) contended that the impugned judgment/order of the learned High Court was contrary to law firstly for the reason that in the case of Zaman Cotton Mills supra leave was granted by this Court to consider the question whether the tax liability determined under Section 80-D of the Income Tax Ordinance, 1979, was legal and the assessee could avail the benefit of tax holiday under Clause 122-C supra and secondly, whether Tribunal was right in holding that protection of Section 6 of the Economic Reforms Act 1992 was extendable to Clause 122-C of Part-I of the second schedule to the Income Tax Ordinance, 1979. In nut-shell, Mr. Mumtaz Sheikh, argued that in the facts and circumstances of the present case, the view taken by the Tribunal and High Court that company was entitled to the benefit of Clause 118-C of Part-I of the second schedule to the Ordinance was based on misconception of law. The next point asserted before us was that after repeal of Income Tax Ordinance, 1979, the reference application under the said Ordinance was not maintainable.
We have heard Hafiz S.A.Rehman, learned Sr. ASC for the respondents as well as Mr. Mumtaz A. Sheikh, learned Member (Legal) FBR and have considered their respective arguments in the light of record as well as relevant provisions of Customs Act, 1969. The bare perusal of the impugned judgment shows that the answers to the questions, raised before the Tribunal and the High Court were free from any ambiguity as it is apparent on record that the case of respondent/assesses was assessed under Clause 118-C and not under Clause 122-C of Part-I to the second schedule to the Income Tax Ordinance, 1979. The proposition involved in Federation of Pakistan Vs. Zaman Cotton Mills (2001 SCMR 563) having no nexus with the point in issue in the present case, may not be helpful to resolve the controversy whether the company was entitled to exemption under Clause 118-C, Part-I to the second schedule of Income Tax Ordinance, 1979 or not? Be that as it may, the assessment of the company under Clause 118-C referred to above, would make the certain questions raised therein, irrelevant and learned counsel for the petitioner has not been able to satisfy us that in the facts and circumstances of the present case, the assessee was not entitled to the benefit of Clause 118-C ibid. The assertion of the Department that the initial assessment of the Company under Clause 122-C was based on the factual consideration in the light of which the claim of assessment under Clause 118-C ibid was beyond the scope of law was not substantiated and supported by a legal and valid reason calling interference of this Court in the concurrent judgment rendered by the Tribunal and the High Court in the matter. There is no cavil to the proposition that the grant of concession in the nature of exemption from payment of duties must be given strict interpretation and the person getting such benefit must satisfy all conditions for such exemption but once the required conditions are complied with, the exemption available to a person under the law cannot be taken away by the concerned authorities in their discretion.
We having considered the matter in the light of relevant provisions and the questions raised before the Tribunal as well the High Court, have not been able to find out any justification for interference in the impugned judgment and consequently, for the reasons given above, find that the High Court has not committed any illegality or irregularity in answering the questions raised before it in the impugned judgment, therefore, these petition being without any substance are accordingly dismissed.
(M.S.A.) Petitions dismissed.
PLJ 2008 SC 951
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan & Zawwar Hussain Jaffery, JJ.
MUHAMMAD NAWAZ--Petitioner
versus
STATE through Chairman NAB, Islamabad & another--Respondents
C.P. Nos. 870 to 874 of 2007, decided on 22.1.2008.
(On appeal from the judgment dated 28.8.2007 passed by the High Court of Sindh, Karachi, in Constitutional Petitions No. D-1628 to
1632 of 2007).
Administration of Justice--
----Liberty of a person is very previous and the mandate of the Constitution and law is that the liberty of the people must be respected and must not be curtailed through misuse of process of law in the light of principle that the law cannot be stretched in favour of proposition to withhold concession of bail as of punishment for indefinite period without trial--The expeditious trial is right of an accused and unnecessary delay in conclusion of trial is denial of access of justice--Petitions allowed. [P. 953] A
Bail--
----Customs Act, 1969, Ss. 32(i), 156(i) & 82--Medical ground--Rebates payable on export of specified goods on basis of shipping documents--Fake transactions--No question of tampering with evidence or influence official witnesses--Held: In light of medical report, the accused had a strong case for grant of bail on medical ground.
[P. 954] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Customs Act, (IV of 1969), Ss. 32(1), 14, 82 & 156(i)--Bail, grant of--Medical ground--Further inquiry--Principle governing the grant of bail in non-bailable cases, accused would be entitled to concession of bail on merits as well as on medical ground--Bail was granted. [P. 954] C
Mr. Muhammad Ilyas Siddiqui, ASC for Petitioner (In all cases).
Dr. Asghar Rana, D.P.G. for Respondents (In all cases).
Date of hearing: 22.1.2008.
Judgment
Muhammad Nawaz Abbasi, J.--These five connected petitions involving common questions of law and facts, have been directed against the consolidated judgment dated 28.08.2007, passed by a learned Division Bench of the High Court of Sindh, Karachi, whereby five Constitution petitions filed by the petitioner in the High Court seeking grant of bail in five separate cases registered against him under Section 32 (1) of the Customs Act, 1969 punishable under Clauses 14 and 82 of sub-section (1) of Section 156 of ibid Act, were dismissed. We intend to dispose of all these petitions together through this single judgment.
The facts in small compass in all the five cases are that petitioner while posted as Collector of Customs at Quetta before 1992 approved the claim of rebates payable on the export of specified goods on the basis of shipping documents, duly verified by the Officer of Customs posted at various Customs Stations in the Province of Balochistan. It is stated that Directorate of Inspection and Training, Karachi having received credible information about the fake rebate claims initiated the proceedings under the provision of Customs Act, 1969 against the exporters namely Imtiaz Ali Taji, Haroon Rashid and Abdul Majid Askani as well as the concerned staff of Gawadar and Quetta Customs Houses. Precisely, the case of prosecution was that the exporters in connivance with the customs officials manipulating the shipping bills, prepared false rebate claims showing export of the goods of huge value. The investigating agency on completion of the investigation, submitted challan in all the cases in the Court of Special Judge (Customs) Karachi in which the petitioner was also arrayed as one of the accused alongwith the subordinate customs officials including the concerned Inspector, Deputy Superintendent, Superintendent and Assistant Collector of Customs, posted at Gawadar. The allegation against custom officials including the petitioner was that they in collaboration with the exporters completed the process of export of polyester jacquard fabric in the fake transactions of export and were party to the alleged fraud. The payment of bogus rebate claims was sanctioned by the petitioner and pending investigation of the cases payments were also made to the exporter in departure to the instructions contained in the letter dated 2.1.1992 issued by the Directorate of Customs.
The cases against the petitioner were pending in trial before the Special Judge (Customs & Taxation) Karachi when on promulgation of NAB Ordinance, 1999, the same were transferred to the Accountability Court established under the ibid Ordinance at Karachi. The petitioner while on bail went abroad and subsequently on cancellation of bail, he was declared absconder. The petitioner on arrest was declined bail on merits and later, also on medical ground vide order dated 28.9.2007, therefore, he has filed the instant petitions for grant of bail.
Learned counsel for the petitioner has contended that in view of the nature of allegation and the evidence collected by the prosecution, the case against the petitioner would squarely fall within the ambit of sub-section (2) of Section 497 Cr.P.C and he would be entitled to the concession of bail as of right. The learned counsel added that the petitioner is also entitled to the statutory benefit provided under Section 7 of the National Reconciliation Ordinance, 2007, and in view thereof, the proceedings before the trial Court cannot continue. Learned counsel explaining the alleged absconscion of the petitioner during the trial submitted that in consequence to the quashment of the proceedings in the criminal cases in question against the petitioner by the High Court of Sindh at Karachi vide order dated 27.1.1994 passed in Crl.Misc. No. 1195/93, he proceeded abroad and while he was still at abroad, the above order of the High Court was set aside by this Court in Criminal Appeal Nos. 103 to 107/1994, filed by the State and case was remanded to the trial Court for decision on merits, therefore, the alleged absconcsion of the petitioner in these circumstances, was only of technical nature which was not a valid ground for refusal of bail. The learned counsel further argued that in any case, the petitioner was also entitled to the concession of bail on medical ground which was not properly considered.
The perusal of the record with the help of learned counsel for the petitioner would show that the High Court without properly appreciating the plea taken on behalf of the petitioner for grant of bail to him in the light of factual position, declined him the concession of bail on merits as well as on medical ground in a perfunctory manner. The liberty of a person is very precious and the mandate of the . Constitution and law is that the liberty of the people must be respected and must not be curtailed through misuse of process of law in the light of principle that the law cannot be stretched in favour of proposition to withhold concession of bail as of punishment for indefinite period without trial. The expeditious trial is right of an accused and unnecessary delay in conclusion of trial is denial of access to justice. The charge against the petitioner is that he approved and sanctioned the payment of fake claims of rebate and in view of the facts of the cases, the question whether petitioner being privy to the crime has knowingly sanctioned the rebate claims in the fake transactions of export or he while depending on his subordinate, approved the claims in good faith in accordance with the rules, requires determination in the light of the documentary and oral evidence yet to be brought on record. It is, therefore, difficult to express opinion regarding the guilt of the petitioner without scrutiny of the entire record and question whether he being in league with his co-accused in the transactions was also one of the beneficiary, cannot be answered at this stage. Be that as it may, the relevant record and the documentary evidence collected during the investigation is with the prosecution, therefore, there is no question of tampering with the evidence or to influence the official witnesses. We may also point out that in the light of the medical report, the petitioner had a strong case for grant of bail on medical ground.
Be that as it may, in the facts and circumstances of the case, the involvement of the petitioner in the transaction is certainly a question of further inquiry and in view of the principle governing the grant of bail in non-bailable cases, he would be entitled to the concession of bail on merits as well as on medical ground.
In the light of foregoing reason, we convert these petitions into appeals, set aside the impugned judgment of the High Court and grant bail to the petitioner in all the five cases. The interim bail granted to him vide order dated 19.12.2007, which is read as under is confirmed:
"After hearing Mr. M. Ilyas Siddiqui, learned counsel for the petitioner and Dr. Danishwar Malik, learned Prosecutor General NAB at length, petitioner is admitted to interim bail subject to furnishing surety in the sum of Rs. 500,000/- (Rupees five lacs) with P.R. bonds to the satisfaction of the trial Court."
(M.S.A.) Appeal accepted.
PLJ 2008 SC 954
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
SECRETARY MINISTRY OF FINANCE & another--Petitioners
versus
KAZIM RAZA--Respondent
Civil Petition No. 934 of 2007, decided on 30.1.2008.
(On appeal from the judgment dated 4.10.2007 of the Federal Service Tribunal, Islamabad in Appeal No. 601(R)CS/04).
Government Servants (Efficiency & Discipline) Rules, 1975--
----S. 2--Constitution of Pakistan, 1973, Arts. 185(3) & 212--Leave to appeal--Negligence--Major punishment of compulsory retirement from service--Services Tribunal re-instated civil servant into service and the punishment of compulsory retirement converted into reduction in rank--Assailed--Philosophy of punishment is based on the concept of retribution which may be either through the method of deterrence or reformation--Validity--Purpose of deterrent punishment is not only to maintain balance with the gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society--Held: Concept of minor punishment in the law is to make an attempt to reform the individual wrong doer--Extreme penalty for minor acts depriving a person from right of earning would defeat the reformatory concept of punishment in administration of justice--Major punishment of compulsory retirement from service seems to be harsh, service tribunal rightly converted the same into reduction in the rank--Leave refused. [P. 957] A
2006 SCMR 60, rel.
Mr. Sadaqat Ali Mirza, ASC/Standing Counsel with Ch. Muhammad Akram, AOR for Petitioners.
Mr. Shoaib Shaheen, ASC with Mr. M.S. Khattak, AOR for Respondent.
Date of hearing: 30.01.2008.
Order
Abdul Hameed Dogar, HCJ.--This petition is directed against judgment dated 04.10.2007 passed by learned Federal Service Tribunal, Islamabad whereby respondent Kazim Raza was re-instated in service and the punishment of compulsory retirement was converted into reduction in rank from National Savings Officer (B-16) to Deputy National Savings Officer (B-14) subject to deposit of retirement benefits, if drawn by him.
We have heard Mr. Sadaqat Ali Mirza, learned Standing Counsel appearing on behalf of petitioners and Mr. Shoaib Shaheen, learned counsel for the respondent at length and have gone through the record and proceedings of the case in minute particulars.
It is contended by learned Standing Counsel that in view of report dated 26.8.2002 submitted by Inquiry Committee major penalty of compulsory retirement was imposed upon respondent under the Removal from Service (Special Powers) Ordinance 2000 on 08.3.2004, as he was found guilty of inefficiency and misconduct. He further contended that learned Tribunal was not justified in converting the penalty of removal of service into reduction in rank as he has failed to perform his duties efficiently due to which huge loss has been caused to the national exchequer.
On the other hand learned counsel appearing on behalf of respondent controverted above contentions and supported impugned judgment. He contended that the statement of allegations issued to respondent did not allege any malafide or corruption on his part. He further contended that major penalty could not be imposed on the charge of negligence. In support he placed reliance on the case reported as Auditor General of Pakistan & others v. Muhammad Ali and others (2006 SCMR 60).
The respondent while working as National Saving Officer/Inspector conducted audit of the accounts of National Saving Centre, Renala Khurd from 01.9.1999 to 30.6.2000. In the said audit he has failed to detect and pin point the irregularities due to which fraud/misappropriation took place. If he had been vigilant and probed the record deeply, the fraud would have been unearthed. Though respondent was found negligent but in the circumstances of the case the major punishment of compulsory retirement from service imposed upon him seems to be harsh and the learned Tribunal rightly converted the same into reduction in the rank. It was held in the case of Muhammad Ali referred (supra) that carelessness is definitely an act of negligence which may not strictly fall within the ambit of misconduct as defined in Section 2 of the Government Servants (E&D) Rules, 1975 but it is definitely a valid ground on the basis of which a Government servant can be awarded penalty as provided in Rule 3 of the above rules. The element of bad faith and willfulness may bring an act of negligence within the purview of misconduct but lack of proper care and vigilance may not always be willful to make it a case of grave negligence inviting severe punishment. The philosophy of punishment is based on the concept of retribution which may be either through the method of deterrence or reformation. The purpose of deterrent punishment is not only to maintain balance with the gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society, whereas the concept of minor punishment in the law is to make an attempt to reform the individual wrong doer. In service matters, the extreme penalty for minor acts depriving a person from right of earning would defeat the reformatory concept of punishment in administration of justice. In view of above discussion, no case for interference in the impugned judgment is made out which is maintained. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused.
(M.S.A.) Leave refused.
PLJ 2008 SC 957
[Appellate Jurisdiction]
Present: Muhammad Qaim Jan Khan, Muhammad Moosa K. Leghari, Syed Sakhi Hussain Bukhari & Sheikh Hakim Ali, JJ.
AGRICULTURE DEVELOPMENT BANK OF PAKISTAN--Appellant
versus
MUBARAK DAIRIES LIMITED and others--Respondents
Civil Appeal No. 1214 of 2001, decided on 12.3.2008.
(On appeal from the judgment dated 22.2.2001, passed by the Lahore High Court, Lahore in EFA No. 316 of 2000).
Contract Act, 1872 (IX of 1872)--
----Ss. 59 & 171--Respondents obtained loans from bank--Suit for recovery, decreed--Question for resolution with regard to appropriation of specific amount which was adjusted by the appellant/bank in another account of judgment debtors/respondents on its own discretion, after having received that amount with specific instructions of respondents, to appropriate that amount in the present decree--Bone of contentions between the parties--Held: If the customer has deposited the amount with specific instruction to adjust the amount in such and such account, in that event, when the bank accepts it as such, it cannot vary it or change and adjust it to any other account--Section 171 of the Contract Act, would apply when no such specific, express or implied instructions at the time of deposit were conveyed or imparted to the bank--Appeal dismissed.
[Pp. 959 & 960] A & B
Mr. Iftikhar Malik, ASC for Appellant.
Ray Muhammad Nawaz Kharal, ASC for Respondents No. 1-5.
Date of hearing: 12.03.2008.
Judgment
Sheikh Hakim Ali, J.--Through this Civil Appeal, judgment dated 22.2.2001 delivered by a learned Division Bench of the Lahore High Court, Lahore, in EFA No. 316 of 2000 has been assailed.
Precis of the facts can be narrated in the following sentences. Respondents had obtained different loans of various natures from the appellant bank on different dates. Three loans obtained by the respondents were through separate three sanctioned letters dated 23.12.1987 amounting to Rs. 27,15000/-, additional financial assistance of Rs. 30,00,000/- on 20.06.1988 and the amount of Rs. 15,00,000/- through letter dated 04.02.1989, which had swollen up to the extent of Rs.85,10,596/-, for the recovery of which appellant-bank had instituted suit before the Banking Tribunal, Lahore on 04.02.1995 with additional prayer for the award of cost of Rs.21,504/- also. Admittedly, the suit was decreed and execution of that decree had also commenced, before the concerned Executing Court. Respondents paid different amounts, on different dates, the detail of which is available in the impugned judgment also. Payment and receipt of the amounts are not being disputed by either of the parties. The question for resolution in the case is with regard to appropriation of an amount of Rs.29,20,000/-, which was adjusted by the appellant bank in another account of judgment debtors/respondents on its own discretion, after having received that amount with specific instruction of respondents to appropriate that amount in the present decree. This became the bone of contentions between the parties. The judgment debtors/respondents filed a petition before the Banking Court/Executing Court on 07.08.2000 with a prayer that the amount of Rs.29,20,000/- has wrongly been adjusted by the Bank against the specific instructions. While Bank invoked the Provision of Section 171 of the Contract Act, 1872 and pleaded that it had got the right to adjust that amount to any debt obtained by the aforementioned respondents. The petition was dismissed, so the judgment debtors/respondents filed the above noted EFA No. 316/2000 before the learned Lahore High Court, Lahore, which was accepted with direction to adjust the amount in dispute against the decretal amount. The learned Division Bench, however was apprised of the payment of all the decretal amount of the decree, so the execution petition, was dismissed by holding it to have been satisfied.
Learned counsel for the appellant-Bank submits that Section 59 of the Contract Act, 1872 has wrongly been applied to the case. The proper provision applicable to the facts and circumstances of the case was Section 171 of the Contract Act, 1872, by which discretion was conferred upon bankers to retain as security for a general balance of account, any goods bailed to them i.e. the disputed amount. Elaborating his arguments, learned counsel submits that the above mentioned amount of Rs.29,20,000/- was rightly and correctly appropriated to the others debts which were to be paid by the respondents.
We have considered the arguments of the learned counsel for the appellant bank. To appreciate the arguments, reproduction of Provisions of Sections 59 and 171 of the Contract Act, 1872 are necessary for ready reference:--
Section 59: "Application of payment where debt to be discharged is indicated. Where a debtor, owing several distinct debts to one person, makes a payment to him, either with express intimation, or under circumstances implying that the payment is to be applied to the discharge of some particular debt, the payment, if accepted must be applied accordingly."
Section 171: "General lien of bankers, factors, wharfingers, attorneys and policy brokers. Bankers, factors, wharfingers, attorneys of a High Court and policy brokers may, in the absence of a contract to the contrary, retain, as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.
The words used in Section 171 of the Contract Act, 1872 "in the absence of the Contract to the contrary, and unless there is an express contract to that effect" are very important and cannot be neglected from consideration. The pre-condition for the applicability of Section 171 of the Contract Act, 1872 is that there must not be an explicit or implied contract indicative of the intention of the depositors. If the customer has deposited the amount with specific instruction to adjust the amount in such and such account, in that event, when the bank accepts it as such, it cannot vary it or change and adjust it to any other account. Section 171 of the Contract Act would apply when no such specific, express or implied instructions at the time of deposit were conveyed or imparted to the Bank. Moreover, the provision of Section 171 of the Contract Act is not applicable to the case on other counts also. In the instant case, the petitioner was made to know through letter, the specific instructions by the judgment debtors. Therefore, the Bank having accepted that amount with specific directions to adjust the amount into the indicated loan amount (decretal amount), was bound to adjust it in that account. The Bank, in pursuance of the indicated instructions, afterwards had no discretion/power/authority to vary that agreed adjustment for any other account on its own whim and will, without express consent of the judgment debtors/respondents. Therefore, the provision of Section 59 of the Contract Act, 1872 has rightly been applied by the learned Division Bench, through its judgment to the facts and circumstances of the present case. The wordings of the Section "whether a debtor in several distinct debts to one person makes a payment to him, either with express intimation, or under circumstances implying that the payment is to be applied to the discharge of some particular debt, the payment, if accepted must be applied accordingly................" are clear, used with lucidity and unambiguous, and need no further comments or interpretation to apply it to the fact and circumstances of the case, wherein express intimation was given to the Bank by the judgment-debtors to adjust the disputed amount into the decretal amount.
(M.S.A.) Appeal dismissed.
PLJ 2008 SC 961
[Appellate Jurisdiction]
Present: Saiyed Saeed Ashhad, Muhammad Akhtar Shabbir & Syed Sakhi Hussain Bukhari, JJ.
MUHAMMAD SHARIF--Petitioner
versus
MUHAMMAD RAFIQ and others--Respondents
C.P. No. 1205-L of 2007, decided on 08.05.2008.
(Against the judgment of the Lahore High Court Bahawalpur Bench dated 07-05-2007 passed in W.P No. 567 of 1996).
Punjab Pre-emption Ordinance, 1990 (XXVII of 1990)--
----S. 36--Punjab Pre-emption Act, (IX of 1991), S. 35--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Suit for pre-emption--Suit was dismissed and decreed by First Appellate Court--After enforcement of Ordinance, 1990, an application for revival of the suit in High Court was filed--Direction to approach trial Court--Saving clause--Applicability and effect--Petitioner filed an application u/S. 36 of the Punjab Pre-emption Ordinance, 1990 which was also dismissed--Revisional court decreed the suit while accepting the application--High Court set aside the judgment and decree passed by the revisional Court--No pre-emption suit filed and pending under the Act of 1913 would be decreed in favour of the plaintiff--Held: Neither the suit nor the appeal or any other proceedings were pending till the target date--Suits/plaints were liable to be revived or decided if the pre-emptor has established that he had made talb-i-ishhad in the presence of two truthful witnesses--Saving clause has provided 60 days period for filing the application of coming into force of the Pre-emption Act--Application filed before the trial court after expiry of 60 days--High Court had rightly found that the application filed by the petitioner for revival of the suit was not maintainable as the right of pre-emption by the plaintiff has not been claimed under the Punjab Pre-emption Act, 1991. [Pp. 963 & 964] A & B
1995 SCMR 299, 1997 SCMR 108 & 1996 CLC 658.
Mrs. Fakhar-un-Nisa Khokhar, ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 8.5.2008.
Order
Muhammad Akhtar Shabbir, J.--Petitioner seeks leave to appeal against the judgment dated 07.05.2007 passed by a learned Single Judge of the Lahore High Court, Bahawalpur Bench, Bahawalpur, in W.P. No. 567 of 1996.
Brief facts of the case are that Muhammad Sharif plaintiff-petitioner herein had instituted a suit for possession through "pre-emption" over sale of land total measuring 68 kanal transferred through sale-deed dated 12.01.1978, in favour of Muhammad Rafique vendee-defendant/Respondent No.1 herein, claiming to be the real brother of the vendees and co-sharer in the property in dispute. The suit was contested by the vendee-defendant/Respondent No.1 which was dismissed, vide judgment and decree dated 14.02.1983 by the trial Court. Feeling aggrieved, the plaintiff-petitioner preferred an appeal before the First Appellate Court/Additional District Judge, Rahim Yar Khan, who vide, his judgment dated 26.01.1988 accepted the same and decreed the suit. The defendant preferred R.S.A. No. 14 of 1988 in the Lahore High Court which was allowed on 23.01.1989. The suit filed by the plaintiff-petitioner was dismissed.
After the enforcement of the Punjab Pre-emption Ordinance, 1990, the plaintiff filed an application for `revival' of the suit in the High Court, which was dismissed on 8.12.1990 with the direction to approach the trial Court. The plaintiff-petitioner then filed an application on 22.01.1991 before the learned trial Court under Section 36 of the Punjab Pre-emption Ordinance, 1990, which was also dismissed on 08.09.1991. The said order was assailed through a revision petition which has been accepted, vide order dated 30.01.1996 and resultantly the suit filed by the plaintiff-petitioner had been decreed. The said order of the revisional Court was challenged through W.P. No. 567 of 1996 before the High Court which was accepted and the order of the revisional Court dated 30.01.1996 was set aside. Hence, this petition for leave to appeal.
The learned counsel for the petitioner contended that the suit for pre-emption has been filed by the petitioner-plaintiff being "Yaqjadi"/co-sharer under the
Old Pre-emption Act, 1913, which has not provided the three requirements of
Talbs' andZarar' and `Zaroorat'. The plaintiff was only bound to establish his superior right of pre-emption. Further contended that Section 36 of the
Punjab Pre-emption Act being a saving clause has protected the rights of the pre-emptor/petitioner.
We have heard the arguments of the learned counsel for the petitioner and perused the record with her kind assistance.
The petitioner had filed his suit on 10.01.1979 under the Punjab Pre-emption Act, 1913 on the basis of superior right of pre-emption being collateral/"Yaqjadi" and co-sharer of the property in dispute. The Shariat Appellate Bench of Supreme
Court in the case of Government of NWFP through Secretary, Law Department v.
Malik Said Kamal Shah (PLD 1986 SC 360), declared the pre-emption law contrary to the injunctions of Quran' andSunnah' and in the case of Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287) declared that the dictum laid down in Malik Said Kamal Shah (ibid) would take effect on 31.07.1986 and the pre-emption suits not decided by the trial Court before the said target date, would not be decreed in favour of unsuccessful pre-emptor after the said date as laid down in the case of Sher Muhammad and another v. Allah Ditta and two others (PLD 1988 SC 412).
In the instant case, the suit of the plaintiff Muhammad Sharif, petitioner herein, was dismissed by the learned trial Court for the first time on 14.02.1983 and appeal was decided on 26.01.1988 and the Appellate Court decreed the suit which was clearly in derogation to the above referred precedents laid down by this Court which `emphasize' that no pre-emption suit filed and pending under the Punjab Pre-emption Act, 1913 would be decreed in favour of the plaintiff.
The learned counsel for the petitioner vehemently argued that dismissal of a suit is a decree and the learned trial Court while dismissing the suit passed the decree, therefore, the instant suit is protected under Section 36 of the Punjab Pre-emption Act, 1991 and the Court was bound to revive the suit. This legal proposition has already been dealt with by this Court in the case of Zafarullah Khan v. Muhammad Khan & others (1993 SCMR 696). The relevant portion of the judgment is reproduced for further ready reference as under:--
"The view taken in this case is that the expression `judgment and decree' occurring in clause referred to those judgments and decrees alone which had been passed in favour of the pre-emptors. It may be mentioned that the Punjab Pre-emption Act, 1991, was enacted to give effect to the judgments of this Court in the cases of the Government of N.W.F.P. v. Said Kamal Shah, Sardar Ali v. Muhammad Ali, Mst. Aziz Begum v. Federation of Pakistan et seq. The view expressed in the Rozi Khan's case, ibid, is in accord with the above judgments of this Court. We would accordingly reject the contention of the pre-emptors that even though their suits were not decreed before 31-7-1986 yet the decrees passed after that date stood saved by the provisions of Section 34(2), ibid. We accept these appeals, set aside the decrees passed in favour of the pre-emptors and dismiss their suits."
Further the provision of Section 34(2) of the Punjab Pre-emption Act would apply to cases and appeals filed under the Repealed Act of 1913 in which judgments and decrees were passed before 01.08.1986 and in which further proceedings could still be continued under the old Act.
(2) Notwithstanding anything in Sections 13 and 30, in respect of the suits mentioned in sub-section (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made `Talb-i-lshhad' in the presence of two truthful witnesses."
From plain reading of the above provisions of law, it is manifestly clear that all those suits which were instituted or pending between 01.08.1986 and 28.03.1990, shall be revived on the application of the aggrieved person within 60 days of coming into force of the Act, meaning thereby, the law required pendency of the suits between the integral period i.e. 01.08.1986 to 28.03.1990, including the appeal.
So far as the instant suit is concerned, it was finally decided through R.S.A. No. 14 of 1988 by the High Court on 23.01.1989. It is established that neither the suit nor the appeal or any other proceedings were pending till the target date i.e. 28.03.1990. Those suits/plaints were liable to be revived or decided if the pre-emptor has established that he had made "Talb-i-lshhad" in the presence of two truthful witnesses. Reference in this behalf can be made to the case of Pervaiz Anjum Ghauri and another v. Abdul Rahim and 3 others (1995 SCMR 299). In this respect, in the present case, neither it was asserted in the plaint nor any issue was framed by the trial Court nor any such evidence was produced by the plaintiff.
The plaintiff-petitioner filed the application for revival of his suit on 24.01.1991 under Section 36 of the Punjab Pre-emption Ordinance (No. XXVII) of 1990 which was enforced on 26.04.1990. The saving clause has provided 60 days period for filing the application of coming into force of the said Act. The application has been filed before the trial Court after expiry of period of 60 days and was rightly dismissed by the Courts below. Section 35 of the Punjab Pre-emption Act, 1991, was not attracted to the present case and the plaintiff's suit was not saved under the said saving clause contained in Section 35 of the Act. The High Court had rightly found that the application filed by the petitioner for revival of the suit was not maintainable as the right of "pre-emption" by the plaintiff has not been claimed under the Punjab Pre-emption Act, 1991. Reference can usefully be made to the cases of Muhammad Salam and others v. Wali Muhammad and others (1997 SCMR 108) and Nazir Ahmad and 2 others v. Faqir Muhammad (1996 CLC 658).
In view of the above discussion, we find that the learned High Court has rightly and validly passed the impugned judgment. There is no error of law or legal infirmity apparent on the face of record and the impugned judgment is unexceptionable.
For the foregoing reasons, we do not find any substance in the petition which is dismissed and leave to appeal is refused accordingly.
(W.I.B.) Appeal refused.
PLJ 2008 SC 965
[Appellate Jurisdiction]
Present: Faqir Muhammad Khokhar, Mohammad Moosa K Leghari & Sheikh Hakim Ali, JJ.
NABI AHMED and others--Appellants
versus
MUHAMMAD ARSHAD and others--Respondents
Civil Appeal No 1485 of 2007, decided on 7.5.2008.
(On appeal from judgment dated 27-06-2007 of the Lahore High Court Lahore, passed in C.R No 218/2007).
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 24--Delay of two days--Limitation--West Pakistan General Clauses Act (VI of 1956), Ss. 8 & 9--Suit for possession through pre-emption--Computation of thirty days time for deposit of zare-e-soem)--Suit was dismissed by both Courts below--Civil revision filed by the pre-emptor was accepted--Question of computing 30 days time--Validity--It would be sufficient for the purpose of excluding the first in series of days or any other period of time to use the word "to"--Section 9 of General Clauses Act, also permits the filing of a suit on the first day of reopening of Court where limitation period expires on a day when the Court is closed on account of public holiday--On Sunday (holiday) therefore, the deposit was validly made on the next day--Legislature does not seem to have expressed any intention contrary to the provisions of Ss 8 & 9 of the West Pakistan General Clauses Act, 1956--Appeal was dismissed. [P. 969] A & B
PLD 2006 Lah. 318, PLJ 1992 SC 41, PLD 1993 SC 204, 2000 SCMR 650, 2001 SCMR 1001, 1991 SCMR 720, 2005 SCMR 270 & 1987 SCMR 216.
Ch. Manzoor Hussain Basra, ASC. for Appellants.
Syed Kaleem Ahmad Khurshid, ASC for Respondent No. 1.
Date of hearing: 7.5.2008.
Judgment
Faqir Muhammad Khokhar, J.--On 26.10.2001, the Respondent No. 1 filed a suit for possession of the suit land measuring 20 kanals and 3 marlas through pre-emption which had been purchased by the appellants and Respondents No. 2 and 3 through registered sale-deed dated 30th June, 2001, for a consideration of Rs. 4,50,000/-. The suit came up for hearing on 27.10.2001 before the Civil Judge, Daska, District Sialkot, who directed the Respondent No. 1 to deposit a sum of Rs. 1,50,000/- being 1/3rd (zar-e-soem) of the sale price. The same was deposited on 26.11.2001. On the divergent pleadings of the parties, the trial Court framed as many as 8 issues. After the statement of Respondent No. 1/P.W-1 was partly recorded, the appellants moved an application for dismissal of the suit on the ground that the Respondent No. 1 had failed to deposit 1/3rd of the sale price within a period of thirty days of the date of filing of the suit as required by Section 24 of the Punjab Pre-emption Act, 1991 (herein-after called the Act). The trial Court allowed the application and dismissed the suit, vide judgment dated 22.2.2006 in that the deposit of the 1/3rd of sale price was made on 26.11.2001 with a delay of two days. The appeal of the Respondent No. 1 was also dismissed by the Additional District Judge, Daska, by judgment dated 2.11.2006. Therefore, he filed Civil Revision No. 218 of 2007 which was accepted by a learned Single Judge of the Lahore High Court, Lahore, vide impugned judgment dated 27.6.2007.
The learned counsel for the appellants submitted that for computing the period of thirty days for deposit of 1/3rd of the sale price fixed by sub-section (1) Section 24 of the Act, the day of filing of the suit was also to be included. The last date for deposit of the amount was 24.11.2001. Therefore, the deposit of the amount by Respondent No. 1 on 26.11.2001 with a delay of two days was invalid. Reliance was placed on the cases of Raja versus Tanvir Riaz and others (2006 CLC 1455) and Syed Mushtaq Hussain versus Jewan and 4 others (2007 MLD 1062) (Lahore).
On the other hand, the learned counsel for Respondent No. 1 argued that the day of institution of the suit and last date for deposit being Sunday were to be excluded. Therefore, the plaintiff was entitled to deposit the amount on the day the Court was re-opened in view of Sections 8 & 9 of the West Pakistan General Clauses Act, 1956. Reliance was placed on the cases of Fazal Elahi versus Noor Ahmed and 2 others (PLD 2006 Lahore 318), Muhammad Yousaf and 3 others versus Zafarullah and another (PLJ 1992 SC 41), (PLD 1993 SC 204), Mian Muhammad Talha Adil versus Mian Muhammad Lutfi (2005 SCMR 720), Ghulam Mustafa Khan versus Ashiq Hussain etc. (NLR 2004 Civil 243) and Abdul Wahid and others versus Sardar Ali and others (2000 SCMR 650).
We have heard the learned counsel for the parties at length and have also perused the available record with their assistance. The provisions of Section 24 of the Act being relevant are re-produced below:-
"24. Plaintiff to deposit the sale price of the property.--(1) In every suit for pre-emption, the Court shall require the plaintiff to deposit in such Court on-third of the sale price of the property in cash within such period as the Court may fix:
Provided that such period shall not extend beyond thirty days of the filing of the suit:
Provided further that if no sale price is mentioned in the sale-deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one third of the probable value of the property.
(2) Where the plaintiff fails to make a deposit under sub-section (1) within the period fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed.
(3) Every sum deposited under sub-section (1) shall be available for the discharge of costs.
(4) The probable value fixed under sub-section (1) shall not affect the final determination of the price payable by the pre-emptor. "
It would appear from the above provisions that in every suit for pre-emption it is the Court which is to require a plaintiff to deposit 1/3rd of the sale price of the property within such period as may be fixed by the Court. The proviso to Section 24(1) further stipulates that period fixed by the Court shall not extend beyond thirty days of the filing of the suit. The provisions of Section 24(1) do not operate proprio vigore as the deposit is to be made by a plaintiff under the order of the Court and not otherwise. The word "require" used in Section 24 (ibid) makes it abundantly clear that the deposit of the amount is to be made under the direction of the Court. There may be cases in which the suit of the plaintiff, after its institution, may not be taken up for hearing by the Court before expiry of the limitation period. The plaintiff has no control over the regulation of proceedings of the Court. Therefore, there can be no justifiable ground to penalize a plaintiff for an act of omission of the Court itself.
A similar question was considered in the case of Ghulam Hussain versus Jamshaid Ali (2001 SCMR 1001). In that case the plaintiff had filed on 26.10.1991 a suit for possession through pre-emption which remained pending up to 13.1.1992 when the Court for the first time directed the plaintiff to deposit 1/3rd of sale price by 15.1.1992. The direction of the Court was complied with. Nevertheless, the suit was dismissed under Section 24(2) of the Act. It was held that a duty was cast upon the Court to require the plaintiff to deposit 1/3rd amount of sale price within thirty days from the institution of the suit. But failure on the part of the trial Court would not entail a penalty on the ground that the plaintiff had not deposited 1/3rd sale price within 30 days of the filing of the suit. It was held that in such like cases, the maxim `Actus curiae neminem gravabit' (an act of the Court shall prejudice no man) was attracted in view of law laid down in the cases of Rashid Ehsan and others versus Bashir Ahmad and another (PLD 1989 SC 146), Iftikhar Baig versus Muhammad Azam and others (1996 SCMR 762) and Abdul Rashid versus Abdul Salam and others (1991 SCMR 2012). A somewhat similar view was taken in the case of Mian Muhammad Talha Adil versus Mian Muhammad Lutfi (2005 SCMR 720).
In Fazal Elahi versus Noor Muhammad and 2 others (PLD 2006 Lahore 318), the provisions of Section 24 were elaborately examined. It was observed that the words of',from', or
after' were sometimes interchangeable and analogous terms which had been used by the legislature in different statutes but signifying the same meaning. The wordof' used in first proviso of Section 24 of the Act, 1991, was to be construed in its proper context and meaning in that thirty days' time had to be reckoned after the day of institution of the suit.
In Words and Phrases, Permanent Edition 1972, Volume 29, page 341, it is stated as under:--
"Where, in prosecution for selling cocaine under statute regulating sale of coca leaves or any derivative thereof, witness said co-caine was active alkaloid of coca leaves, held, "of" as here employed, meant "from" and that alkaloid from coca leaves necessarily is derivative of coca leaves. State v. Wong Fong 241 P. 1072, 1074, 75 Mont. 81."
At page 344 it is stated that:--
"The word "of" as well as the word "from" is used as a term of exclusion. Haight v. Hamor, 22 A. 369, 372, 83 Me. 453."
By Section 8 of the West Pakistan General Clauses Act, 1956, it is provided that it shall be sufficient for the purpose of excluding the first in series of days or any other period of time to use the word from' and for the purpose of including the last in series of days or any other period of time to use the wordto'.
Section 9 of the said Act also permits the filing of a suit on the first day of re-opening of Court where limitation period expires on a day when the Court is closed on account of a public holiday Reference may usefully be made to the case of Obaid-ud-Din and others versus Faiz Muhammad Khan and others (1987 SCMR 216). It was Sunday on 25.11.2001 (holiday). Therefore, the deposit was validly made on the next day i.e 26.11.2001. In our view, by enacting first proviso to
Section 24 of the Act, 1991, the legislature does not seem to have expressed any intention contrary to the provisions of Sections 8 and 9 of the West Pakistan
General Clauses Act, 1956. The cases referred to by the learned counsel for the appellants do not lay down the correct law. The impugned judgment of the High
Court is unexceptionable.
For the foregoing reasons, we do not find any merit in this appeal, which is dismissed. However the parties are left to bear their own costs.
(W.I.B.) Appeal dismissed.
PLJ 2008 SC 969
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar & Mian Hamid Farooq, JJ.
Syed NASIR HUSSAIN SHAH, ZILA NAZIM DISTT. SUKKUR--Petitioner
versus
ZILA NAIB NAZIM SUKKUR and 21 others--Respondents
Civil Petition No. 409 of 2008, decided on 26.5.2008.
(On Appeal from the judgment dated 07-04-2008 passed by High Court of Sindh at Sukkar in CP No. D-151 of 2008).
Sindh Local Government Ordinance, 2001 (XXVII of 2001)--
----S. 24(1)(2)(3)(4)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Recall of motion--Adjournment without putting for voting--Absence of majority member--Adjournment--Challenge to--Bye-law--Effect--Statutory provisions--Held: Recall motion must be considered and put for voting in terms of Section 24(3)(4) of the Ordinance and if the motion is adjourned without putting for voting it would deemed to be pending for consideration--Bye law of Zila Council cannot override the statutory provisions and Section 24 of the Ordinance containing procedural as well as substantive provisions on the subject would prevail, therefore, there would be no legal effect of the bye-laws by virtue of which quorum for a special or urgent meeting is necessary--Further held: Motion was moved in accordance with law and proceedings of the house were not adjourned in breach of any provision of law invalidating the recall motion--Therefore, the putting off the motion to another date for consideration neither caused any prejudice to the petitioner nor it offended any law. [P. 975] A & C
Sindh Local Government Ordinance, 2001 (XXVII of 2001)--
----S. 24(3)(4)--Status of recall motion--Neither acquire the status of special meeting nor it would be considered an emergent meeting, rather in the normal circumstances for all intents and purpose it would be treated a general meeting--Even in special and emergent meeting unless the requirement of Ss. 24(3) and (4) of the Ordinance in respect of recall motion is fulfilled in letter and spirit, the motion is deemed to have been not put before the house for the voting.
[P. 975] B
Sindh Local Government Ordinance, 2001 (XXVII of 2001)--
----S. 24(1)--Discretionary jurisdiction--Concept of discretionary jurisdiction is to advance the cause of justice and Court is not supposed to exercise jurisdiction against the policy of law or in aid to injustice--Court would also restrain from interfering in the internal business of representative bodies in the discretionary jurisdiction.
[P. 976] D
Mr. Abdul Mujeeb Pirzada, Sr. ASC for Petitioner.
Raja Shafqat Abbasi, ASC; Ms. Mehreen Anwar Rafi, ASC and Mr. Arshad Ali Chaudhry, AOR for Respondents No. 1 & 5-22.
S. K. Anwar, Asstt. Chief (legal), Local Government Department, Sindh for Respondent No. 4.
Mr. Yousaf Laghari, AG Sindh.
Nemo for others Respondents.
Date of hearing: 26.5.2008.
Judgment
Muhammad Nawaz Abbasi, J.--This petition for leave to appeal under Article 185(3) of the Constitution has been directed against the judgment dated 07.04.2008, whereby a learned Division Bench of the High Court of Sindh at Sukkur dismissed C.P.-D 151 of 2008, wherein the present petitioner, Zila Nazim Sukkur, sought a declaration that recall motion moved against him under Section 24 (1) of the Sindh Local Government Ordinance, 2001 (hereinafter called the Ordinance) was adjourned without considering in the meeting called in this behalf for want of quorum, would be deemed to have been rejected and failed.
"Respondent No. 1 is ready to call the session of Zila Council, Sukkur on 17.03.2008 and before calling the session he has to issue notice to all the councilors accordingly.
Learned Asstt. A.G. and learned DAG also support the version of the Zila Naib Nazim (Respondent No. 1). On the statement of Respondent No. 1 and supported by learned Asstt. A.G. and DAG, petitioners along with their counsel are satisfied about the holding of session of Zila Council, Sukkur on 17.3.2008.
In view of the statement of Respondent No. 1, the petition is disposed of in above terms".
In compliance to the above order of High Court, Respondent No. 1 conveyed the meeting of the House for 17.3.2008 which was adjourned for 1.4.2008 for want of quorum. The petitioner filed CP No. D-151 of 2008 in High Court of Sindh Bench at Sukkur seeking declaration that the recall motion would be deemed to have been considered and failed in terms of Section 24(6) of the Ordinance with the consequence provided in Section 24 (8) ibid and on dismissal of the writ petition, he has filed the present petition.
The next contention of the learned counsel was that under Section 24(2) of the Ordinance, it is mandatory for the Naib Nazim to call the meeting of Zila council not earlier than 3 days and not later than 7 days of the date of notice if Zila Council is not already in session and if Zila Council is in session, recall notice referred to in sub-section (1) ibid shall be taken up for deliberation on the next day of its receipt by the Naib Zila Nazim as is provided under sub-section (3) of Section 24 of the Ordinance and except the general meeting, the requirement of quorum is not necessary for a special or emergent meeting under the bye-laws of Zila Council, framed under Section 42 of the Ordinance to run the business of House, therefore, notwithstanding the quorum and compliance of the provisions of Section 24(4) relating to the procedure of secret ballot and nomination of Returning Officer by the Chief Election Commissioner, the recall motion after placing before the House for consideration in a special or emergent meeting called in this behalf cannot be adjourned to another date even if was not put for voting and would be deemed to have been rejected and failed with the consequences provided in Section 24(6) & (8) of the Ordinance. The learned counsel concluded that the High Court without proper appreciation of the legal position in the factual background wrongly held that it was a general meeting for which quorum was essential and was not a special or emergent meeting in which the proceedings may not continue without quorum. Learned counsel emphasized that the wisdom behind the law is to provide protection to Zila Nazim from political victimization or unnecessary use of recall motion for any other reasons, therefore, once recall motion is tabled in a special or emergent meeting, the same cannot be adjourned for want of quorum and even if it is adjourned without discussion or deliberation and voting would be deemed to have been considered and failed.
Learned counsel for the respondent has opposed this petition with the contention that in the normal circumstances a meeting called in consequence to the notice given under Section 24(1) of the Ordinance, is a general meeting and non compliance of provisions of Section 24(2) of the Ordinance or calling of such meeting for a specific date under the direction of the Court may not change the character of meeting and convert it into a special or emergent meeting. Learned counsel submitted that no business including proceedings on recall motion can be carried by the House in the general meeting if the requirement of quorum is not fulfilled and even in special or emergent meeting, the House may or may not conduct its business without quorum. Be that as it may, the success or failure of recall motion is subject to the mandatory process of deliberation and voting in terms of Section 24(3) and (4) of the Ordinance without completion of which, the motion is deemed to have not crossed the stage of notice. Learned counsel pointed out that petitioner did not attend the meeting and majority of the members were also not present in the meeting for want of notice, therefore, notwithstanding the question as to whether the meeting was general, special or emergent, the House could not competently consider the motion for voting and was bound to adjourn it to another date.
The Zila Naib Nazim convened the meeting of Zila Council, Sukkur under the direction of High Court to consider recall motion moved against Zila Nazim under Section 24(1) of the Ordinance but Zila Nazim did not attend the meeting. This is also admitted that 58 Members out of total 65 members of the House have not attended the meeting and there was noting on record to show that absentee members had notice of the date of meeting, therefore, a strong presumption would be raised that meeting was called without proper notice to the members. The recall motion is placed before the House for deliberation under Section 24(3) for the purpose of voting under Section 24(4) of the Ordinance and motion may or may not be succeeded. In case of failure of motion Section 24(6) and (8) would become operative.
Section 24 of the Sindh Local Government Ordinance, 2001, provides a complete procedure for moving recall motion against Zila Nazim, as under :--
"Recall of a Zila Nazim.--(1) If in the opinion of a member of the Zila Council, there is a reason to believe that the Zila Nazim is acting against the public policy or the interest of the people or is negligent or is responsible for loss of opportunity for improvement in governance and service delivery to the people within the ambit of his responsibilities, he may, seconded by another member of the Council, give notice to move a motion in the Zila Council through the Naib Zila Nazim for recall of the Zila Nazim.
(2) On receipt of notice referred to in sub-section (1), the Naib Zila Nazim shall summon a session of Zila Council not earlier than three days but not later than seven day, if the Zila Council is not already in session.
(3) Where the Zila Council is already in session, the motion referred to in sub-section (1) shall be taken up for deliberations on the next day form its receipt by the Naib Zila Nazim;
(4) Where the motion referred to in sub-section (1) is approved by two-third majority of the votes of the total membership of the Council, through a secret ballot to be conducted by the Returning Officer nominated by the Chief Election Commissioner, the Zila Nazim shall cease to hold office forthwith and the notification shall be issued in this behalf by the Chief Election Commissioner accordingly.
(5) \\\\\\\\\\\\\\\\\\\\
(6) Whether the motion fails in the Zila Council, the proposer and seconder of such motion shall lose their seats both as [members of the Zila Council and Union Nazim, if any one of them is also a Union Nazim].
(7) The Zila Nazim shall have the right to appear before the Zila Council and address it in his defence before approval or rejection of motion referred to in sub-section.
(8) No motion for recall of Zila Nazim shall be moved during the first six months of assumption of office of Zila Nazim nor shall such motion be repeated before the expiry of twelve months from the rejection of previous motion."
The plain reading of Section 24 of the Ordinance would show that this is mandatory requirement of law that recall motion must be considered and put for voting in terms of sub-section (3) and (4) of Section 24 of the Ordinance and if the motion is adjourned without putting for voting, it would be deemed to be pending for consideration. The bye-law of Zila Council referred by the learned counsel framed under Section 42 of the Ordinance for the purpose of regulating the business of House cannot override the statutory provisions and Section 24 of the Ordinance containing procedural as well as substantive provisions on the subject would prevail, therefore, there would be no legal effect of the bye-laws by virtue of which quorum for a special or urgent meeting is not necessary. The motion was moved in accordance with law and proceedings of the House were not adjourned in breach of any provision of law invalidating the recall motion, therefore, putting off the motion to another date for consideration, neither caused any prejudice to the petitioner nor it offended any law and consequently, the petitioner without pointing out any illegality in the proceedings, could not maintain a constitution petition before the High Court. This may be seen that even in terms of bye-laws, the meeting in question would neither acquire the status of special meeting nor it would be considered an emergent meeting, rather in the normal circumstances for all intents and purposes, it would be treated a general meeting. Be that as it may, even in special and emergent meeting unless the requirement of Section 24(3) and (4) of the Ordinance in respect of recall motion is fulfilled in letter and spirit, the motion is deemed to have been not put before the House for the voting.
The recall motion can be placed before the House in any meeting in the manner provided in law for voting by way of secret ballot and failure of motion would essentially result in the consequence provided in sub-sections (6) and (8) of Section 24 of the Ordinance. Zila Nazim, has right to address the House and proceedings on recall motion in his absence may have legal complications and further in the absence of vast majority of members, it would not be legal and proper to proceed with recall motion, therefore, in the circumstances noted above, there was no option except to adjourn recall motion without voting. This may be pointed out that out of 65 members of the House only 7 members were present in the meeting, therefore, either it was general meeting or not, the motion was to be necessarily adjourned to meet the requirement of law. There is no cavil to the proposition that the legislature with a view to protect Zila Nazim from frequent recall motions for political or any other reason provided safeguard in Section 24(6) and (8) of the Ordinance but the provisions of Section 24(1) to (4) being not a mere formality of law cannot be defeated on technical grounds. The petitioner unsuccessfully challenged the action in the constitution petition on the ground of procedural technicalities and in the circumstances the interference of High Court or this Court in the matter in discretionary jurisdiction would amount to defeat and frustrate the policy of law and public interest on the basis of technicalities of law. The concept of discretionary jurisdiction is to advance the cause of justice and Court is not supposed to exercise this jurisdiction against the policy of law or in aid of injustice. The Court should also restrain from interfering in the internal business of representative bodies in the discretionary jurisdiction.
Law certainly provides protection to Zila Nazim against successive recall motions but at the same time law has taken care of the proper functioning of Zila Council and if Zila Nazim is not discharging his duty in the public interest, he may face recall motion. Be that as it may, in the present case no adverse action has been taken against Zila Nazim in recall motion and same having been adjourned was still pending for consideration, therefore, the questions raised in the constitution petition as well as in this petition are of purely academic in nature at this stage.
In the light of foregoing reasons, we without taking any exception to the impugned judgment of the High Court, dismiss this petition, leave is refused.
(W.I.B.) Leave refused.
PLJ 2008 SC 976
[Appellate Juridsdition]
Present: Muhammad Nawaz Abbasi, Ijaz-ul-Hassan & Mian Hamid Farooq, JJ.
MUHAMMAD SHAFIQ and others--Petitioners
versus
ARIF HAMEED MEHAR and others--Respondents
Civil Petition Nos. 40 & 246 of 2008, decided on 14.4.2008.
Constitution of Pakistan, 1973--
----Art. 184(3)--Environmental pollution--Complaint regarding drinking water--Supply of unclean water throughout the country--Powers of Court--Supreme Court in exercise of powers under Art. 184(3) of Constitution cannot make arrangement for removal of filth from public places but can certainly issue directions to the municipal committees, corporation and other concerned agencies in the federal and provincial government to take necessary steps and adopt measures to stop environmental pollution--Secretaries of federal and provincial authorities were directed to issue direction to all concerned including public representatives of the local bodies both in urban and rural areas to keep proper check and control on the environmental problem by deputing special teams to inspect the local areas and take remedial steps and in case of any breach also initiate appropriate action in accordance with the law. [P. 985] A & B
Mr. Amir Alam Khan, ASC for Petitioner (in C.P. No. 40 of 2008).
Mr. Shahram Sarwar Ch., ASC for Respondent No. 1 (in C.P. No. 40 of 2008).
Kh. Muhammad Afzal, ASC for Respondent Nos. 3 & 7 (in C.P. No. 40 of 2008).
Ms. Afshan Ghazanfar, AAG, Pb. Mr. Arif Hameed, GM, SNGPL, Mr. Abdul Rashid Lone, MD, SNGPL, Mr. M. Younas, D.O. (Enviroment), Mr. Khalid Kiani, Supdtt. Estab. Div. for Respondents No. 15 & 16 (in C.P. No. 40 of 2008).
Mr. Humayun Gohar and Mr. Khawar Shahzad, Owners of Factories (in C.P. No. 40 of 2008).
Raja Abdul Ghafoor, ASC and Mr. M. Maqsood Ahmed, Dir (W&S) from CDA (in C.P. No. 40 of 2008).
Mr. Shahram Sarwar Ch., ASC for Petitioner (in C.P. No. 246 of 2008).
Khawaja Muhammad Afzal, ASC a/w Respondent No. 1 in person for Respondent (in C.P. No. 246 of 2008).
Date of hearing: 14.4.2008.
Judgment
Muhammad Nawaz Abbasi, J.--In the proceedings in CP No. 40/2008 (Muhammad Shafique Vs. Muhammad Arif) in which environmental issue was involved, notice was also issued to CDA, Islamabad, to explain the arrangement of supply of clean water to the residents of Islamabad and disposal of waste and rubbish.
"Environmental issues in Pakistan threaten the economy and the population's health, and there is little indication of their abatement.
Economic effects
A 1997 World Bank study estimated the annual cost of Pakistan's environmental problems at US$1.8 billion in health expenditures, reduced labor productivity, and other costs. The availability of natural resources is limited by the dry climate and mountainous terrain, substantial population growth is increasing pressure on the resource base, and resource management has suffered from the emphasis on rapid economic growth and often-unregulated forms of economic productivity. As a result, human transformation of the environment is manifest in several problems. Population growth and poor water infrastructure have reduced per capita water availability from 53,000 cubic meters to 1,200 cubic meters, and heavy reliance on firewood has contributed to the world's second highest rate of deforestation. Poor agricultural practices have led to soil erosion, groundwater degradation, and other problems that have hindered crop output and contributed to health problems for rural communities.
Solid waste burning, low-quality fuels, and the growing use of fuel-inefficient motor vehicles have contributed to air pollution that in some cities--such as Karachi, Islamabad, Lahore, Peshawar, Quetta, Faisalabad and Rawalpindi has exceeded levels deemed safe by the World Health Organization.
Industrial Pollution
The major industrial sectors in Pakistan are textile, metal, dying chemicals, pesticides, cement, petrochemical, energy and power, leather, sugar processing, construction, steel, engineering, pulp, paper, tanning, food processing, beverages, electronic consumer goods and mining. The typical hazards related to industry are noise, vibrations, green house effect, radiation, chemicals, electromagnetic radiation and microbiological and social problems like stress and fatigue. Chromium compounds are a typical cause of concern from dyes and tanneries and may lead to lung cancer and ulcers. Toxic and hazardous wastes in Pakistan are mainly the by-product of the chemical and petrochemical dying industries. Industrial pollution is thought to be responsible for the health problems people are experiencing at Manga Mandi.
Water Pollution Factsheet
Growing population, increased economic activity and industrialization has resulted in an increased demand for fresh water. In addition, rapid unbranisation is changing patterns of consumption. This has caused a sever misuse of water resources. Discharging untreated sewage and chemical wastes directly into rivers, lakes and drains has become a traditional habit. Water bodies can no longer cope with the increasing pollution load. In Pakistan, water is mainly used for industrial, agricultural and domestic purposes.
The following table shows its percentage consumption for every use.
Purpose Percentage
Agriculture 69%
Industry 23%
Domestic uses 8%
Since most water is being used by the agricultural sector, irrigation can cause waterlogging and salinity. This happens when the water table rises close to the surface of the soil. If plants do not use this water, it evaporates, leaving salts behind. Even in uncultivated, barren lands, a water table within 2 meters of the surface can cause salinity in the soil. If irrigation water containing high levels of contaminants evaporates, it can result in damage to the soil. The Punjab province draws its major share of drinking water from the natural ground water aquifer. Groundwater becomes contaminated when chemicals from surface water sep into soil and come in contact with the flowing groundwater. The movement of groundwater is through open spaces in soil and rock layers, which is usually very slow, indicating a very low dilution of contaminants. According to WHO, groundwater of Lahore up to 700-ft deep has bee seriously contaminated and should not be used for human consumption. In 1989, pollution was found to a depth of 300-ft, and to 500-ft in 1992.
Industries
Industrial wastewater contains toxic chemicals. It is alarming that most industries have been started without proper planning and waste treatment plaints. They just dispose of untreated toxic waste into nearby drains, canals or rivers. Lahore, Faisalabad, Karachi, Sialkot contribute major pollution loads into their water bodies.
According to an EPD source, 9000 million gallons of wastewater having 20,000 tons of BOD5 loading are daily discharged into water bodies from the industrial sector. [Proceedings of International Symposium by CEWR in 1993, Paper By M.A. Saleemi]. Automobile service stations are another major contributor to surface water pollution. Untreated oil, grease and dirt find its way into nearby canals and rivers where it damages the ecosystem.
Water pollution and humans
Karachi's untreated wastewater from domestic sewage and industrial estates is discharged into the Layari and Malir rivers, which fall into the Arabian Sea. This waste has begun to pose a serious threat to the marine environment, as the channel water is contaminated not only with bacteria but also with toxic chemicals. Water pollution also extends a savage threat to wildlife of Pakistan. Animals drink water out of polluted water bodies, ailing ponds, rivers and streams. This sickens the animals and some may even die. Oil spills kill thousands of fish in oceans. Extreme pollution of river Ravi has destroyed the once existing 42 species of fish and the bird life around the river has migrated to other areas. Survival of small invertebrates, micro fauna and flora is also threatened.
Persistent Organic Pollutants Factsheet
Persistent Organic Pollutants (POPs) are carbon-based chemical compounds and mixtures, that include industrial chemicals. Most POPs are products and by-products of human industry and are of relatively recent origin.
The story so far: Concern is growing about POPs because they accumulate in body fat and in the environment. The problem is worse in colder climates as they breakdown more slowly at lower temperatures. As they can be transported through both air and sea, the problem of POPs crosses national boundaries. Traces of these chemicals can be found in most human beings and all kinds of wildlife, even in isolated parts of the globe. POPs are banned in most countries because of their harmful effects. Despite this they are still being used as pesticides in many countries including Pakistan.
POPs--The dirty dozen of the many existing POPs, the following twelve are currently being studied:
Aldrin:--applied to soil
Chlordane
DDT
Dieldrin
Dioxins: - produced by combustion
Endrin
Furan
Heptachlor
Hexachlorobenzene (HCB)
Mirex
Polychlorinated Biphenyls (PCBs) are used in industry as heat exchange fluids, in electric transformers and capacitors, and as additives in paint, carbon-less copy paper, and plastics. They are toxic to fish, suppress the human immune system and are listed as probable human carcinogens. Countries which ban PCBs include Austria, Germany, Switzerland, and the US.
Toxaphene
Environmental Legislation
At independence, Pakistan inherited a number of laws from the colonial period that were converted to environmental provisions. The Constitution of 1973 mentions environmental objectives in the preamble, but no specific law was drafted to that time. In 1983, the Pakistan Environmental Protection Ordinance (PEPO) was passed. This highlighted the need to have a framework of environmental law in Pakistan to address emerging national issues. PEPO established the Pakistan Environmental Protection Council (PEPC) and the Pakistan Environmental Protection Agency, as well as introducing the concept of Environmental Impact Assessments. It is unfortunate that PEPO has remained largely unimplemented. PEPC met in 1993 for the first time and approved National Environmental Quality Standards (NEQS), which later formulated the limits on major pollutants in municipal and industrial liquid effluents, industrial gaseous emissions, motor vehicle exhaust and noise.
The draft Environmental Protection Act, which lapsed in 1996 after failing to be approved in the National Assembly has recently been redrafted and unanimously passed by the Assembly."
"Respectfully sheweth:--
The expert officials imparted relevant information on the subject.
(1) The first site was the Nallah Noorpur. It allegedly originates in Margallah Hills and falls in Rawal Dam. Quaid-e-Azam University, Village Nurpur, area and of Bari Imam situates at its banks or in the vicinity. The sewerage water of the said localities falls in the said Nullah and ultimately in the Rawal Dam.
(2) The second site was Korung River. It originates in the Murree Hills and while lastly running through populated area of Bhara Kahu falls in Rawal Lake. The sewerage water of up stream populated area and also Bhara Kahu falls in Korung River and ultimately in the Rawal Lake. Thus polluting the whole Rawal Dam. I wonder if such a polluted water could be made potable.
It may be pointed out that the area from Bhara Kahu to Chhatar falls within the territory of Islamabad Capital Territory. The rest falls within the Province of Punjab and its managed by Small Dam Organization. However, the area wherein Nallah Noorpur runs through fall within the area governed by CDA.
It appears appropriate that the authorities concerned be directed to construct large septic tanks at appropriate places and also the sewerage treatment plants where after the water is used for green area in the University Campus and agriculture purposes in the villages. As a matter of fact the civil society is also responsible for such pollution either due to lack of awareness or other constraints. The issue cannot be possibly settled without the cooperation of the population.
I may point out that I have not been able to visit water treatment plant allegedly functioning at the Rawal Dam which provides drinking water to population of Rawalpindi.
(3) The third site we visited was the water treatment plant near the Helipad Islamabad. The said plant is situated in the forest near Shakar Parrian. A six feet • high wall stand constructed around the plant. Besides 2 to 3 feet high fence of barbard wire is also constructed. Thus the entry of any wild life like cats and dogs is too remote possibility. More so when there is no attraction for the wild animals within the four walls of the plant. Naturally three has to be something to eat within that may attract the animals.
The said plaint consists of six water tanks which are allegedly 10 to 12 feet deep. Filtration bed are laid which consists of sand and gravel to filter down the water which is sucked to main plant where Chlorine is mixed and then pumped to main reservoir at Shakarparian.
(i) I observed Algae/Kai in three water tanks. A positive indication that water tanks were not kept clean. Initially the Algae/Kai may not be injurious to health but if it is not periodically removed then colonization of other injurious vegetation cannot be ruled out. Upon inquiry, I found that there was no register to show that water tanks were visited and checked by the experts periodically.
It would be useful to direct that the water tanks and the plant itself be periodically checked and such visits be registered.
(ii) A periodically change of bed would be more beneficial. It would cost, as informed, about 4 to 5 Lacs of rupees. The cost is not much for such a benefit.
(iii) Secondly, I observed that the water tanks are so constructed that their walls are hardly 1« feet high from the ground. The officer concerned agreed that it needs to be fenced with a net (Jali) about three feet high and in order to protect the tanks from leafs etc. a net cover could also be used so that the water is protected and at the same time it receives the sunlight which is useful for oxygenation.
The dewatering is scientifically possible at a small place like a small hall. It is hoped that the CDA would take care of it. I wish that such treatment plants are established in Rawalpindi as well as other large cities in whole of Pakistan.
Importantly it has own laboratory also. The treated water is scientifically checked by the experts.
I was informed that there are more water treatment plants at Shahidra, Noorpur, Saidpur and Samli Dam but without laboratory. It would be appropriate that either a mobile laboratory or centralized laboratory is established to check the quality of the drinking water supplied to citizens.
Before parting I would observe that in the totality of things the authorities concerned are functioning reasonably well. An idealistic approach is good but the constraints are also be taken into account specially the financial constraints and importantly the lack of cooperation by the citizens, without their cooperation ideal conditions cannot be obtained. The CDA has made an effort to launch awareness program but I think much more is required in this behalf not only by the CDA alone but Government and Non-Government Organization as well. I hope that the above report by a non-expert would lay requisite information to the August Court."
However, there is general complaint that drinking water in Islamabad is polluted which is not upto the required standard and similarly, due to other civic problems and cleanliness of the capital city, there is also complaint of environmental pollution. It is to be pointed out that people in the public and private sector as well as official agencies and the Government departments are care free about the pollution in the environment as dirt and filth can be seen every where throughout the country on roads, parks and streets. There is no proper arrangement for removal of waste form the industrial area and similarly heaps of filth and dirt can be seen lying on the open places in populated areas as well as near the water reservoirs and such other places which is rich source of pollution in the water, fresh air and also dangerous diseases at the cost of health of common man. This Court in exercise of powers under Article 184(3) of the Constitution cannot make arrangement for removal of filth form public places but can certainly issue directions to the municipal committees, corporation and other concerned agencies in the Federal and Provincial Government to take necessary steps and adopt measures to stop environmental pollution.
The concerned Secretaries in the Federal as well Provincial Governments shall issue necessary directions to all concerned including public representatives in the local bodies both in urban and rural areas to keep proper check and control on the environment problem by deputing special teams to inspect the local areas and take remedial steps and in case of any breach also initiate appropriate action in accordance with law.
The compliance reports regarding steps taken and measures adopted by the Secretaries in the Federal and Provincial Governments shall be submitted to the Registrar of this Court within a month for our perusal in chambers.
(W.I.B.) Order accordingly.
PLJ 2008 SC 985
[Appellate Juridsdition]
Present: Muhammad Nawaz Abbasi, Zia Perwez & Syed Zawwar Hussain Jafery, JJ.
SALEEM MALIK--Appellant
versus
PAKISTAN CRICKET BOARD (PCB) and 2 others--Respondents
Civil Petition No 505 of 2008, decided on 22-05-2008.
(On appeal from the judgment dated 20-05-2002 passed by Lahore High Court Lahore in C.R. No 2350/2001).
Paksitan Commission of Inquiry Act, 1956--
----S. 9--Civil Procedure Code, (V of 1908), O. VII R. 11--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Rejection of plaint--No suit or proceeding lie against Federal Government--Concurrent finding--Appellant was professional cricketer--Involvement in betting and match fixing--Inquiry commission was constituted--Proposed for appropriate action--Recommendation for imposition of penalty of life on his playing cricket--Appellant challenged through suit for declaration and permanent injunction--Rejection of plaint--Question of--What is the status and sanction of the rules and bye-laws of ICC--Assailed--Appellant was non suited on the ground that action taken against him has immunity from challenge before the Court of law--Validity--Held: Plaint in the suit cannot be rejected on the basis of defence plea or material supplied by the opposite party in case of controversial questions of fact or law--Provisions of O.VII, R. 11 of CPC cannot be invoked rather the proper course for the Court in such cases is to frame issue on such question and decide the same on merits in the light of evidence in accordance with law. [P. 994] A
Islamic Law--
----In Islam there is no concept of taking any action against a person without providing him proper opportunity of hearing. [P. 995] C
Civil Procedure Code, 1908 (V of 1908)--
----O. VII R. 11--Pakistan Commission of Inquiry Act, 1956, S. 9--Rejection of plaint--Technical grounds--Held: Rejection of plaint on technical grounds would amount to deprive a person from legitimate right of availing the legal remedy for undoing the wrong done in respect of his legitimate right--Court can in exceptional cases, considered the legal objection in the light of averment of the written statement but the pleading as a whole cannot be taken into consideration for rejection of plaint under O. VII, R. 11 of C.P.C.
[P. 995] B
Pakistan Commission of Inquiry Act, 1956--
----S. 9--Absence of right of appeal--Remedy--Administration of justice--In absence of right of appeal against an order of Board, the remedy of civil suit cannot be denied to an aggrieved person under the garb of
S. 9 of the Pakistan Commission of Inquiry Act, 1956. [P. 995] D
PLD 1989 SC 6, 1994 SCMR 826, 1991 SCMR 2030 &
PLD 2002 Pesh. 45 ref.
Raja Mahmood Akhtar, ASC for Appellant.
Mr. Taffazal H. Rizvi, ASC for Respondent No. 1.
Raja Abdur Rehman, Dy Attorney General for Respondents No. 2 and 3.
Date of hearing: 22.5.2008.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, has been directed against the judgment dated 20.05.2002, passed by a learned Single Judge of the Lahore High Court, Lahore, in C.R. No. 2350/2001, arising out of a civil suit for declaration and permanent injunction filed by the appellant against Pakistan Cricket Board and others. The plaint in the suit was rejected under Order VII, Rule 11 CPC and the High Court by upholding the concurrent judgment of two Courts below, dismissed the civil revision filed by appellant, hence this appeal before this Court.
(a) into the allegations regarding betting and match fixing against the members of the Pakistan Cricket team.
(b) to determine and identify the persons including members of the team responsible for betting and match fixing.
(c) to recommend such actions as may be appropriate; and
(d) to suggest measures to avoid any future incidents.
"July 19, 2000
Mr. Salim Malik
105-B-1, Babar Block, New Garden Town
Lahore.
I Lieutenant General Tauqir Zia serve you with the following show-cause notice
That Mr. Justice Malik Muhammad Qayyum of the Lahore High Court was appointed One Man Judicial Commission by the Federal Government under the Commission of Enquiry Act, 1956, with the following mandate--
(a) to probe into the allegations regarding betting and match fixing against the members of the Pakistan Cricket team.
(b) to determine and identify the persons including members of the team responsible for betting and match fixing.
(c) to recommend such actions as may be appropriate; and
(d) to suggest measures to avoid any future incidents.
Mr. Justice Malik Muhammad Qayyum carried out a detailed enquiry into the above allegations and found you guilty of match fixing and recommended that a life ban be imposed on you; that you be not allowed to play cricket at any level whether for Pakistan or at the domestic level; that you be not allowed to associate with any cricketing affairs including coaching, managerial offices and Selection Committees; that suitable action in the form of criminal proceedings or otherwise be taken against you besides taking an account of your finances.
Now, therefore, you are called upon to show-cause in writing, within 15 days of the receipt of this notice, why action in the above terms may not be taken against you. You may also indicate if you would like to avail of a personal hearing before me. In that event, the Pakistan Cricket Board will initiate action as recommended by the Commission.
In the event of your failure to reply, it shall be presumed that you have nothing to say in your defense and the Board shall proceed with taking appropriate action in the light of the recommendations of the Commission.
Yours sincerely, Sd/-
Lt. Gen. Tauqir Zia
Chairman PCB"
"September 19, 2000
Mr. Salim Malik
105, Baber Block
New Garden Town
Lahore
In obedience to the recommendations of Mr. Justice Malik Mohammad Qayyum acting as a one man Judicial Commission appointed by the Government of Pakistan you were recommended imposition of a fine of Rs. 1,000,000/-. In consequence thereof on July 19th 2000, the Chairman PCB issued you a show-cause notice to which you replied on August 2, 2000, the reply is not satisfactory.
Thus by authority vested in me, I direct you to deposit the fine of Rs. 1,000,000/- imposed on you before 30.09.2000, this however does not absolve you of any other likely action being contemplated by the PCB.
Sd/-
Yawar Saeed
Director PCB"
"Learned counsel for the respondent-Pakistan Cricket Board, has sent a written request for the grant of an adjournment without prior intimation to learned counsel for the appellant who has come from Lahore. The learned counsel however, has requested for an actual date to avoid unnecessary traveling and submitted that a very important question of law relating to the fundamental rights of the appellant and the application of Order VII, Rule 11 CPC is involved in this case, which requires examination and notice has already been issued, therefore, after having granted leave, an actual date may be fixed.
In view of the nature of dispute and a short point is involved, we grant leave in this case and request of learned counsel also being genuine, we direct for fixation of this mater for a date in the week commencing from 19th of May, 2008.
Since Malik Muhammad Qayyum, learned Attorney General for Pakistan, had dealt with this case as one man Tribunal, therefore, instead of him, learned Deputy Attorney General should appear and assist the Court on the next date. The office shall place this case at Sr. No. 1 of the cause list and this may be clear that no further adjournment shall be granted. "
Learned counsel for the appellant placing reliance on the case law and repeating his arguments advanced before the High Court, has vehemently contended that the scope of Order VII, Rule 11 CPC is confined only to the extent of averments of the plaint and in addition, at the most uncontroversial material available on record can be considered for the purpose of determination of the question whether plaint is liable to be rejected or not but the scope of Order VII, Rule 11 CPC cannot be enlarged to consider the pleadings of the other side in the written statement or defence plea raised therein for the purpose of rejection of plaint. In support of his argument, learned counsel has placed reliance on Jewan and 7 others Vs. Federation of Pakistan through Secretary, Revenue Islamabad and 2 others (1994 SCMR 826), Haji Mitha Khan Vs. Muhammad Younus and 2 others (1991 SCMR 2030), Mushtaq Ahmad Khan and another Vs. Mercantile Cooperative Finance Corporation Ltd. and another (PLD 1989 Lahore 320) and Muhammad Zaman and others Vs. Shah Wazir Khan (PLD 2002 Peshawar 45) and submitted that since no right of appeal is provided under the law against the punishment awarded by the Chairman of the Board on the recommendations of the Commission, therefore, in the light of principle of natural justice, the remedy of civil suit cannot be denied to an aggrieved person. Learned counsel added that Section 9 of the Pakistan Commissions of Inquiry Act, 1956, may provide protection of legal proceedings against the Commission of Inquiry or the Board or to the Government as the case may be, for an action done under the Act in good faith but may not debar a person from filing suit to challenge the legality of the penal action taken against him by the Board or any other authority.
Learned counsel for the respondent on the other hand, placing reliance on Section 9 of Pakistan Commission of Inquiry Act, 1956, submitted that in the facts and circumstances of the case, the Commission of Inquiry in exercise of its powers could recommend any punishment provided in law and since the penalty of life ban on playing cricket with fine was recommended by the Commission of Inquiry, therefore, the civil suit against Pakistan Cricket Board or the Commission as the case may be, by virtue of Section 9 of the Pakistan Commissions of Inquiry Act, 1956, would not be competent. Learned counsel submitted that the penalty of life ban on playing cricket is provided in the rules of International Cricket Council (ICC) and Pakistan Cricket Board being Member of the ICC would be following these rules, therefore, Commission of Inquiry with conscious approach, has recommend the proposed penalty in terms of ICC Rules and in view of the immunity available to the action of the Commission as well as the Board under Section 9 of the ibid Act, the suit was squarely barred by law and rejection of plaint was unexceptionable.
The appellant sought a declaration with permanent injunction in the suit to the effect that neither one Member Commission appointed under Pakistan Commission of Inquiry Act, 1956 nor Pakistan Cricket Board or any person acting on its behalf has any authority to impose on him the penalty which is not provided under the law. The suit was contested with the assertion that in view of protection provided under Section 9 of Pakistan Commission of Inquiry Act, 1956", in respect of the recommendations of Commission of Inquiry and the penalty imposed by the Board on the basis of such recommendations, civil suit was not maintainable. The learned civil Judge having considered the objection formed opinion that the suit against the proceedings before the Commission and subsequent recommendations as well as order passed on the basis thereof, was not competent and consequently, rejected the plaint under Order VII, Rule 11 CPC. This order of learned trial Judge was affirmed in appeal and also in civil revision filed by the appellant in the High Court which was dismissed by learned Single Judge in Chambers with the observation that written statement could be considered for determination of legal objection for the purpose of order VII, Rule 11 CPC and since the learned counsel representing the appellant has not disputed the applicability of Section 9 of Pakistan Commissions of Inquiry Act, 1956, therefore, no exception could be taken to the concurrent order of the two Courts regarding the rejection of plaint in the present case under Order VII, Rule 11 CPC. Learned Judge while dismissing the civil revision also made observations on merits of the case to the effect that neither the principle of natural justice was violated nor appellant had any valid grievance to agitate before the Court of law.
Section 9 of Pakistan Commissions of Inquiry Act, 1956 provides that no suit or proceeding lie against the Federal Government, Commission or any other person acting under the directions of Federal Government or the Commission in respect of anything done in good faith or to be done in pursuance of the provisions of the Act or any Rule or order made thereunder. This is settled law that a penal action in consequence to which a person is deprived of his legitimate or a vested right, should have sanction of law and such action if taken in violation of the principle of natural justice, may have no protection of law. The principle of natural justice is read in every statute as a mandatory rule in the command of the Constitution, which is also recognized in Islam and a law or an action which is in conflict to this golden principle may have no legal effect or consequence. This principle will also be applicable to the proceeding before the Commission of Inquiry referred above which has all ancillary and accidental powers for the purpose of holding inquiry under Pakistan Commissions of Inquiry Act, 1956, but the Commission has no power to propose a penalty, which is not provided under the law and consequently, the Board or any person acting on its behalf also would have no authority to impose such penalty. The Commission can certainly recommend the punishment which is provided in the statute and similarly the Board after providing proper opportunity of hearing in the light of principle of natural justice can pass an appropriate order within the scope of law. The Commission of Inquiry under the scheme of law is not the punishing authority rather has to make recommendations and Pakistan Cricket Board or its Chairman, as the case may be, in the light thereof pass an appropriate order in accordance with law and learned counsel for the parties have not been able to show us any statutory law, authorizing the Board to award the punishment proposed by the Commission. Without prejudice to the rights of the parties, we may observe that the Board has not imposed penalty in toto recommended by the Commission rather as it appears from the order dated 19.7.2000 only fine was imposed and the recommendations of the Commission to the extent of life ban on playing cricket was not followed and given effect. Consequently, the penalty, subject to any exception would confine to the extent of only fine.
There is no cavil to the proposition that Pakistan being Member of ICC, would be following its bye-laws and Rules which provide different penalties including life ban on playing cricket but the essential question requiring determination would be whether without adopting these Rules in proper manner under the law, the Board, a statutory body established under Sports (Development and Control) Ordinance, 1962, can impose a penalty which is not prescribed in law of the land and whether the Commission or Board or any other person acting on their behalf can claim immunity for an action taken under these rules on the strength of Section 9 of the Pakistan Commissions of Inquiry Act, 1956. The State is prohibited under Article 8 of the Constitution to make any law which abridges the right of people guaranteed under the Constitution and Article 4 of the Constitution provides protection to the right recognized in law. The expression "due process of law" involves both substantive and procedural constitutional issues and principle of procedural due process requires that a person be given fair process for the deprivation of a right and may also limit the discretion of the authorities and Courts in determination of substantive rights whereas the concept of substantive due process is to examine a law and place limit on the size of punitive action. The Courts in the light of Articles 4 and 8 of the Constitution can examine the question whether law on a subject rationally relates to the legitimate right of the people and subject to the reasonableness of law, the same text would be relevant for determination of right under due process of law. This is the duty of the Court to see whether a law is harsh or oppressive in respect of constitutional guarantees and rights of people and whether provides equal protection to all or not. In the present case, we find that all the three Courts, on the basis of Section 9 of the Pakistan Commissions of Inquiry Act, 1956, non-suited the appellant on the ground that action taken against him has immunity from challenge before the Court of law. The subject matter of the civil suit relates to the violation of rules of game which are mostly of moral character and in case of breach of these rules, the punishment is also of moral character but if the breach is grave and is of serious nature calling a severe penal action, the concerned authorities may take such action, which is provided in the relevant statutes.
In the light of the legal position, the real question for determination, would be that what is the status and sanction of the rules and bye-laws of ICC and whether on the basis of such bye-laws and Rules, a cricket player in Pakistan for breach thereof or for breach of any other rule of game, can be awarded punishment provided thereunder and these Rules by virtue of Section 9 of Pakistan Commissions of Inquiry Act, 1956, have the force of law for the purpose of Order VII, Rule 11 CPC, which provides as under :--
"11. Rejection of plaint: The plaint shall be rejected in the following cases--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law."
"9. No suit or other legal proceedings shall lie against the [Federal Government] the Commission or any member thereof, or any person acting under the direction either of the [Federal Government] or of the Commission in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules or orders made thereunder or in respect of the publication, by or under the authority of the [Federal Government] or the Commission, of any report, paper or proceedings."
The plain reading of this Section would show that a legal action for damages etc possibly cannot be taken against the Commission or Government or against any other person for an action done in good faith but there can be no restriction on availing the legal remedy by a person for the protection of his rights. Learned counsel has not been able to convince us that the suit filed by the appellant in view of the legal position explained above, was barred by any law or that appellant has no cause of action or suit was suffering from any other defect mentioned in Order VII, Rule 11 CPC. Subject to the certain exception to the general principle, the plaint in the suit cannot be rejected on the basis of defence plea or material supplied by the opposite party with the written statement. This is settled law that in case of controversial questions of fact or law, the provision of Order VII, Rule 11 CPC cannot be invoked rather the proper course for the Court in such cases is to frame issue on such question and decide the same on merits in the light of evidence in accordance with law. The rejection of plaint on technical grounds would amount to deprive a person from his legitimate right of availing the legal remedy for undoing the wrong done in respect of his legitimate right, therefore, the Court may in exceptional cases, considered the legal objection in the light of averment of the written statement but the pleading as a whole cannot be taken into consideration for rejection of plaint under Order VII, Rule 11 CPC.
Dr. Babar Awan, learned Sr. ASC on Court call, with reference to the verses from Holy Quran and Hadith of Holy Prophet (PBUH) has submitted that in Islam there is no concept of taking any action against a person without providing him proper opportunity of hearing and having acknowledged the arguments of learned counsel for the appellant added that the Federal Shariat Court in its judgment dated 13.10.1983 rendered in S.S.M. No. 84,85,100 and 160/82, held that "barring the right of appeal is against injunctions of Islam" which was affirmed by Shariat Appellate Bench of this Court vide judgment dated 18.8.1988 in Shariat Appeal No. 2 of 1984 (Pakistan Vs. General Public, PLD 1989 SC 6), wherein it was held that at least one right of appeal is mandatory to meet the requirement of principle of natural justice. In view thereof, in absence of right of appeal against an order of Board, the remedy of civil suit cannot be denied to an aggrieved person under the garb of Section 9 of the Pakistan Commission of Inquiry Act, 1956.
In the light of foregoing reason, we set aside the judgment of the High Court impugned in the present appeal before us and remand the case to the trial Court for decision of the suit on merits in accordance with law. Notwithstanding the fact that there was no mention of life ban on playing cricket in the order passed by the Pakistan Cricket Board which was conveyed to the appellant vide order dated 19.9.2000, the career of the appellant, a cricket player, has been damaged, therefore, the interest of justice would require the decision of suit as early as possible and consequently, we direct that learned trial Judge while proceeding with the case on day-to-day basis will make efforts to give final verdict within a period of two months. Learned counsel for the parties have undertaken that except for the compelling reason, they will not ask for adjournment and in view thereof, the learned trial Judge will not ordinarily grant adjournment to either party. The learned counsel for the appellant has requested for suspension of the operation of order of Board pending final disposal of the suit as interim measure in the interest of justice. The appellant may if so advised, move the trial Court for appropriate relief and if such an application is moved, the same will be decided on its own merits. This appeal is allowed in the above terms with no order as to costs.
(W.I.B.) Appeal allow.
PLJ 2008 SC 996
[Appellate Jurisdiction]
Present: Saiyed Saeed Ashhad, Muhammad Akhtar Shabbir & Syed Sakhi Hussain Bukhari, JJ.
NAZIR AHMAD & another--Appellants
versus
M. MUZAFFAR HUSSAIN--Respondent
Civil Appeal No 563 of 2004, decided on 19.5.2008.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 14-05-2004 passed in C.R No. 958 of 2002)
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Constitution of Pakistan, 1973, Art. 185--Concurrent findings--Jurisdiction of High Court--Interference--Challenge to--Held: High Court in exercise of its revisional jurisdiction would be justified in interfering with the concurrent findings of fact, where on examination of the record the High Court finds that Courts below have arrived at erroneous conclusion based on error of jurisdiction, misreading or non-reading of documentary or oral evidence and misconstruction of law, can set at naught the concurrent findings by Courts below. [P. 998] A
1985 SCMR 2029 & 1996 SCMR 1918, ref.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----S. 17(2)(a)--Execution of document--Mode of proof--Criteria--Denial of execution of document--Relying on such document must prove its execution in accordance with the modes of proof as laid down in Qanun-e-Shahadat Order, 1984. [P. 999] B
Attesting Witness--
----Attesting witness is one who not only sees the document being the executants but also signs it as witness. [P. 999] C
1912 IC 250 (PC) AIR 1925 Oudh 737, rel.
Scriber--
----Evidentiary value--Can be treated as marginal witness--Competency--A person who writes or is scribe of a document is as good witness as any body else, if he has signed the document as a witness--No legal inherent incompetency exist in the writer of a document to an attesting witness--Agreement was scribed by him and thumb impressions and signatures were put by the defendants such statement of the scribe can be considered to be a statement of marginal witness. [P. 999] D
AIR 1926 Oudh 209, 1991 SCMR 1281 & PLD 1984 SC AJ&K 138 rel.
Qanun-e-Shahadat Order, 1984 (10 of 1984)--
----Art. 30--Specific performance--Execution of agreement is admitted--Admitted facts need not to be proved. [P. 1000] E
Inadequacy--
----Objection of--No ground for refusing specific performance of agreement--Assertion of inadequacy of price--Ignoring the plea--Mere inadequacy is no ground for refusing specific performance of agreement--Where the price is so inadequate as to shock Court's conscience, either by itself or in conjunction with any other circumstance such as illiteracy, oppression, it evidences fraud or that undue advantage was taken by the other side, Court will refuse the specific performance. [P. 1000] F
(AIR 1960 Madhya Pradesh 235) ref.
Mr. Zafar Iqbal Chaudhry, ASC for Appellants.
Respondent in Person.
Date of hearing: 19.5.2008.
Judgment
Muhammad Akhtar Shabbir, J.--This appeal is directed against the judgment dated 14.05.2004 passed by a learned Single Judge of the Lahore High Court, Lahore, in Civil Revision No. 958 of 2002.
The facts giving rise to the present appeal are to the effect that plaintiff-respondent herein had instituted a suit for "specific performance" of a contract on the basis of an agreement to sell dated 11.01.1992 executed by the defendants-appellants qua, property in dispute measuring 11 kanals 18 marlas situated in Khasra Nos. 880, 881 and 882, Khatoni No. 45/141, 46/142, Mauza Landra, Tehsil Shakargarh. The suit was contested by the defendants-appellants who filed their written statement raising some preliminary objections with specific plea that the agreement was executed by Defendant No. 1 only who had sold his share of property and the name of defendant/Appellant No. 2 Rashid Ahmad was inserted in the agreement fraudulently. From factual controversies appearing on the pleadings of the parties, the learned trial Court, framed various issues. After recording, appreciating evidence of the parties, pro and contra, the trial Court partly, decreed the suit in favour of plaintiff-respondent against Nazir Ahmad defendant-appellant only. Feeling aggrieved, an appeal had been filed which came up for hearing before the learned Additional District Judge, Shakargarh, District Narowal, who vide his judgment dated 07.02.2002, affirmed the judgment and decree of the trial Court. Muzaffar Hussain plaintiff-respondent preferred revision petition before the High Court which was accepted, vide impugned judgment dated 14.05.2004, and the judgment and decree passed by the two Courts below was reversed, the suit filed by the plaintiff-respondent for specific performance of agreement to sell was decreed in his favour against the appellants.
The learned counsel for the appellants contended that the High Court in `revisional' jurisdiction was not empowered to reverse the findings of the two Courts below while no error of law, jurisdictional defect, misreading or non-reading was pointed out; that the plaintiff-respondent had failed to establish, by producing two marginal witnesses, the agreement to sell executed by the appellants in his favour; that the appellants had purchased the land from one Jamal Din for Rs. 70,000/- through registered sale-deed and there was no reason for the appellants to dispose of their property for a lesser consideration of Rs. 50,000/-.
While on the other hand, the respondent (present in person) vehemently opposed the arguments of the learned counsel for the appellants and supported the impugned judgment of the High Court.
We have heard the arguments advanced by the learned counsel for the appellants and the respondent (present in person) and perused the available record with their assistance.
As to the objection of the learned counsel for the appellant that the High Court, cannot interfere with the "concurrent" findings of fact recorded by the Courts below, suffice it, to observe that the High Court in exercise of its revisional jurisdiction would be justified in interfering with the concurrent findings of fact where on examination of the record the High Court finds that Courts below have arrived at erroneous conclusion based on error of jurisdiction, misreading or non-reading of documentary or oral evidence and misconstruction of law, can set at naught the concurrent findings by the Courts below. In this context, reference can be made to the cases of Jan Muhammad Khan v. Shah Mir Hussain (1985 SCMR 2029), Jam Pari v. Muhammad Abdullah (1992 SCMR 786) and Muhammad Sain v. Muhammad Din (1996 SCMR 1918).
In the instant case, the defendants-appellants have taken the stance that the agreement was executed by Nazir Ahmad Appellant No. 1 only and not by both of them i.e. Nazir Ahmed and Rashid Ahmed, appellants, meaning thereby that the execution of the document by both the appellants has been denied and in case of denial of execution of document, the party relying on such document must prove its execution in accordance with the modes of proof as laid down in Qanun-e-Shahadat Order, 1984 and the party is required to observe rule of production of best evidence. Article 17(2)(a) of the Qanun-e-Shahadat Order, 1984, provides that "in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly". To prove the execution of the agreement, the plaintiff produced the "Scribe" of the document PW-1 Allah Ditta, Petition Writer who while appearing in Court admitted the execution of the agreement Ex. P.1 and categorically stated that it carried the thumb impressions and was signed by the executant and the marginal witnesses. His statement was supported by PW-3 Abdul Majeed attesting witness of the document (Ex. P.1) who also verified his signatures on the same. The attesting witness is one who not only sees the document being the executant but also signs it as a witness. Reliance in this behalf is laid down to the cases of Shamu Patter v. Abdul Kadir Rowthan & others [(1912 IC 250 (PC)], Burdett v. Spilsbury [(1842) 10 CI & F 340] and Ram Samujh Singh v. Mainath Quer (AIR 1925 Oudh 737) and a person who writes or is scribe of a document is as good a witness as anybody else, if he has signed the document as a witness. No legal inherent incompetency exists in the writer of a document to be an attesting witness to it. Where in addition to one of the marginal witnesses, "Scribe" of the document appeared in the trial Court and deposed that the agreement was scribed by him and thumb impressions and signatures were put by the defendants such statement of the scribe can be considered to be a statement of marginal witness in the circumstances as laid down by the superior Courts in Raja Ram v. Jagannath & others (AIR 1926 Oudh 209), Yakubkhan Daimkhan Serguro & others v. Guljarkhan Abdulkhan & others (AIR 1928 Bombay 267), Thakurdas and another v. Topandas and others (AIR 1929 Sind 217), Ghanshamsingh Tirathsing & another v. Mohmed Yaqoob (AIR 1933 Sind 257), Muhammad Zaman Khan v. Sher Afzal Khan & 8 others [(PLD 1984 SC (AJ&K) 138] and Mst. Noor Bibi & 9 others v. Ghulam Rasool (1991 SCMR 1281).
So far as the execution of agreement is concerned, the Appellant Nazir Ahmad who appeared as DW-1 admitted the execution of the agreement for sale of the property in dispute for consideration of Rs. 50,000/- and the execution of the agreement was further testified by Allah Ditta `Scribe' of the document who appeared as DW-4. The said witness appeared twice in the Court; firstly as PW-1 and secondly as DW-4 and admitted the thumb impression of Nazir Ahmad and signatures of Rashid Ahmad appellants on the agreement to sell (Ex.P.1). It means that the execution of agreement is admitted not disputed and it is well settled proposition of law that the admitted facts need not to be proved. The admission has been defined in Article 30 of the Qanun-e-Shahadat Order, 1984 which reads as under:
"30. Admission defined.--An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned. "
The objection of learned counsel for the appellants that the sale consideration of property in dispute is inadequate has also no force. Mere inadequacy is no ground for refusing specific performance of agreement. Where the price is so inadequate as to shock Court's conscience, either by itself or in conjunction with any other circumstance such as illiteracy, oppression, etc., it evidences fraud or that undue advantage was taken by the other side, the Court will refuse the specific performance. Reference is made to the case of Manak Chand v. Puran and another (AIR 1960 Madhya Pradesh 235). But in the instant case, no such evidence is available and the appellants have failed to establish this assertion of inadequacy of price and the learned High Court has rightly granted "specific performance" ignoring the plea of inadequacy of price by the appellants. The above discussed aspects of the case had not been adverted to by the trial Court as well as by the First Appellate Court. In such circumstances, the High Court rightly interfered with the findings of the Courts below by setting aside the same. No infirmity or error of law has been pointed out in the impugned judgment which is unexceptionable.
For the foregoing reasons, we do not find any substance in this appeal which is dismissed.
(W.I.B.) Appeal dismissed.
PLJ 2008 SC 1001
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MUHAMMAD JAMIL KHAN--Appellant
versus
PESHAWAR HIGH COURT, PESHAWAR through the Registrar
and another--Respondents
Civil Appeal No. 351 of 2006, decided on 17.6.2008.
(On appeal from the judgment dated 14.4.2003 passed by the Peshawar High Court, Peshawar in SJSA No. 7 of 1999).
N.W.F.P. Government Servants (Efficiency & Discipline) Rules, 1973--
----Rr. 5(4) & 4(iii)(b)--Constitution of Pakistan, 1973, Art. 212(3)--Removal from service--Un-authorized awarded a number of weapons--Appeal against the judgment passed by subordinate judiciary service tribunal--Appellant while posted as Addl. Distt. Judge awarded a number of weapons free of cost, to various persons, which were confiscated to state during trial of cases--DIG Police approached the High Court for review of orders passed by appellant, as weapons were of prohibitory bore and could not have been awarded to private person--Judge of High Court was appointed to probe into the matter--Charge sheeted--Awarding weapons to private persons and superdari of two motorcars--Recommendations regarding removal from service were approved by Chief Justice--Appeal was dismissed--Assailed--Appellant while posted as Addl. Distt. Judge had unauthorizedly awarded a number of weapons i.e. the case property to various private persons including his brother--So much so he had awarded a weapon to himself as well for which neither there was any justification nor had he any competence--Held: Penalty of removal from service inflicted on appellant is a bit on higher side and ends of justice would be met with if his removal from service is converted compulsory retirement from service. [Pp. 1004 & 1007] A & E
N.W.F.P. Arms Rules, 1922--
----R. IX--N.W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973--R. 5(4)--Disposal of confiscated arms--Sub-ordinate Judiciary Service Tribunal--Appellant while posted as Addl. Distt. Judge awarded a number of weapons free of cost to various private persons--Validity--Manner of disposal of the confiscated arms has been provided yet, the rules do not make provision for award of confiscated arms to a private person. [P. 1005] B
N.W.F.P. Arms Rules, 1922--
----R. X--Reward--Appellant while posted as Addl. Distt. Judge awarded to number of weapons to private persons--Validity--Reward can be given to a person or persons including police officers, who had given information leading to detection of offences, or who might have assisted in arrest of the offenders and seizure of the arms or other articles yet, that reward too, is limited to cash payment--Reward not exceeding the amount of fine imposed, can be granted to the person or persons who have contributed to arrest of the offender or the seizure of arms or articles. [P. 1006] C
Surrender of Illicit Arms Act, 1991 (XXI of 1991)--
----S. 10--N.W.F.P. Arms Rules, 1922--R. X--Releasing of weapon--Reward for successful recovery of illicit arms--Legality--Reward for successful recovery of illicit arms can also be given to a person providing information yet, such reward is to be made by Federal or Provincial Government as the case can be henced--Appellant was competent or authorized to distribute confiscated arms to the persons of his own choice--Held: Release of weapons being patently illegal on in access of jurisdiction not vested in appellant, he was rightly punished by competent authority. [Pp. 1006 & 1007] D
Hafiz S. A. Rehman, Sr.ASC for Appellant.
Sh. Riaz-ul-Haq, ASC for Respondent No. 1.
Mr. Zia-ur-Rehman, A.G. NWFP for Respondent No. 2.
Date of hearing: 17.6.2008.
Judgment
Ch. Ejaz Yousaf, J.--This appeal with leave of the Court is directed against the judgment dated 14.4.2003 passed by N.W.F.P. Subordinate Judiciary Service Tribunal, Peshawar, (hereinafter referred to as the "tribunal") whereby appeal filed by the appellant against his removal from service under sub-rule (4) of Rule 5 of the NWFP Government Servants (Efficiency and Discipline) Rules, 1973, was dismissed.
Briefly stated, the facts of the case are that the appellant while posted as Additional District Judge, Upper Dir, in the years 1997-98 "awarded" a number of weapons, free of cost, to various persons, which were confiscated to the state during trial of cases. Since Registrar of the High Court was approached by the Deputy Inspector General of Police, Malakand Range through letter dated 5.7.1998, for review of the orders passed by the appellant, as the weapons were of prohibitory bore and could not have been "awarded" to private persons, therefore appellant's explanation was sought for. The reply having been found unsatisfactory, a Judge of the High Court was appointed to probe into the matter as an authorized officer. The appellant was accordingly charge sheeted and report from the District & Sessions Judge/Zila Qazi Dir at Timargara, was also sought for, in consequence whereof it revealed that besides "awarding" weapons to various private persons including his brother Ajmal Khan, a weapon was also taken by the appellant himself. Further, two motorcars were also released on Superdari by him one to an Advocate and the other to himself. The charge sheet was accompanied by the statement of allegations. The appellant submitted reply thereto, denying the allegations of illegally giving on superdari the motorcars in question but admitted the fact of giving the arms and ammunitions as "reward" to various persons on the basis of precedents and practice which, according to him, was prevalent in the area. The said reply too, was not found satisfactory and consequently Mr. Miftahuddin Khan, District & Sessions Judge/Zila Qazi, Malakand, at Batkhela, was appointed as Inquiry Officer and report was called to which the appellant replied but that too, was found unsatisfactory. Consequently, the Authorized Officer recommended appellant's removal from service under sub-clause (iii) of clause (b) of Rule 4 of the NWFP Government Servants (Efficiency and Discipline) Rules, 1973. The said recommendations were approved by the then Chief Justice of the Peshawar High Court. Resultantly the appellant was removed from service vide order dated 9th July, 1999. Being aggrieved the appellant approached the Tribunal through appeal which was dismissed vide the impugned judgment, hence this appeal.
Hafiz S. A. Rehman, learned senior ASC for the appellant, though initially made some submissions; that since the weapons were "awarded" by the appellant while acting as a judicial officer, hence he was impugned from disciplinary action as the rules were not violated; that no pecuniary or monitory loss was suffered by the Government on account of release of weapons as it were returned/redeposited by the persons concerned; that the appellant was neither personally heard nor his statement was recorded before passing the impugned order and argued the appeal at some length; but then decided not to challenge the imposition of penalty on the appellant, however prayed that since the appellant had twenty years service at his career, he is out of job for more than eight years and hardly a year or so of his service is left and due to loss of job, he as well as his family members have been subjected to monitory hardship, therefore, a lenient view may be taken in the matter of the imposition of penalty on him and the penalty of removal from service may be substituted by a lesser one.
Mr. Zia-ur-Rehman, learned Advocate General, NWFP, has on the other hand, urged that since guilt of the appellant was fully brought home after conducting a full-fledged inquiry and it was proved to the hilt that he had, unauthorizedly, released arms, to his friends and close relatives and even to himself, therefore the impugned judgment was unexceptionable. He, however, in view of the fact that appellant was removed from service in the year 1998 and being out of job has suffered monitory hardship, expressed his no objection in case the penalty of removal from service inflicted on him is substituted by any other.
Sh. Riazul Haq, learned ASC, while appearing on behalf of Respondent No. 1, adopted the arguments advanced by Mr. Zia-ur-Rehman, learned Advocate General, NWFP, and added that since the appellant had illegally and unauthorizedly released weapons to private persons therefore, he was rightly removed from service.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the available record, minutely, with their assistance.
Notwithstanding the fact that learned counsel for the appellant has not challenged the imposition of penalty on the appellant, we have considered merits of the case in the light of the evidence on record. We find that the appellant while posted as Additional District Judge, Upper Dir, had unauthorizedly "awarded" a number of weapons, i.e. the case property, to various private persons including his bother. So much so he had "awarded" a weapon to himself as well for which neither there was any justification nor had he any competence. It would be pertinent to mention here that though under Section 20 of the Arms Ordinance, 1965, the Court while convicting any person of any offence punishable under the said Ordinance, committed by him in respect of any arms, ammunition or military stores, has power to direct that the whole or any portion of such arms, ammunition or military stores, and any vessel, vehicle or any other type of transport used to covey the same, and any type of package or container in which the same may have been concealed, together with the other contents of such package or container be confiscated, yet, in the said Ordinance as well as the rules framed thereunder, nowhere it has been provided that the Court, while confiscating the arms and ammunition or the vehicle, etc., would be competent to "award" the same to any other person. It would be pertinent to mention here that though as per rule (ix) of the NWFP Arms Rules, 1922 (hereinafter referred to as the said Rules, 1922), under the heading of "DISPOSAL OF CONFISCATED ARMS", the manner of disposal of the confiscated arms has been provided yet, the said rules do not make provision for "award" of confiscated arms to a private person. Here it would be beneficial to have a glance at rule (ix) of the said Rules, 1922, which reads as follows:--
"DISPOSAL OF CONFISCATED ARMS
(ix) Arms, ammunition or military stores that have been forfeited to Government under Sections 14 and 16 or have been confiscated under Section 24 shall be disposed of as follows:--
(1) Arms, ammunition and stores which can be utilized by the police or any other Government Department may be retained and brought into use with the sanction of the State Government.
(2) Arms, ammunition and stores not so retained shall be disposed of in the following manner:--
(a) all revolvers and pistols of whatever bore, and all rifles and ammunition of prohibited bores, shall be to the nearest arsenal for disposal.
(b) arms, ammunition and stores other than those described under (a) above may be sold to licensed dealers or other persons entitled to possess them, and
(c) arms and disposed of under (b) shall be broken up locally and the materials sold, unless they are rifled fire-arms or rifle barrels, in which case they should be sent to the nearest arsenal to be broken up Ammunition and stores not disposed of under (b) shall be destroyed.
(3) An acknowledgement should be obtained from the officer-in-charge of the arsenal concerned of the receipt of arms and ammunition sent to him under Rule 2 above and, in the due course, a certificate that the said arms and ammunition have been either destroyed or taken into Ordinance stock.
[Note. The expression Stores: in these Rules means "Military Stores" as defined in Section 4 of the Arms Act, 1878]"
However, under the heading "REWARDS" as per rule (x) of the said Rules, 1922, though reward may be given to a person or persons including the police officers, who had given information leading to the detection of the offence, or who might have assisted in the arrest of the offenders and seizure of the arms or other articles yet, that reward too, is limited to cash payment which, in no case, be more than half of the value of the confiscated articles; and likewise under rule (xi) a reward not exceeding the amount of the fine imposed, can be granted to the person or persons who have contributed to the arrest of the offender or the seizure of the arms or other articles. It would also be advantageous to go through rules (x) & (xi) of the said Rules, 1922 as well, which read as follows:
"REWARDS
(x) When any arms or other articles are confiscated under Section 24, the convicting Magistrate shall, immediately on conviction, pay reward of not more than half the value of the confiscated articles and in such proportion as he may been advisable after due consideration of all the facts of the case to the person or persons (police officers are included) who may have given information which led to the detection of the offence, or who may have assisted in the arrest of the offenders and seizure of the arms or other articles.
Such payment will be chargeable to Law and Justice, and be drawn by Magistrate in their contingent Bills.
(xi) Any Magistrate convicting an offender of any offence under the Act may, at his discretion, grant a reward not exceeding the amount of the fine imposed, in such proportions as he may think fit to any person or persons (police officers are included) who have contributed to the arrest of the offender or the seizure of the arms of other articles."
Needless to point out that under Section 10 of the Surrender of Illicit Arms Act, 1991, "Reward" for successful recovery of illicit arms, may also be given to a person providing information yet, such reward is to be made by the Federal or Provincial Government as the case may be hence, by no stretch of imagination it can be concluded that the appellant, in any way, was competent or authorized to distribute the confiscated arms to the persons of his own choice. Thus the release of weapons being patently illegal and in access of jurisdiction not vested in the appellant, he was rightly punished by the competent authority. The impugned judgment, therefore, does not suffer from any legal infirmity so as to call for interference by this Court. However, keeping in view the fact that all the weapons were returned and no pecuniary loss was caused to the Government or the State and that appellant, prior to the incident had more than 18 years service at his credit, we feel that the penalty of removal from service inflicted on the appellant is a bit on the higher side and ends of justice would be met with if his removal from service is converted into compulsory retirement from service. Order accordingly.
(R.A.) Appeal dismissed.
PLJ 2008 SC 1007
[Appellate Jurisdiction]
Present: M. Javed Buttar & Ch. Ejaz Yousaf, JJ.
Mst. SHARIF BIBI & another--Appellants
versus
Syed MUHAMMAD NAWAZ SHAH & others--Respondents
C.A. Nos. 1744 & 1745 of 2005, decided on 15.7.2008.
(On appeal from the order dated 12.10.2004 in C.Rs No. 434-D & 435-D of 1996 passed by the Lahore High Court, Lahore).
Constitution of Pakistan, 1973--
----Art. 185(3)--Leave to appeal--Cross suits were filed--Appointment of referee with consent of the parties--Power of attorney--Determine the rights of the parties--Objection were raised and suits were decided accordance with report of referee--Appeals were dismissed by Courts below--Validity--Held: After recording the statements of counsel for parties, trial Court appointed a referee and called upon to him to file a report which was duly filed and the suits were decided in accordance with his decision/report--Further held: Power of attorney executed by appellants in favour of counsel does not contain any limitation on his authority and he had full authority to give such statement--Parties were competent to agree to refer the matter to a referee for decision of the suits and the Court was competent to appoint agreed person as referee for decision of the suits and objection to jurisdiction of trial Court in appointing a referee and referring the matter to him for decision of the suits has no legal basis--Appeals were dismissed. [P. 1010] A & B
PLJ 2000 SC 513 & 2003 SCMR 1911, rel.
Mr. Amin-ud-Din Khan, ASC for Appellants.
Mr. Gul Zarin Kiyani, ASC and Mr. M.S. Khattak, AOR for Respondents.
Date of hearing: 15.7.2008.
Judgment
M. Javed Buttar, J.--These appeals, by leave, are directed against judgment dated 12.10.2004, passed by a learned Judge in Chambers of the Lahore High Court, whereby Civil Revisions No. 434-D & 435-D of 1996, instituted by the appellants, were dismissed.
The relevant facts are that on 12.6.1985 Respondents No. 1 to 6 instituted a suit against the appellants and Respondent No. 7 and also against one Muhammad Akbar Shah. The suit land involved in both the suits is common and was admittedly owned by Mst. Bakhu daughter of Haider Nawaz Shah who died issueless on 29.7.1984. Muhammad Akbar Shah was the real brother of Mst. Bakhu. According to the respondents Mst. Bakhu had gifted away the suit land to them and executed a document on 3.4.1984. All the requirements of the gift were fulfilled and the gift stood completed. It was alleged that the present appellants had fabricated a will stated to be executed by Mst. Bakhu on 12.12.1980 whereas no such Will had been made or executed by the deceased lady. Accordingly a declaration was sought that they were owners of the suit land. The appellants contested the suit, denied the gift and supported the Will in their favour.
The appellants also instituted a cross suit against Akbar Shah, the Respondent No. 7, and the remaining respondents seeking declaration of ownership on the basis of the said Will dated 12.12.1980. The suit was conceded by Akbar Shah. The written statement was not filed by Respondents No. 1 to 6 and the case was being adjourned.
On 19.2.1992, respondents suit was dismissed for non-prosecution as their learned counsel stated that he had no instructions, while in the suit filed by the appellants, the said learned counsel also reported no instructions, therefore, respondents were proceeded against ex-parte and the appellants' suit was decreed exparte.
On 22.6.1993 and 7.6.1993 applications were filed by the respondents in both the suits for restoration and for setting-aside the exparte decree. During the pendency of these applications, on 27.3.1994, learned counsel for the parties, Muhammad Nawaz Shah and Anees-ul-Husnain Shah respondents as also Syed Tanseer Abbas, Appellant No. 2, made a statement that let Kh. Suleman Taunsvi, be appointed as a referee to determine the rights of the parties in the suit property and in accordance with the decision of the said referee, the applications as well as the suits be decided and that the parties shall accept the decision without any objection. The Court, therefore, appointed Kh. Suleman Taunsvi as a referee. The parties were directed to appeal before him on 31.3.1994 and the referee was directed to file his report by 12.4.1994. The referee sent his report on 3.4.1994 in a sealed envelope. It was opened in Court on 12.4.1994. Meanwhile both the appellants had filed separate applications raising certain objections including an assertion in one of the applications that one of the appellants had cancelled the appointment of the referee. It was also objected by Mst. Sharif Bibi that her counsel had no authority to agree to the reference to the referee. The learned trial Court vide judgment and decree dated 28.5.1994 rejected the said applications and decided the suits in accordance with the report of the referee who had held that the land be distributed amongst the respondents in accordance with the gift deed dated 3.8.1984. The first appeals filed by the appellants were dismissed by Additional Sessions Judge, Taunsa Sharif, vide his judgment and decrees dated 5.3.1996. As mentioned above, the revision petitions instituted by the appellants were dismissed by a learned Judge in Chambers of the Lahore High Court, on 10.12.2004.
We have heard learned counsel for the parties at length and perused the record with their able assistance.
It has been argued by learned counsel for the appellants that the learned counsel appearing for the appellants was not authorised to agree to refer the matter to a referee; that the trial Court had no jurisdiction to refer the subject-matter of the suits to a referee because at that time no suits were pending and only an application for setting-aside the exparte decree and for setting-aside order of dismissal for non-prosecution of the respondents' suits, were pending. Similar arguments were raised before the learned Judge in Chambers of the Lahore High Court at the time of decision of the civil revisions instituted by the appellants and identical arguments were raised at the time when the leave granting order was passed.
The contentions have been opposed and it has been submitted that parties were duly represented by their learned counsel at the time when the parties agreed through their learned counsel to refer "the entire matter to a referee for decision and therefore, the appellants are bound by the decision of the referee and the Courts below correctly decided the suits in accordance with the decision of the referee. Learned Senior ASC for the respondents has also placed reliance upon (i) Muhammad Khan v. Nazir Ahmed (2003 SCMR 1911), (ii) Nazir Ahmad and another v. Muhammad Din and another (PLJ 2000 SC 513), (iii) Mst. Lalan v. Noor Muhammad and others (1994 SCMR 1771) and (iv) S.E. Makudam Mahommad v. T.V. Mahommad Sheikh Abdul Kadir and another (AIR 1936 Madras 856).
We have given our anxious consideration to the entire facts and circumstances of the case and to the arguments addressed before us by the learned counsel for the parties.
In our view the learned trial Court proceeded with the matter and decided the suits in accordance with law. All the parties through their counsel had stated before it that they would like the matter to be decided by the above referee in accordance with his statement or report and that they will not object to the said decision. After recording the statements of the learned counsel for the parties, learned trial Court appointed the said person as a referee and called upon him to file a report which was duly filed and the suits were decided in accordance with his decision/report. The objections in regard to his appointment and in regard to the jurisdiction of the Court, which have throughout been raised by the appellants, do not have any force. They have been correctly and lawfully met by the Courts below especially learned Judge in Chambers of the High Court in the impugned judgment. Learned counsel for the appellants agreed to refer the matter to a referee for the decision of the suits in accordance with his decision/report. Power of attorney executed by the appellants in favour of the counsel does not contain any such limitation/restriction on his authority and he had full authority to give such a statement. Similarly when the matter was pending before the Civil Court of competent jurisdiction, the parties were competent to agree to refer the matter to a referee for the decision of the suits and the Court was competent to appoint agreed person as referee for decision of the suits and therefore objection to the jurisdiction of the trial Court in appointing a referee and referring the matter to him for decision of the suits, has no legal basis. The Court was competent to do so although only the applications were pending. In S. E. Makudam Mahommad vs. T.V. Mahommad Sheik Abdul Kadir and another (Supra) it was observed as under :--
"When a party invites the Court to adopt a procedure which is not contemplated by the Civil P.C., and is in fact a procedure extra cursum curiae, he cannot turn round and say that the Court is to blame for adopting the very procedure which he invited the Court to follow. There is such a thing as estoppel apart from the question of adjustment and the doctrine of estoppel would apply to a party who attempts to blow hot and cold in this fashion. As was held in (1896) AC 136 (1), where with the acquiescence of the parties the Judge departed from the ordinary course of procedure and decided upon a question of fact, it was incompetent for the parties afterwards to contend that they have an alternative mode of proceeding with the trial as if it had been heard in due course. Lord Watson observed in that case that there were several decisions of the House of Lords which affirmed that the judgment of the Court below pronounced extra cursum curiae, is in the nature of an arbiter's award and that as a general rule at least no appeal from it will lie."
We are further of the view that the appellants are estopped to assail the appointment of referee and reference of the matter to the referee by the trial Court because said steps were taken by the trial Court on the asking of the appellants themselves as well as the respondents.
In view of above mentioned, we find no merit in these appeals, which are dismissed, however there is no order as to costs.
(R.A.) Appeals dismissed.
PLJ 2008 SC 1011
[Appellate Jurisdiction]
Present: Mohammad Moosa K. Leghari, Sheikh Hakim Ali & Muhammad Farrukh Mahmud, JJ.
Syed KHURRAM SHAH--Petitioner
versus
Mian MUHAMMAD SHAHBAZ SHARIF and others--Respondents
C.P. No. 654 of 2008 and C.M.A. Nos. 1474, 1495 & 1496 of 2008, decided on 12.6.2008.
(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 5.6.2008 passed in Civil Misc. Application No. 2 of 2008 in W.P. No. 6470 of 2008).
Constitution of Pakistan, 1973--
----Arts. 63 & 185(3)--Leave to appeal--Returned candidate--Notification--Challenge to--Request for suspension of notification and restraining respondent from taking oath as Member of Provincial Assembly--High Court issuing notice but failed to pass interim order--Assailed--Jurisdiction of Supreme Court--Validity--High Court is seized of the matter, interference in a pending matter by Supreme Court at an initial/interlocutory stage, except in extra-ordinary or highly exceptional circumstances, has to be avoided so as to adhere to the consistent and long standing practice of Supreme Court as well as the principle of propriety--Appropriate and desirable to refrain from making indulgence of any sort in the pending lis, or for that matter, to make any observations upon the contentions put forth least it can convey an impression of, either prejudicing the parties or pre-empting the decision of High Court--High Court looking to the facts of a case would not hesitate in exercising it's jurisdiction by passing justifiably reasonable interim orders, of so warranted--Petition disposed of. [P. 1014] A
Sahibzada Ahmad Raza Khan Qasuri, Sr. ASC. a/w Ch. Akhtar Ali, AOR for Petitioner.
Malik Muhammad Qayyum, Attorney General for Pakistan, a/w Raja Abdul Rehman, D.A.G. Syed Sher Afgan, Dy. Secy., Elec. Comm. for Respondents.
Mr. Muhammad Akram Sheikh, Sr. ASC a/w Mr. Arshad Ali Ch., AOR for Applicant.
Khawaja Haris Ahmed, ASC and Mr. Mehr Khan Malik, AOR for Applicant.
Date of hearing: 12.06.2008.
Judgment
Mohammad Moosa K. Leghari, J.--The instant petition, for leave to appeal, under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 is directed against the order dated 05.06.2008 for failure of the Lahore High Court, Lahore, to grant interim relief to the petitioner in Civil Misc. Application No. 2 of 2008 in Writ Petition No. 6470 of 2008.
Precisely stated, the facts relevant for the disposal of this petition are that the Respondent No. 1 being desirous of contesting the by-election from PP-48 Bhakkar-II filed his nomination papers for the said constituency. The candidature of Respondent No. 1 was objected to by the petitioner on various grounds alleging that the respondent propagated and acted in the manner prejudicial to integrity and independence of judiciary, he defamed and brought into ridicule the judiciary; and submitted incorrect declaration as such he was disqualified under the provisions of Article 63 of the Constitution of Islamic Republic of Pakistan, 1973 as well as under Section 99 of the Representation of the Peoples Act, 1976. The Returning Officer PP-48 Bhakkar-II rejected the objections and proceeded to accept the nomination form of Respondent No. 1 vide order dated 16.05.2008. The order of Returning Officer was challenged before the Election Appellate Tribunal for PP-48 Bhakkar-II in Lahore High Court, Lahore comprising of two learned Judges of the Lahore High Court. The Tribunal delivered a split worded judgment wherein one of the learned Judge/Member accepted the appeal and rejected the nomination form of Respondent No. 1 while another learned Judge/Member of the Tribunal maintained the order of the Returning Officer. On reference, the Election Commission of Pakistan, Respondent No. 4, took a view that since the appeal could not be disposed of within the period specified in the Election Schedule, the same shall be deemed to have been rejected as per the provision contained in Section 14 (6) of the Representation of the Peoples Act, 1976. Consequently, the Election Commission of Pakistan vide notification dated 3rd June 2008 published the name of Respondent No. 1 as a returned candidate to the said constituency. The petitioner challenged the orders passed by Respondent Nos. 2, 3 and 4 in the Lahore High Court, Lahore, through Writ Petition No. 6479 of 2008. Alongwith the petition, the petitioner also moved C.M.A. No. 2 of 2008 praying therein for suspension of orders of Respondent Nos. 2, 3 & 4, suspension of the operation of notification issued in favour of Respondent No. 1, and restraining him from taking oath as Member of Provincial Assembly. The High Court, vide order dated 05.06.2008 proceeded to issue notices on the petition and CM. to the respondents for 18.06.2008 but failed to pass interim order against the respondents as prayed by the petitioner, hence the present petition for leave to appeal.
Vide order dated 06.06.2008 notices were ordered to be issued to the respondents as well as Attorney General for Pakistan.
In the concise statement filed by the learned Attorney General for Pakistan, plea was taken that keeping in view the consistent practice of this Court, interference with the interlocutory orders was not called for. It was accordingly prayed that the decision by Lahore High Court, Lahore, be awaited and for the time being present petition being premature be dismissed.
We have heard Sahibzada Ahmad Raza Khan Qasuri, learned Sr. ASC for the petitioner and Malik Muhammad Qayyum, learned Attorney General for Pakistan. Respondent No. 1, however, chose not to appear and participate in the proceedings.
Meanwhile, applications Under Order V Rule 2 (2) read with Order XXXIII Rule 6 of the Supreme Court Rules and Orders, 1980, were filed on behalf of Speaker of the Provincial Assembly of Punjab and the Province of Punjab through Chief Secretary praying therein for impleading them as respondents. Though the said applications were at initial stage yet in the interest of justice, keeping in view the peculiar and circumstances of the case Mr. Muhammad Akram Sheikh, learned Sr. ASC and Khawaja Haris Ahmed, learned ASC were provided opportunity of hearing as a matter of grace out of sheer indulgence.
It was strenuously argued on behalf of the petitioner that vide order dated 01.12.2007 passed by Returning Officer 141 Lahore-V and PP-142 Lahore-VI and NA-119 Lahore-II whereby Respondent No. 1 was adjudged disqualified, was not challenged before a proper forum by the respondent, therefore the same had attained finality. In the circumstances, acceptance of the nomination forms of the respondent at the subsequent stage without any change in the situation was patently illegal, and violative of law. It was further contended that the Election Commission acted in hasteful manner as it could have extended and revised the schedule for adjudication of the controversy by a three members Tribunal in view of the difference of opinion between the two learned members of the Election Tribunal. The grievance of the petitioner against learned Lahore High Court, Lahore is that a long adjournment was given in the matter without grant of any interim relief to the petitioner which resulted in obtrusive failure of exercise of jurisdiction by the High Court causing miscarriage of justice.
Conversely, learned Attorney General for Pakistan canvassed that interference by this Court at an interlocutory stage would be against the consistent practice. He, therefore, objected to the maintainability of the petition pleading that the same was premature.
We have anxiously considered the arguments advanced before us and glanced at the available material.
Quite obviously a full bench of Lahore High Court, Lahore, is seized of the matter. Interference in a pending matter by this Court at an initial/interlocutory stage, except in extra-ordinary or highly exceptional circumstances has to be avoided so as to adhere to the consistent and long standing practice of this Court as well as the principles of propriety. We, therefore, feel it appropriate and desirable to refrain from making indulgence of any sort in the pending lis, or for that matter, to make any observations upon the contentions put-forth, least it may convey an impression of, either prejudicing the parties or pre-empting the decision of the learned High Court.
Nevertheless it must be emphasized that a High Court, looking to the facts of a case of which it is seized, should not hesitate in exercising it's jurisdiction by passing justifiably reasonable interim orders, if so warranted in the circumstances as per established principles of law. However, if passing of interim orders at the relevant moment without notice was not possible on account of lack of judicious propriety, date for notice to opposite party must not be unreasonably long. The impugned order passed by learned Lahore High Court, whereby after notice to respondents the petition as well as the CM was adjourned to a long date, prima facie appears to have caused a bit of grievance to the petitioner. Accordingly, we genuinely feel that issuance of direction for expeditious disposal of the Writ Petition pending before the Lahore High Court, Lahore has become aptly inevitable.
We, therefore, while disposing of this petition, would like to direct learned Lahore High Court, Lahore to decide the petitioner's Writ Petition within two days of the receipt of this order. The office shall immediately notify the order to the learned High Court.
In view of the above order, the C.M.A. No. 1474 of 2008 moved by the petitioner, and C.M.A. Nos. 1495 of 2008 and 1496 of 2008 having been rendered infructuous, stand dismissed.
These are the reasons for the short order passed on 12.06.2008.
(M.A.K.Z.) Order accordingly.
PLJ 2008 SC 1015
[Appellate Jurisdiction]
Present: Saiyed Saeed Ashhad, Sheikh Hakim Ali & Muhammad Farrukh Mahmud, JJ.
ABDUL REHMAN--Petitioner
versus
STATE and another--Respondents
Crl. A. No. 765 of 2006, decided on 11.6.2008.
(On appeal from the judgment dated 21.6.2006 of the Lahore High Court, Lahore, passed in Criminal Appeal No. 1779 of 2005).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Criminal Procedure Code, (V of 1898), S. 426--Constitution of Pakistan, 1973, Art. 185(2)--Pendency of criminal appeal--Suspension of sentence of life imprisonment by High Court--Challenge to--Impugned order is neither whimsical nor fanciful nor arbitrary--High Court are borne out from the record of the case--Interference with the discretion exercised by High Court not justified--Appeal dismissed. [P. 1017] A
Sardar M. Latif Khan Khosa, Sr. ASC with Mian Muhammad Nawaz, ASC and Ch. Akhtar Ali, AOR for Petitioner.
Kh. Sultan Ahmed, Sr. ASC for Respondent No. 2 with Respondent Allah Bakhsh (in person).
Mr. Siddique Khan Baloch, DPG for State.
Date of hearing: 11.6.2008.
Judgment
Muhammad Farrukh Mahmud, J.--Allah Bakhsh Respondent No. 2 alongwith three others faced trial under Section 302 for causing murders of Amjad and Abdul Rauf. All the four accused were convicted for offence under Section 302(b) PPC on two counts. Ghulam Mustafa and Shah Rasool co-accused were sentenced to death while Allah Bakhsh respondent and Zulfiqar were sentenced to imprisonment for life, on two counts.
During pendency of appeal vide order dated 21.6.2006, learned Division Bench of Lahore High Court Lahore while suspending the sentence admitted Allah Bakhsh respondent to bail. The bail was granted to the respondent mainly on the grounds that the learned trial Court had observed in its judgment that the PWs were not present at the scene of occurrence and had not witnessed it. Furthermore all the investigations had opined that complainant and PWs were not present at the scene of occurrence nor the occurrence had taken place in the manner asserted by the prosecution. The appellant, by leave of this Court has assailed the bail granting order of the learned Division Bench of Lahore High Court, Lahore.
The learned counsel for the appellant has argued that the police opinion was neither relevant nor admissible, hence, it could not be considered for grant of bail. He relied upon the cases of Moonda and others Vs The State (PLD 1958 SC (pak.) 275), Farman Ali and 2 others Vs The State (1992 SCMR 2055), Waris Ali and 5 others Vs The State (2001 SCMR 640) and Babar Ali Vs Bashir Ahmed and another (2007 SCMR 184). The learned counsel further contended that two persons had lost their lives during the occurrence; that respondent Allah Bakhsh admitted his presence and that his defence plea was rejected by the learned trial Court. The learned counsel has further argued that he has filed revision seeking enhancement of sentence against Allah Bakhsh respondent and that after his release on bail, Allah Bakhsh respondent has misused the concession of bail. In this regard, the learned counsel relied upon FIRs No. 387, 388, 389, 390 and 391 of 2008 registered at Police Station City Muzaffargarh on 26.5.2008.
The learned Deputy Prosecutor General Punjab has adopted the line of arguments of learned counsel for the appellant/complainant.
The learned counsel appearing on behalf of Respondent No. 2 Allah Bakhsh has submitted that the learned trial Court, on the basis of record, had observed that the PWs were not present at the time of occurrence and that the learned trial Court only supplemented its observation by referring to the opinion of all the investigating officers who appeared as witnesses during the trial.
We have heard the learned counsel for the parties and have also gone through the impugned order. Perusal of the record reveals that the learned Division Bench of the Lahore High Court had correctly referred to Paragraph 23 of the judgment passed by the learned trial Court. The conclusion arrived at by the learned trial Court, that the witnesses were not present at the time of occurrence, was based on the reasons given in Para No. 15 of the judgment and the conclusion was not based merely on the opinion of the police. The judgments relied upon by the learned counsel for the appellant do not apply to the circumstances of the case. The perusal of the judgment passed by the learned trial Court further reveals that the empties recovered from the spot wedded with the weapons recovered at the instance of the accused who have been sentenced to death and did not tally with the weapon recovered at the instance of Allah Bakhsh respondent. It was observed by this Court in the case of Muhammad Akram Vs The State (1994 SCMR 277) that the merits of the case could be looked into at the time of hearing of application of suspension of sentence.
As far as filing of revision is concerned, this would be no ground for cancellation of bail. Reference may be made to the case of Sajjad Bashir Vs. The State (PLD 1995 SC 576).
Now coming to the FIRs. It has been noticed by us that all the above noted FIRs were recorded on the same date after about 23 months of the release of respondent on bail. All the FIRs have been registered under Section 3/4 of Prohibition (Enforcement of Hadd) Order(iv) of 1979 the alleged recovery of locally made liquor was affected on the same date within one hour of the registration of first FIR. Prima facie, it appears to be extra doings on the part of Sajjad Hussain, ASI and Muhammad Amin, ASI, author and writer of FIRs respectively.
The impugned order is neither whimsical nor fanciful nor arbitrary. The reasons advanced by the learned Division Bench of Lahore High Court Lahore are borne out from the record of the case.
In the above noted circumstances, we are not inclined to interfere with the discretion exercised by the learned Division Bench in favour of Allah Bakhsh respondent. This appeal is dismissed.
(M.A.K.Z.) Appeal dismissed.
PLJ 2008 SC 1018
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MUHAMMAD ZAMAN--Appellant
versus
STATE--Respondent
Crl. A. No. 72 of 1999, decided on 17.6.2008.
(On appeal from the judgment dated 08.5.1997 of the High Court of Balochistan, Quetta, passed in Crl. A. No. 71/97 and M.R. 3/97).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Double murder--Conviction and sentence recorded against accused by trial Court--Challenge to--Appeal was dismissed by High Court--Assailed--Appreciation of evidence--Concurrent findings--On account of indulging in siyakari--Validity--Normal penalty for qatl-e-amd, is sentence of death and when the case is fully proved by prosecution it must be inflicted--Where accused is able to prove that he was deprived of capability of self control or was swayed away by circumstances immediately preceding the act of murder or was an cause leading to grave prosecution or in case of doubt as to who in case several accused was responsible to cause fatal injury--Sentence of life imprisonment or lesser sentence can be imposed but it is a double murder case and is cold blooded--Accused deserves no sympathy--Appeal was dismissed. [P. 1021] A & B
Mitigating Circumstances--
----No evidence on file suggestive of the fact that deceased had been indulging in siyakari, which compelled the accused to shot deceased to death--Case does not represent the mitigating circumstances providing ground for substituting death sentence into life imprisonment--Appeal was dismissed. [P. 1021] C
Sardar Muhammad Ghazi, ASC. for Appellant.
Qari Abdul Rasheed, ASC. for Respondent.
Date of hearing: 17.6.2008
Judgment
Ijaz-ul-Hassan, J.--This appeal, by leave of the Court, is directed against the judgment of the High Court of Balochistan, Quetta, dated 08.5.1997, dismissing Criminal Appeal No. 71 of 1997, filed by Muhammad Zaman appellant challenging his conviction and sentence of death awarded by Sessions Judge Jaffarabad at Dera Allah Yar, by virtue of his judgment dated 28.3.1997.
co-accused Gul Hassan. The accused while escaping from the scene of occurrence declared that they had killed the deceased on account of indulging in `siyakari'.
After registration of the case, S.I Wazir Khan, PW Investigating Officer accompanied by the complainant proceeded to the spot, prepared injury sheets and inquest reports of the deceased and dispatched the dead bodies to the hospital for postmortem examination. Dr. Muhammad Ibrahim, Medical Officer D.H.Q Dera Allah Yar on 16.9.1994 at 3 p.m, conducted postmortem examination of the deceased. The Investigating Officer also prepared site-plan at the pointation of the complaint. He collected blood-stained earth and four empties of .12 bore from the spot. The appellant was arrested on 25.9.1994 with the crime weapon i.e. shot-gun. The crime empties and shot-gun were sent to Fire-arm expert for opinion and report. The crime empties were found to have been fired from the Shot-Gun No. 736 in question.
On completion of investigation, accused Muhammad Zaman was challaned to the Court for trial. Charge was framed to which the accused pleaded not guilty and claimed trial. The prosecution in order to prove its case and substantiate the charge produced 11 witnesses in all, where-after, accused was examined under Section 342 Cr.P.C. In the above statement the accused denied the prosecution allegations took the stance that he was involved in the case on account of enmity and suspicion. He did not opt to make statement on oath in terms of Section 340 (2) Cr.P.C. He declined to produce evidence in defence.
On conclusion of the trial, vide judgment dated 28.3.1997 learned Sessions Judge, Jaffarabad at Dera Allah Yar, having found the appellant guilty of the murders of Sikandar and Mst. Naseeban Bibi, convicted him under Section 302(b) PPC and sentenced him to death. The appellant preferred appeal before the High Court of Balochistan, Quetta, which was dismissed vide judgment impugned herein.
Co-accused Gul Hassan, was subsequently arrested and vide judgment dated 22.2.2003 by learned Additional Sessions Judge, Jaffarabad at Dera Allah Yar, was convicted under Section 302(b)/34 PPC and sentenced to suffer life imprisonment as "Tazir" with payment of Rs. 200,000/- as compensation to be paid to legal heirs of the deceased. Gul Hassan, feeling aggrieved, filed appeal before the High Court of Balochistan, Quetta. The appeal was partly accepted vide judgment dated 23.2.2006. The conviction and sentence to the extent of murder of Mst. Naseeban Bibi was set aside and appeal against conviction and sentence of murder of Sikandar was dismissed. The aforesaid judgment has also been assailed before this Court through Criminal Appeal No. 781 of 2006. Dr. Babar Awan, Advocate, representing Gul Hassan informed the Court that during pendency of appeal Gul Hassan has expired in jail. The appeal, as such, stands abated and dismissed.
Leave to appeal was granted by this Court on 26.3.1999 to consider the limited question of sentence awarded to appellant Muhammad Zaman.
We have heard Sardar Muhammad Ghazi, Advocate for appellant and Qari Abdul Rasheed, Advocate for the State. We have also re-examined the evidence carefully and minutely in order to ascertain as to whether or not a case for lesser punishment is made out.
Learned counsel for the appellant contended that Sikandar deceased had illicit intimacy with Mst. Naseeban Bibi deceased and in `gharit' the murders were committed in order to save the family honour. The learned counsel also contended that the impugned judgment has not been recorded after a careful and proper consideration of the attendant relevant facts and circumstances and sentence of life imprisonment would be adequate to meet the ends of justice. On the basis of said contentions, learned counsel has made a prayer to convert the death sentence into one of life imprisonment.
Learned counsel representing the State, on the other hand, supported the impugned judgment and maintained that the normal sentence for the offence of murder is death sentence and this is to be awarded as a matter of course except where the Court finds some mitigating circumstances which may warrant lesser sentence namely imprisonment for life. The learned counsel reiterated that there is no mitigating circumstance in favour of appellant to withhold normal penalty of death imposed on him by the trial Court and affirmed by the High Court.
It is well settled that normal penalty for `Qatl-e-Amd', is the sentence of death and when the case is fully proved by the prosecution it must be inflicted. Though in some cases where the accused is able to prove that he was deprived of the capability of self control or was swayed away by circumstances immediately preceding the act of murder or there was an immediate cause leading to grave provocation or in case of doubt as to who in case of several accused persons, was responsible to cause the fatal injury, the sentence of life imprisonment or lesser sentence may be imposed but since it is a double murder case and is cold blooded, therefore, we are of the view that the appellant deserves no sympathy.
Having regard to facts and circumstances of the case, we find that appellant and his brother late Gul Hassan co-convict had taken the lives of two innocent persons in gruesome manner on mere suspicion. There is absolutely no evidence on the file suggestive of the fact that the deceased had been indulging in `siahkari' which compelled the appellant and his brother Gul Hassan to shot them to death. It may be reiterated here that appellant in his statement recorded under Section 342 Cr.P.C, has not taken such plea and merely denied having participated in the occurrence, maintaining that he had no hand in the affair and he was falsely charged due to enmity and suspicion.
Keeping in view the material on record, the case before us, does not represent the mitigating circumstances providing ground for substituting death sentence into life imprisonment. The Courts below have carefully and rightly analyzed the evidence and their concurrent findings on this question cannot be disturbed. Ansar Ahmad Khan Barki versus The State and another, (1993 SCMR 1660) and Muhammad Ismail versus the State, (NLR 2006 465).
Pursuant to above, finding no substance in this appeal we dismiss the same and maintain the impugned judgment of conviction.
(R.A.) Appeal dismissed.
PLJ 2008 SC 1022
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ. Ijaz-ul-Hassan, Muhammad Qaim Jan Khan & Ch. Ejaz Yousaf, JJ.
GOVERNMENT OF PUNJAB, SECRETARY EDUCATION, CIVIL SECRETARIAT, LAHORE and others--Petitioners
versus
SAMEENA PARVEEN & others--Respondents
Crl. Ps. No. 71-L & 72-L of 2008 and Civil Petitions No. 215-L, 216-L, 217-L:, 218-L, 224-L, 225-L, 226-L, 227-L, 228-L, 229-L, 230-L, 231-L, 232-L, 233-L, 234-L, 235-L and 236-L of 208, decided on 29.4.2008.
(On appeal from the judgment dated 29.1.2008 of the Lahore High Court, Lahore passed in Cr.O.P. No. 370/W & 561/W/2007, Writ Petitions No. 11525, 11263, 11516, 11662, 11663, 11766, 11881, 11835, 12136 & 12185 of 2007, 86, 123, 274, 345, 599, 643 & 11619 of 2008).
Constitution of Pakistan, 1973--
----Art. 212--Leave to appeal--Determination of terms and conditions of civil servant--Bar of jurisdiction of High Court--Services of respondents were terminated--High Court accepted the petitions--Challenge to--Validity--If a tribunal or High Court decides a point of law relating to terms and conditions of a civil servant who litigated and there were other civil servants, who can not have taken any legal proceedings--Dictates of justice and rule of good governance demand that benefit of the decision be extended to civil servants, who can not be parties to that litigations instead of compelling them to approach Tribunal or any other legal forum--Leave refused. [P. 1024] A
1996 SCMR 1185 & 2005 SCMR 499, ref.
Ms. Afshan Ghazanfar, AAG Punjab and Rana Abdul Qayyum, DS (Education) Punjab for Petitioners.
Mr. S. M. Tayyab, Sr. ASC for Respondents (In Crl. . Nos. 71-L, 72-L & C.P. 224-L of 2008).
Nemo for other Respondents.
Date of hearing: 29.4.2008.
Order
Abdul Hameed Dogar, HCJ.--Through this order we intend to dispose of above captioned petitions filed against common judgment dated 29.1.2008 passed by learned Judge in Chambers of Lahore High Court, Lahore whereby Cr.O.P. No. 370/W & 561/W/2007, Writ Petitions No. 11525, 11263, 11516, 11662, 11663, 11766, 11881, 11835, 12136 & 12185 of 2007, 86, 123, 274, 345, 599, 643 & 11619 of 2008 filed by respondents were allowed and the impugned orders passed by petitioner/authority were set aside.
"Consequently the petitioners are declared to be in service and the action of the Headmasters/In Charge of the Schools stopping the petitioners from performance of their duties as PTC Teachers on the basis of the above said impugned order, is declared to be without lawful authority. It is, however, clarified that the department is at liberty to proceed against the petitioners, if so desired, on individual basis under the relevant law and under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975."
In view of above judgment, the respondents were absolved of the charges of bogus appointments. But later on once again the services of respondents were terminated vide order dated 03.8.2005, which order was challenged before learned Lahore High Court, Lahore through Writ Petition No. 16864 of 2005. The said writ petition was allowed vide judgment dated 11.12.2006 and the impugned order was declared as illegal and without lawful authority. Similarly, one of the teachers namely, Mst. Naseem Akhtar assailed the order dated 03.8.2005 before Punjab Service Tribunal, Lahore through Appeal No. 903 of 2006 which was also allowed vide judgment dated 04.9.2006. The said judgment was maintained by this Court in Civil Petition No. 1960-L of 2006 vide judgment dated 02.11.2006. On 26.9.2007 once again the services of respondents were terminated. Feeling aggrieved, they filed above mentioned petitions before the learned Lahore High Court, Lahore which were allowed vide impugned judgment as stated above.
It is mainly contended by learned AAG Punjab appearing on behalf of petitioners that the jurisdiction of the learned High Court is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 in matters involving determination of terms and conditions of civil servants. She further contended that the appointments of the respondents were bogus and fake as they were never selected by the competent authority, therefore, the orders of dismissal passed by departmental authority were in accordance with law, which did not call for any interference by this Court.
On the other hand, Mr. S.M. Tayyab, learned Sr.ASC appearing on behalf of some of the respondents supported the impugned judgment and contended that appointments of respondents had taken place in accordance with rules and prescribed procedure. They submitted their applications in pursuance of advertisement of the posts of PTC teachers. They passed the required test and were appointed by the competent authority. According to him, the respondents were in service for about 9-10 years and during this period no objection was raised, and subsequently on vague allegations they were dismissed from service. He further contended that cases of respondents were at par with Mst. Naseem Akhtar which was decided by this Court in Civil Petition No. 1960-L of 2006 vide judgment dated 02.11.2006.
We have considered the arguments of both the parties and have gone through the record and proceedings of the case in minute particulars. The matter has already been decided by this Court in the case of Mst. Naseem Akhtar (supra), and it has been held that the appointment orders of the respondents as PTC teachers were genuine. It was held by this Court in the case of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) that if a Tribunal or this Court decides a point of law relating to the terms and conditions of a civil servant who litigated, and there were other civil servants, who may not have taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the said decision be extended to other civil servants also, who may not be parties to that litigation instead of compelling them to approach the Tribunal or any other legal forum. This view was reiterated by this Court in the case of Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others (2005 SCMR 499) and it was held that according to Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 all citizens are equal before law and entitled to equal protection of law.
In this view of the matter, we are of the view that no ground for interference in the impugned judgment is made out. Accordingly, the petitions being devoid of force are dismissed and leave to appeal refused.
(R.A.) Leave refused.
PLJ 2008 SC 1025
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, HCJ, Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi & Mian Shakirullah Jan, JJ.
DILAWAR HUSSAIN--Appellant
versus
STATE--Respondent
Crl. A. No. 200 of 2003, decided on 9.10.2007.
(On appeal from the judgment dated 26.3.2002 passed by the Lahore High Court, Lahore in Criminal Appeal No. 122-J of 2000)
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Appreciation of evidence--Post-mortem report--Conviction and sentence recorded against accused by trial Court--Challenge to--Significance--Clerical mistake in respect of time of death--Medical evidence has provided strong corroboration to ocular account in respect of time of occurrence, the number and nature of injuries and weapon of offence used by the accused--Clerical mistake in respect of time of death recorded in post-mortem report was result of confusion as time of lodging report was wrongly mentioned as time of death which was corrected by doctor under his signature--Omission having no material bearing on merit of case would be of no significance.
[P. 1030] A
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence recorded against accused by trial Court--Challenge to--Mitigating circumstance--Ocular account--Occurrence was not pre-planned--Sudden episode cause of death--Due to negligence of medical staff and injury was not dangerous to life--In the opinion of the doctor injury was fatal which was sufficient to cause death in ordinary course of nature--Held: Chance of survival would not reduce the liability of accused and death after sometime cannot be as considered a mitigating circumstance. [P. 1031] C
Interested Witness--
----Related and non-resident witness--Acceptance of evidence--Mere relationship of a witness or evidence of a non-resident witness is not valid ground to discard their evidence. [P. 1031] B
Sardar M. Latif Khan Khosa, ASC with Ch. Muhammad Akram, AOR for Appellant.
Dr. Babar Awan, ASC for Complainant.
Ch. Munir Sadiq, DPG for AG Punjab for State.
Date of hearing: 9.10.2007.
Judgment
Muhammad Nawaz Abbasi, J.--This appeal by leave of the Court is directed against the judgment dated 26.3.2002 passed by the Lahore High Court, Lahore, in Criminal Appeal No. 122-J of 2000 whereby the conviction and sentence of death awarded to Dilawar Hussain appellant herein under Section 302(b) PPC by the learned Judge Special Court (Suppression of Terrorist Activities), Gujranwala vide judgment dated 15.3.2000 was maintained and appeal was dismissed.
The facts of the case in small compass as contained in the FIR lodged by Ikhlaq Ahmed complainant (PW-2) resident of Daska at 10 p.m. on 11.7.1995 at Police Station Ghakhar District Gujranwala are that on that day complainant alongwith his wife and children, had gone to see Nazir Hussain, his father-in-law, in Mauza Fateh Garh situated in the area of Police Station Ghakhar District Gujranwala and at about 6.00 p.m. while he and his father-in-law were proceeding towards their dera, an unknown person approaching them delivered message of Dilawar Hussain (appellant) to Nazir Hussain to see him at the Dera of Ihsanullah (DW. 1) which was situated at a short distance. The complainant and Nazir Hussain proceeded towards the Dera of Ihsanullah and on arrival at the Dera, Dilawar Hussain already present there armed with rifle demanded from Nazir Hussain return of the land purchased by him from his father and on his refusal extended threat to the deceased with the use of filthy language. Meanwhile Ataullah and Muhammad Ilyas, PWs also came at the dera of Ihsanullah and the appellant in their presence repeated his demand whereupon Nazir Hussain replied that he had purchased the land for valuable consideration and would not return the same without payment of price. The appellant felt annoyed and while raising Lalkara, fired a shot, which hit Nazir Hussain on his left thigh and left the place of occurrence with indiscriminate firing. Nazir Hussain while being taken to the hospital succumbed to the injuries.
Shahid Zafar, SI (PW-11) on reaching at the spot inspected the place of occurrence, secured the bloodstained earth, prepared the injury statement and inquest report, sent the dead body of Nazir Hussain to the mortuary for autopsy and also prepared a rough site-plan of the place of occurrence. The post mortem examination of the dead body of Nazir Hussain conducted by Dr. Hafiz Muhammad Akram Gondal (PW-6) on 12.7.1995, revealed two anti-mortem fire-arm injuries on his person. The Injury No. 1 was an entry wound which caused extensive damage to femoral vessels of the deceased and being fatal was found sufficient to cause death in the ordinary course of nature. The Injury No. 2 was exist wound and probable time between the injuries and death as noted by the doctor was between 10 to 15 minutes whereas between the death and post mortem examination it was about 20-1/2 hours.. The appellant after the occurrence remained absconded for a considerable period and ultimately was arrested by Iftikhar Ahmed, Inspector (PW-12) while he was in police custody in connection with some other case at Police Station Pattoki city. The investigation was then transferred to Hamid Khan, Inspector (PW-8) who after completing the procedural formalities challenged the appellant to face the trial.
The appellant pleaded non-guilty to the charge framed against him by the trial Court under Section 302(b) PPC and prosecution produced as many as 12 witnesses in proof thereof, Muhammad Ilyas (PW. 1) Hamzulf of deceased and Ikhlaq Ahmed complainant (PW-2) his son-in-law furnished the ocular account of the incident whereas Ghulam Muhammad a retired SI (PW-7) has witnessed the recovery of weapon of offence (rifle) from the appellant. Dr. Hafiz Akram Gondal (PW-6) conducted post-mortem examination of the deceased and Mudassir Hussain, Head Constable (PW-10) was deputed to execute the warrant of arrest of the appellant. Shahid Zafar, SI/SHO (PW-11), Iftikhar Ahmed, Inspector (PW-12) and Hamid Ali, Inspector (PW-8) have conducted the investigation of the case at different stages. The remaining evidence produced by the prosecution was more or less of formal nature, whereas Allah Lok (CW-1), Muhammad Afzal (CW-2) and Rasool Bakhsh (CW-3) were examined as Court witnesses.
The appellant in his statement under Section 342, Cr.P.C. denying the charge pleaded innocence and false implication with the assertion that occurrence was unseen which had taken place in the darkness of the night and the claim of eye-witnesses to have seen the occurrence was highly doubtful. The appellant added that even otherwise the witnesses being closely related to the deceased, were interested and were not independent. He however, without making statement under Section 340(2) Cr.P.C produced Ihsanullah (DW-1) real brother of Muhammad Ilyas (PW. 1) an eye-witness and Muhammad Ramzan (DW-2) a kammi of Allah Lok (CW. 1) in his defence.
The learned trial Judge on the conclusion of the trial, having found the appellant guilty of the charge, convicted and sentenced him as aforesaid and appeal filed by the appellant before the High Court was dismissed with conversion of fine imposed by the trial Court into compensation under Section 544-A Cr.P.C and in default of payment of compensation, he was directed to undergo S.I. for six months. Being aggrieved of the judgment of the High Court, the appellant preferred the present appeal before this Court in which leave was granted vide order dated 26.5.2003 as under:--
"The petitioner was tried by the learned Judge, Special Court (Suppression of Terrorist Activities) Gujranwala on the charge of committing murder of his uncle Nazir Hussain. He was convicted under Section 302 PPC and sentenced to death and a fine of Rs. 50,000/- or three years RI in default. The appeal preferred by him was dismissed by a learned Division Bench of the Lahore High Court, vide judgment dated 26.3.2002, and the sentence of death awarded to him was confirmed. The sentence of fine was, however, set aside and he was directed to pay the said amount as compensation under Section 544-A Cr.P.C. to the legal heirs of the deceased or suffer six months SI in default. Hence this petition for leave to appeal.
It was contended by the learned counsel for the petitioner that the eye-witnesses were trumpeted-up and not natural witnesses, the eye-witnesses were closely related to the deceased but their evidence has been accepted and relied upon without any satisfactory corroboration and the proceedings with regard to absondence of the petitioner did not meet the requirements of the law on the subject.
Leave to appeal is granted to consider the above contentions and to ascertain whether the principles laid down by this Court for the safe administration of criminal justice were correctly following while appreciating the evidence on record.
The petition is barred by 12 days. The delay is condoned in view of confinement of the petitioner in jail and serious nature of the sentence."
Learned counsel for the appellant has contended that undoubtedly the venue of the occurrence was the dera of Ihsanullah (DW. 1) and as per his statement, the deceased was fired at 10.00 p.m. in the dark and on hearing the fire report, he immediately reached at his dera from his residence situated at a short distance and found the deceased lying dead. Learned counsel submitted that this witness was most natural witness and being related to both sides was quite independent and reliable as his statement was testified by the contents of postmortem report wherein the time of death was given as 10.40 p.m. which was subsequently changed as 6.00 p.m. and in view thereof the claim of the witnesses to have seen the occurrence and the time of its taking place at 6.00 p.m. stands falsified. The learned counsel submitted their both the eye-witnesses were closely related to the deceased and not only were interested but their presence at the scene of occurrence, was doubtful as they being not belonged to village Fateh Garh were not expected to be present there in the normal circumstances and taking us to the statement of the defence witness, argued that eye-witnesses on receiving the information regarding the incident in the next morning through Muhammad Ramzan (DW 2) came to the house of deceased. The learned counsel forcefully argued that in the light of statement of Ihsanullah and Muhammad Ramzan DWs the prosecution story regarding taking place of the occurrence at 06.00 p.m. in presence of witnesses, stood demolished whereas defence version being supported by the quite natural and independent witness was more plausible and near to truth. Learned counsel argued that in the circumstances leading to the occurrence it would not be safe to place reliance on the testimony of related and interested witnesses and commenting upon the motive for the occurrence set up by the prosecution, contended that appellant had no dispute with the deceased and failure of the prosecution to prove the motive through reliable and independent evidence would seriously reflect upon the credibility and truthfulness of the prosecution evidence. In short learned counsel argued that the evidence produced by the prosecution being shaky and not confidence inspiring was not of unimpeachable character to be given much credence and relied upon without a strong independent corroboration which was not available in the present case to sustain the conviction and sentence awarded to the appellant.
The learned counsel in the alternative argued that appellant is closely related to the deceased and had no motive, ill-will or enmity against the deceased to kill him and in any case deceased was caused a single fire-arm injury on the lower part of the body which would indicate that the assailant had no intention to kill and death was also not the direct result of injury rather the deceased subsequently died in the hospital probably for want of proper care and treatment which would be considered a strong mitigating circumstance for lesser penalty.
The learned DPG on the other hand has submitted that occurrence in the present case took place at 6 pm in broad daylight at the dera of Ihsanullah (DW. 1) and the presence of the eye-witnesses together with the deceased at his clear situated at a short distance from the residence of the deceased was quite natural. The mere fact that the witnesses were not resident of the village in which the sad incident happened would not be sufficient to discard their evidence and exclude their presence at the scene of occurrence or hold them chance witnesses. This may be seen that these witnesses being closely related to the deceased were not stranger, therefore, they at any time could pay visit at his house and also had no enmity or malice against the appellant or any personal reason to falsely implicate him in the case of capital punishment or substitute him for the actual culprit.
The examination of the record with assistance of learned counsel for the parties revealed that report of the occurrence was lodged within reasonable time and the eye-witnesses who were named in the FIR have narrated the occurrence in its natural sequence quite consistent with the facts given therein and their testimony also sought strong corroboration from independent source. The learned trial Judge as well as the learned Judges in the High Court having made detailed scrutiny of the evidence have correctly found the witnesses truthful and confidence inspiring and learned counsel for the appellant has not been able to point out any disability in their statement to exclude the same from consideration or misreading and non-reading of the evidence or that the conclusion of the guilt of the appellant drawn by the trial Court and affirmed by the High Court was not supported by the evidence, or was suffering from any legal or factual infirmity, calling for interference of this Court. The medical evidence has provided strong corroboration to the ocular account in respect of the time of occurrence, the number and nature of injuries and weapon of offence used by the accused. The clerical mistake in respect of time of death recorded in post-mortem report (Ex.PD) was the result of confusion as the time of lodging the report at 10.40 p.m. was wrongly mentioned as time of death which was corrected by the doctor under his signature and thus the omission having no material bearing on the merit of the case would be of no significance.
The careful examination of the ocular account in the light of medical evidence would show that prosecution has been successful in proving the charge of murder against the appellant beyond doubt. The defence version that occurrence took place at 10.00 p.m. in the dark at the dera of Ihsanullah and was unseen is contracted by the fact that in the normal circumstances deceased would have no business to go all alone to the dera of Ihsanullah, late in the night whereas his visit at the said dera at 6.00 p.m. on the call of appellant as stated by the eye-witnesses was quite possible. The defence has not been able to point out any lacuna in the evidence suggesting any doubt in the correctness of the prosecution version or any disability in the eye-witness account to create even a slight doubt qua the truthfulness of their testimony. The assertion that the eye-witnesses due to the close relationship with the deceased were not independent and also being not resident of the village of deceased were not expected to be present with him at the dera of Ihsanullah has no substance. The parties as well as the witnesses were closely related inter se and also have good relations except that appellant was annoyed with the deceased for his purchase of land from his father and thus in absence of any enmity or illwill, mere relationship is not a valid ground to discard the evidence of a person and similarly a witness non-resident of locality, is not as such unnatural witness, therefore the evidence of such witness cannot be excluded from consideration for mere reason that he was related to the deceased or was not resident of the area in which crime was committed.
In the peculiar facts and circumstances of the present case, the learned counsel has not been able to convince us that either it was an unseen occurrence which took place in the dark night at the dera of Ihsanullah or the witnesses were not present at the spot and appellant was substituted for an unknown culprit. The eye-witnesses were quite natural and independent and they had no reason to nominate the appellant as murderer of his uncle and substitute him as accused. There is sufficient evidence on the record in proof of the fact that the appellant due to the purchase of land by the deceased from his father was annoyed with him and being desperate to get the land back from the deceased had a strong motive to commit the crime.
The detail scrutiny of the evidence with the help of learned counsel for the parties has brought us to the conclusion that there was no material discrepancy or contradiction in the evidence suggesting even a slight doubt qua the truthfulness of the prosecution evidence. The ocular account was amply supported by independent corroborative evidence and in the circumstances leading to the occurrence the learned counsel has not been able to satisfy us that either the occurrence was not preplanned or it was a sudden episode and appellant had no intention to kill or the injury sustained by the deceased was not direct result of death. There is nothing on record to show that the infection in the body of deceased if any was caused due to the negligence of the medical staff and injury as such was not dangerous to life. In the opinion of the doctor who conducted post mortem of the deceased, the injury was fatal which was sufficient to cause death in the ordinary course of nature and thus the mere fact that there was chance of survival would not reduce the liability of the appellant and similarly death in hospital after sometime also cannot be as such considered a mitigating circumstance for lesser punishment.
In the light of foregoing reasons, we do not find any substance in this appeal either on merits or for reduction of sentence and the same is accordingly dismissed.
(S.H.R.) Appeal dismissed.
PLJ 2008 SC 1032
[Review Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Muhammad Moosa K. Leghari & Ch. Ejaz Yousaf, JJ.
IJAZ MEHMOOD CHAUDHRY--Petitioner
versus
LAHORE HIGH COURT, LAHORE through REGISTRAR--Respondent
C.R.P. No. 12 of 2004 in C.A. No. 13 of 2000, decided on 14.1.2008.
(On review from the judgment dated 4.12.2003 passed by this Court in C.A. No. 13 of 2002).
Constitution of Pakistan, 1973--
----Art. 188--Supreme Court Rules 1980, O. XXVI--Punjab Sub-ordinate Judiciary Service Tribunal Act, 1991, S. 5--Adverse remarks in A.C.R--Non-expunction by Supreme Court--Review of judgment--Petitioner while posted as A.D & S.J was communicated adverse remarks recorded by Reporting Officer, in his ACR--His representation for the expunction of remarks, was rejected by Administration Committee of High Court--Appeal was also dismissed by the Tribunal--During pendency of appeal before Tribunal, he was promoted as Distt. & Sessions Judge--Supreme Court also dismissed appeal--Held: During 30 years service there had been no adverse report either before or after the impugned adverse remarks, hence the principle laid down in (1997 SCMR 1749) would squarely apply--Court proceeded on wrong premise that the Reporting Officer was the Inspection Judge for the district of petitioner's posting, where as the facts were other way round--Adverse remarks expunged.
[Pp. 1033, 1034, 1036 & 1038] A, B, C, D, G & H
Adverse Remarks--
----Civil servant--Promotion--Communication to the servant--Legal requirement--Held: Adverse remarks contained in the ACR of a civil servant must be communicated to him, otherwise they would be sterile, useless and ineffective. [P. 1037] E
Civil Servant--
----Promotion--Adverse report--Non-communication--Effect--Held: If a report is not communicated then it would be presumed to be good--What to speak of adverse report, even average reports are not required to be communicated because those are not considered adverse and are taken synonymous with "good" reports. [P. 1038] F
PLD 2004 SC 191; 1997 SCMR 1749; PLD 1997 SC 865; PLD 1998 SC 363; PLD 1986 SC 684; 1994 SCMR 1348; PLD 1987 SC 271 & PLD 1992 SC 144, ref.
Sh. Zamir Hussain, ASC and Mr. M. S. Khattak, AOR for Petitioner.
Qazi M. Amin, Addl. A.G. Punjab a/w Mr. Nazar Hussain, Deputy Registrar Lahore High Court for Respondent
Date of hearing: 14.1.2008
Judgment
Ch. Ejaz Yousaf, J.--The petitioner seeks review of judgment dated 4.12.2003 passed by this Court in Civil Appeal No. 13 of 2000 in the case of Shabbir Hussain and others v. Registrar, Lahore High Court, Lahore & others (PLD 2004 SC 191).
"Civil Appeal No. 13 of 2000
While posted as Additional District and Sessions Judge Shujahabad, District Multan the appellant Ijaz Mehmood Chaudhry was communicated, vide letter dated 7.9.1998, the following adverse remarks recorded by the Reporting Officer, a learned Judge of the Lahore High Court, in his ACR pertaining to the period from 19.7.1997 to 31.12.1997:--
PART-V
(a) Pen-picture: Reputation not above board, PART-VI
(b) Fitness for Not yet fit for
promotion: promotion.
(c) Integrity: Reported to be corrupt.
The representation filed by the appellant was rejected by the Administration Committee of the Lahore High Court and the ensuing appeal was dismissed by the Tribunal on 23.12.1999. During pendency of this appeal he was granted interim relief to the effect that his case for promotion shall be considered on the basis of relevant considerations and service record other than the adverse remarks challenged by him and in case he is promoted, it shall be subject to the result of the appeal. The appellant was promoted as District and Sessions fudge on 2.9.2000 subject to the result of this appeal. Leave was granted to consider the legality of the impugned judgement".
"Sheikh Zamir Hussain, learned counsel for the appellant Ijaz Mehmood Chaudhry, contended that the appellant had 30 years of service to his credit and had earned only one adverse report for a short period of five months from 19.7.1997 to 31.12.1997. He had earned good reports before and after the said report and the Reporting Officer had not stated with particularity as to how all of a sudden his conduct had changed. Reliance was placed on Noor Elahi Vs. Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others (1997 SCMR 1749). The report was undated and recorded by a Judge of the High Court who was not the Inspection Judge. There was neither any complaint, transfer application nor resolution of a Bar association against the appellant. The report was also whimsical being not based on any material. The appellant being an Additional District and Sessions Judge had no financial responsibility. He further submitted that the adverse remarks had lost their efficacy as the appellant was promoted as District and Sessions Judge on 2.9.2000".
Learned counsel for the petitioner has submitted that the contention raised at the time of hearing of appeal, upon the basis of Noor Elahi's case (1997 SCMR 1749), to the effect that since the ACR in question was the only adverse report earned by the appellant during his 30 years of service and the reporting officer had not stated with particularity, supported by proper material, as to how all of a sudden his conduct had changed therefore, a case for expunction of adverse remarks was made out, was rejected and his case was distinguished from Noor Elahi's case solely for the reason that in Noor Elahi's case the officer reported upon had earned good reports before and after the adverse remarks whereas, in petitioner's case it was not established on record that he had earned good reports before 19.7.1997 and the subsequent periods. He maintained that since the petitioner had unblemished record before and after the adverse report and the distinction drawn did not flow from the material on record rather, as a matter of fact there was no basis for the distinction drawn, therefore the appeal decided on the assumption of non-existent fact is required to be reviewed. It is further his case that since it was not brought into the notice of this Court that the law and rules governing the ACRs envisage communication of only adverse report to the officer concerned, therefore the reports which were not communicated were required to be presumed to be "good" hence, the appeal was decided on wrong presumption. He has further contended that since the petitioner had never worked under the learned Reporting Officer nor was he the inspection Judge for the district nor had he ever visited the place of petitioner's posting therefore adverse remarks in question were of no legal significance. In order to supplement his contention he has stated that the High Court had, in order to supervise, control and regulate function of subordinate Courts, appointed Inspection Judges for different districts, therefore ACRs had to be recorded by the Inspection Judge alone. The learned Judge, who had recorded the adverse remarks had never been appointed as Inspection Judge. Reliance was placed on Letter No. 5/MIT/HC/M/Sessions Statements for the month of September 1997, whereby the Member Inspection Team of Lahore High Court conveyed the order of the Inspection Judge Mr. Justice Ehsanul Haq Chaudhry to the District and Sessions Judge, Multan endorsed to all the District and Sessions Judge on 3.1.1998. He maintained that since the above fact, that the learned reporting officer was not the Inspection Judge, was not brought into the notice of this Court, therefore the submissions made by the petitioner could not find favour and his appeal was dismissed by this Court vide the impugned judgment, otherwise result would have been different. He prayed that since an important aspect of the matter which had a material bearing on the result of the case escaped notice of this Court, therefore, the impugned judgment to the extent of the case of the petitioner may be reviewed and appeal filed by him may be allowed. Regarding maintainability of the review petition he placed reliance on the cases reported as (i) Mian Rafiq Saigol and another v. Bank of Credit & Commerce International (Overseas) Ltd. and another (PLD 1997 SC 865), (ii) Abdul Ghaffar-Abdul Rehman and others v. Asghar Ali and others (PLD 1998 SC 363).
Qazi Muhammad Amin, learned Additional Advocate General Punjab, on the other hand, while controverting the contentions raised by learned counsel for the petitioner has submitted that case of the petitioner at the time of hearing of the appeal was thoroughly considered and having been found distinguishable from the case of Noor Ellahi (supra), the appeal filed by the petitioner was rightly dismissed. He, however, candidly conceded that the very fact that learned Judge who had recorded the adverse remarks was not the Inspection Judge, was neither brought into notice of this Court, nor case of the petitioner was considered in that perspective. He has also not controverted that the petitioner was promoted on 2.9.2000 as District & Sessions Judge and that the report which contained adverse remarks pertained to a period of only five months and that the learned reporting officer had also not visited the place of posting of the petitioner during the period reported for.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the judgment under review, carefully.
As regards the first contention of the learned counsel for the petitioner that during thirty years service since there was no adverse report either before or after the impugned adverse remarks hence, the principle laid down in Noor Elahi's case (supra) was squarely applicable to his case, and it could not have been distinguished simply for the reason that it was not established on record that the petitioner had earned good reports before 19.7.1997 and subsequently as well, it may be pointed out here that before dealing with the proposition it would be advantageous to have a glance at the relevant discussion, from the judgment under review, which reads as under:--
"It was contended by the learned counsel for Ijaz Mehmood Chaudhry that a case for expunction of adverse remarks was made out in the light of the observations made in the case of Noor Elahi (1997 SCMR 1749) as the ACR in question was the only adverse report earned by the appellant during his 30 years of service and the Reporting Officer had not stated with particularity, supported by sufficient material, as to how all of a sudden his conduct had changed. The contention cannot prevail as the cited authority is distinguishable. In that case the officer reported upon had earned good reports before and after the adverse remarks whereas in the present case it has not been established on record that the appellant had earned good reports before 19.7.1997 and the subsequent periods."
It would be pertinent to mention here that in Noor Elahi's case, the appellant was an employee of Pakistan Air Force. He was sent on deputation to Saudi Arabia. During his deputation period, he was given adverse remarks in his annual confidential report. He made a departmental representation for expunction of the said adverse remarks, inter-alia, stating therein that the reporting officer was biased towards him. The representation was not disposed of, when he approached the Service Tribunal for redress of his grievance. The appeal filed by the appellant before the Tribunal was, however, dismissed being barred by time and also for the reason that no final rejection order was passed on the representation. Leave to appeal was granted to consider that the appellant who had served the department for thirty-one years and had earned only one adverse annual confidential report which was communicated to him after a delay of nearly four years in violation of the rules, as to whether in the circumstances the said ACR was liable to be expunged? It was also found that the remarks given in the ACR suffered from vagueness. Consequently adverse remarks were expunged. It was held that in no case an officer reported upon is to be kept ignorant of the dissatisfaction of his superior officer with regard to the discharge of his duties. It was, while referring the case of Government of the Punjab v. Ehsanul Haq Sethi (PLD 1986 SC 684), and Inspector-General of Police, Punjab, Lahore v. Rana Altaf Majid (1994 SCMR 1348), further observed that since the appellant had earned good reports before 1991 as well as in the subsequent years, therefore reporting officer should have stated with particularity as to how all of a sudden there was a change in the conduct and behaviour of the appellant, supported by sufficient material and since the needful was not done by the reporting officer, it resulted in grave prejudice to the appellant.
No doubt petitioner's case was distinguished from Noor Elahi's case for the reason that it was not established on record that the petitioner had earned good reports before and after the adverse remarks yet, the very fact that the petitioner was promoted as District and Sessions Judge on 2.9.2000 during pendency of the appeal implies that except the adverse remarks he had otherwise good record sufficient to convince the authorities to grant him promotion. Law requires that adverse remarks contained in the ACR of a civil servant must be communicated to him otherwise they would be sterile, useless and ineffective, what to speak of non-communicated remarks. In the case of Muhammad Farooq Chauhan v. The Province of Punjab (PLD 1987 SC 271), it was held by this Court that in case of promotion adverse remarks not communicated whether in time or out of time are liable to be ignored. In the case of Masaud Jamal v. Secretary to the Govt. of Pakistan (1999 SCMR 1542), the adverse remarks contained in the ACR were not conveyed to the appellant. He had approached the Service Tribunal which ruled that his case for move-over from BPS-18 to BPS-19 be considered without taking into account the adverse remarks. Order was assailed before this Court in appeal which was upheld and the matter was remanded by the Supreme Court to departmental authority with direction to consider case of civil servant for move-over without taking into consideration the remarks in the ACR. In the case of Abdul Jabbar Khan v. Government of Sindh (1996 SCMR 850) the appellant had challenged that his adverse ACR for the year 1972 was never communicated to him. Since the respondents failed to brought on record any thing that such adverse remarks were duly communicated to the petitioner within the time contemplated by the rules, it was held that non-communication of adverse remarks made authenticity of such remarks as completely ineffective and that on the basis of such un-communicated remarks a civil servant could not have been subjected to any adverse order.
In the wake of above it thus follows that if a report is not communicated then it would be presumed to be good. What to speak of adverse report, even average reports are not required to be communicated because those are not considered "adverse" and are taken synonymous with "good" reports. In the case of Muhammad Anwar v. The Secretary, Establishment Division (PLD 1992 SC 144), the appellant had to his credit two good reports and three average reports. It was held that in the absence of adverse report, the effect of those reports was generally good. Hence, to us, the distinction drawn, in the case of petitioner, from Noor Ellahi's case was unfounded.
"In the present appeals the adverse remarks were either recorded by the Inspection Judges of the Lahore High Court as Reporting Officers or endorsed by them as countersigning Officers and in some cases the Reporting Officers are District and Sessions Judges."
Learned Additional Advocate General, Punjab has not controverted that another learned Judge of the High Court was the inspection Judge for Multan District at the relevant time, hence case of the petitioner was infact decided on wrong premise.
Upshot of the above discussion is that this review petition is accepted. The Civil Appeal i.e. No.13 of 2002 filed by the petitioner is accepted, the impugned judgement dated 23.12.1999 passed by the Punjab Subordinate Judiciary Service Tribunal, Lahore in Appeal No. 10 of 1999 is set aside and adverse remarks contained in the report for the period 19.7.1997 to 31.12.1997, against the petitioner are expunged.
(J.R.) Petition accepted.
PLJ 2008 SC 1039
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan & Ch. Ijaz Yousaf, JJ.
Sqn. Ldr. (R) KHURRAM ZAMAN--Appellant
versus
AFIA ZAFAR and others--Respondents
Civil Appeal No. 264 of 2008, decided on 10.3.2008.
(On appeal from the judgment dated 24.9.2007 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in C.R. No. 378 of 2007).
Partnership Act, 1932 (IX of 1932)--
----S. 69(3)--Arbitration Act, (X of 1940), S. 34--Suit for dissolution of partnership & rendition of accounts--Arbitration clause in partnership deed--Stay of suit--Concurrent finding upto High Court--Challenge to--Held: Where a party to an arbitration agreement starts legal proceedings with respect to the subject-matter of such agreement, the other party has a right to get such proceedings stayed so as to enable arbitration to proceed in terms of the agreement--There was no illegality or irregularity in the impugned order and the concurrent findings of fact recorded by lower Courts--Appeal dismissed. [P. 1041] A
AIR 1961 All. 409; AIR 1979 Delhi 135; PLD 1968 Lah. 712; PLD 1972 Lah. 766; AIR 1964 SC 1882; PLD 1966 SC 328 & PLD 1981 SC 553, ref.
Khawaja Muhammad Farooq, ASC for Appellant.
Respondents in person.
Date of hearing: 10.3.2008.
Judgment
Ijaz-ul-Hassan, J.--This appeal, with leave of the Court, has been filed by Khurram Zaman, appellant, to call into question the legality of the order dated 24.9.2007 passed by learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dismissing Civil Revision No.378 of 2007 preferred by appellant affirming concurrent findings of fact recorded by the Courts below i.e. Civil Judge and Addl. District Judge, Rawalpindi.
Facts of the case need not be reiterated as the same have been mentioned in the leave granting order. Suffice it to state that appellant and respondents, on the basis of an unregistered partnership deed dated 20.12.2005, established a firm. The agreement contained certain terms and conditions including Arbitration clause. It appears that certain disputes arose between the parties which necessitated appellant to file suit for dissolution of the partnership and rendition of accounts etc. During the proceedings respondents moved an application under Section 34 of the Arbitration Act, 1940, for stay of the proceedings. The application was allowed by learned Civil Judge, Rawalpindi vide order dated 11-7-2007, which was maintained in appeal by learned Addl. District Judge, Rawalpindi, through judgment dated 24-7-2007. The civil revision filed by appellant did not succeed. It was dismissed by the learned High Court through the order impugned herein.
Leave was granted by this Court to examine in detail interpretation of Section 69(3) of the Partnership Act, 1940.
Appearing on behalf of appellant, Khawaja Muhammad Farooq, Advocate, contended with vehemence that learned High Court has not correctly interpreted the provisions of Section 69 of the Partnership Act, 1940, and allowed application for stay of proceedings for reasons not sustainable in law. Learned counsel reiterated that sub-sections (1) and (2) of Section 69 of Partnership Act refer to suits to enforce a right arising from a contract, the provisions of sub-section (3) extends the provisions of sub-sections (1) and (2) to claim of set off or other proceedings to enforce a right from a contract. The use of disjunctive `or' indicates that there are two alternatives. Therefore, other proceedings occurring in sub-section (3) cannot be interpreted as ejusdem generis with set off. A set off is a defence and it seldom arises out of a contract. Learned counsel submitted that an application for resort to arbitration in a suit against an unregistered firm was held to be barred under Section 69 (3) of Partnership Act by a Division Bench of Allahabad High Court in a case reported as Syed Wahid Hussain v. Maharajkumar Mahmud Hasan Khan and others (AIR 1961 Allahabad 409). A similar view was expressed in another case reported as M/s. Para Ram Darshan Lal v. Union of India and another (AIR 1979 Delhi 135). He contended that learned High Court has not considered in its true perspective the judgment reported as Ali Muhammad v. Mirza Muhammad Hussain Beg (PLD 1968 Lahore 712) which is a larger Bench judgment and has preferred to follow a single Bench judgment reported as Syed Naushab Ali v. Lt. Col.Mehmood Khan Durrani (PLD 1972 Lahore 766). To supplement the submissions, reliance was placed on following reported cases :--
(i) Syed Wahid Hussain v. Maharajkumar Mahmud Hasan Khan and others (AIR 1961 Allahabad 409).
(ii) Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd. (AIR 1964 SC 1882).
(iii) M/s. Para Ram Darshan Lal v. Union of India and another (AIR 1979 Delhi 135)
(iv) Usman v. Haji Omer & others (PLD 1966 SC 328).
(v) Ali Muhammad v. Mirza Muhammad Hussain Beg (PLD 1968 Lahore 712)
(vi) Syed Naushab Ali v. Lt. Col. Mehmood Khan Durrani (PLD 1972 Lahore 766).
Aforesaid contentions of learned appellant's counsel were opposed on the ground that the proceedings have been stayed in view of clause 15 of the agreement under reference which stipulates that, if a dispute arises between the parties, it shall be resolved through arbitration and respondents invoked the provisions of Section 34 of the Act, which the trial Court rightly granted. Provisions of Section 69(3) of Partnership Act, 1940, were stated to have been interpreted correctly. To augment the submission, reliance was placed on the case of Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry cleaners (PLD 1981 SC 553).
Having heard the arguments advanced by both sides in the light of the material on file, we find that the parties to the lis established an unregistered firm through partnership deed dated 20.12.2005. Clause 15 of the said agreement provides mechanism for the partners of the firm to resolve their dispute with respect to the business of the firm through an arbitrator to be mutually appointed by all the partners. Before filing written statement in the suit filed by appellant, respondents moved an application under Section 34 of the Arbitration Act, 1940, which was allowed by the Civil Judge, Rawalpindi, seized of the matter. An appeal was preferred there against, which did not succeed. The same was dismissed by Addl. District Judge, Rawalpindi. The civil revision preferred by appellant also met the same fate. Having considered the matter from angles, we are of the view that the civil revision preferred by appellant has been dismissed through a detailed and well reasoned order, which is not open to legitimate exception. There is no illegality or irregularity in the impugned order as well as in the concurrent finding of fact recorded by the two Courts below. Needless to emphasis that where a party to an arbitration agreement starts legal proceedings with respect to the subject-matter of such agreement, the other party has a right to get such proceedings stayed so as to enable arbitration to proceed in terms of the agreement. The case law cited by learned counsel for the appellant is distinguishable and proceed on different facts. It does not advance appellant's cause.
As a result, the appeal, having been found, without substance fails, which is hereby dismissed with no order as to costs.
(J.R.) Appeal dismissed.
PLJ 2008 SC 1042
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Muhammad Nawaz Abbasi & Mian Hamid Farooq, JJ.
IMTIAZ AHMED LALI--Petitioner
versus
RETURNING OFFICER and 3 others--Respondents
Civil Petition No. 957 of 2007, decided on 18.12.2007.
(On appeal from the judgment dated 14.12.2007 passed by Lahore High Court, Lahore, passed in W.P. No. 11985 of 2007).
Constitution of Pakistan, 1973--
----Art. 63(i)(j)--Representation of People Act, 1976, S. 99(1-A)(i)--Words and Phrases--"Moral Turpitude"--Connotation--Held: Moral Turpitude in its plain meaning is the act of baseness, vileness or the depravity in private and social duties, which a man owes to his fellowmen or society in general, contrary to accepted and customary rule of right and duty between man and man. [P. 1046] A
Constitution of Pakistan, 1973--
----Art. 63(i)(j) & 185(3)--Representation of People Act, 1976, S. 99(1-A) (i)--Conduct of General Elections Order, 2002, Art. 8-D(2)(i)--Punjab Local Government Ordinance, 2001, S. 15(2)--Removal from service on the charge of absence from duty--Disqualification whether of permanent nature--Held: Charge of willful absence from duty against petitioner may not involve element of moral turpitude, or fall within the extended meaning of misconduct in service laws but it has been settled that willful or habitual absence from duty is misconduct as it involves an element of indiscipline which may sometime constitute gross misconduct--Leave refused. [P. 1046 & 1047] B & C
PLD 2007 SC 369; 2002 SCMR 967 & 2005 SCMR 17, ref.
Dr. Khalid Ranjha, ASC and Mr. Muhammad Asif Ranjha, ASC for Petitioner.
Mr. Zafar Iqbal Chauhan, ASC with Mehr Khan Malik, AOR for Respondents (3 & 4).
Date of hearing: 18.12.2007.
Judgment
Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution has been directed against the judgment dated 14.12.2007 by virtue of which the Lahore High Court, Lahore dismissed the constitution petition filed by the petitioner challenging the order dated 05.12.2007 passed by the Election Tribunal in appeal preferred by the petitioner against the order of rejection of his nomination papers by the Returning Officer of PP-80 Jhang.
"the petitioner while employed in police department was dismissed from service in 1990 and thereby incurred a disqualification under Article 63 (i) & (j) of the Constitution of Pakistan read with Section 99 (1-A) (i) of Representation of People Act, 1976 to be elected or chosen and from bring member of the Provincial Assembly.
The Returning Officer in the light of the provision of law referred therein rejected the nomination papers of the petitioner vide order dated 29.11.2007. The provisions referred therein are reproduced hereunder for better appreciation of the point raised herein and to ascertain the correct legal position vis-a-vis the question of qualification and disqualification of petitioner to become a candidate in the election.:--
Article 63(1)(i) of the Constitution of Islamic Republic of Pakistan, 1973, "A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e-Shoora (Parliament) if--
(i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct OR moral turpitude;"
Section 99(1-A) (i) of the Representation of the People Act, 1976:
"A person shall be disqualified from being elected as and from being a member of an Assembly, if--
(i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct OR moral turpitude;"
Likewise Article 8-D (2) (i) of the Conduct of General Elections Order, 2002 also provided as under:--
"A person shall be disqualified from being elected as and from being a member of an Assembly, if--
(i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct OR moral turpitude;"
"....it is to be noted that it is the appellant who himself has earned the permanent disqualification because admittedly he is disqualified even for a petty government service according to law, therefore, for such permanent disqualification, how he can be allowed to become member of a sovereign body of a Parliament or Provincial Assembly. Thus, with this intention Article 63 of the Constitution, Section 99 of the Representation of the People Act, 1976 as well as Article 8D of the Elections Order, 2002, were amended in order to block the passage of the persons, who are guilty of misconduct or involved in moral turpitude.
Learned counsel for the petitioner placing reliance on the order dated 8.8.2005 passed by this Court in C.P. No. 2079 of 2005 wherein leave was granted to consider the question as to whether disqualification of a candidate in terms of Section 15(2) of Punjab Local Government Ordinance, 2001, is of permanent nature or the same on the expiry of certain period, would come to an end, has contended that the petitioner was removed from service of police department for the charge of absence from duty and since the charge against him was not of misconduct, therefore, his case would not fall within the purview of clause (i) & (j) of Article 63 of the Constitution read with Section 99(1-A) (i) of Representation of People Act, 1976. Learned counsel submitted that in any case, dismissal from service on the ground of misconduct or moral turpitude is not as such a permanent disqualification whereas the charge of absence from duty without permission may not constitute misconduct or called an act of moral turpitude, therefore, dismissal or removal from service on such ground, would not be a disqualification under the Constitution and law.
This Court in the judgment referred above "Imtiaz Ahmed Lali vs. Ghulam Muhammad Lali (PLD 2007 Supreme Court 369)", in para 10 observed as under:--
"In consonance to above constitutional provision, Section 99 (la) (i) was also substituted in the Representation of the People Act, 1976 by Ordinance No. XXXVI of 2002 with effect from 31st July, 2002. Although Chief Executive's Order No. 7 of 2002 was also amended with effect from 31st July, 2002 but perhaps due to some oversight while introducing clause (i) the grounds of disqualification respect of person dismissed from service on account of misconduct involving moral turpitude was mentioned, without realizing that the general law on-the subject i.e. the Representation of the People Act, 1976 has been amended on the same day, holding a candidate disqualified if he is guilty of misconduct or moral turpitude and later on Article 63 of the Constitution was also amended on the same line. Therefore, the intention of the Legislature becomes abundantly clear that by amending the instrument meant for holding the elections noted herein above, the object was to block passage for those candidates who are involved in misconduct or moral turpitude, as such to make the law in consonance with the Constitution, amendment in Article 8D(2)(i) of the Elections Order, 2002 was notified with effect from 6th November, 2002 with retrospective effect."
"In this context it is to be noted that it is the appellant who himself has earned the permanent disqualification because admittedly he is disqualified even for a petty government service according to law, therefore, for such permanent disqualification, how he can be allowed to become member of sovereign body of a Parliament or Provincial Assembly. Thus, with this intention Article 63 of the Constitution, Section 99 of the Representation of the People Act, 1976 as well as Article 8D of the Elections Order, 2002 were amended in order to block the passage of the persons, who are guilty of misconduct or involved in moral turpitude."
The learned counsel for the petitioner has submitted that notwithstanding the fact that the judgment referred to above has attained finality, this Court in the interest of complete justice, in exercise of its power under Article 187 of the Constitution, may re-consider the question as to whether the disqualification of the nature was of permanent nature or the same with afflux of time, would be removed. The learned counsel submitted that clause (i) & (j) of Article 63 of the Constitution read with Section 99 (1-A) (i) of Representation of People Act, 1976, apparently is in conflict to the fundamental rights contained in Part-II of Chap-1 of the Constitution, which would require examination for the purpose of harmonious interpretation to remove the ambiguity.
There is no cavil to the proposition that this Court can examine the provisions of any law on the touchstone of Fundamental Rights guaranteed in the Constitution but in the present case there is no need of undertaking such an exercise as the proposition of law raised herein has already been dealt with in the well considered judgment referred above wherein it has been held that the disqualification under Article 63(i)(j) read with Section 99 (1-A)(ii) of Representation of People Act, 1976, was of permanent nature and in the light of the Constitutional mandate referred above, we are not inclined to take any departure to the law already laid down by this Court on the subject. The contention of the learned counsel for the petitioner that dismissal from service on the ground of absence from duty would not fall within the ambit of misconduct or moral turpitude for the purpose of disqualification under Article 63 (i) & (j) of the Constitution read with Section 99 (1-A) (i) of the Representation of People Act, 1976, has no substance.
The expression "moral turpitude" in the plain words means the Act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general, contrary to accepted and customary rule of right and duty between man and man. The case of the petitioner in respect of the charge of willful absence from duty may not as such involve the element of moral turpitude or fall within the extended meaning of misconduct in service laws but this is well settled principle of service laws that willful or habitual absence from duty is misconduct. The habitual or willful absence involves an element of indiscipline which may some time constitute gross misconduct. This
Court in the cases Secretary Education Vs. Mustamir Khan (2005 SCMR 17) and Badshah Hassan Vs. Interior Minister (2002 SCMR 967) held that the punishment of compulsory retirement on account of willful absence amounts to misconduct on the basis whereof major penalty of dismissal from service can be imposed.
In the light of above discussion and the law laid down by this Court in the petitioner's own case reported as Imtiaz Ahmed Lali vs. Ghulam Muhammad Lali (PLD 2007 Supreme Court 369), we would take no exception to the judgment of the High Court.
In the light of foregoing reasons, this petition is dismissed and leave is refused.
(J.R.) Leave refused.
PLJ 2008 SC 1047
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ. and Muhammad Nawaz Abbasi, J.
MIR MUHAMMAD ALI RIND--Petitioner
versus
ZAHOOR AHMED and another--Respondents
Civil Petition Nos. 965 & 966 of 2007, decided on 19.12.2007.
(On appeal from the judgment dated 14.12.2007 passed by High Court of Balochistan, Quetta, in Election Appeal No. 82/2007).
Constitution of Pakistan, 1973--
----Arts. 63 & 185(3)--Representation of the People Act, 1976, S. 14(7)--NAB Ordinance, 1999, Ss. 15 & 25--Conviction and plea bargaining--Disqualification to contest election--Rejection of nomination papers--Election Tribunal decided appeal without service and bearing of candidate--Effect--Held: Fact relating to disqualification u/S. 15 r.w. 25 of the NAB Ordinance, 1999 was not denied--If it is read in context to Art. 63 of Constitution, the petitioner would be disqualified to contest election--Petitioner was heard by Supreme Court on merits so his technical objection regarding service and non-providing of opportunity by High Court was of no significance--Leave to appeal refused. [Pp. 1050 & 1051] A & B
Mr. M. Munir Peracha, ASC for Petitioner (in both cases).
Nemo for Respondents (in both cases).
Date of hearing: 19.12.2007
Judgment
Muhammad Nawaz Abbasi, J.--These two connected petitions have been directed against a common judgment dated 14.12.2007 passed by Balochistan High Court, Quetta, whereby the Election Appeals Bearing Nos. 82 & 83 of 2007 filed against the order of Returning Officer by virtue of which the nomination papers of the petitioner were rejected and he was declared disqualified to contest the election.
The facts in small compass giving rise to these petitions are that the petitioner being permanent resident and registered voter of Tehsil Buleda District Kech, filed two nomination papers to contest the election from B.P. 49 Kech (II) in the General Election 2008. Zahoor Ahmed, respondent herein also filed nomination papers from the same constituency and as a result of the scrutiny of nomination papers, the Returning Officer vide order dated 3.12.2007, accepted the nomination papers of the petitioner and also of the private respondent whereupon the private respondent filed two separate Election Appeals before the learned Election Tribunal consisting of two learned Judges of the Balochistan High Court seeking rejection of the nomination papers of the petitioner mainly on the ground that he having been convicted under the NAB Ordinance, 1999, was disqualified to contest the election and hold the public office. The petitioner avoided to appear before the Election Tribunal and consequently, the Tribunal proceeded to decide the appeal and allowed the same vide judgment dated 14.12.2007 giving the verdict that petitioner having entered into plea bargain under Section 25 of the NAB Ordinance, 1999, in a case registered against him under the ibid Ordinance, has incurred a disqualification by virtue of Section 15 of the said Ordinance to hold any public office.
The present petitions filed under Article 185(3) of the Constitution against the judgment of the Election Tribunal consisting of the two learned Judges of the High Court of Balochistan, Quetta, are not as such competent but in view of the fact that out of total five judges of the High Court, two learned Judges were performing the duty of Election Tribunal and one learned Judge has gone to perform Hajj whereas one learned Judge is Member of the Election Commission of Pakistan and in view thereof, the petitioner could not avail the remedy of constitution petition before the learned single Judge of the High Court against the judgment of Election Tribunal consisting of two learned Judges of the High Court, therefore, in these circumstances and in absence of any other remedy provided under the law, we notwithstanding the nature of dispute in these petitions dispose of the same as direct petitions under Article 184(3) of the Constitution of Islamic Republic of Pakistan.
Learned counsel for the petitioner has contended that the Election Tribunal without service of the petitioner and providing him right of hearing proceeded to decide the election appeals behind his back and condemned him unheard. The learned counsel submitted that notwithstanding the fact that the nature of the disqualification would not require any further inquiry but no order adverse to the interest of petitioner could be passed in his absence and consequently, the impugned judgment was rendered in illegal exercise of jurisdiction. The learned counsel without denying the fact that petitioner entered into plea bargain in a case registered against him under NAB Ordinance, 1999, emphasized that the disposal of the criminal case in terms of Section 25 of NAB Ordinance, 1999, in absence of corresponding provisions in the election law, would not create disqualification to contest the election.
There is no cavil to the legal position that an order adverse to the interest of a person cannot be passed without providing him an opportunity of hearing and departure to this rule may render the order illegal. In the present case, the High Court having taken the view that petitioner was served in terms of Section 14(7) of the Representation of People Act, 1976, proceeded to decide the appeal and he was declared not qualified to contest the election on account of earning patent disqualification under Section 25 read with Section 15 of the NAB Ordinance, 1999. Section 15 of the ibid Act provides as under:--
Disqualification to contest elections [or to hold public office].
[(a) Where an accused person is convicted [of an offence under Section 9 of this Ordinance], he shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he is released after serving the sentence, for seeking or from being elected, chosen, appointed or nominated as a member or in service of Pakistan or any Province.
Provided that any accused person who has availed the benefit of [sub-section (b) of Section] 25 shall also be deemed to have been convicted for an offence under this Ordinance, and shall forthwith cease to hold public office, if any, held by him and further he shall stand disqualified for a period of ten years, to be reckoned from the date he has discharged his liabilities relating to the matter or transaction in issue, for seeking or from being elected, chosen, appointed or nominated as member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province.
(b) Any person convicted of an offence [under Section 9 of this Ordinance] shall not be allowed to apply for or be granted or allowed any financial facilities in the form of any loan or advances [or other financial accommodation by] any bank or financial institution [owned or controlled by the Government] for a period of 10 years from the date of conviction.
Learned counsel for the petitioner without denying the fact that petitioner availed the benefit of Section 25 of the NAB Ordinance, 1999, contended that disqualification mentioned in Section 15 of the ibid Ordinance would not be automatically read in election laws unless the said laws are amended by act of parliament. We are afraid, the qualification and disqualification to contest the election for the membership of the National and Provincial Assemblies are provided under Articles 62 and 63 of the Constitution read with Representation of People Act, 1976, and notwithstanding any other disqualification mentioned in any other law, if a person is suffering from any disqualification mentioned in Article 63 of the Constitution, he is disqualified to contest the election and become a member of the National or Provincial Assembly.
The petitioner under Article 63(h) and (i) has earned disqualification of the nature by virtue of which he would be debarred to contest the election. The above clauses of Article 63 of the Constitution provides as under:--
"(h) he has been convicted by a Court of competent jurisdiction on a charge of corrupt practice, moral turpitude or misuse of power or authority under any law for the time being in force; or"
(i) he has been dismissed from the service of Pakistan or service of a corporation or office set up or, controlled by the Federal Government, Provincial Government or a Local Government on the grounds of misconduct or moral turpitude; or
The fact relating to the earning of disqualification under Section 15 read with 25 of the NAB Ordinance, 1999, is not denied and thus the disqualification mentioned therein if read in context to the Article 63 of the Constitution, the petitioner would certainly be disqualified to contest the election.
In view thereof, the technical objection regarding service and not providing an opportunity of hearing by the High Court is of no significance and in any case, the petitioner has been heard by us on merits, therefore, his grievance on this behalf stands redressed. In consequence to the above discussion, these petitions having no substance cannot succeed on merits and are accordingly dismissed. Leave is refused.
(J.R.) Leave refused.
PLJ 2008 SC 1051
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan & Ch. Ijaz Yousaf, JJ.
PAKISTAN AGRICULTURAL STORAGE AND SERVICES CORPORATION LTD.--Appellant
versus
Mian ABDUL LATIF and others--Respondents
Civil Appeal No. 903 of 2002, decided on 13.2.2008.
(On appeal from the judgment dated 24.4.2002 in RFA No. 208 of 1994 passed by the Lahore High Court, Lahore).
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R.11--Constitution of Pakistan 1973, Art. 185--Rejection of plaint--Order set aside by High Court--Challenged before Supreme Court--Suit was with regard to the violation of terms and conditions of the same contract, where in final payment had been received by him--Plaintiff was precluded to institute a suit in respect of the said claim and on the basis of same cause of action--Remanded order was set aside. [P. 1055 & 1056] A & D
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 1(c)--Cause of action--Scope--Held: The term "cause of action" presents all the requisites and facts which are necessary for the plaintiff to prove before he can succeed. [P. 1055] B
Civil Procedure Code, 1908 (V of 1908)--
----O. VII, R. 11--Rejection of plaint--Object & scope--Held: Object of Order. VII, Rule 11 of CPC is primarily to save the parties from the rigours of frivolous litigation at the very inception of the proceedings--If the Court on the basis of averments of plaint and the attached documents, comes to the conclusion that even if all the allegations made in plaint are proved, plaintiff would not be entitled to the relief claimed, then the Court would be justified to reject it under O. VII, R. 11, CPC. [P. 1055] C
2002 SCMR 338, ref.
Mr. Muhammad Akram Khwaja, Advocate for Appellant.
Nemo for Respondent No. 1.
Respondents No. 2 & 3 ex-parte.
Date of hearing: 13.2.2008.
Judgment
Ch. Ejaz Yousaf, J.--This appeal as of right under Article 185(2)(d) is directed against the judgment dated 24.4.2002 passed by a Division Bench of the Lahore High Court, Lahore, whereby order dated 15.5.1994 passed by Civil Judge Ist Class, Lahore, rejecting plaint in the suit filed by the petitioner under Order VII, Rule 11 CPC, was set-aside and the case was remanded to the trial Court for decision in accordance with law.
Facts of the case in brief are that vide plaint dated 23.12.1991, Respondent No. 1/plaintiff sought for a decree for money amounting to Rs. 52,81,369.25 on account of a claim arising out of contract in the sum of Rs. 37,81,369.25 and suffering agony and medical expenses to the tune of Rs. 5,00,000.00. As per averments made in the plaint, Respondent No. 1/plaintiff entered into a contract/agreement bearing No. Passco/R.N.12 with the appellant/defendant for the "Work of Rehabilitation of Godowns at Kohat Road, Peshawar" for which bid schedule, specifications and drawings had been pre-measured. According to the Plaintiff/Respondent No. l, some of the items were deleted and some, not included in the contract were got executed subsequently resulting in loss to him. It was also alleged that he was not allowed escalation in the prices of cement and steel. Suit was contested and it was pleaded on behalf of the appellant/defendant that some of the non-essential items were though deleted on account of respondent/plaintiff's failure to execute work in time, yet, such deletion was after service of due notice and similarly additional items were sought for and got executed with the concurrence of respondent/plaintiff, and the payment towards escalation too, was made in accordance with the conditions of contract. It was further pleaded that as per clause 60 of the contract since all the payments were to be made by USAID directly, therefore, the appellant/defendant was not under obligation to make payment to the Plaintiff/Respondent No. 1, whatsoever. It was further pleaded that the job was completed by contractor/Respondent No. 1, on 30.6.1991 instead of September, 1990. Again the claim in respect of items added was paid off by USAID. The inflated bill was rejected by USAID and reduced in accordance with the escalation clause and the corrected bill having been accepted by the contractor/respondent/plaintiff was duly paid to him, hence nothing outstanding was left.
During pendency of the suit an application under Order VII, Rule 11, CPC, was submitted by the appellant/defendant, wherein it was pleaded that since the respondent/plaintiff had received the full and final payment in the light of the final bill settled through an informal arbitration, therefore, he was precluded to institute a new suit with regard to the said claim and on the basis of same cause of action, hence, plaint may be rejected. Application was allowed by the Civil Judge on 15.5.1994 and the plaint was rejected in view of the fact that plaintiff's counsel had admitted the plaintiff's signatures on the relative payment voucher vis-a-vis payment of final bill. However, on appeal learned Division Bench of the High Court reversed the judgment and decree dated 15.5.1994, and remanded the case to the trial Court for decision of the suit on merits, vide the impugned judgment, hence this petition.
Mr. Muhammad Akram Khwaja, learned counsel for the petitioner has contended that since respondent/plaintiff's claim with regard to the execution of the contract in question was finally determined through informal arbitration, settled and paid off to the contractor, therefore he was precluded to agitate the same through the suit, in question. The plaint, therefore was rightly rejected by the learned Civil Judge. He pleaded, that in the circumstances, the learned Judges in the High Court have gone wrong in law by remanding the case to the trial Court.
Though, none has appeared on behalf of the respondents, yet we, while giving our anxious consideration to the contentions raised by the learned counsel for the appellant, have carefully gone through the record of the case. It reveals that along with application under Order VII, Rule 11 CPC, wherein a number of legal and factual objections were taken, copies of the final bill, dated 18.9.1991 submitted by the respondent/plaintiff to the Executive Engineer, PASSCO Division, Peshawar, in respect of the contract in question with voucher for purchase and services other than personal and minutes of the meeting dated 17.9.1991 were also filed. In order to properly appropriate the proposition in hand, it would be beneficial to have a glance at minutes of the meeting dated 17.9.1991, which are reproduced herein below in extenso:--
"A meeting was held on 17 Sept: 1991. The following participated:--
Mian Abdul Latif (MAL CO.)
Muhammad Anis Latif (MAL CO.)
Mr. Muhammad Akbar Malik (PASSCO)
Mr. Shabir Ahmed Qureshi (PASSCO)
Mr. Iftikhar Ahmed Chaudhary (PASSCO)
Mr. Tariq Javed (PASSCO)
The object of meeting was to settle the claims submitted by MAL CO. Mian Abdul Latif agreed that decision given by Mr. Akbar Malik would be acceptable to him and he would not take the case to Court irrespective of decisions given. During course of meeting, Mian Abdul Latif stated that he wishes to settle the matter and offered that he is willing to accept the measurements duly checked and recorded by Mr. Iftikhar Chaudhry, provided he solemnly affirms correctness of measurement. Mr. Iftikhar Chaudhry, affirmed solemnly that the measurements have been made by him correctly according to his best knowledge and acting as a true Muslim which was accepted by Mian Abdul Latif and all others present have signed this in acceptance and • confirmation."
It would be pertinent to mention here that minutes were signed by all the participants. Record further reveals that in pursuance of the above settlement through arbitration, detailed and final bill dated 18.9.1991 was also submitted, covering letter whereof reads as follows:-
"To:--
The Executive Engineer, PASSCO Division, Peshawar.
Subject:--12th (b) & FINAL PAYMENT BILL FOR REHABILITATION WORK OF GODOWNS AT KOHAT ROAD PESHAWAR SITE (Contract No. PASSCO/R-12)
Dear Sir :--
Please find enclosed herewith 12th(b) & Final Progressive Payment bill for rehabilitation work of wheat Godowns at Kohat Road, Peshawar site. Early payment is requested.
Thanking you, remain.
Your's faithfully
Sd/-
(M/s MIAN ABDUL LATIF & CO.)
Contractor
It would also be worthwhile to mention here that on the foot of the said bill dated 18.9.1991, the following endorsement, with the signatures of the Respondent No. 1/plaintiff appears:--
"Final measurements & bill accepted. There is no further claim."
It was on the basis of these documents that Civil Judge came to the conclusion that since the Plaintiff/Respondent No. l had already received payment for the work executed, therefore he was precluded to bring a fresh suit on the basis of the same cause of action. Perusal of the impugned judgment of the High Court shows that case was remanded to the trial Court primarily and solely for the reason that since Plaintiff/Respondent No. l had denied the receipt of full amount, and in the opinion of the learned Judge in High Court, the controversial facts had to be determined through evidence, therefore, the plaint could not have been rejected for non-disclosure of cause of action.
Admittedly the suit brought by the plaintiff/respondent was with regard to the violation of the terms and conditions of the same contract wherein final payment was received by him through bill dated 18.9.1991, hence there appears force in the contention that the respondent/plaintiff was precluded to institute a suit in respect of the said claim and on the basis of the same cause of action. It would be pertinent to mention here that the term "cause of action" represents all the requisites and facts which are necessary for the plaintiff to prove, before he can succeed in a suit. In the instant case, therefore, learned trial Judge was justified to reject the plaint particularly when not only the submission of bill dated 18.9.1991 was admitted by the counsel for the respondent/plaintiff but settlement of claim through agreement/arbitration dated 17.9.1991 too, was not refuted. It may be noted here that object of Order VII, Rule 11 CPC, is primarily to save the parties from rigours of frivolous litigation at the very inception of the proceedings and if the Court on the basis of averments made in the plaint and documents available comes to the precise conclusion that even if all the allegations made in the plaint are proved; the plaintiff would not be entitled to the relief claimed, then the Court would be justified to reject the plaint in exercise of powers available under Order VII, Rule 11 CPC. In this view, we are fortified by a judgment of this Court delivered in the case of S.M. Shafi Ahmad Zaidi through legal heirs v. Malik Hassan Ali Khan (Moin) through legal heirs (2002 SCMR 338), wherein it was held that while disposing of application under Order VII, Rule 11 CPC, besides averments made in the plaint, other material available on record, which on its own strength, is legally sufficient to completely refute the claim of the plaintiff, can also be looked into. It was further held in the above judgement that requirement of law is that incompetent suit should be buried at its inception and it is in the interest of litigating parties and judicial institutions itself, because it would save time and expenses of the parties and the Courts would get more time to devote it for the genuine causes.
Upshot of the above discussion is that this appeal is allowed, impugned judgment of the Lahore High Court, Lahore, dated 24.4.2002 is set-aside and the judgment and decree dated 15.5.1994 passed by the Civil Judge, Lahore, is restored.
(J.R.) Appeal allowed.
PLJ 2008 SC 1056
[Appellate Jurisdiction]
Present: M. Javed Buttar, Mian Hamid Farooq & Sheikh Hakim Ali, JJ.
SECRETARY REVENUE DIVISION etc.--Appellant
versus
MUHAMMAD SALEEM--Respondent
Civil Appeal No. 1986 of 2006, decided on 28.2.2008.
(On appeal from the judgment dated 4.7.2006, passed by the Lahore High Court, Lahore in Writ Petition No. 1087 of 2006.
Constitution of Pakistan, 1973--
----Arts. 199, 184 & 212--Power to issue directions by Superior Courts--Restraints & prohibitions--Held: Each and every order/direction issued by Superior Courts, cannot be presumed and assumed to be in contravention of Art. 212, of Constitution, because the inherent and other powers and jurisdictions can be restrained to be exercised when the matter/case is shown to have fallen within the domain and scope of prohibition--The jurisdictions of Apex & Superior Courts are general, wider in scope & extent while constraints/prohibitions are narrower in their applications and dimensions. [P. 1058] A
Constitution of Pakistan, 1973--
----Arts. 199 & 212 & 185--Writ jurisdiction--Scope--Direction by High Court to get P.E.Rs. of respondent's case completed from another senior officer due to its specials & exceptional nature--Validity--Held: As the Seniors of respondents were biased and not independent to evaluate his performance due to commencement of criminal proceedings so direction of High Court was apt--Appeal dismissed.
[P. 1058] B
Mr. Asghar Ahmad Kharl, ASC for Appellants.
Respondent in person.
Date of hearing: 28.2.2008.
Judgment
Sheikh Hakim Ali, J.--When the case of respondent, Muhammad Saleem, who was posted as Deputy Commissioner of Income Tax in BS-18, was ignored by the Income Tax Department to be placed before the Central Selection Board for promotion to the post of Additional Commissioner of Income Tax in BS-19, on the basis of fetish technicalities, in such an event, respondent approached the door of Lahore High Court, Lahore through Writ Petition No. 1087 of 2006 (Muhammad Saleem Vs. Secretary, Revenue Division and others), to obtain the direction as noted below, wherefrom an order dated 04.07.2006 was passed by learned Single Judge of that Court. The aforementioned order has been assailed by Secretary, Revenue Division etc. through the instant Civil Appeal.
Determinative facts of the case are that respondent was serving the Income Tax department as Deputy Commissioner of Income Tax in BS-18 when his case for promotion to the post of Additional Commissioner Income Tax (BS-19) was withheld and his case, was passed over on the ground that PERs of Muhammad Saleem for the periods from 01.07.2000 to 16.03.2001; 17.03.2001 to 30.06.2001 and 15.09.2001 to 30.06.2002 were not genuine. In these circumstances, respondent having no legal remedy to his end, filed the case before the learned Lahore High Court, Lahore against the department. After hearing both the parties, the learned Single Judge of the Lahore High Court came to the conclusion that the Reporting Officer as well as Countersigning Officer were biased as they were at daggers drawn against each other due to criminal proceedings therefore, PERs of these periods of the writ petitioner to be impartial, honest and fair was not possible to be delivered by those officers. It was, therefore, the duty of the Department to get the PERs of the Officer Concerned to be completed by its own efforts and thereafter it should have been kept and maintained by the Department itself, so that the case of promotion of the official of the department could be submitted before the Central Selection Board, at the proper and relevant time, which would be constituted for the purpose of promotion of the Officers. To find that solution, the learned Judge directed the CBR to get the reports of PERs from Mr. Ehsan-ul-Haq, Member CBR, Ex-Regional Commissioner, Central Region Multan, who had been sometime Superior Officer of Muhammad Saleem, respondent. In case, it was not possible, it was then directed that reports of those periods were to be ignored by the Central Selection Board. It is noteworthy that DAG, who appeared on behalf of the Department, had candidly made a statement on 13.6.2006 that Selection Board would consider the case of the respondent on merits when record of the respondent was completed and submitted before it.
Learned counsel appearing on behalf of the appellant department submits that the learned Lahore High Court had got no jurisdiction to interfere into the case of the respondent, as the powers and jurisdiction was prohibited to be exercised by any Court/Tribunal in matters of Terms and Conditions of service of a Civil Servant under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
We have considered the argument and have perused the record. We are not in agreement with the arguments of the learned counsel because there was no prohibition contained with regard to the direction made by the learned Judge of the Lahore High Court. Before the application of this Article, the terms and conditions of person in the Service of Pakistan, are to be displayed which would prohibit that exercise of power and jurisdiction. It may be observed ¦that each and every order/direction issued by the Superior Courts cannot be presumed and assumed to be in contravention of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, because the inherent and other powers and jurisdictions, conferred by law and Constitution, can be restrained to be exercised when the matter/case is shown to have fallen within the domain and scope of prohibition. The jurisdictions vested with the apex and Superior Courts are general, wider in scope and extent while the constraints/prohibitions are narrower in their applications and dimensions. Jurisdiction of Superior Courts are to be stretched to take into its fold all the disputes to be resolved while limitation of jurisdictions and powers are to be squeezed and kept to the minimum extent and length. This is what we can call the rule of interpretation of jurisdiction, scope and limitations of Superior Courts in Pakistan. Viewed with this view, the learned counsel for the department has not been able to display as to how this direction, which has been issued by the learned Judge of the aforementioned High Court, has come within the realm of prohibited exercise of jurisdiction or it can be found in the powers or jurisdiction of Administrative Courts or Tribunals constituted under the Civil Servant Act of 1973.
We have also not found that the case in hand involves any substantial question of law of public importance as according to the facts of the present case, only a direction has been issued to get PERs of the respondent's case completed from another officer, with whom respondent had been working as subordinate, because the case of the respondent was of a special and an exceptional nature. As the Senior of the respondents were admittedly biased and not independent to evaluate his Performance due to commencement of criminal proceedings amongst them, therefore, this direction was apt in the circumstances of the case.
The law has provided it the duty of the department to get prepared the PERs of an officer, to keep it and to maintain it, so that the same could be used for the other prescribed purposes and at the time of promotion of an official. At the relevant juncture, as the department was neglectful of its duty to get fulfilled the PERs of respondent, therefore, respondent having no alternate and remedy was right to beseech the indulgence of the learned High Court through its writ jurisdiction as the department was bent upon to deprive the right of its own officer, due to its own in-action. Accordingly, the direction issued by the Lahore High Court can not be considered to be in violation of the provisions of the above noted Article 212 of the Constitution of Islamic Republic of Pakistan. Therefore, the appeal is dismissed with no order as to costs.
(J.R.) Appeal dismissed.
PLJ 2008 SC 1059
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J. Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MUHAMMAD ASLAM--Petitioner
versus
NAZIR AHMED--Respondent
C.P.L.A. No. 916 of 2007, decided on 1.1.2008.
(On appeal from the separate judgments dated 24.9.2007 in C.R. Nos. 425 of 2007 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, R. 3 & O. XV, R. 4--Words, "Proceed to decide forthwith"--Connotation--Held: The words, "Proceed to decide forthwith" do not mean "to decide the suit forthwith" or "to dismiss the suit forthwith"--Court may proceed with the suit notwithstanding either party fails to produce evidence etc., meaning thereby that in case to default to do a specific act, the next step required to be taken in the suit should be taken--Further held: Though the word, "forthwith" means, "without any further adjournment" yet it cannot be equated with the words "at once pronounce judgment" as used in O. XV, R. 4, C.P.C., where on issuance of summons for final disposal of the suit either party fails without sufficient cause to produce the evidence on which be relies.
[P. 1053] A
Civil Procedure Code, 1908 (V of 1908)--
----O. XVII, R. 3 & 2--Non-production of evidence on the adjourned date--Closure of evidence & dismissal of suit--Validity--Plaintiff was himself in attendance on the date when case was adjourned for the next day for orders--Held: Recourse to Order XVII, R. 2, C.P.C. could have been made, therefore Court, despite non-production of witness, ought to have asked the plaintiff to come in the witness box, instead of dismissing the suit forthwith--Petition dismissed.
[Pp. 1053 & 1064] B & C
1993 SCMR 2026, 1995 SCMR 773 & 1989 CLC 697, ref.
Syed Zulfiqar Abbas Naqvi, ASC and Mr. M.A. Zaidi, AOR for Petitioner.
Mr. S. Zia Hussain Kazmi, ASC & Mr. S. Zafar Abbas Naqvi, AOR for Respondent.
Date of hearing: 1.2.2008
Judgment
Ch. Ejaz Yousaf, J.--This petition for leave to appeal is directed against judgment dated 24.9.2007 passed by a learned Single Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby revision filed by the petitioner against remand of case by the Additional District Judge Gujar Khan, was rejected.
Briefly stated, facts of the case as gathered from the available record are that Mst. Noor Bakht and others were the owners in possession of the land measuring 8 kanals 11 marlas in Khewat No. 5, Khata No. 10, situated in Revenue Estate Bokra, Tehsil Gujjar Khan. She transferred the said land in favour of the petitioner through Mutation No. 1008 dated 13.11.2003. Respondent Nazir Ahmad filed a suit for possession through pre-emption, which was contested by filing written statement before the trial Court. From divergent pleadings of the parties as many as ten issues were framed, whereafter the case was fixed for respondents/plaintiff's evidence on 19.1.2005. The respondent/ plaintiff did not produce evidence on some dates when it was adjourned to 27.9.2006 on which date counsel for the respondent/plaintiff did not appear, he, however, preferred an application for adjournment on the ground that he had moved application before the District Judge for transfer of the case. As evidence of the respondent/plaintiff was also not-available, therefore, the case was adjourned to 28.9.2007 on which date the Civil Judge by invoking the provision of Order XVII, Rule 3 CPC, closed evidence of respondent/plaintiff and while passing the judgment and decree dismissed the suit with special cost of Rs. 20,000/-. Being aggrieved from the said judgment and decree, the respondent/plaintiff filed an appeal before the District Judge, which was allowed and order dated 28.9.2006 of the trial Court was set-aside and the case was remanded for its decision afresh in accordance with law. The petitioner/defendant thus approached the Lahore High Court by way of civil revision which too, could not find favour and was dismissed vide the impugned judgment, hence this petition.
It has been contended by Syed Zulfiqar Abbas Naqvi, ASC learned counsel for the petitioner, that since the respondent/plaintiff failed to produce evidence despite numerous opportunities given and his intention from the very beginning was to delay the proceedings on one pretext or the other and on the said date, i.e. on 28.9.2006 again he could not produce evidence but filed another application with mala-fide intention, therefore, the trial Judge had no option but to decide the suit forthwith. He maintained that in the circumstances, the Additional District Judge was not justified to set-aside the impugned order and remand the case to the trial Court and the learned Judge in the High Court has also erred in rejecting the revision filed by the petitioner.
Mr. S. Zia Hussain Kazmi, ASC, learned counsel for the respondent while controverting the contentions raised by the learned counsel for the petitioner has submitted that in fact only one or two opportunities were afforded to the petitioner to produce his evidence. On 5.9.2006 he had sought permission to prove talb-i-ishhad through secondary evidence which was granted and the case was adjourned to 27.9.2006 on which date he sought adjournment on the ground that an application was filed in the Court of District Judge, for transfer of the case but the request was turned down and the learned trial Judge while closing his evidence dismissed the suit vide order dated 28.9.2006 without even examining the plaintiff who was present in Court on 27.9.2006. It is further contended that since the case on the said date i.e. 28.9.2006 when the suit was dismissed, was not fixed for evidence of the respondent/plaintiff, therefore recourse to Order XVII, Rule 3 CPC could not have been made and in such view of the matter the learned Additional Session Judge was justified in allowing the appeal and remand the case to the trial Court for its decision on merits.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused record of the case, minutely, with their assistance. Record reveals that issues in this case were framed on 12.10.2004, whereafter the case was adjourned to 19.1.2005 for evidence of the respondent/plaintiff on which date the evidence was not available however, adjournment was sought. The case therefore, was adjourned to 21.6.2005. On 21.6.2005 since evidence of the respondent/plaintiff was again not available therefore, the case was adjourned to 3.10.2005 on which date too, the case could not proceed as the Presiding Officer in the meantime was transferred. The case was then taken up on 4.1.2006 and last opportunity was afforded to the respondent/plaintiff to produce his evidence and the case was adjourned to 13.3.2006. On 13.3.2006 an application for production of notice of Talb-i-Ishhad was filed by the plaintiff/respondent copy whereof was handed over to the petitioner and the case was adjourned to 12.4.2006 for filing rejoinder to the said application. On the said date the case could not proceed as the learned Presiding Officer was again transferred. It was then adjourned to 30.5.2006 on which date it again could not proceed as the Presiding Officer was on leave. On 5.9.2006 it was fixed for evidence on the application for proving notice regarding Talb-i-Ishhad, through secondary evidence. The said application was allowed at a cost of Rs.100/- and the case was then adjourned to 27.9.2006 for evidence of the respondent/plaintiff. On 27.9.2006 since evidence was again not available therefore, the following order was passed:--
On 28.9.2006 the following order was passed:--
"Plaintiff counsel is not present. Clerk of the plaintiff's counsel present. Plaintiff's evidence is not present.
Plaintiff filed an application before this Court without any affidavit that he had moved a transfer application of the present case and sought adjournment. Case was adjourned for today when no evidence is present from the plaintiff's side. Learned counsel of the defendant submitted that plaintiff has been negligent to produce his evidence on various occasions and this course of action has been adopted by the defendant in order to prolong the proceedings.
Arguments heard. Record perused.
Vide detail judgment totled today, the right of plaintiff's evidence is closed U/O 17, Rule (iii) CPC and suit is dismissed for want of proof with special costs of Rs. 20,000/-. File be consigned."
It would be pertinent to mention here that the impugned order was set aside by the appellate Court inter-alia, for the reasons; that reasonable opportunity was not afforded to the plaintiff for production of evidence; that the case was not fixed for evidence of the respondent/plaintiff on 28.9.2006, when the penal provision of Order XVII, Rule 3 was invoked' and that since an application for transfer of the case was pending, therefore irrespective of the fact that proceedings in the case were not stayed the learned trial Court should have avoided to proceed against the respondent/plaintiff under the provision in question as law favours adjudication on merits. In order to appreciate the contention raised by the learned counsel for the petitioner it would be advantageous to have a glance at Rule 3 of Order XVII of the Civil Procedure Code which reads as under:
It may be pointed out here that though under order XVII, Rule 3 CPC it has been provided that where sufficient cause is not shown for the grant of adjournment the Court may proceed to decide the suit forthwith but the words used in the provision in question "proceed to decide the suit forthwith" do not mean "to decide the suit forthwith" or "dismiss the suit forthwith". The said Rule simply lays down that the Court may proceed with the suit notwithstanding either party fails to produce evidence etc. meaning thereby that in case of default to do a specific act by any party to the suit, the next step required to be taken in the suit should be taken. Though the word "forthwith" means without any further adjournment yet, it can not be equated with the words "at once pronounce judgment, as used in Order XV, Rule 4 CPC where, on issuance of summons for final disposal of the suit either party fails, without sufficient cause, to produce the evidence on which he relies".
Since in the instant case it appears from record that on 27.9.2006 the plaintiff himself was in attendance when the case was adjourned for the next day i.e. to 28.9.2006 for orders, otherwise recourse to order XVII, Rule 2 could have been made, therefore, the trial Court, despite non-production of witnesses by the plaintiff, ought to have asked the plaintiff to come in the witness box instead of dismissing the suit forthwith. In this view we are fortified by the observations made in the case of Ghulam Rasool v. Rai Ghulam Mustafa and others (1993 SCMR 2026), wherein the petitioner had failed to lead evidence on different dates to which trial was successively postponed. He made statement before the Court that he did not want to produce evidence except his own affidavit which trial Court declined to receive on the ground that as the petitioner was present in person, he should appear in the witness box. After rejecting his prayer, the trial Court closed his evidence and then dismissed the suit for want of evidence. It was held that since there was nothing on record to show that after rejection of his request with regard to his affidavit, the learned trial Court before closing his evidence allowed him to appear as his own witness, as it was a right of a party to make a statement in support of his case therefore, the impugned judgment was not sustainable. The case of Ali Muhammad v. Murad Bibi (1995 SCMR 773), is another opt example wherein the suit filed by the petitioner was fixed for recording of his evidence. Counsel for the petitioner made a request for adjournment on the said date, which was declined and petitioner's right to cross-examine was closed. The trial Court on the very day passed the judgement even without providing opportunity to the respondent to produce his evidence. The above judgment was assailed in appeal before the Additional District Judge, which was accepted. Impugned judgement and decree was set aside and the case was remanded to the trial Court for trial in accordance with law by allowing right of cross-examination to the petitioner and then to produce his evidence. The petitioner impugned the said order through F.A.O., which was dismissed in limine. Leave was sought against the said order, which was refused and it was observed by this Court that since the learned trial Judge had not only closed the right of respondent to cross-examine the petitioner's witnesses and passed the decree on the same day, without providing opportunity to the respondent to produce his evidence, therefore, the impugned judgment was not sustainable. In the case of Abdul Wahid v. Ghulam Mujaddad (1989 CLC 697), too, the tenant was given some adjournments for production of evidence. His evidence was ultimately closed and ejectment was ordered. It was held that since on the said date the tenant and his one witness was present, therefore, Rent Controller was bound to record the statement of tenant and testimony of his witness and then to decide the ejectment application on merits after recording his findings on the issues. The case was remanded to Rent Controller with direction to dispose of matter after giving an opportunity to tenant to produce whole of his evidence.
Up shot of the above discussion is that we do not see any merit in this petition, which is accordingly dismissed and leave refused.
(J.R.) Leave refused.
PLJ 2008 SC 1065
[Review Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
EHSANULLAH KHAN, EX-ASSISTANT DIRECTOR, FIA--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary Establishment & another--Respondents
C.R.P. No. 25 of 2005 in C.P.L. for A. No. 1902 of 2003, decided on 6.2.2008.
(On review from the judgment dated 17.3.2005 passed by this Court in C.P.L.A. No. 1902 of 2003)
Constitution of Pakistan, 1973--
----Art. 188--Supreme Court Rules, 1980, O. XXVI--Government Servants (Efficiency & Discipline) Rules, 1973, Rr. 3, 5(1)(iv), 4(i)(b)(ii) & 6-A--Dismissal from service--Dismissal of appeal by Supreme Court--Review application--Since the Authorized Officer had exonerated the petitioner of the charge, therefore, the earlier charge-sheet after de novo enquiry, on amended charge-sheet had lost its efficacy and thus could not have satisfied the requirement of R. 6-A of the Rules, 1973 because, if the Authority had to proceed against petitioner, then it was incumbent on the Authority to have served a fresh notice/charge-sheet on him and he should have been given opportunity of showing cause against the proposed action, as none could be condemned unheard in violation of the maxim, "Audi Alteram Partem"--Notification of major penalty of compulsory retirement, set aside. [Pp. 1071 & 1072] A & B
NLR 1996 Service 107;1987 SCMR 1562 and 1993 SCMR 122 ref.
Mr. Muhammad Munir Peracha, ASC for Petitioner.
Ms. Nahida Mehboob Elahi, DAG and Mr. Iftikhar Anjum, S.O. (Estt.) for Respondents.
Date of hearing: 6.2.2008.
Judgment
Abdul Hameed Dogar, C.J.--Through the instant petition, order dated 17.3.2005 passed by this Court in CPLA No. 1902 of 2003 is sought to be reviewed.
Facts of the case in brief are that the petitioner joined FIA as Inspector on 15.7.1976. He was promoted as Assistant Director on 13.10.1988. On 15.4.1997 he was placed under suspension and was served with a charge sheet on 17.5.1997. Mr. Zia-ud-Din, Deputy Secretary, Interior Division was appointed as an Inquiry Officer. His inquiry report was considered to be wanting in many respects by the authorized officer i.e. Secretary, Ministry of Interior, who ordered de novo inquiry. The petitioner was consequently served with an amended charge sheet and statement of allegations on 23.8.1997. Mr. Saad Sharif, the then director Bureau of Police Research and Development, Islamabad, was appointed as an Inquiry Officer. The petitioner submitted his reply to the charge sheet denying the allegations. Inquiry Officer after hearing the petitioner submitted his report on 1.12.1997 and found him guilty. Authorized Officer having considered and accepted findings of the Inquiry Officer, served the petitioner with a show-cause notice dated 3.12.1997 inquiring him to show-cause as to why the major penalty of dismissal from service may not be imposed on him. The petitioner denied the allegations and on his request, personal hearing was afforded to him by the Authorized Officer on 4.4.1998. The Authorized Officer, finding the explanation furnished by the petitioner, as satisfactory, exonerated him from all the charges and recommended for his re-instatement in service. However, the Authority, after having considered the record of the proceedings and being satisfied with the findings of the Inquiry Officer and not accepting the recommendations of the authorized Officer, in exercise of the powers under Rule 3 read with Rule 5(1)(iv) of the Government Servants (Efficiency & Discipline) Rules, 1973, (hereinafter referred to as the E&D Rules, 1973), imposed major penalty of compulsory retirement from service with immediate effect vide notification dated 18.7.1998, in terms of Rule 4(1)(b)(ii) of the E&D Rules, 1973. The petitioner preferred departmental appeal on 25.7.1998 and on failing to get any response, filed appeal before the Federal Service Tribunal. The FST upheld the order of award of major penalty vide its judgment dated 18.10.2002 which was assailed by the petitioner before this Court in Civil Appeal No. 1700 of 2002, and this Court vide its judgment dated 27.5.2003 set aside the Tribunal's aforesaid judgment and remanded the case for decision afresh within a period of two months. The FST vide its judgment dated 26.7.2003, again dismissed the petitioner's appeal which was assailed before this Court through CPLA No. 1902 of 2003, and was dismissed vide the judgment under review, hence this petition.
Learned counsel for the petitioner has submitted that the Authorized Officer while disapproving the report of the inquiry officer had exonerated the petitioner from all the charges and recommended for his reinstatement in service vide order dated 29.4.1998, hence, if the authority was to disagree with his findings or recommendations then it was incumbent on the authority to have served the petitioner with a notice within the purview of Rule 6-A of the E&D Rules, 1973. The learned FST observed that since the order of imposition of major penalty of compulsory retirement was passed by the Authority against the petitioner under Rule 5(1)(iv) of the E&D Rules, 1973 and not under Rule 6-A, therefore issuance of notice under Rule 6-A of the E&D Rules, 1973, was not necessary. He added that since under Rule 5(1)(iv) the case was to be sent to the authority only for confirmation of the major penalty and not otherwise and in petitioner's case the authorized officer had recommended for his exoneration, therefore, order passed by the authority could not have been presumed to be under Section 5(1)(iv) of the E&D Rules, 1973. He has further contended that, if at all, action was required to be taken under Section 6-A of the E&D Rules, 1973, as it was the case of the department before the FST, then issuance of show-cause notice was a must. He maintained that Authority can exercise jurisdiction only under Rule 6-A, as in case of disagreement Rule 5(1)(iv) does not envisage exercise of such authority. It is further his case that since the findings in the judgment under review are not in consonance with the law laid down by this Court in a number of cases, (i) Chief Director, Central Directorate of National Saving, Islamabad v. Rahat Ali Sherwani (NLR 1996 Service 107), (ii) Maqsood Ahmed Sh. v. Islamic Republic of Pakistan through Secretary, Establishment (1987 SCMR 1562) (iii) Muhammad Younus v. Secretary Ministry of communications (1993 SCMR 122), wherein it was held that if a case disposed of by the authorized officer under Rule 5(1)(iv) is intended to be reviewed by the Authority in exercise of the power under Rule 6-A, then no order adverse to the interest of the accused officer could be passed without affording him an opportunity of hearing. He submitted that this Court while deciding the CPLA vide the judgment under review too, proceeded on the premise that action against the petitioner was taken by the Authority under Rule 5(1)(iv), hence the impugned judgment may be reviewed and while allowing the petition/appeal impugned judgment passed by the Federal Service Tribunal as well as notification dated 18.7.1998 whereby major penalty of compulsory retirement was imposed on the petitioner by the Authority may be set-aside.
Ms. Nahida Mehboob Elahi, Deputy Attorney General, on the other hand, while controverting the contentions raised by the learned counsel for the petitioner, submitted that since action was taken against the petitioner under Rule 5(1)(iv) of the E&D Rules, 1973 and it was not under Section 6-A, as has been observed by the FST and upheld by this Court in the judgment under review, therefore, issuances of fresh show-cause notice before imposition of major penalty, by the Authority was not required. She, however, found great difficulty in answering the query as to whether the Authority in exercise of power under Section 5(1)(iv) was empowered or competent to pass order for imposition of major penalty of compulsory retirement, when the authorized officer had recommended for petitioner's exoneration and had not sent the case for imposition of major penalty.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case minutely, with their assistance.
Before dealing with the contentions of the learned counsel for the parties, it would be highly appropriate to go through the relevant observations, made in the judgment under review which read as follows:
"16. The above-mentioned shows that the Tribunal, while passing the impugned judgment, has dealt with in detail, all aspects of the matter. The Inquiry Officer dropped a large number of charges against the petitioner. This shows his impartiality. The factual aspects have been dealt with, by the Inquiry officer, the Authority and the Tribunal and the conclusions drawn are based on the evidence available on record and do not suffer from any mis-reading or non-reading of evidence or any legal infirmity. The Inquiry Officer had found him guilty as above and although the Authorized Officer had recommended the petitioner's exoneration but the Authority had agreed with the findings of the Inquiry Officer and had not agreed with the recommendations of the Authorized Officer and as such, there was no requirement of issuance of any fresh show-cause notice. The authority, competently and lawfully exercised its powers under Rule 5(1) (iv) of Government Servants (E&D) Rules, 1973. The Authority was within its right, either to agree with the Inquiry Officer or to accept the recommendations of the Authorized Officer. Therefore, no exception can be taken to its decision in this respect. The recommendation of petitioner's exoneration by the Authorized Officer was merely a recommendation to the authority and the said recommendation did not create any vested right in the petitioner to be exonerated and under the above said sub-rule (iv), the Authority can pass such orders as it may deem proper. The final decision was to be taken by the Authority. Recommendation by the Authorized Officer to drop charges, would not take away power of Authority to impose penalty. The order of the Authority having been passed after full consideration of findings of Inquiry Officer, was not open to objection." (underlining is ours)
"....The competent Authority having applied his mind imposed major penalty of compulsory retirement from service on the basis of charges proved against the appellant in exercise of powers vested upon him under Rule 6(A) of the Government Servants (E&D) Rules, 1973. There is nothing mala fide on the part of Authority."
The above position stands affirmed vide letter dated 2.10.1998 written by then Establishment Secretary to the Principal Secretary to Prime Minister, copy whereof has been placed before us by the learned counsel for the petitioner vide CMA No. 907 of 2006 which reads as under:
"14. The disciplinary case of Mr. Ehsanullah was processed under Rule 6-A of the Government Servants (E&D) Rules, 1973 and it was found that the indulgence of the appellant in speculative purchase of prize bonds and holding of assets' disproportionate to his known means of income were squarely established. It was, therefore, proposed to the Authority to consider imposition of a major penalty ofCompulsory Retirement' on Mr.
Ehsanullah. The Authority approved the same and notification for the
`Compulsory Retirement' of the officer as at Annex.J was accordingly issued by the Interior Division on 18th July 1998. This notification has already taken effect. The facts proved in the case afforded sufficient ground for imposition of the penalty which is considered justified. It is, therefore, proposed that the appeal of Mr. Ehsanullah may be rejected.
Sd/-
(Muhammad Afzal Kahut)
Establishment Secretary
Principal Secretary to P.M. (Mr. Muhammad Saeed Mehdi), IBD.
Estt.Divn. U.O.No. 8/57/98-D.3 dated 02.10.1998.
Hence, it stands confirmed that in petitioner's case Section 6-A of the E&D Rules was invoked and case of the petitioner in the judgment under review proceeded altogether on wrong premise that the authority acted under Section 5(1)(iv) of the E&D Rules, 1973. The underlined portion, from the judgment under review reproduced in para supra is explicit in this regard.
"5. Inquiry procedure: (1) The following procedure shall be observed when a Government servant is proceeded against under these rules:-
(i)
(ii)
(iii)
(iv) On receipt of the report of the Inquiry Officer or Inquiry Committee or, where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the authorized officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty he shall pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority along with the charge and statement of allegations served on the accused, the explanation of the accused, the findings of the Inquiry Officer or Inquiry Committee, if appointed, and his own recommendations regarding the penalty to be imposed. The authority shall pass such orders as it may deem proper"
6-A or was taken thereunder, then a notice was mandatory, it may be pointed out here that in the originally promulgated Rule 6-A, though the Authority while proceeding under the said Rule was not obliged to issue any show-cause notice to the accused, yet pursuant to observations made by this Court in the cases of (i) Chief Director, Central Directorate of National Saving, Islamabad v. Rahat Ali Sherwani (NLR 1996 Service 107), (ii) Maqsood Ahmed Sh. v. Islamic Republic of Pakistan through Secretary, Establishment (1987 SCMR 1562) (iii) Muhammad Younus v. Secretary Ministry of Communications (1993 SCMR 122), the said rule was amended and new sub-rule (2) was inserted therein vide SRO 74(1)/2001, dated 2.2.2001 which requires that no action under the said rule can be taken unless the authorized officer designated by the authority has informed the accused in writing of the grounds on which it is proposed to make the order and the accused has been given an opportunity to show-cause against the same, including an opportunity of personal hearing, if requested by him, particularly when the Authority contemplates to pass an order adverse to the interest of the accused. The amended Rule 6-A of the E&D Rules, 1973 for the sake of convenience and ready reference is also reproduced herein below:-
"6A. Revision.--(1) Subject to sub-rule(2), the authority may call for the record of any case pending before, or disposed of by the authorized officer and pass such order in relation thereto as it may deem fit;
(2) No order under sub-rule (1) shall be passed in respect of an accused unless the authorized officer to be designated by the authority has informed him in writing of the grounds on which it is proposed to make the order and has been given an opportunity of shown cause against it, including an opportunity of personal hearing if requested by the accused or is otherwise necessary in the interest of justice, in particular, when the authority contemplates to pass an order adverse to the interest of the accused."
No doubt, pursuant to order for denovo enquiry, the petitioner was served with an amended charge sheet alongwith statement of allegations, on 23.8.1989 which could have been taken in due compliance of the requirement under sub-rule (2) of Rule 6-A of the E&D Rules, if proceedings would have been carried out under Rule 5(1)(iv) of the E&D Rules, 1973, and authorized officer had recommended for imposition of penalty on the petitioner within the ambit of Rule 5(1)(iv), but since, in the instant case, the authorized officer had exonerated the petitioner of the charge, therefore, in our view, the charge sheet served earlier on him, had lost its efficacy and thus could not have satisfied the requirement of Rule 6-A of the E&D Rules, 1973, because if the Authority had to proceed against the petitioner under Rule 6-A then it was incumbent on the authority to have served a fresh notice/charge sheet on him and he, in all fairness, should have been given opportunity of showing cause against the proposed action, as none can be condemned unheard in violation of the maxim "audi alteram partem".
(J.R.) Petition allowed.
PLJ 2008 SC 1072
[Appellate Jurisdiction]
Present: Mohammad Moosa K. Leghari and Mian Hamid Farooq, JJ.
MUHAMMAD ASGHAR ALI and others--Appellants
versus
SECRETARY, FINANCE DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD and another--Repsondents
C.A. Nos. 1135 to 1147 and 1184 to 1189 of 2005, decided on 14.2.2008.
(On appeal against the judgment dated 6.2.2004 passed by Federal Service Tribunal, Islamabad, in Appeals Nos. 54, 55, 56, 59, 60, 61, 62, 64, 65, 89, 112, 188 & 474(R)/(C.S.)/2003)
Service Tribunals Act, 1973 (LXX of 1973)--
----S. 3--Constitution of Pakistan, 1973, Art. 212--Civil Service Regulations, C.S.R. 38(c)(1)--Fundamental Rules, 9(28)--Revised Leave Rules, 1980, Rr. 17 & 18--Personal allowance--Refusal by Federal Service Tribunal--Challenge to--Held: Though according to C.S.R 38(c)(1), personal allowance is to be treated as part of an officers substantive pay but according to F.R. 9(28) substantive pay means the pay other than special pay, personal pay or emoluments classed as pay--It is specifically provided in R. 17(4) & (5) and R. 18-A of the Revised Leave Rules, 1980, that for the purpose of payment in lieu of refused leave preparatory to retirement, only Senior Post Allowance will be included in leave pay so admissible--Meaning thereby that no other allowance would be included and computed for the purpose of payment of pay in lieu of L.P.R.--Appeals dismissed.
[P. 1076] A, B & C
Appellants in person (in C.A. Nos. 1135 of 1139, 1145 & 1184-1189/2005).
Nemo for Apellants (in C.A. Nos. 1140 to 1144, 1146 & 1147/2005).
Sardar Muhammad Ghazi, Dy. Attorney General, Mr. M.S. Khattak, AOR and Ch. Akhtar Ali, AOR for Respondents (in all cases).
Date of hearing: 14.2.2008.
Judgment
Mohammad Moosa K. Leghari, J.--Through these appeals, the appellants have assailed the consolidated judgment dated 06.02.2004, passed by Federal Service Tribunal, Islamabad. The appellants are retired Civil Servants. They were denied Personal Allowance as a reckonable emolument in the payment of difference of encashment of L.P.R. by the respondents. The relief prayed for by them was also declined by the Federal Service Tribunal. All these appeals contain similar facts and circumstances and, therefore, are being disposed of by this common judgment.
"FAQIR MUHAMMAD KHOKHAR, J.--After hearing the petitioners as well as the learned Deputy Attorney General for Pakistan, we grant leave to appeal to consider, inter alia as to:--
(i) Whether personal allowance drawn by the petitioners ought to have been treated as a part of their substantive pay for the purposes of leave encashment and pensionary benefits in the light of CSR-38 (c)(I), FR 9(28) and Rules 17-18-A and 32 of the Revised Leave Rules, 1980?
(ii) What is the effect and interpretation of Office Memorandum No. F.7(15)-R-13/88 (Pt) dated 1.2.1990 issued by the Government of Pakistan, Finance Division, (Regulation Wing)?
Since a short point is involved, the office is directed to set down these appeals for final hearing within a period of three months."
The appellants appeared in-person, while learned Deputy Attorney General argued on behalf of the respondents.
The appellants mainly contended that under the provisions of Civil Service Regulation 38(c)(1), Personal Allowance is to be treated for the purpose of calculating leave allowances and pensions as part of an Officer's Substantive Pay as such the appellants were entitled to the payment of Personal Allowance while calculating their L.P.R. In order to supplement their case, the appellants have placed reliance on the statement of a Section Officer of the Finance Division recorded by this Court in an order having been passed in Federation's Civil Petitions Nos. 350 to 399 etc. decided on 25.07.2002. They further contend that the appellants were discriminated as certain other retired Civil Servants were granted such relief by the respondent. Learned Deputy Attorney General, however, opposed the move, with a specific denial on instructions, to the plea of discrimination.
We have considered the arguments advanced before us, and examined the relevant provisions of rules.
It will be beneficial to reproduce herein below Civil Service Regulation 38(c)(1), Fundamental Rule 9(28) and relevant rules of Revised Leave Rules, 1980, as referred in the leave granting order:--
"Civil Service Regulations (C.S.R.): 38(c)(1). Personal allowance is treated, for the purposes of calculating leave allowances and pensions, as part of an officer substantive pay, but not for purposes of traveling allowance, unless it has been granted to protect from loss an officer, the pay of whose appointment has been changed.
Fundamental Rules, 9(28): Substantive pay means the pay other than special pay, personal pay or emoluments classed as pay by the Governor-General under Rule 9(21) (a) (iii), to which a Government servant is entitled on account of a post to which he has been appointed substantively or by reason of his substantive position in a cadre.
Revised Leave Rules, 1980, 17--Encashment of refused leave preparatory to retirement: (1) If in case of retirement on superannuation or voluntary retirement on completion of thirty years qualifying service a civil servant cannot, for reasons of public service, be granted leave preparatory to retirement duly applied for in sufficient time, he will in lieu thereof be granted lump-sum leave pay for the leave refused to him subject to a maximum of one hundred and eighty days leave on full pay.
(2) Such leave can be refused partly and sanctioned partly but the cash compensation shall be admissible for the actual period of such leave so refused not exceeding one hundred and eighty days.
(3) The payment of leave pay in lieu of such refused leave may be made to the civil servant either in lump-sum at the time of retirement or may, at his option, be drawn by him month-wise for the period of leave so refused.
(4) For the purpose of lump-sum payment in lieu of such leave, only the "Senior Post Allowance" will be included in "Leave pay" so admissible.
(emphasis supplied)
(5) In case a civil servant on leave preparatory to retirement dies before completing one hundred and eighty days of such leave, his family shall be entitled to lump-sum payment equal to the period falling short of one hundred and eighty days.
18-A Encashment of leave preparatory to retirement: (1) A civil servant may, fifteen months before the date of superannuation or thirty years qualifying service on or after the 1st July, 1983, at his option, be allowed to encash his leave preparatory to retirement if he undertakes in writing to perform duty in lieu of the whole period of three hundred and sixty five days or lesser period which is due and admissible. Provided that a civil servant who does not exercise the option within the specified period shall be deemed to have opted for encashment of LPR. This amendment shall be effective from the 5th March, 1990.
(2) In lieu of such leave, leave pay may be claimed at any time during that period at the rate of pay admissible at the time the leave pay is drawn for the actual period of such leave subject to a maximum of one hundred and eighty days.
(3) If at any time during such period leave is granted on account of ill health supported by medical certificate or for performance of Haj, the amount of cash compensation on account of leave pay shall be reduced by an amount equal to the leave pay for half the period of leave so granted, for example, if an employee who has opted for encashment of such leave, has taken sixty days leave, his cash compensation equal to thirty days leave shall be forfeited.
(4) The civil servant shall submit the option to the authority competent to sanction leave preparatory to retirement, who shall accept the option and issue formal sanction for the payment of cash compensation.
(5) For the purpose of payment in lieu of such leave, only the "Senior Post Allowance" will be included in "Leave Pay" so admissible, (emphasis supplied)
(a) the rate of pay shall be the rate admissible at the time the leave pay is drawn.
32.--Pay during leave: (1) Leave pay admissible during leave on full pay shall be the greater of:--
(a) The average monthly pay earned during the twelve complete months immediately preceding the month in which the leave begins; and
(b) the rate equal to the rate of pay drawn on the day immediately before the beginning of the leave.
(2) When leave on half pay is taken, the amounts, calculated under clauses (a) and (b) of sub-rule (1) shall be halved to determine the greater of the two rates.
(3) A civil servant shall be entitled to the leave pay at the revised rate of pay if a general revision in pay of civil servant takes place or and annual increment occurs during the period of leave of the civil servant."
It will be noted from perusal of the above provisions that though according to C.S.R. 38(c)(1) Personal Allowance is to be treated as part of an officer's Substantive Pay, but according to F.R. 9(28) "Substantive Pay" means the pay, other than Special Pay, Personal Pay or emoluments classed as pay.
Be that as it may, the service conditions of Civil Servants, with regard to the matters relating to leave, are to be governed by the Revised Leave Rules, 1980, notified for the said purpose, for the simple reason that, the rule, that general provisions should yield to specific provisions is a well recognized principle of law.
The plain reading of sub-rule (4) of Rule 17, and sub-rule (5) of Rule 18-A of the Revised Leave Rules, 1980, would clearly indicate that it is specifically provided therein that for the purpose of payment in lieu of refused leave preparatory to retirement, only Senior Post Allowance will be included in leave pay so admissible. Meaning thereby that no other allowance would be included and computed for the purpose of payment of pay in lieu of L.P.R. The learned Federal Service Tribunal has elaborately dealt with the matter and arrived at a right conclusion in this context by holding that for payment in lieu of leave, only Senior Post Allowance will be included in the leave pay so admissible.
as well as the representative of the Department. In result no other view could be taken in the matter to reverse the decision of Federal Service Tribunal. However, while disposing of these appeals, we would observe that keeping in view the fact that the appellants have served the respondents for pretty long time, the respondents shall sympathetically consider the prayer made by the appellants.
(J.R.) Order accordingly.
PLJ 2008 SC 1077
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ch. Ijaz Yousaf &
Mian Hamid Farooq, JJ.
BP PAKISTAN EXPLORATION AND PRODUCTION INC. through
its Attorney--Petitioner
versus
SHER ALI KHAWAJA and another--Respondents
Civil Petition No. 2679 of 2005, decided on 26.3.2008.
(On appeal from the judgment dated 8.8.2005 of the High Court of Sindh, Karachi passed in First Appeal No. 21 of 2004).
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 4 & 18--Constitution of Pakistan, 1973, Art. 185(2)(d)--Leave to appeal--Locus standi--Appeal against award of compensation to deprived land owners--Held: Beneficiary of the acquired land has no right and locus standi of file reference or appeal against award of compensation to the deprived land owners--Leave refused. [P. 1087] A
PLD 1987 SC 485; 1989 SCMR 812; 1991 SCMR 2193; 1992 SCMR 1245; PLD 1995 SC 418; 1996 SCMR 389; 2006 SCMR 402; 2007 CLC 1835 & 1992 SCMR 1245, referred.
Mr. Makhdoom Ali Khan, ASC with Mr. M.S. Khattak, AOR for Petitioner.
Mr. Wasim Sajjad, Sr. ASC with Mr. Mehr Khan Malik, AOR for L.Rs of Respondent No. 1.
Date of hearing: 25.2.2008.
Judgment
Mian Hamid Farooq, J.--BP Pakistan Exploration and Production, Inc. (formerly known as Union Texas Pakistan Inc.), petitioner, through the present petition seeks leave to appeal against the judgment and decree dated 8.8.2005, whereby, learned High Court of Sindh at Karachi accepted Respondent No. 1's appeal (First Appeal No.21/2004), enhanced the compensation and remanded the case to the learned District Judge Badin for limited assessment of the damages caused due to Acquisition qua the remaining land.
"Consequently, the appeal, in these circumstances is allowed by grant of compensation at the rate of Rs.200,000/- per acre in respect of land measuring 8.06 acres and further compensation in the sum of Rs.200,000/- per acre being damage due to severance in respect of land measuring 2.20 acres with compensation at the rate of 25% being compulsory acquisition charges, additional 15% sum under Section 23(2) of the Land Acquisition Act with 6% interest w.e.f. the date of acquisition till payment and 25% additional compensation under Section 28-A of the Land Acquisition Act less the amount already paid to the appellant.
For limited assessment of damages arising out of the acquisition injuriously affecting the remaining land of appellant measuring 13-14 acres and for compensation for the trees, the matter is remanded to the learned District Judge, Badin, for decision afresh."
Hence the present petition.
At the very outset, Wasim Sajjad, Senior ASC, representing the caveator, has raised a preliminary objection that the present petition for leave to appeal is not maintainable in law on the ground that the judgment and decree passed by the learned Additional District Judge, Badin was varied by the High Court and the value of the subject-matter exceeds Rs. 50,000/-, therefore, direct appeal under Article 185(2)(d), before this Court was competent, which remedy was not availed by the petitioner. He has added that in case present petition is allowed to be converted into appeal, it would be barred by time and there are no sufficient grounds for condonation of delay. Makhdoom Ali Khan, learned ASC, when confronted with the afore-noted objections, submitted that the High Court although modified the decree passed by the learned trial Court yet passed composite judgment and also remanded the case to the learned trial Court. He has added that as no appeal is competent against the remand order, therefore, the petition for leave to appeal is the only remedy available to the petitioner. He has relied upon Syed Qadar Dad and others v. Muhammad Afzal and others (PLD 1997 SC 859). He has next contended that the present petition can be converted into appeal by condoning delay caused in preferring the appeal for which there are sufficient reasons supported by the case law. He has further submitted that if two periods of limitation are provided for filing a particular lis or a plaintiff's cause of action falls under different articles of First Schedule of the Limitation Act such an ambiguity should be construed in favour of the petitioner/plaintiff. He has relied upon the cases of Kasturchand Okaji Marwadi v. Hari Govind Wagle (AIR 1934 Bombay 491), Mst. Bibi Khatoon and 7 others v. Abdul Jalil (PLD 1978 SC 213), Nathey Khan v. Government of West Pakistan (Now Punjab) (1980 SCMR 485), Habib Bank Limited v. Mussarat Ali Khan (PLD 1987 Karachi 86), Muhammad Jahangir, Proprietor Qadeer Brothers v. Executive Engineer and another (1999 MLD 788). His next contention is that under the facts and circumstances of the present case, notwithstanding the bar of limitation, the petition can be converted into appeal and decided on merits. He has relied upon Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others (1991 SCMR 2164), Hyderabad Development Authority through M.D. Civic Centre, Hyderabad v. Abdul Majeed and others (PLD 2002 SC 84), Chairman NWFP Forest Development Corporation and others v. Khurshid Anwar Khan and others (1992 SCMR 1202), Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315), Haji Muhammad Nawaz v. Hussain Shah (1990 SCMR 1621) and Abdul Majeed and another v. Ghulam Haider and others (2001 SCMR 1254). He while referring to letter dated 23.8.2005 addressed to the petitioner by Usmani & Usmani Law Firm (at pages 283 & 284 of paper book), has further stated that since the counsel advised the petitioner that a period of 60 days is available for filing a petition for leave to appeal before this Court, therefore, the present petition was filed under the mistaken advise of the learned counsel, which constitutes sufficient cause for condonation of delay. He has relied upon Nazar Muhammad and another v. Mst. Shahzada Begum and another (PLD 1974 SC 22), Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others (1985 SCMR 983) and Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584). Wasim Sajjad, learned ASC in reply has reiterated that in this case an appeal was competent and the present petition cannot be converted into appeal as it has become barred by time. He has relied upon the case of Water and Power Development Authority through Chief Engineer v. Saadullah Khan and others (1999 SCMR 319). He has additionally empathetically argued that the petitioner is the beneficiary of the acquired land, therefore, it is precluded from filing reference or appeal as under the law a beneficiary cannot file an appeal or reference. He has referred to Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (1991 SCMR 2193) and Commissioner of Income Tax/Wealth Tax v. Messrs Hameed Model Industries (Pvt) and another (2000 SCMR 648). Makhdoom Ali Khan, learned ASC in order to rebut the additional argument of Mr. Wasim Sajjad, has submitted that Section 18 of the Land Acquisition Act, 1894, stood amended by Land Acquisition (Sindh Amendment) Ordinance, 1992 (Ordinance IV of 1992) reported in (PLD 1993 Sindh Statue-2). In this regard he has referred the cases of Land Acquisition Collector, Abbottabad and others v. Muhammad Iqbal and others (1992 SCMR 1245) and Assistant Commissioner and Land Acquisition Collector, Badin through Additional Secretary (Revenue), Board of Revenue, Sindh v. Haji Abdul Shakoor through legal heirs and another (1996 CLC 2002).
We have heard the learned counsel for the parties, perused the case law cited at the bar and minutely examined the available record.
We are not inclined to dilate upon the question as to whether in the present case the petition for leave to appeal is competent or direct appeal under Article 185(2)(d) of Constitution should have been filed and other allied questions and we propose to decide this petition on the issue as to whether the petitioner, being beneficiaries for whose benefit and use the questioned land was acquired, has any right and locus standi, under the law, to file reference or appeal.
Admittedly, the questioned land was acquired for benefit and use of M/s Union Texas Pakistan, Inc., lately known as BP Pakistan Exploration and Production, Inc. (the petitioner) and thus it is beneficiary of the acquired land. Now the question arises as to whether a beneficiary of the acquired land has any right and locus standi to file a reference or appeal against the determination or/and enhancement of the compensation. Consistent view of this Court, till date, is that a beneficiary has no right to challenge the compensation awarded to the deprived owners of the acquired land by the competent Court. It appears appropriate to give resume of the case law on the subject which is to the following effect:--
(i) Pir Khan through his legal heirs v. Military Estate Officer, Abbottabad and others (PLD 1987 485).
This Court, in this case, has held that the award made by Land Acquisition Collector becomes final so far as a local authority or a company and that such authority or a company has neither right to ask for a reference under Section 18 of the Act nor a right to prefer an appeal against decision made upon a reference under Section 18. It appears appropriate to reproduce certain portions out of the said judgment which read as follows:--
"From a perusal of the above provisions, it is manifest that Section 50(2) expressly and in terms controls Section 18 and takes away the right from the local authority or company for whom the land is being acquired to demand a reference under Section 18. According to sub-section (2) of Section 50 a local authority or a company is only conferred the right to appear in proceedings before the Collector or the Court and adduce evidence for the purpose of determining the amount of compensation but a reference under Section 18 by them is barred (vide the proviso to sub-section (2) of the Section 50). It is, therefore, manifest that whatever may have been the object of the law, in view of plain language of Section 50(2), there is no alternative but to give effect to it. Hence, so far as a local authority or a company is concerned, the award made by the Land Acquisition Collector becomes final; it has neither the right to ask for a reference under Section 18, nor on a parity of reasoning, a right to prefer an appeal against a decision made upon a reference under Section 18 of the Act by the Court.
The above legal position was firmly established by the decisions of the Courts of this country see the Pabna Electric Supply Co. Ltd. v. Kaliprashad Bhattacharyya & another (PLD 1960 Dacca 461), Kasimbhai and another v. The Deputy Commissioner, Dadu and others (PLD 1968 Karachi 126) and WAPDA through its Chairman v. Aurangzeb Khan and others (PLD 1975 Peshawar 1), but the learned Judges in instant case have departed from this view on the ground that the situation has changed on account of this Court's judgment in H.M.Saya & Co. Karachi v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 SC 65). In this case, it was held that a party which was adversely affected by an order passed in a suit or proceeding was competent to file an appeal against it even if it had not been impleaded as a party therein.
We have considered the above reasoning of the High Court but are not persuaded to agree. In our view, the dictum in Saya's case (PLD 1969 SC 65) is not apposite in the facts and circumstances of the present case. Indeed this point was also discussed in WAPDA through its Chairman v. Aurangzeb Khan and others (PLD 1975 Peshawar 1) and it was observed:--
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Furthermore, neither the Central Government nor the Military Estate Officer can be deemed to be parties who have been adversely affected by the order of the Civil Court. If the Central Government or the Military Estate Officer could get the land in question more cheaply by private negotiations they can refused to accept the land at the price determined by the Court. They cannot have it both ways. Having chosen to set in motion the special powers given to the Government to acquire land under the Land Acquisition Act for public purposes they are to be confined to those provisions and cannot claim further rights and higher privileges than those provided for under the provisions of the said Act. Since under the provisions of the Act only a special and limited appeal is provided for against the award of the Court, which in the facts and circumstances of this case would be availed of by the Provincial Government or the Collector, no other party, including the appellants herein could avail of a right of appeal. As neither the Provincial Government nor the Collector chose to file an appeal, the appeal filed by the Central Government and the Military Estate Officer was indeed an appeal filed by "strangers", having no locus standi to file it".
(ii) Pakistan Steel Mills Corporation Limited and others v. Deputy Commissioner (East), Karachi and others (1989 SCMR 812).
In this case a Bench comprising of five Hon'ble Judges of this Court while relying upon the case of Pir Khan through his legal heirs v. Military Estate Officer, Abbottabad (ibid) took the similar view and dismissed the appeal filed by the beneficiaries of the acquired land. The relevant portions of the said judgment are reproduced below:--
"The High Court in all these matters has answered this question in the negative relying on this Court's judgment in Pir Khan v. Military Estate Officer Abbottabad (PLD 1987 SC 485), wherein it was held that an order of the Civil Court on a reference made to it by the Land Acquisition Collector is final and cannot be challenged except by a party which has expressly been conferred the right of appeal. Since no such right is conferred upon a local authority or a Company for whose benefit the land is being acquired by the statute such a party cannot prefer an appeal against the decision made by the Civil Court upon a reference made under Section 18 of the Act".
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"Insofar as the impugned judgments of the High Court in the above matters are founded on this Court's judgment in Pir Khan's case, no interference therewith is warranted".
(iii) Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence. Rawalpindi and others (1991 SCMR 2193).
In this case, a Bench comprising of seven Hon'ble Judges of this Court dismissed the appeals after coming to the conclusions that appeal filed by the Federal Government, its acquiring department or local authority, have no right to appeal to the High Court. Para-21 of the said judgment reads as follow:-
"21. In view of the discussion above, the appeals are accepted, the impugned judgments/orders of the High Court are set aside and appeals filed by the Federal Government, its departments or local authority for whose benefit the land was acquired are held to have been filed by persons having no right to appeal to the High Court and all such appeals in the High Court are hereby dismissed with no order as to costs".
(iv) Land Acquisition Collector, Abbottabad and others v. Muhammad Iqbal and others (1992 SCMR 1245).
This Court while relying upon the cases of Pir Khan and Iftikhar Hussain Shah and others (ibid), has held that the local authority or a company on whose behalf the land is acquired by the Collector has no right to file an appeal against a judgment arising out of the reference under Section 18 of the Act. It would be advantageous to reproduce paras-9, 10 and 11 of the said judgment:-
"9. It may be pointed out that because of the above proviso to sub-section (2) of Section 50 of the Act, it has been consistently held by this Court that the local authority or a company on whose behalf the land is acquired by the Collector, has no right to file an appeal against a judgment arising out of the reference under Section 18 of the Act. In this regard reference may be made to the case of Pir Khan through his Legal Heirs v. Military Estate Officers, Abbottabad and others (PLD 1987 SC 485), wherein after referring to the relevant case-law, the following proposition of law was propounded.
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In the above case, it has been held that though the land was acquired for the Central Government, but neither the Central Government nor the Military Estate Officers was competent to file an appeal under Section 54 of the Act but the special and limited right of appeal provided under the above provisions could be availed of by the Provincial Government or the Collector. If we were to agree with Mr. Abdul Hakeem Khan, it would mean that a judgment of a Referring Judge would be final as far as the authority or the company on whose behalf the land has been acquired, but the owner would have a right of an appeal, which would be against all canons of justice. The Collector in fact files an appeal as an agent for the authority or the company for whose benefit land is acquired.
The above view has been recently reiterated by a larger Bench of this Court, comprising 7 Judges, in the case of Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi (1991 SCMR 2193), in which one of us, namely, Shafiur Rahman, J., while rendering the judgment besides referring to the relevant case-law has succinctly, referred to the legislative history and the amendments brought about by the Provincial Legislatures in respect of appeal".
(v) Pakistan through Military Estate Officer Kharian Cantt. and another v. Hayee Khan through legal heirs and 5 others (PLD 1995 SC 418).
This Court while relying upon the cases of Pir Khan, Pakistan Steel Mills Corporation Limited (ibid) and Province of Punjab and others v. Naseer-ud-Din and others (1994 SCMR 2091) and on the basis of other judgments, referred to in the said judgment, has held that the right of appeal is a creation of statute and the appellant being beneficiary of land acquired had no right to challenge compensation given to the deprived owners of the land by the competent Court. It appears appropriate to reproduce para-7 of the judgment which reads as follow:--
"7. In the leave granting order reference has been made to the case of Government of Pakistan v. Maulvi Ahmad Saeed and another Civil Appeal No. 389 of 1986 decided on 8.10.1991. In said case it was held on the authorities of Pir Khan PLD 1987 SC 485, Behram Khan 1988 SCMR 1160 and Pakistan Steel Mills Corporation Limited 1989 SCMR 812 that the Federal/Central Government, its departments, the local authority, a company or an institution, which is beneficiary of land acquired, is not competent to file an appeal under Section 54 of Land Acquisition Act against the decision of the Court on a reference under Section 18 of the Act".
(vi) Federation of Pakistan and another v. Abdul Hayee Khan and others (1996 SCMR 1389).
This Court relying upon the cases of Pir Khan, Pakistan Steel Mills Corporation Limited, Province of Punjab etc., Iftikhar Hussain Shah etc. (ibid) and referring to other cases as well on the subject has held that Federal Government being beneficiary of the land acquired had no right to challenge compensation given to the deprived owners of land. Para-10 of the judgment reads as follow:--
"10. It would be necessary to consider the case of Province of Punjab and others v. Naseer-ud-din and others (1994 SCMR 2091) cited by learned counsel for the appellant where Punjab Amendments in the Land Acquisition Act were considered. In the said case it was held that the right of making a Reference as well as filing of an appeal in so far as the Provincial Government is concerned, was not affected by the amendments introduced in the Land Acquisition Act. There was no observation in the said case enabling the Federal Government to file appeal against decision of the Court under Section 18 of Land Acquisition Act".
(vii) Defence Department of Pakistan through Secretary Ministry of Defence v. Province of Punjab and another (2006 SCMR 402).
This Court relying upon the case of Pakistan v. Abdul Hayee (ibid), had held that a reference by the beneficiaries is not competent and no case for revisiting the view taken by a full Bench is made out. Para-2 of the judgment reads as follow:-
"2. Learned Deputy Attorney General contended that the Referee Court dismissed the reference without any legal justification. When his attention has been drawn towards the case of Pakistan v. Abdul Hayee Khan (PLD 1995 SC 418), wherein it has been held that appellants being beneficiaries of the land acquired, had no right to challenge the compensation given to the deprived owners of the land by the competent Court, he stated that the view so taken by the Court is required to be revisited. We are not inclined to agree with the contention of learned Deputy Attorney General for the reason that Full Bench of this Court on having taken into consideration all attending circumstances of the case and the law on the subject, had formed the opinion that a reference under Section 18 of the Land Acquisition Act, 1894 before the Referee Court by a beneficiary, is not competent, therefore, no case for revisiting the earlier view taken by a Full Bench of this Court in reported judgment, is made out.
Thus, for the foregoing reasons, petition is dismissed".
(viii) Messrs Union Taxas Pakistan Inc. v. Ahmed and others (2007 CLC 1835).
Learned single Bench of Sindh High Court after taking into account almost all the judgments, referred to above, except the cases of Pakistan through Military Estate Officer and another and Defence Department of Pakistan through Secretary Ministry of Defence (ibid) has followed the view taken by this Court in number of judgments. Interestingly the petitioner in the present case and in the case before High Court Karachi is the same viz M/s Union Texas Pakistan Inc. It appears appropriate to reproduce paras-10, 11 and 12 of the judgment:-
"10. After discussing the merits of the determination of compensation, this Court came across several decisions of the Honourable Supreme Court in which it is held that the local authority or the company for whose benefit land is acquired has no right or locus standi to question the determination of compensation by way of reference or appeal.
Since under the provisions of the Act only a special and limited appeal is provided for against the award of the Court, which in the facts and circumstances of this case would be availed of by the Provincial Government or the Collector, no other party, including the appellant herein could avail of the right of appeal. As neither the Provincial Government nor the Collect chose to file an appeal, the appeal filed by the Central Government and the Military Estate Officer was indeed an appeal filed by `stranger', having no locus standi to file it.
This view of the Honourable Supreme Court was affirmed by another judgment in the case of Land Acquisition Collector Abbottabad and others v. Muhammad Iqbal and others, reported in (1992 SCMR 1245). Similar views have been taken in the case of Behram Khan and 54 others v. Military Estate Officer and 2 2 others, reported in (1988 SCMR 1160), Pakistan Steel Mills Corporation Limited and others v. Deputy Commissioner (East), Karachi and others, reported in (1989 SCMR 812), ICA Pakistan Limited v. Salahuddin and others, reported in (1991 SCMR 15) and Iftikhar Hussain Shah and others v. Pakistan through Secretary, Ministry of Defence, Rawalpindi and others, reported in (1991 SCMR 2193). Therefore the appellant i.e. Union Texas Pakistan Inc., being the company for whose benefit land was acquired has no locus standi to file the present appeal and hence cannot question the validity of the impugned judgment on any ground. The appeal is therefore dismissed as not maintainable".
It is evident from the above narrative that the consistent view of this Court is that a beneficiary of the acquired land has no right and locus standi to file reference or appeal against award of compensation to the deprived land owners. In view of the enormous case law on the subject, we are not persuaded to deviate from the established principle enunciated in the said judgments and reaffirm that a beneficiary of the acquired land has no right and locus standi to either file reference against the award of compensation or appeal against a judgment arising out of the reference under Section 18 of the Act.
Now adverting to the amending Ordinance i.e. Land Acquisition (Sindh Amendment) Ordinance 1992, referred to by the learned counsel for the petitioner. This Ordinance was promulgated by the Governor of Sindh in exercise of his powers under Clause (1) of Article 128 of the Constitution of Islamic Republic of Pakistan. Said Article of the Constitution empowers the Governor of a Province to promulgate an Ordinance when the Provincial Assembly is not in session and he is satisfied that existing circumstances require immediate action. Sub-clause (2)(a) of Article 128 of the Constitution, inter alia, provides that every such Ordinance shall be laid before Provincial Assembly and shall stand repealed at the expiration of three months from its promulgation. It appears that the said Ordinance (IV of 1992) was not laid before the Provincial Assembly and thus it could not attain status of an Act. To the best of our research, we have not been able to find out any statute on the book known as Land Acquisition Sindh Amendment Act, 1992. The Ordinance (IV of 1992) stood repealed at the expiration of three months from its promulgation and thus lost its efficacy on 6th October, 1992, as the life of an Ordinance under the Constitution is only 90 days. It is true that Ordinance (IV of 1992) does find mention in the judgment reported as Assistant Commissioner and Land Acquisition Collector, Badin through Additional Secretary (Revenue), Board of Revenue, Sindh v. Haji Abdul Shakoor through legal heirs and another (1996 CLC 2002) relied upon by the learned counsel of the petitioner, however, it appears that the aspect of repeal of the Ordinance was not brought to the notice of the Court. It may be noted that the said case was decided on 18.10.1992, but it was reported four years thereafter. Thus, the reliance of the learned counsel on the amending Ordinance and the cases of Assistant Commissioner and Land Acquisition Collector (ibid) is of no avail to the petitioner.
In the above perspective, we are of the firm view that the petitioner being the beneficiary of the acquired land has no right and locus standi to file petition/appeal and we are persuaded to dismiss it on the said ground.
For the foregoing reasons and enormous case law on the subject, the present petition is incompetent and not maintainable under the law, thus, the same stands dismissed and leave to appeal is refused.
(M.S.A.) Leave refused.
PLJ 2008 SC 1088
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
Moulana ATTA-UR-REHMAN--Petitioner
versus
AL-HAJJ SARDAR UMAR FAROOQ etc.--Respondents
Civil Petitions No. 342 and 343 of 2008, decided on 15.5.2008.
(On appeal from the judgment dated 13.3.2008 of the Peshawar High Court, Peshawar passed in Writ Petitions No. 236 and 254 of 2008).
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 39--Constitution of Pakistan, 1973, Art. 185(3)--Leave to appeal--Re-checking/Recount of votes--Petitioner was declared-returned candidate in unofficial result--Respondent filed an application for rechecking/recount of voter--Application was allowed--Challenged through writ petition--Recount was stayed--Assailed--After having signed the above form--Returning officer had become functus-officio--Withholding of consolidated statement of result by him was not justified--The proceeding carried out subsequently were corum-non-judice and void ab initio. [P. 1096] A
1997 CLC 1092, PLD 2006 Lah. 29, 1985 SCMR 729, 2007 SCMR 729, 2007 SCMR 13, 2007 SCMR 818, PLD 2004 SC 600, PLD 1958 SC 104, considered.
Audi Alteram Partem--
----Violation of--Order of re-count was passed by the returning officer in violation of the principle of "Audi Alterum Partem"--Held: No order can be passed at the back of a party, particularly against a person who may be affected by such an order or which deprives of his vested right or interest--Petitions allowed. [P. 1097] B
Principle of Justice--
----Maxim--Audi alteram partem is always deemed to be embedded in every statute even there is no specific or express provision containing it. [P. 1097] C
Mr. Abdul Hafeez Pirzada, Sr. ASC Mr. Kamran Murtaza, ASC, Qari Abdul Rasheed, ASC and Ch. Muhammad Akram, AOR for Petitioner.
Hafiz S.A. Rehman, Sr. ASC and Mr. Mehr Khan Malik, AOR for Respondent No. 1.
Sardar M. Latif Khan Khosa, ASC and Ch. Akhtar Ali, AOR for Respondent No. 2.
Mr. Wasim Sajjad, Sr. ASC, Mr. Abdul Latif Yousafzai, ASC and Mr. Arshad Ali Ch., AOR for Respondent No. 3
Malik Muhammad Qayyum, Attorney General for Pakistan.
Date of Hearing: 15.5.2008.
Judgment
Abdul Hameed Dogar, CJ.--These two petitions for leave to appeal filed by the petitioner Maulana Atta-ur-Rehman are directed against judgment dated 13.3.2008 passed by learned Division Bench of Peshawar High Court, Peshawar in Writ Petitions No. 236 & 254 of 2008.
No. 3 Habibullah Khan Kundi filed Writ Petition No. 254 of 2008 before the learned High Court against the order dated 27.2.2008 passed by the Returning Officer whereby the recounting of votes was stopped. Both the writ petitions were heard and disposed of vide the impugned judgment. The writ petition filed by petitioner was dismissed while that of Respondent No. 3 was allowed. The order of the Returning Officer dated 27.2.2008 was set aside and the District Returning Officer was directed to complete the process of recounting and consolidation of results and submit the same to the Election Commission of Pakistan.
Learned counsel for the petitioner contended that Presiding Officers had prepared Forms XIV on 18.2.2008 which were sent to the Returning Officer and on the basis thereof the petitioner was unofficially declared as returned candidate, whereas the Returning Officer had prepared Form XVI on 20.2.2008 but due to the filing of applications for recount by Respondents No. 2 and 3, the same were not transmitted to the Election Commission. It is contended that once the results, pursuant to the statements of counts submitted by the Presiding Officers to the Returning Officer were consolidated as per Form XVI, the Returning Officer had become functus officio and had thus no jurisdiction to. order recount/rechecking. In support, he relied upon the case reported as Choudhary Perwaiz Akhtar v. DRO (PLD 2006 Lah. 29) wherein, it has been held that Returning Officer, after consolidating the result for its onward transmission had become functus officio. He further contended that the order of recount passed by Returning Officer was in violation of the principles of natural justice as the same was passed ex parte at the back of petitioner without providing him opportunity of hearing, as such the same is liable to be declared as null and void. According to him, petitioner was declared as returned candidate and the same could not have been undone, particularly without notice to him. He further contended that the conditions specified in Section 39 of the Representation of the People Act, 1976 (hereinafter referred to as `the Act of 1976') were not fulfilled. In support, he placed reliance on Kanwar Ijaz Ali v. Irshad Ali and 2 others (PLD 1986 SC 483) wherein it was held that recount could only be ordered if conditions laid down in that behalf were fulfilled and Returning Officer was "satisfied" that request was "reasonable". It was also held that vague allegations not containing adequate statement of material facts cannot be the grounds for recount, which cannot be granted as a matter of right but only on basis of evidence to the effect that there are good grounds for believing that there has been a mistake in the counting of votes. Learned counsel for the petitioner further contended that the application filed on behalf of Respondent No. 3 Habibullah Khan Kundi was not signed by him, rather the same was signed by his counsel who had also signed the affidavit. According to him, since provisions of Order VI, Rule 14 of the Code of Civil Procedure, 1908 were not complied with, therefore, application for recount was not maintainable and it could not be taken into consideration. He contended that even the application filed by Respondent No. 2 Engineer Dawar Khan Kundi was frivolous as it was against facts and circumstances. Learned counsel for the petitioner also contended that neither any complaint nor FIR was lodged during the process of election, therefore, the order of recount passed by Returning Officer was mala fide and arbitrary. He argued that learned High Court has erred in maintaining the same vide the impugned judgment. It is further his case that after consolidation of result the only remedy available to the respondents was to file an election petition under Section 52 of the Act of 1976. In support, he relied upon Mehdi Abbas Khan v. Rana Muhammad Qasim Noon (2007 CLC 1330) wherein it was held that entire exercise by the Returning Officer was liable to be struck down as after the preparation of consolidated result, the Returning Officer or even the Election Commission of Pakistan were left with no authority to reopen the matter at all and further in absence of any express direction by the Election Commission of Pakistan in terms of Section 39(6)(b) of the Act of 1976, such question could only be determined by way of filing of election petition in terms of Article 225 of the Constitution as well as Section 52 of the Act of 1976. He further relied upon the cases reported as Bashir Ahmed Bhanbhan v. Shaukat Ali Rajpur (PLD 2004 SC 579), Malik Umar Aslam v. Sumera Malik (PLD 2007 SC 362), Sardar Zada Zafar Abbas and others v. Syed Hasan Murtaza and others (PLD 2005 SC 600), Ch. Muhammad Ashraf v. Rana Tariq Javed (2007 SCMR 34). He lastly contended that due to illegal act of the Returning Officer the constituency has remained unrepresented.
Sardar Muhammad Latif Khan Khosa, learned counsel for Respondent No. 2 Engineer Dawar Khan Kundi contended that out of total 257 polling stations, result of only 22 polling stations was signed by the polling agents. He contended that at the time of recount, many polling bags were found torn and ballot papers double stamped and ripped, as such no sanctity/credence could be given to the recount of votes. He further contended that no candidate can be declared as a returned candidate after the destruction of, or interference with evidence. According to him, no consolidation had taken place as it was observed by the Returning Officer in his order dated 20.2.2008 that from XVI had been withheld on account of filing of applications for recount. He, therefore, prayed that direction may be given for a re-poll in the constituency to ensure return of a candidate who truly represents the wishes of the voters of the constituency.
Mr. Wasim Sajjad, learned counsel for Respondent No. 3 has submitted that no consolidation had taken place on 20.2.2008. However, according to unofficial result announced on radio/television on the basis of preliminary result, petitioner was declared as returned candidate. On this, applications were moved for recount, firstly by Respondent No. 2 Engineer Dawar Khan and secondly on behalf of Respondent No. 3 Habibullah Khan Kundi, which were allowed by the Returning Officer on 21.2.2008 and recount was directed to be held on 23.2.2008. Learned counsel vehemently contended that the said order was not challenged, rather petitioner participated in the process of recount. However, after four days i.e. on 27.2.2008 when recount had been held in 181 polling stations, petitioner moved application showing no confidence and requested that the process of recount be stopped but could not succeed. Thereafter, he filed writ petition before learned High Court in which stay was granted on 28.2.2008, but ultimately the petition was dismissed on 13.3.2008. According to him, the plea of the petitioner that he was declared successful in the unofficial result was taken, not before the learned High Court but before this Court for the first time, therefore, the same is not sustainable in law. He contended that notices of recount were issued by the Returning Officer on 15.3.2008 and these notices also appeared in the press. He further submitted that there is an application on record filed by the petitioner Moulana Atta-ur-Rehman to the Chief Election Commissioner in which he had admitted that he came to know about the recount on 18.3.2008. He also referred to the report of District Returning Officer dated 20.3.2008 wherein it is clearly mentioned that notices were issued to the contesting candidates. On the said date, the representatives/authorized agents of some of the contesting candidates, except those of Maulana Atta-ur-Rahman and Engineer Dawar Khan Kundi were present. Some of the supporters of the above two candidates were also present who had informed that the said two candidates were not served with the notices. They were asked by the Returning Officer to enter into the Courtroom to observe the proceedings of recount as agents or leave the Courtroom, so that recount could proceed peacefully. Learned counsel contended that this report also shows that the petitioner had the knowledge of recount. He also contended that the news regarding recount and the proceedings before this Court also appeared in the local newspapers on 17.3.2008 and 19.3.2008 which shows that the petitioner had knowledge about the recount but he was avoiding to participate in the process for mala fide reason and obvious consequences of the recount. He further submitted that even Form No. XVI was not sent to the Election Commission, as such question of filling Form No. XVII did not arise and the said documents were never produced before the High Court. He has further contended that judgment in the case of Mehdi Abbas (supra) relied by the learned counsel for the petitioner is distinguishable, as in that case Form XVII had been prepared by the Returning Officer and sent to the Election Commission, but then it was revised by the Returning Officer on the direction of the Election Commission due to some error in the count. Recount was done and the result was changed in that case. Moreover, the said judgment was set aside by this Court vide order dated 19.6.2007 passed in Civil Appeal No. 1122 of 2007 (Rana Muhammad Qasim Noon v. Mehdi Abbas Khan) and it was held that consolidated result, prepared and issued by the Returning Officer on 12.10.2002 was a legal and valid result, as such the petitioner was declared successful. He has placed reliance upon the case reported as Abdul Haque Indhar v. Province of Sindh (2000 SCMR 907). He also relied on the case of Commissioner of Income Tax v. M/s. Media Network and others (PLD 2006 SC 787) wherein it was held that depending upon the facts and circumstances of each case, there is no mandatory requirement in every case that the other side must be given a notice before preliminary steps are taken. However, it is not possible to lay down an absolute rule of universal application governing all situations as to the exclusion or otherwise of the audi alteram partem rule in the course of preliminary inquiries or investigations.
Malik Muhammad Qayyum, learned Attorney General for Pakistan has contended that order of recount has been passed without notice of hearing and the conditions laid down in Section 39 of the Act of 1976 have not been complied with in letter and spirit. He further submitted that it has also been admitted by Respondent No. 2 in his application for rechecking/recount of ballot papers/votes that consolidation proceedings were carried out by the Returning Officer. He then referred to Para 6 of the Concise Statement which shows that consolidation proceedings had taken place and contended that if there was no consolidation, then there would be no recount. He added that Section 39 of the Act of 1976 was irrelevant in this case, as the question was whether consolidation was carried out or not? He further added that grievance of Respondent No. 3 was that consolidation was not in accordance with law but was not that consolidation had not been done. He further submitted that after having consolidated the results, the Returning Officer had no jurisdiction to order recount as he had become functus officio. He further contended that it was not the case of the Respondent No. 3 before the Returning Officer that the conditions mentioned in Section 39 of the Act of 1976 for the order of recount had not been complied with. He added that Form No. XIV in pursuance whereof consolidation Form No. XVI was prepared had not been challenged by anybody. He referred to the case of Ghulam Qadir v. D&SJ (2001 SCMR 237) wherein it has been held that recount of ballot papers can only be ordered under Section 39 of the Act of 1976 if the conditions laid down therein are fulfilled and Returning Officer is satisfied that the request is reasonable. He also referred to the case of Syed Saeed Hassan v. Pyar Ali (PLD 1976 SC 06 at page 30) and highlighted the following considerations:--
"Satisfaction" is by no means a term of art and appears to have been used in its ordinary dictionary meanings. Further "satisfaction" is the existence of a state of mental persuasion much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived at in compliance with the prescribed statutory provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well-settled judicial principles and is a firm state of mind admitting of no doubt or indecision or oscillation. To be "satisfied" with a state of things is to be honestly convinced about it in one's own mind. According to Black's Law Dictionary apart from the "legal satisfaction" which is a term of art and connotes discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince. "Satisfactory evidence" has been explained as sufficient evidence meaning an amount of proof which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. In Corpus Juris Secundum, word "satisfy" is held to be synonymous with, "convince beyond a reasonable doubt" and "satisfaction" has been explained as a state of mind, which connotes a sense of certainty, and conviction or release from suspense, doubt or uncertainty. According to the Oxford English Dictionary "to satisfy" means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince. "Entitlement" according to Oxford English Dictionary refers to the determination of a person's right to a certain position, office or status based on the correct assessment of his claims in the light of the legal requirements and prescribed qualifications. According to the Stroud's English Dictionary, the expression "entitled to" used in relation to property has been described as most comprehensive and under it all kinds of property will pass in which the person spoken of has any title at law or in equity. The word "entitled" like "vested", prima facie, refers to the right, and not to the possession. According to the Oxford `English Dictionary, word "entitle" has been used in the sense of furnishing with a title or giving a rightful claim to possession or designation etc. According to Black's Law Dictionary "to entitle" in its usual sense is to give a right or title. The word "reasonable" has been interpreted by this Court in the case of Ellahi Cotton Ltd. v. Federation of Pakistan (PLD 1997 SC 582) as a relative generic term difficult of adequate definition. It, inter alia, connotes agreeable to reason; comfortable to reason; having the faculty of reason; rational; thinking, speaking, or acting rationally; or according to the dictates of reason; sensible; just; proper and equitable or to act within the constitutional bounds."
He also placed reliance on the cases of Haji Muhammad Asghar v. Malik Shah Muhammad Anwar (PLD 1986 SC 542), Ch. M. Din v. Abdul Qayyum (PLD 1987 SCMR 324), S. Masroor Ahsan v. Syed Ali Ashraf Shah (1994 MLD 704) and Farrukh Hussain Khan Daha v. Election Commission (PLD 2006 Lah. 22).
In rebuttal, Mr. Abdul Hafeez Pirzada adopted the arguments of Malik Muhammad Qayyum and submitted that order of recount is void ab initio on the grounds of irregularity, irrationality, principle of reasonableness, violation of procedural formalities/natural justice and deprivation of legitimate expectations. He added that not a single polling station has been pointed out where any illegality is committed so as to justify recount.
We have heard Mr. Abdul Hafeez Pirzada, learned Sr.ASC for the petitioner, Mr.Waseem Sajjad, learned Sr.ASC for Respondent No. 3, Sardar M.Latif Khan Khosa, learned ASC for Respondent No. 2 and learned Attorney General for Pakistan at length and have also gone through the record and proceedings of the case in minute particulars.
The petitioner was declared as returned candidate in the unofficial result announced by Election Commission, which is established from the applications filed by Respondents No. 2 and 3 before the Returning Officer and the order of re-checking/recount passed thereon. On perusal of record, we find that Forms XIV prepared by the respective Presiding Officers on the basis of the counting of votes are in order and no one has raised any objection qua them. Further, Form XVI (consolidation statement of the count of the result) based on Forms XIV prepared by Presiding Officers was duly signed by the Returning Officer on 20.2.2008. Clearly, after having signed the above form, the learned Returning Officer had become functus officio and the withholding of consolidated statement of result by him was not justified on any ground, to say the least that the respondents had filed applications for recount. The proceedings carried out subsequently were coram non judice and void ab initio. In support of the above proposition, reference is made to Ghani-ur-Rehman v. Pir Haider Ali Shah (1997 CLC 1092) wherein it was held that the order of recount of votes of entire constituency passed by the Election Commission after gazette notification of the successful candidate was void ab initio, without lawful authority and of no legal effect and, therefore, the same was set aside. In Ch. Perwaiz Akhtar v. District Returning Officer (PLD 2006 Lahore 29) it was held that Returning Officer, after consolidating the result for its onward transmission becomes functus officio. In Emmanual Masih v. The Punjab Local Councils Election Authority and others (1985 SCMR 729) it was held that Election Authority is given extensive power to ensure impartiality, honesty and fairness while the elections were being conducted, but it becomes functus officio after the elections are over, and the validity of the elections can be challenged by aggrieved person only through election petition. In the same string are the cases reported as Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729), Punjab Worker's Welfare Board, Government of Punjab and Human Resources Department, Lahore v. Mehr Din (2007 SCMR 13), Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami (2007 SCMR 818) and All Pakistan Newspapers Society v. Federation of Pakistan and others (PLD 2004 SC 600). The learned High Court has not appreciated the law laid down in the above reported cases. It is well settled that when the basic order is without lawful authority and void ab initio, then the entire superstructure raised thereon falls to the ground automatically as held in Yousaf Ali v. Muhammad Aslam Zia (PLD 1958 SC 104). Reference by the learned counsel for the Respondent No. 3 to the case of Mehdi Abbas (supra) is of no avail, in that, it was not a case of recount, but Form XVII was revised by the Returning Officer on the direction of the Election Commission due to some error in the count.
We also find that the order of recount was passed by the learned Returning Officer in violation of the principle of audi alteram partem, inasmuch as he did not issue any notice to the petitioner and provide him any opportunity of healing before passing the order of recount. The fact that the petitioner had the knowledge of the process of recount as some of his supporters were present outside the Courtroom of the Returning Officer has no bearing on the issue, which is that the petitioner was not heard on 20.2.2008 when the result was withheld or on 21.2.2008 when rechecking/recount was ordered. Thus, on this score too, the order of the learned Returning Officer is not sustainable in law. It is well settled that no order can be passed at the back of a party, particularly against a person who may be affected by such an order or which deprives him of his vested right or interest. In this behalf, reference may be made to the case of Nawab Khan v. Qamar-ud-Din (1999 SCMR 299) wherein it was held that ex-parte proceedings of recounting the votes behind the back of successful candidate (whose success had been duly notified) were not justified. The contention that no notice was required to be issued before passing the order of recount cannot be accepted. The principle of natural justice enshrined in maxim "audi alteram partem" is always deemed to be embedded in every statute even if there is no specific or express provision containing it.
In view of above, both the petitions are converted into appeal and are allowed. The impugned judgment dated 13.3.2008 of the Peshawar High Court is set aside. Consequently, the order dated 21.2.2008 passed by Returning Officer, NA-25 Tank-cum D.I.Khan for rechecking/recount of ballot papers, including the proceedings of rechecking/recount are also set aside and the Returning Officer is directed to transmit the consolidated statement of result (Form XVI dated 20.2.2008) to the Election Commission of Pakistan for formal announcement of result of election of the above constituency accordingly.
(M.S.A.) Petitions allowed.
PLJ 2008 SC 1098
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan & Syed Zawwar Hussain Jafferi, JJ.
CH. MUHAMMAD ARIF HUSSAIN--Petitioner
versus
RAO SIKANDAR IQBAL and 10 others--Respondents
Civil Petition No. 1 of 2008, decided on 10.1.2008.
(On appeal from the judgment dated 26.12.2007 passed by Lahore High Court, Lahore, in Writ Petition No. 12011/2007).
Constitution of Pakistan, 1973--
----Arts. 199 & 225--Representation of People Act, 1976, S. 99(cc)--Question of qualification and disqualification to contest election--Qualification of graduate--Determination--Distinction between Article 225 and Article 199 of the Constitution--Power of election tribunal u/Art. 225 confined to election dispute--Whereas Art. 199 of the Constitution is not as such controlled by Art. 225 of the Constitution in all matters of election--High Court in exercise of its constitutional jurisdiction suitable cases may correct a legal error, defect or disability and has much wider power to that of tribunal constituted under Art. 225 of the Constitution--High Court during the process of scrutiny of nomination papers in a case in which disqualification of a person is floating on the surface of record is not objectionable--Non-interference of High Court in such a case in its constitutional jurisdiction, would amount to allow a person not qualified of a person in floating on the surface of record is not objectionable--Non-interfernece of High Court in such a case in its constitutional jurisdiction, would amount to allow a person not qualified to be elected and disturb the whole process Art. 225 provides that no election to parliament or provincial assembly can be called in question except through election petition--In exceptional cases High Court may u/Art. 199, interfere the uphold constitutional, mandate--Interference by High Court against the order of acceptance of nomination papers would not be in conflict of Art. 225 of Constitution--Order passed by election authorities beyond the scope of law are not immune from--Correction by High Court--Petition dismissed. [Pp. 1101, 1102 & 1103] B, C, D & E
Representation of the People Act, 1976 (LXXXV of 1976)--
----S. 99(cc)--Constitution of Pakistan, 1973, Art. 225--Disqualification to contest election--Jurisdiction--Returning officer is scrutiny of nomination papers and election tribunal in appeal against rejection of nomination papers can go into all questions of qualification and disqualification of a person relating to his candidature in summary proceedings and in continuation thereto, High Court also in its constitutional jurisdiction can entertain the question of rejection or acceptance of nomination papers in the cases in which disqualification of a person to contest election is apparent and can be decided without any factual inquiry. [P. 1101] A
Kh. Saeed-uz-Zafar, ASC with Mr. Akhtar Ali Chaudhry, AOR for Petitioner.
Mr. Munir Peracha, ASC with Ch. Muhammad Akram, AOR for Respondents.
Date of hearing: 10.1.2008.
Judgment
Muhammad Nawaz Abbasi, J.--This petition has been directed against the judgment dated 26.12.2007 passed by Lahore High Court, Lahore, in Writ Petition No. 12011 of 2007, whereby the petitioner has been declared not qualified to contest election and become member of Parliament.
The facts of the case, in small compass, are that petitioner filed nomination papers to contest the election for the seat of National Assembly from NA-144, Okara-II in the General Elections 2008. The Respondent No. 1 being his opposing candidate raised objection to his candidature that he being not a graduate is not qualified to contest the election and become Member of the Parliament. The Returning Officer having summoned the record of Board of Intermediate & Secondary Education, Lahore as well as the University of Punjab for necessary verification and having found that intermediate certificate in possession of the petitioner was fake, rejected his nomination papers. In appeal filed by the petitioner before the election Tribunal constituted under the Representation of People Act, 1976, he claimed to have passed intermediate examination from Board of Intermediate & Secondary Education, Larkana (Government Degree College Jackobabad) in the year 1999 and produced certificate of Larkana Board, on the basis of which the Tribunal, declared him qualified to contest the election. The respondent being aggrieved of the order of Election Tribunal filed a Constitution petition in Lahore High Court, which was allowed vide impugned judgment, therefore, the petitioner has filed the present petition before this Court.
Learned counsel for the petitioner has assailed the judgment of High Court mainly on the ground that this is consistent policy of law laid down by the superior Courts that the Constitutional jurisdiction of the High Court under Article 199 of the Constitution is not exercised in the cases of acceptance of nomination papers such as in the cases of rejection of nomination papers, in which a Constitutional right of a person to contest the elections is involved and submitted that interference in the case of acceptance of nomination papers in writ petition would amount to exclude a person from the election at an intermediate stage without availing the normal remedy of election petition provided under the law. The learned counsel placing reliance on Ghulam Mustafa Jatoi Vs. Additional District and Sessions Judge (1994 SCMR 1299), Nazir Ahmed Vs. Chief Election Commissioner (PLD 2002 SC 184) and Election Commission of Pakistan Vs. Javaid Hashmi (PLD 1989 SC 396) has contended that the scope of interference in such cases in the constitutional jurisdiction is very limited. The next contention raised by the learned counsel in support of this petition was that notwithstanding the true character of intermediate certificate and the question whether the petitioner passed secondary education examination from Board of Intermediate & Secondary Education, Lahore in the year 1979 or from Board of Intermediate & Secondary Education, Larkana in the year 1999, the genuineness of BA result card issued to the petitioner by the University of Punjab was not as such questionable, therefore, the objection would be of no significance and petitioner would be qualified to contest the election. Learned counsel, however, has conceded that in consequence to the order passed by the Returning Officer, the University of Punjab has cancelled BA result of the petitioner which was challenged by him before the Lahore High Court, Lahore in constitutional jurisdiction and matter was subjudice before the High Court. Learned counsel also conceded that in reply to the objection raised by the respondent in respect of the qualification of the petitioner before the Returning Officer, he did not take the plea of passing the intermediate examination in the year 1999 from Board of Intermediate & Secondary Education, Larkana rather this plea was raised by him for the first time in appeal before the election Tribunal. He has also not been able to controvert the fake character of intermediate certificate of the Board of Intermediate & Secondary Education, Lahore produced by the petitioner before the Returning Officer, which as per record of Secondary Board, was not found to have been issued against the Roll No. mentioned therein.
The petitioner appeared in BA annual examination held in March, 2007, and he having been declared successful, was issued graduate certificate but subsequently on revising the result was declared not eligible and thus without being graduate, would not be eligible to contest the election. Section 99(cc) of the Representation of People Act, 1976 provides as under--
"he is at least a graduate, possesses a bachelor's degree in any discipline or any degree recognized as equivalent thereto by the University Grants Commission under the University Commission Act, 1974 (XXIII of 1974), or any other law for the time being in force;]"
The cancellation of BA result of the petitioner under challenge in a Constitution petition in the High Court and pending decision of the question relating to the eligibility of the petitioner to appear in BA examination, the High Court or this Court in the proceedings arising out of the order of the Returning Officer, cannot go into the question of genuineness or otherwise of the intermediate certificate and eligibility of the petitioner to appear in BA examination or declare him graduate on the basis of earlier announcement of his result by the University of Punjab. Learned counsel for the petitioner has vehemently argued that the High Court in its constitutional jurisdiction, could not go into the question relating to the genuineness or otherwise of the certificate of the Board of Intermediate & Secondary Education or the BA degree issued to him by the University of Punjab rather in such controversial question of fact, the election petition is the proper remedy provided under Article 225 of the Constitution.
This is settled law that the Returning Officer in the scrutiny of nomination papers and Election Tribunal in appeal against the rejection of nomination papers can go into all questions of qualification and disqualification of a person relating to his candidature in the summary proceedings and in continuation thereto, the High Court also in its constitutional jurisdiction can entertain the question of rejection or acceptance of nomination papers in the cases in which the disqualification of a person to contest the election, is apparent and can be decided without any factual inquiry. In the present case, the petitioner on the basis of his intermediate certificate allegedly issued to him by the Board of Intermediate and Secondary Education, Lahore, appeared in BA examination of the University of Punjab and the University by virtue of its rules, having gone into the question of eligibility of the petitioner to appear in BA examination at a subsequent stage, revised his result, therefore, the contention of the learned counsel that Election Tribunal under Article 225 of the Constitution, has exclusive jurisdiction to adjudicate the dispute arising out of election process, has no substance. This is correct that in the normal circumstances, the election dispute is challengeable only by an election petition on completion of election process and filing of writ petition at an intermediate stage, may not be justified but there is distinction between Articles 225 and Article 199 of the Constitution. The power of Election Tribunal constituted under Article 225 is confined to the extent of election disputes which may also include qualification and disqualification of a candidate whereas Article 199 of the Constitution is not as such controlled by Article 225 of the Constitution in all matters at all stages of election rather the High Court in exercise of its constitutional jurisdiction may in suitable cases, exercise all powers to correct a legal error, defect or disability and has much wider power to that of the power of the Tribunal constituted under Article 225 of the Constitution of Islamic Republic of Pakistan. There is no cavil to the proposition that to avoid multiplicity of litigation and conflict of opinion, High Court may not interfere in the matters arising out of election dispute falling within the scope of Article 225 of the Constitution but nevertheless the jurisdiction of High Court under Article 199 is not ousted for the mere reason that the matter can be brought before the Election Tribunal at an appropriate stage. There is no departure to the rule that there is limited scope of interference of the High Court under Article 199 in an election matter at an intermediate stage, which can be decided by the Election Tribunal but this rule, as such, may not be applicable to be pressed into service to permit a person to enter in the process of election who does not fulfill requisite qualification, therefore, the interference of the High Court during the process of scrutiny of nomination papers in a case in which disqualification of a person is floating on the surface of record is not objectionable instead non-interference of High Court in such a case in its Constitutional jurisdiction, would amount to allow a person who is not qualified to be elected or become Member of the Parliament to contest the election and disturb the whole process. Article 225 of the Constitution, provides that no election to the house of Parliament or Provincial Assembly can be called in question except through election petition before the Tribunal constituted thereunder but the rule envisages therein may not be invariably applicable to all situations at all stages, rather in exceptional case High Court may under Article 199 of the Constitution, interfere to uphold the constitutional mandate. In the case of Election Commission of Pakistan vs. Javed Hashmi (PLD 1989 SC 396), question was raised regarding jurisdiction of High Court under Article 199 vis Article 225 of the Constitution to exercise jurisdiction in election matters at an intermediate stage and it was held that High Court had no jurisdiction to exercise power in such matters under Article 199 of the Constitution. The controversy in the said case related to the appointment of Presiding Officer, Assistant Presiding Officer, Returning Officer and the High Court taking cognizance under Article 199, declared the appointments of polling staff made by the Returning Officer illegal and Returning Officer was directed to make fresh appointments in consultation with District Returning Officer. The interference in the matter of appointment of polling staff was certainly an administrative affair of the election process which was within the exclusive domain of Election Commission and similarly a dispute concerning with the election, would definitely be subject-matter of election petition whereas the question relating to the qualification and disqualification of a person would essentially be a pre-requisite to enter into process of election and if a person is not qualified to contest the election, the interference of the High Court against the order of acceptance of his nomination papers would not be in conflict to the provision of Article 225 of the Constitution. The power under Article 199 of the Constitution no doubt can be placed on higher footing to that of power emanating from Article 225 of the Constitution and notwithstanding the fact that two Articles have independent scope, the power of the High Court under Article 199 is not curtailed by the mere fact that question of law brought before the Court directly or indirectly related to the election dispute rather the High Court has to determine the question of its jurisdiction in the light of facts of a case before it and the point involved therein.
6-A. The relief claimed in the Constitution petition related to the candidature of the petitioner and the precise objection was that he was not a graduate to contest the election. This is not desirable to interrupt the election process except in the manner provided under the law but one cannot agree to the proposition that in case of substantial question of law arising in the election process, the same cannot be at all interrupted by the High Court at the intermediate stage and a blanket ban of jurisdiction should be read into Article 225 of the Constitution to every legitimate challenge of every kind of illegal order passed by an election authority. The order passed by the election authorities beyond the scope of law are not immune from challenge and correction by the High Court under Article 199 of the Constitution and High Court in doing so, must exercise jurisdiction subject to normal rule therefore no hard and fast rule can be made that what type of errors and actions of election authorities are immune from challenge before the High Court at an intermediate stage and in what type of error and action, the interference is possible rather it depends upon the facts of each case, that what type of dispute is brought before the High Court at an intermediate stage and in the light thereof High Court has to decide the question of its jurisdiction.
6-B. In the present case, the facts are almost admitted and the only question involved was in respect of the qualification of the petitioner who passed BA examination from University of Punjab but subsequently the University declared him not eligible to appear in the examination for the reason that his certificate of Board of Intermediate and Secondary Education, Lahore was found fake and bogus in consequence to which his graduation result was cancelled by the University. The matter relating to the cancellation of BA result of the petitioner, is subjudice before the High Court in a Constitution petition, therefore, the question of eligibility of the petitioner to appear in the BA examination cannot be gone into by this Court in the present proceedings and consequently, this petition cannot succeed on the ground of bar of exercise of jurisdiction by the High Court under Article 199 of the Constitution by virtue of Article 225 of the Constitution as in the facts of the present case, the remedy of election petition provided under Article 225 of the Constitution, may not be adequate. The law does not permit a person suffering from a patent disqualification to become a candidate and disturb the process of election and in view thereof, remedy under Article 225 of the Constitution, cannot be considered adequate as the refusal of relief in such a case in the Constitution petition may frustrate the process of election. This is admitted position that the petitioner presently is not holding graduation degree and in view thereof, we have not been able to find out any legal flaw or defect in the judgment of the High Court calling for interference of this Court.
(M.S.A.) Petition dismissed.
PLJ 2008 SC 1104
[Appellate Jurisdiction]
Present: Javed Iqbal, M. Javed Buttar & Hamid Ali Mirza, JJ.
ALLAH WASAYA & others--Appellants
versus
ATTA MUHAMMAD and others--Respondents
Civil Appeal No. 773 of 2004, decided on 7.2.2007.
(On appeal from the judgment dated 3.6.2004 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in C.R. No. 47-D/1991).
Self Acquired Property--
----Inheritance rights--Correctness of the mutation--Daughter could not have been deprived of their legal rights--"Wajib-ul-Arz" and Riwaj-i-Am--Distinction--Wajib-ul-Arz applies to ancestral properties unless its application to non-acestral property is also specifically mentioned therein--Wajab-ul-Arz is applicable to a particular village while a Riwaj-i-Am is applicable to whole district. [Pp. 1107 & 1109] A & B
Ratigan's Digest of Customery Law 1953 Edn. p. 350; AIR 1941 PC 21; ILR 13 Lah. 458; PLD 1971 SC 136. PLD 1990 SC 1, rel. AIR 1914 PC 21; ILR 13 Lah. 458; I.L.R. 17 Lah. 346, PLD 1971 SC 136, ref. PLD 1949 Lah. 116, PLD 1952 Lah. 1, PLD 1956 Lah. 934 & PLD 1961 SC 468, ref.
Customary Law--
----Inheritance of Muhammadan law--Applicability--Question of--Custom is not applciable to any property which is self-acquired and principles qua inheritance of Muhammadan Law would be applicable.
[P. 1110] C
Customary law in Punjab by Om Parkash, 1st Edn. 1939, PLD 1952 Lah. 1 & PLD 1956 Lah. 934 ref.
Mian Allah Nawaz, Sr. ASC for Appellants.
Mr. Muhammad Jaffar Hashmi, ASC for Respondents.
Date of hearing: 7.2.2007
Judgment
Javed Iqbal, J.--This is an appeal preferred under Article 185(2)(d) of the Islamic Republic of Pakistan, 1973 against the judgment/decree dated 3.6.2004 passed by the Lahore High Court, Bahawalpur Bench, whereby the civil revision preferred on behalf of Atta Muhammad has been accepted.
Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "one Pir Bakhsh, who was owner of agricultural lands in Mouaza Kot Azam, Tehsil Hasilpur to the extent of 226 kanals and « marla, met with death in the year 1942, and was succeeded by Allah Wasaya, alone son and by two daughters namely, Mst. Zeenat Mai and Mst. Kamon Mai. The mutation of Inheritance No. 109 was got sanctioned by Allah Wasaya in his favour alone on 27.12.1942 without disclosure of other two above noted heirs. In the year 1982, this mutation of inheritance, above mentioned with regard to the inheritance of deceased was challenged by Mst. Zeenat Mai alongwith Mst. Kamon Mai, the two daughters in the Civil Court by filing a suit for declaration, claiming their inheritance rights in the disputed lands in accordance with Muhammadan Law of inheritance and disputing the correctness of the aforesaid mutation. Atta Muhammad and others, the petitioners were the plaintiffs, who were the sons, daughters and husband of Mst. Zeenat Mai, deceased daughter of Pir Bakhsh, while Allah Wasaya, Respondent No. 1 was the defendant, in whose favour the impugned Mutation No. 190, sanctioned on 27.12.1942, was solely attested and arrayed in the list as Defendant No. 1, and his sons to whom he had gifted the lands, during the pendency of the suit through Mutations No. 486 and 488 sanctioned on 17.10.1982 and 12.12.1982 respectively were impleaded as Defendants No. 1(-) to 1(-) in the suit. According to the averments of the plaint, the land left by Pir Bakhsh was to be distributed in accordance with Islamic Shariat and the plaintiffs were entitled to ¬ share of the lands, as they were entitled to it on the basis of inheritance in accordance with Shariat. It may be mentioned here that Mst. Kamon Mai, during the pendency of the suit had withdrawn from the suit and the case of Mst. Zeenat Mai was pursued by her heirs, Atta Muhammad and other plaintiffs/petitioners for their share. The suit was contested by the defendants by filing the written statement in which they asserted that in Mouza Kot Azam, Tehsil Hasilpur, custom was prevalent due to which Mst. Zeenat Mai was not entitled to get any inheritance from her father Pir Bakhsh and the mutation in question was correctly sanctioned. Other pleas of limitation, adverse possession and maintainability of the suit were also raised which are not relevant for the decision of the case." After completion of formalities, framing of necessary issues and recording evidence pro and contra the learned Courts below have dismissed the suit preferred on behalf of respondent, concluding that the property left by Pir Bukhsh was governed by customary law and therefore, the land in question was rightly sanctioned in favour of Allah Wasaya son of Pir Bukhsh by means of mutation No. 109 dated 27.12.1942.
Mian Allah Nawaz, learned Sr. ASC entered appearance on behalf of appellants and urged with vehemence that the legal and factual aspects of the controversy have not been dilated upon in its true-perspective which resulted in serious miscarriage of justice. It is next contended that the suit was time barred, under valued which has rightly been dismissed by the learned trial Court which aspect of the controversy escaped the notice of learned single Judge in chambers which resulted in grave prejudice to the appellants. It is contended emphatically that the parties were governed by custom which was proved by adducing cogent and concrete documentary and oral evidence duly supported by admission of one of the daughters of deceased Pir Bakhsh namely Kamon Mai but it was ignored without assigning any cogent reasoning. It is next contended that the concurrent findings of facts recorded by the learned trial Court regarding the applicability of custom could not have been reversed in exercise of revisional jurisdiction as conferred upon the learned High Court under Section 115 CPC. It is argued that it is a case of misreading and non-reading of evidence as Ex.D/2 and Ex.D/3 to Ex.D/6 have been misinterpreted and misconstrued. It is also contended that the provisions as enumerated in Section 7 of the Punjab Custom (Powers to Contest) Act, 1920 have not been considered whereby no person can contest any alienation of self-acquired or non-ancestral immovable property by a male proprietor on the ground that such alienation is contrary to custom.
Mr. Muhammad Jaffar Hashmi, learned ASC represented the respondents and while repudiating the view point as canvassed at bar by Mian Allah Nawaz, learned Sr. ASC on behalf of appellants, supported the judgment impugned for the reasons enumerated therein with the further submission that the applicability of custom could not be proved and therefore, the legal heirs could not have been deprived of from the estate of Pir Bukhsh as it was never devolved upon him as ancestral property.
We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have also examined the judgment dated 14.4.1988 passed by learned Civil Judge, judgment dated 25.11.1999 passed by learned Additional District Judge and the judgment impugned. The pivotal question which needs determination would be as to whether the property in question had purchased by Pir Bukhsh or it was devolved upon him by means of inheritance from his father? After having gone through the entire evidence which has come on record we are of the considered view that the property in question was purchased by Pir Bukhsh and hence his daughters could not have been deprived of their legal rights. In this regard we are fortified by the dictum laid down in Ghulam Ali v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) whereby it was observed as follows:--
"As soon as an owner dies, succession to his property opens. There is no State intervention or clergy's intervention needed for the passing of the title immediately, to the heirs. Thus it is obvious that a Muslim's estate legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic Law of inheritance as compared to other systems. Thus their being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction. It is so notwithstanding whether they (the heirs) like it, want it, abhor it, or shun it. It is the public policy of Islamic law. It is only when the property has thus vested in the heir after the succession opens, that he or she can alienate it in a lawful manner."
Hadis':--Learn the laws of inheritance and teach them to the people, for they are one-half of useful knowledge.' To Muslim the Sharia law of inheritance is ideally perfect; founded on the sure rock of divine revelation and worked out in the utmost detail by that mental ingenuity which God gave man for the purpose of understanding revelation. The logical strength of the system is beyond question; and, the fact that the results are sometimes impracticable does not in the Muslim eyes detract from its divine character. Human ingenuity admittedly cannot always carry out the fine distinctions of divine justice; and the system is reverenced as a matter of theological dogma even by those Muslims who, as a matter of custom, do not follow it." The claims of near relations have been rightly and justly adjudicated upon and in the words of Macnaghten: "In these provisions we find ample attention paid to the interests of all those whom nature places in the first rank of our affections; and indeed it is difficult to conceive any system containing rules more strictly just and equitable."
(Macnaghten's preliminary remarks in `Principles and Precedents of Muslim Law).
The tribute paid to the system by Rumsey is no less exalted. He observes:
"The Mohammedan Law of inheritance comprises beyond question the most refined and elaborate system of rules for the devolution of property that is known to the civilised world." (Preface, P.1). (See Saksena, Third
Edition, on "Muslim Law" Chapter XV Section 1 for these and other observation). Females' Position in Muslim Law. "We shall deal briefly with the rights of females to inheritance as given in the Quran. The Prophet lays down in effect, that blood relationship is the cause of title to succession.
Then the Quran goes on to describe the rights of females to succession."
Covet not the grace by which God hath preferred some of you to others; unto men there is a portion of what they have earned, and unto women the portion of what they have earned". "Men ought to have the portion of what their parents and kindred leave, women apart of what their parents-kindred leave, whether it be little or much, let them have a determinable portion.""With regard to children, God commandeth you (to give) the male portion of two females, and if there be females more than two, they shall have 2/3rd of that which the deceased leaves; and if there be only one, she shall have a half." "Half of what, your wives leave, shall be yours, if they leave no issues, but if they leave issues, then a fourth of what they leave shall be yours. And your wives shall have a fourth part of what you leave if you have no issues, but if you have issues, they shall have an eighth (1/8th) part of what you leave after paying the bequests and debts". "In short, Quranic heirs called "shares" consist of those relations who were previously excluded in favour of the customary heirs, but whose claim on the score of proximity was not inferior to them. They may be grouped under the following heads--
(1) husband or wife, (2) female agnatic descendants, (3) ancestors, including female ancestors, who are not customary heirs, (4) collaterals, such as full and consanguine sisters and uterine sisters and brothers".
The legal heirs cannot be deprived of their legal shares merely for the reason that no distinction was mentioned in Wajib-ul-Arz qua ancestral and non-ancestral property. It is well settled by now that "Wajib-ul-arz applies only to ancestral properties unless its application to non-ancestral property is also specifically mentioned therein. Unless there is a clear statement to the contrary the Riwaj-i-Am or Wajib-ul-ars refers only to ancestral land. Wajib-ul-arz, except this that a Wajib-ul-arz is applicable to a particular village while a Riwaj-i-Am is applicable to the whole district." (Rattigan's Digest of Customary Law, 1953 Edn., P. 350, Mst. Subhani and others v. Nawab and others AIR 1941 PC 21, Abdur Rehman v. Mst. Mathu ILR 13 Lah. 458, Rani Sunder Devi v. Tej Singh ILR 17 Lah. 346, Qaisar Khatoon v. Abdul Khaliq PLD 1971 SC 136).
There is no denial the fact that the property in question was acquired by Pir Bukhsh (deceased) which acquisition has been substantiated by producing cogent and concrete evidence. It would not be out of place to mention here that it has been averred in a categoric manner by the plaintiff in his plaint that property was self-acquired by Pir Bukhsh which was never rebutted and amounts to admission. Besides that Allah Diwaya (P.W.1) and Ghulam Qadir (P.W.3) have mentioned in an unequivocal manner that the property in question was purchased by Pir Bukhsh (deceased) himself. It is noticeable that they were never cross-examined in this regard meaning thereby that the purchase of the property in question by Pir Bukhsh has been admitted. It cannot be ignored that Allah Diwaya (P.W.1) had admitted in a crystal clear manner that the land in question was purchased by his father and it was not an ancestral property and in such an eventuality where the property was purchased by Pir Bukhsh the question of applicability of any custom does not arise and the legal heirs cannot be denied their rights of inheritance conferred upon them by Islam. It is well established by now that custom is not applicable to any property which is self-acquired and the principles qua inheritance of Muhammadan Law would be applicable. (Customary Law in the Punjab by Om Parkash, 1st Edn. [1939], Chaps. I, VII, pp. 15 to 18 & 251, Muhammad Asghar Shah v. Muhammad Gulsher Khan PLD 1949 Lah. 116, Gul Zarin Khan v. Amir Ahmad PLD 1952 Lah. 1, Bashir Ahmad v. Muhammad PLD 1956 Lah. 934, Khair Din v. Muhammad Hussain PLD 1961 SC 468, Khatun v. Malla 1974 SCMR 341, Muslim Law by Syed Amir Ali, Vol. II, P. 20 Ranee Kajoor Unnissa v. Mst. Roshan Jehan (1876) LR 3 FA 291, Holy Qur'an Chap. 4, V. 7, 8, 11, 12 & 176 and Sura Al-Nisa, Chap. IV, Vs.7, 8, 11, 12 and 177.)
In the light of what has been discussed herein above we are of the considered view that the evidence which has come on record has been appreciated by the learned single Judge in chambers with diligent application of mind and conclusion arrived at is strictly in accordance with law and settled norms of justice. The judgment impugned being well based does not warrant interference and accordingly the appeal being devoid of merits is dismissed.
(M.S.A.) Appeal dismissed.
PLJ 2008 SC 1110
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MANZOOR-UR-REHMAN--Petitioner
versus
GOVT. OF SINDH and others--Respondents
Civil Petition No. 452 of 2008, decided on 13.5.2008.
(Against the order dated 28.2.2008 of the High Court of Sindh Bench at Sukkur passed in Constitution Petition No. D-17 of 2008)
Constitution of Pakistan, 1973--
----Art. 185(3)--Appellate jurisdiction of Supreme Court--Bids for dead trees--Process and procedure for auction--Tenders were invited from contractors but no process and procedure was adopted by respondent--Auction of trees challenged in the High Court--Dismissed--Held: Trees would be auctioned publicly--No illegality or material irregularity has been committed by the official respondents and all codal formalities have been fulfilled--Petitioner has not been able to point out any substantial question of law or public importance to warrant interference by Supreme Court--Petitioner failed to participate in above auction--Auction has been made under wide publicity including website, and publication in newspapers after completing all codal formalities--No loss has been caused to the government, because the valuation of the trees was made through District Officer Forest, and duly verified from the conservator of forests--Petitioner having failed to participate in open auction, cannot be allowed to question successfully the auction in-question--Leave declined. [P. 1112] A
Mr. G.N. Gohar, ASC for Petitioner.
Nemo for Respondents.
Date of hearing: 13.5.2008
Judgment
Ijaz-ul-Hassan, J.--Leave to appeal is sought against judgment dated 28.2.2008 passed by learned Sindh High Court, at Sukkur, dismissing Constitution Petition No. 17 of 2008 filed by the petitioner.
The facts as gathered from record briefly stated are, that on the basis of where it is' andas it is' the bids for Dead Trees in Mumtaz Colony, Khairpur, were required in sealed covers from the interested parties to be received on 7.8.2007 in the office of Respondent No. 4 i.e. Executive Engineer, Provincial Building
Division, Nawabshah. Many parties participated in the bid. The bid of Zulfiqar
Ali, Respondent No. 6 having been found highest, was accepted and contract was awarded to him with direction to start cutting and removing the trees.
Manzoor-ur-Rehman petitioner, feeling aggrieved, filed the Constitution Petition before learned High Court of Sindh at Sukkur, on the ground that according to process and procedure for the auction/bid of the above said trees, tenders were invited from the approved contractors through publication in Newspapers for participation in the bid, but no such process and procedure had been adopted by Respondent No. 4 and auction had been made secretly and approved in favour of Respondent No. 6 for a meager amount of Rs. 4,23,000/- on 07.8.2007 for reasons not far to seek and the petitioner, having come to know of it, approached Respondent No. 3 i.e. Superintending Engineer, Building Division, Sukkur and offered price of Rs.646000/- but the offer was refused. The auction has been shown on papers by the respondents in order to benefit Respondent No. 6 and to cause monetary loss to the department and the Government of Sindh. It was also alleged that act of Respondent Nos.3 and 4 in conducting the auction/bid in-question in favour of Respondent No. 6 be declared as illegal, void, ab-initio and liable to cancellation. The petition was dismissed vide impugned judgment as mentioned and stated above.
Appearing on behalf of the petitioner Mr. G.N. Gohar, Advocate, contended that required codal formalities were not fulfilled and bid of Respondent No. 6 was accepted in a clandestine manner on lowest rates and no participation list of bidders was available on record which fact alone is sufficient to vitiate the entire proceedings.
The submissions of the learned counsel do not carry weight. It stands established from the material on record that auction of trees was published in newspapers dated 19.7.2007 and 20.7.2007 about 19 days before the sealed bid was invited from the interested parties. In the publication it was not mentioned that the trees would be auctioned publicly. No illegality or material irregularity has been committed by the official respondents and all codal formalities have been fulfilled. Learned counsel for the petitioner has not been able to point out any substantial question of law of public importance to warrant interference by this Court. The petitioner failed to participate in above auction. The auction has been made under wide publicity including Website, and publication in newspapers after completing all codal formalities. No loss has been caused to the Government, because the valuation of the trees was made through District Officer Forest, Khairpur, and duly verified from the Conservator of Forests, Sukkur Range. The petitioner having failed to participate in open auction cannot be allowed to question successfully the auction in-question.
In view of the above, the petition is dismissed and leave declined accordingly.
(M.S.A.) Leave declined.
PLJ 2008 SC 1113
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ; Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
NOOR MUHAMMAD--Petitioner
versus
STATE--Respondent
Crl. P. No. 284 of 2007, decided on 1.2.2008.
(On appeal from the order dated 5.9.2007 of the Lahore High Court, Lahore passed in Cr. Misc. No. 8383-B of 2006).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Bail, grant of--Not nominated in FIR--Supplementary statement--Further inquiry--Complainant did not mention the name of the petitioner and co-accused in F.I.R. but later on implicated them in the commission of offence through supplementary statement recorded before the investigating officer on the same day--Complainant has failed to disclose as to how he came to know the name of the accused--In case the contents of the first information report and supplementary statement are put in a juxtaposition then it is crystal clear that the complainant had taken altogether U-turn from his previous stand--This fact makes it a case of further inquiry u/S. 497 of Cr.P.C.. [P. 1115] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 156--Statement of first informant--Investigation--Any statement or further statement of first informant recorded during investigation by police would neither be equipped with F.I.R. no read as part of it.
[P. 1115] B
Statement of Witnesses--
----Delay of 74 days--Statement of witnesses were not recorded promptly which were recorded after a considerable delay and witnesses had failed to explain delay and their statements were not trustworthy as their statement created doubt in their veracity as law. [P. 1115] C
1993 SCMR 550 rel.
Rule of Consistency--
----Bail--Co-accused had been granted bail by Supreme Court as such on principle of rule of consistency petitioner is also entitled to concession of bail. [P. 1115] D
1995 SCMR 1350, 2003 SCMR 1419; 2006 SCMR 1217 &
1993 SCMR 550, rel.
Sardar M. Latif Khan Khosa, ASC and Ch. Akhtar Ali, AOR for Petitioner.
Ch. Munir Sadiq, DPG Punjab for State.
Date of hearing: 1.2.2008.
Order
Abdul Hameed Dogar, CJ.--This petition is directed against order dated 05.09.2007 passed by learned Single Judge of Lahore High Court, Lahore whereby Crl.Misc. No. 8383-B of 2006 filed by petitioner was dismissed and he was declined concession of bail.
Briefly, stated facts of the case are that on 04.2.2006 complainant Muhammad Mushtaq lodged FIR No. 52/06 at Police Station Saddar, Kamoke stating therein that on the fateful day at about 1.15 p.m. he along with Nazir Ahmed and Mehar Din, PWs were present at their agricultural land situated in Tibba Muhammad Nagar picking peas while deceased Ghulam Mustafa was sitting near them reading newspaper when suddenly four unknown persons armed with deadly weapon emerged there on motorcycles. One of them remained on the motorcycle, while three persons came down from motorcycle and made straight fires at deceased which hit on different parts of his body. As a result of which he succumbed to the injuries at the spot. The complainant, later on, through supplementary statement recorded under Section 161 Cr.P.C. implicated petitioner and co-accused Ghulam Mustafa as culprits.
We have heard Sardar Muhammad Latif Khan Khosa, learned counsel for the petitioner and Ch. Munir Sadiq, learned DPG Punjab at length and have gone through the record and proceedings of the case in minute particulars.
It is contended by learned counsel for the petitioner that petitioner is innocent and has been falsely implicated in this case through a supplementary statement as he was not nominated in the FIR. According to him, he was declared innocent by three successive investigations. He further contended that no recovery of any sort has been affected from him. He submitted that statements of Nazir Ahmed and Mehar Din, PWs were recorded after a delay of 74 days which makes the case of petitioner doubtful and of further inquiry. He further contended that co-accused Ghulam Mustafa has also been allowed bail by this Court.
On the other hand learned DPG Punjab controverted above contentions and supported impugned order. He contended that in the present circumstances no case for bail is made out.
It is an admitted fact that the complainant did not mention the name of the petitioner and co-accused in the FIR but later on implicated them in the commission of offence through supplementary statement recorded before the Investigating Officer on the same day. The complainant has failed to disclose as to how he came to know the name of the accused. In case the contents of the First Information Report and supplementary statement are put in a juxtaposition then it is crystal clear that the complainant had taken altogether U-Turn from his previous stand. This fact makes it a case of further inquiry under Section 497 Cr.P.C. Moreover, since name of petitioner and co-accused were not mentioned in the FIR and was mentioned in the supplementary statement by complainant which facts also brings the case within the ambit of further inquiry. It was held by this Court in the case of Falak Sher alias Sheru v. The State (1995 SCMR 1350) that FIR is the document which is entered into book maintained at the Police Station at the complaint of informant and brings the law into motion whereby police starts investigation of the case under Section 156 Cr.P.C. Any statement or further statement of the first informant recorded during the investigation by police would neither be equipped with First Information Report nor read as part of it. Similarly it was held by this Court in the case of Khalid Javed & another v. The State (2003 SCMR 1419) that any statement or further statement of the first informant recorded during the investigation by the police would neither be equated with FIR nor read as part of the same and the value of the supplementary statement, therefore, will be determined keeping in view the principles enunciated by the superior Courts in this behalf.
Moreover, the statements of PWs were recorded after a delay of 74 days. The delay in recording their statements has not been explained and this would be an important factor which is likely to give rise to an inference that second version was introduced by the prosecution after deliberations and if it is so it will adversely affect the prosecution case. It was held by this Court in the case of Muhammad Rahim and others v. Bakht Muhammad and others (2006 SCMR 1217) that statement of witnesses were not recorded promptly which were recorded after a considerable delay and the witnesses had failed to explain delay and their statements were not trustworthy as their statements created doubt in their veracity as the law laid down by this Court in the case of Syed Saeed Muhammad Shah & another v. The State (1993 SCMR 550).
In view of above, we of considered view that the case of petitioner requires further inquiry. Moreover, since co-accused Ghulam Mustafa has been granted bail by this Court as such on the principle of rule of consistency petitioner is also entitled to concession of bail. Accordingly, petition is converted into appeal and is allowed. Appellant Noor Muhammad was admitted to ad-interim bail by this Court on 11.10.2007, which is confirmed, however, the amount of surety is enhanced from Rs. 10,000/- (rupees ten thousand) to Rs. 100,000 (Rupees one lac) with PR bond to the satisfaction of trial Court.
The above reasoning being tentative in nature shall have no bearing on the merit of the case.
(M.S.A.) Petition allowed.
PLJ 2008 SC 1116
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ; Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
RIAZ HANIF RAHI etc.--Petitioners
versus
REGISTRAR LAHORE HIGH COURT, LAHORE and others--Respondents
Civil Petitions No. 401, 402 and 403 of 2008, decided on 15.5.2008.
(On appeal from the judgment dated 7.4.2008 of the Lahore High Court, Lahore passed in W.P. No. 864 of 2008).
Punjab Judicial Service Rules, 1994--
----R. 7(1)(b)--Constitution of Pakistan, 1973, Art. 185(3)--Eligibility & criteria for appearing in examination for the post of Addl. Distt. & Sessions Judges--Held: To allow the District Attorney, Deputy District Attorney or Assistant District Attorney or prosecutors to be eligible candidates for the post of civil judges and disallow them to become candidates for the post of Additional District and Sessions judges, is highly discriminatory--Research Assistant in the office of the Attorney General and Prosecutor Anti-Naroctics force are not included in the persons disqualified to appear in the examination especially when both of the them are allowed to practice privately and retain their license to practice--Order accordingly. [P. 1118] A
Petitioners in person.
Ms. Afshan Ghazanfar, Assistant Advocate General, Mr. M. Akram DR(Conf), L.H.C. and Mr. Zahoor Ahmad, JA, L.H.C. for Respondents.
Date of hearing: 15.5.2008.
Judgment
Ijaz-ul-Hassan, J.--The above captioned petitions under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, have been filed to seek leave to appeal against a consolidated judgment rendered on 07.4.2008 by a learned Division Bench of Lahore High Court, Lahore, whereby, Writ Petition No. 864 of 2008 instituted by the petitioners, has been dismissed.
The Lahore High Court, vide advertisement dated 27.12.2007 appearing in newspapers dated 29.12.2007 and 30.12.2007, invited applications on prescribed form, from the Advocates domiciled in Punjab and practicing in the Civil/Sessions and High Court, for appointment against thirty posts of Additional District and Sessions Judges, possessing the Degree in Law from a recognized University entitling to practice the profession of Law, or a Barrister of England or Ireland, or a Member of Faculty of Advocates of Scotland with minimum ten years practice as an Advocate of High Court and Courts subordinate to Lahore High Court, Lahore. The age prescribed was hot less than 35 years and not more than 45 years on 21.1.2008. The petitioners applied for the said post. However, their applications were not entertained on the ground that they were not eligible to appear in examination for not possessing the required experience and practice at law. The petitioners made a representation which was declined. Feeling aggrieved thereby, the petitioners invoked constitutional jurisdiction of Lahore High Court, Lahore, by filing Writ Petition No. 64 of 2008, which did not succeed. The same was dismissed on 07.4.2008, necessitating the filing of instant petitions.
The petitioners appeared in-person and bitterly criticized the impugned judgment maintaining that same has been recorded in a mechanical manner without application of independent judicial mind. They also contended that Clause (b) of Rule 7 of the Punjab Judicial Service Rules, 1994 has not been examined in its true perspective and in no manner it stands in the way of the petitioners to apply and appear in the Examination and that even if the period of service or retainer-ship is excluded, the petitioners are eligible to appear in the examination.
Ms. Afshan Ghazanfar, learned Assistant Advocate General, on the contrary, defended the impugned judgment and submitted that the Examination Committee of Lahore High Court, Lahore formulated the policy regarding the eligibility of the candidates in line with the Punjab Judicial Service Rules, 1994 to maintain transparency in the method of process of selection to the higher Judicial posts. She added that Rule 7(1) (b) of aforesaid rule, laying down the qualifications for appointment to the post of Additional District and Sessions Judge, makes it abundantly clear that a candidate must be a practicing Advocate with ten years minimum practice as an advocate and must not have engaged himself in any other whole time service, business or occupation for gain. She further submitted that the provisions of Rule 7(1) (a) and Rule 7(1) cater for different situations the former for the post of Civil Judge-cum-Judicial Magistrate and the latter for the post of Additional District and Sessions Judge and cannot be read in conjunction with each other as the classification so made is rational and germane to the different demands of two posts. Concluding the arguments, learned Additional Advocate General reiterated that a person, who has joined Government Service or is holding a civil post or doing any whole time job, business or occupation falls out side purview of the phrase practicing Advocate and thus renders himself as ineligible to apply for the post of Additional District and Sessions Judge.
The Lahore High Court, Lahore, being the appointing authority under the Punjab Judicial Service Rules, 1994 advertised 30 posts of Additional District and Sessions Judges laying down the criteria of eligibility for the said post. Rule 7(1)(b) of the Punjab Judicial Service Rules, 1994, is reproduced herein below for facility sake :--
"In case of appointment to a post of Additional District and Sessions Judge, he apart from possessing the qualification is sub-clause (i) of clause (a) is also a practicing Advocate of High Court and the Courts subordinate thereto with minimum practice of ten years and is not less than thirty five years and not more than forty five years of age".
Sub-clause (i) of clause (a) of sub-rule (1) of rule (7) provides that a candidate possesses a degree in law from a recognized University entitling him to practice the profession of law or is a Member of Faculty of Advocates of Scotland.
Having considered the matter from all angles, in the light of the material on record, we find that the provisions of Rule 7 of the Punjab Judicial Service Rules, 1994 in no manner create hurdle and block way of the petitioners to appear in the examination.
Needless to reiterate that to allow the District Attorney, Deputy District Attorney or Assistant District Attorney or Prosecutors to be eligible candidates for the post of Civil Judges and disallow them to become candidates for the post of Additional District and Sessions Judges, is highly discriminatory. Research Assistant in the office of the Attorney General and Prosecutor Anti Narcotics Force are not included in the persons disqualified to appear in the Examination. Especially when both of them are allowed to practice privately and retain their license to practice. It may be pertinently mentioned here that even if the period of service/retainership is excluded, the petitioners are eligible to appear in the examination. Riaz Hanif Rahi has been enrolled as an Advocate of High Court on 30.11.1998, whereas Liaquat Mumtaz Malana and Mian Humayun Aslam have been enrolled as Advocates of High Court on 18.6.1995 and 07.2.1999 respectively. When attention of learned Assistant Advocate General was drawn to this aspect of the matter, she had no plausible reply to make.
Adverting to the prayer of the petitioners, we find that the Examination in question has already been conducted on 12.4.2008. Mr. Muhammad Akram Deputy, Registrar (Confidential) states that in case suitable candidates are not available and some posts remain vacant, same shall be re-advertised and petitioners will be allowed to apply for the said posts.
In view of the above, these petitions are converted into appeals and stand disposed of in above terms. We make no order as to costs.
(M.S.A.) Appeals disposed of.
PLJ 2008 SC 1119
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MUHAMMAD IDREES and 2 others--Appellants
versus
STATE--Respondent
Crl. A. Nos. 99 & 100 of 2004, decided on 26.5.2008.
(On appeal from the judgment dated 23.10.2002 passed by the Lahore High Court, Multan Bench, in Crl. A. No. 36 of 2002 and M.R. No. 7 of 2002).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Anti-Terrorism Act, 1997, S. 7--Conviction and sentence recorded against accused by trial Court--Appreciation of evidence--Ocular account--Confirmed by High Court--Appeal to Supreme Court--Held: Since firing, in the instant case, was attributed to all the accused persons and it has come on record that the injuries caused by all the accused persons collectively culminated in death of the deceased, ends of justice would be met with if sentences of death inflicted on the appellants u/S. 302(b), PPC are commuted to that of life imprisonments. [P. 1123] A
Anti-terrorism Act, 1997 (XXVII of 1997)--
----S. 7--Pakistan Penal Code, (XLV of 1860), S. 302(b)--Conviction and sentence recorded against accused by trial Court--Challenge to--Acts done by the accused persons had created sense of fear or insecurity in public, nor any section of the public or community or any sect. was shown to have been affected, as the incident had taken place at night on the bank of canal which by no strech of imagination can be termed as a public place, Section 7 of the Anti Terrorism Act, 1997 was not attracted in the instant case--Appeals partly allowed. [P. 1123] B
2007 SCMR 142, PLD 2007 SC 571 & 2003 SCMR 1323, rel.
Sardar Muhammad Siddique Khan, ASC for Appellants (in both cases).
Ch. Munir Sadiq, Deputy Prosecutor General Punjab for Respondent (in both cases).
Date of hearing: 26.5.2008.
Judgment
Ch. Ejaz Yousaf, J.--These appeals, by way of leave, are directed against judgment dated 23.10.2002 passed by a learned Division Bench of the Lahore High Court, Multan Bench, Multan, whereby Criminal Appeal No. 36 of 2002, filed by the appellants against their convictions and sentences recorded by the Judge, Anti-Terrorism Court, Multan vide judgment dated 25.6.2002, was dismissed and Murder Reference No. 7 of 2002 was answered in the affirmative.
U/S. 302(b) PPC all the appellants were awarded death sentence with further direction to pay Rs.50,000/- each as compensation payable to the legal heirs of the deceased u/S. 544-A Cr.P.C. or in default six months S.I.
U/S. 394 PPC they all were sentenced to undergo life imprisonment with fine of Rs.25,000/- each or in default 2« years R.I. each
U/S. 411 PPC they were sentenced to 3 years R.I. each
U/S. 7(a) of ATA of 1997, all the accused were awarded death sentence with fine of Rs.25,000/- each or in default 2« R.I. each
All the sentences were ordered to run consecutively with benefit of Section 382-B Cr.P.C.
The above judgment was assailed before the High Court, which was dismissed vide the impugned judgment, hence these appeals.
Sardar Muhammad Siddique Khan, learned counsel for the appellants has contended that neither the acts allegedly done by the appellants had created sense of fear and insecurity in the public nor any section of the community or any sect was affected, therefore, convictions of the appellants under Section 7-A of the Anti-Terrorism Act, 1997 were not sustainable; that occurrence took place at night and though it was alleged that all the three accused persons indiscriminately resorted to firing yet, since specific roles were not attributed to them, therefore, it was not a case of capital punishment. He added that since the appellants are in death cells, in great misery, since the time of their arrest i.e. for more than seven years, therefore, a lenient view may be taken in the matter of their sentences.
Ch. Munir Sadiq, learned Deputy Prosecutor General, Punjab, appearing on behalf of the State, has candidly conceded that since the acts done by the appellant had not created sense of fear or insecurity in the public, therefore Section 7 of the Anti-Terrorism Act was not attracted in the case. However, stated that since guilt of the accused persons was fully brought home, at the trial, by the prosecution through independent and reliable evidence, therefore, the appellants were rightly convicted for the offence of murder. He found great difficulty in controverting the contention that murder was cumulative effect of the injuries caused by the accused persons.
We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the available record, with their assistance, minutely.
Prosecution case rests on the ocular evidence account whereof, at the trial, was furnished by PW-6 Noor Muhammad, the complainant, and PW-7 Khizar Hayat, the dying declaration, the medical evidence, the evidence of recoveries, report of fire-arm expert and circumstantial evidence.
It would be pertinent to mention here that occurrence in the instant case took place at 8.00 p.m. on Rajbah near Basti Pul Chhawani. FIR was registered at 8.40 p.m. on the same day at P.S. Tulemba, District Khanewal situated at a distance of about 10 acres. In the FIR not only names of the accused persons were mentioned but specific roles to each of them were also attributed, since the names of the eye-witnesses including PW-7 Khizar Hayat were also mentioned in the FIR, therefore, the possibility that it was got registered after deliberations has to be ruled out. So far the testimony of PW-6 Noor Muhammad and PW-7 Khizar Hayat is concerned, we do not find any discrepancy in their statements rendering them untrustworthy of credence, they stood the test of cross-examination and gave consistent and coherent details of the occurrence. They stand corroborated by the medical as well. It has come on record through the statement of PW-1 Dr. Nazir Ahmad that deceased Riaz, was brought to the hospital at 8.30 pm on the same day, in injured condition, where, he was examined by him and since his condition was critical, therefore, he was referred to Nishtar Hospital, Multan for further treatment. The doctor has confirmed that at the time of examination, the deceased was in his senses and therefore, he had issued Ex. PW/1, the fitness certificate, whereafter statement of the deceased Riaz under Section 161 Cr.P.C. (the dying declaration) was recorded by the I.O. It would be worthwhile to mention here that in the dying declaration, not only the names of accused persons were mentioned but they were also charged for making firing on the deceased as well as their companion, namely, Shakeel who too, sustained injuries in the course of occurrence. The name of complainant Noor Muhammad also finds place in the dying declaration, hence, it could not have been disbelieved. It has also come on record that soon after the occurrence the injured culprit, namely, Shakeel, had disclosed the names of his companions in consequence whereof the police was able to get hold of them and after their arrest crime weapons were also recovered from their possession which, as per FSL report, matched with the empties taken and secured from the place of occurrence. It is also an admitted fact that there was no previous enmity or hostility between the parties. Though it was, in defence, pleaded that deceased Riaz had established relations with Mst. Sumaira, sister of the deceased culprit Shakeel, yet, it was disbelieved by both the Courts below. Since, at the trial, the prosecution was successful in establishing charge against the appellants therefore, they were rightly convicted for the offences of murder and robbery. However, since it was not established on record that the acts done by the accused persons had created sense of fear or insecurity in public, nor any section of the public or community or any sect was shown to have been affected, as the incident had taken place at night on the bank of canal which by no stretch of imagination can be termed as a public place, therefore, in our view, Section 7 of the Anti Terrorism Act, 1997 was not attracted in the instant case. Convictions and sentences recorded against the appellants on that count, are not sustainable. In this view, we are fortified by the observations made by this Court in following reported judgments (i) Mohabbat Ali and another v. The State and another (2007 SCMR 142), (ii) Fazal Dad v. Col. (Rtd.) Ghulam Muhammad Malik and others (PLD 2007 SC 571), (iii) Mst. Najam-un-Nisa v. Judge, Special Court Constituted Under Anti-Terrorism Act, 1997 (2003 SCMR 1323). Accordingly convictions and sentences recorded against the appellants under Section 7-A of the Anti-Terrorism Act, 1997 are set-aside.
As regards the quantum of sentence, it may be mentioned here that since firing, in the instant case, was attributed to all the accused persons and it has come on record that the injuries caused by all the accused persons collectively culminated in death of the deceased, therefore, we feel that ends of justice would be met with if sentences of death inflicted on the appellants under Section 302(b) PPC are commuted to that of life imprisonments. Order accordingly. The rest of the sentences inflicted on the appellants as well as the amount of compensation ordered to be paid to the legal heirs of the deceased shall remain the same as ordered by the trial Court. Benefit of Section 382 Cr.P.C. already awarded to the appellants shall remain intact. However the sentences inflicted on the appellants shall run concurrently inter-se. Sequel to the above, Murder Reference No. 7 of 2002 stands dismissed.
With the above modifications in the convictions and sentences of the appellants, these appeals are partly allowed.
(M.S.A.) Appeals partly allowed.
PLJ 2008 SC 1124
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ; Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MUHAMMAD YAQOOB--Appellant
versus
MANZOOR HUSSAIN and 3 others--Respondents
Criminal Appeal No. 21 of 2006, decided on 16.5.2008.
(On appeal from the judgment dated 3.12.2003 passed by a learned Division Bench of the Lahore High Court, Lahore in Crl. Appeal No. 131 of 2000).
Acquittal--
----It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. [P. 1128] A
Medical evidence--
----Appreciation of evidence--Medical evidence can confirm the occular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime. [P. 1128] B
Abscontion--
----Proof of guilt of accused--Value of--Mere abscontion is not conclusive proof of guilt of an accused person, it is only a suspicious circumstance against an accused that he has was found guilty of the offence--However, suspicious after all are suspicious cannot take the place of proof--Value of absconsion, therefore, depends on the facts of each case--Courts have admitted it as a supporting evidence of the guilt of an accused--Held: Absconsion of an accused may be consistant with the guilt or innocence of the accused, which is to be decided keeping in view over all facts of the case--Appeal dismissed.
[P. 1128] C
Mr. Muhammad Ilyas Siddiqui, ASC for Appellant.
Dr. Babar Awan, ASC, Mian Asif Mumtaz, ASC, Ch. Akhtar Ali, AOR and Mr. Siddique Khan Baloch, Deputy Prosecutor General, Punjab for Respondents.
Date of hearing: 16.5.2008.
Judgment
Ijaz-ul-Hassan, J.--The above captioned Criminal Appeal, through leave of this Court, is directed against judgment dated 03.12.2003 by a learned Division Bench of Lahore High Court, Lahore, accepting Criminal Appeal No. 131 of 2000 filed by accused respondents, setting aside their conviction and sentences recorded under Section 302/34 PPC, by learned Sessions Judge, Chakwal, vide judgment dated 5.4.2000, answering the Murder Reference No. 196/2000 against respondent Manzoor Hussain in the negative and dismissing appellant/ complainant's Criminal Revision No. 163 of 2000 for enhancement of sentence of life imprisonment awarded to respondents Kamran Shahzad and Maqbool Hussain.
Facts of the prosecution case as set out in F.I.R. (Ex. PF) lodged by complainant Muhammad
Yaqoob shortly stated are, that on 14.6.1998 at about 4.30 p.m. Muhammad
Fayyaz, brother-in-law of complainant had gone to a hotel situated near village
Pond' where his co-villagers Manzoor Hussain, Maqbool Hussain and Kamran
Shahzad, respondents, were present. They ran into discussion about the previous election which resulted in exchange of harsh words. The respondents started giving beating to Muhammad Fayyaz PW. After that Fayyaz went to the house of the complainant and narrated the occurrence to him. Complainant, Fayyaz and
Mumtaz PWs riding on one motorcycle and Amjad Hussain (deceased) and Tanvir
Sultan PW, riding on other motorcycle, proceeded towards Police Station Saddar, Chakwal, to report about the occurrence. When they reached near the shop of
Amir Khan, on the mettle road, respondents standing near the shop stopped the motorcycle on which Amjad Hussain and Tanvir Sultan were riding and enquired from them about their destination, upon which Amjad Hussain replied that they were going to police station for registration of a case. On this, Manzoor
Hussain took out pistol from the fold of his trouser and raisedlalkara' that he would teach them a lesson for their design to lodge the report and fired at
Amjad Hussain hitting him below the left cheek. Amjad Hussain fell down from the motor cycle. After accomplishing the mission, respondents raising
`Lalkaras' while Manzoor Hussain firing in the air, made good their escape.
Complainant with the help of Mumtaz Hussain, Tanvir Sultan and Muhammad Fayyaz removed Amjad Hussain in injured condition to Civil Hospital, Chakwal but he could not survive and succumbed to the injuries. The motive leading to the turmoil was stated to be political rivalry between the two groups.
On receipt of message from Civil Hospital, Chakwal, about the death of Amjad Hussain, PW Lal Khan, S.I. Police Station, Saddar, Chakwal, went to the hospital, recorded statement of the complainant and prepared inquest report as well as injury statement of the deceased and dispatched the dead body to the hospital for post-mortem examination. He also got prepared site-plan (ExPB) through PW Bakhat Hameed. From the place of incident, he collected blood-stained earth, took into possession a Yamaha motorcycle and a `toka' lying near the place of incident, made their recovery memos accordingly and after completion of investigation, submitted challan against the respondents in the Court.
Dr. Haroon Iqbal, Medical Officer DHQ Hospital Chakwal on 14.6.1998 at about 6.30 p.m. conducted postmortem on the dead body of the deceased and found the following injuries:--
"1. Entry wound just below left cheek and 2 cm behind the left canthus of mouth. It was having blackening around and was 1« cm in dimension with blackening around. Margins inverted.
Exit wound. It was 1 « cm x 1« cm in left neck area, covered by hair of head and was 9 cm behind left car, 12 cm from mid line on left."
On 26.6.1998, PW Lal Khan S.I., arrested accused respondent Manzoor Hussain. He was medically examined by Dr. Khalid Azadar, Medical Officer DHQ Hospital, Chakwal. Following injuries were found on his person:--
"A healed linear wound 5 cm x « cm on the right side of the top of the skull, lengthwise.
A healed linear wound on the right side of the back of the chest horizontal 7.5 cm x 0.3 cm.
A healed linear wound horizontal 5 cm on the upper side of the left calf, obliquely vertical in direction.
A healed linear wound 7.5 cm x 0.2 cm on the upper side of the left calf, obliquely vertical in direction.
A healed linear wound 5 cm x 0.3 cm on the left calf, horizontal in direction.
A healed linear wound 5 cm x 0.3 cm on the left calf horizontal in direction".
The prosecution in order to prove the charge and substantiate the allegations produced Muhammad Sajawal Head Constable PW.1, Tariq Mehmood Constable PW-2, Bakhat Hameed Patwari PW.3, Dr. Haroon Iqbal, Medical Officer PW.4, Rabnawaz S.I. PW.5, Masood Ahmad Constable PW.6, Haji Muhammad Latif PW.7, Noor Sultan PW.8, Muhammad Yaqoob complainant PW.9, Muhammad Fayyaz PW.10 and Lal Khan S.I. PW. 11, whereas respondents examined Dr. Khalid Azadar, Medical Officer DW.1 Muhammad Banaras DW2 and Amir Khan DW3 in their defence.
At the conclusion of trial, learned Sessions Judge, Chakwal, by virtue of his judgment dated 5-4-2000 awarded penalty of death as `Tazir' to respondent Manzoor Hussain and sentenced respondents Kamran Shahzad and Maqbool Hussain to imprisonment for life, under Section 302 PPC. They were also directed to pay Rs. 20,000/- each to legal heirs of the deceased as compensation under Section 544-A, Cr.P.C., or in default whereof, to suffer further S.I. for six months each.
Criminal Appeal by the respondents, challenging their conviction and sentences and Criminal Revision by complainant/appellant seeking enhancement of sentence of life imprisonment awarded to Respondent Nos. 2 and 3 were filed there-against before learned Lahore High Court. Criminal Appeal was accepted whereas Criminal Revision was dismissed through the impugned judgment as mentioned and stated above.
We have heard Mr. Muhammad Ilyas Siddiqui, Advocate for the appellant/complainant, Mr. Saddique Khan Baloch learned Deputy Prosecutor General for the State and Dr. Babar Awan, learned Advocate representing the private respondents.
Learned counsel for the appellant/complainant, after taking us through the evidence on record contended that overwhelming evidence consisting of ocular account, medical evidence, recovery and abscondence was available on record to prove participation of the respondents in the crime, which has not been examined and discussed thoroughly, resulting in miscarriage of justice and that plea taken by respondent Manzoor Hussain is fabricated and not substantiated by the evidence on record, justifying his acquittal.
On his part, Dr. Babar Awan, learned counsel representing the private respondents, controverted the above contentions of learned counsel for the appellant and supported the impugned judgment whole heartedly maintaining that the findings recorded by learned High Court and the reasons resulting in the acquittal of the respondents are unexceptional and do not suffer from any illegality or infirmity, calling for interference by this Court.
Learned Deputy Prosecutor General, representing the State, defended the impugned judgment and reiterated the contentions raised by learned counsel for private respondents.
Having heard the arguments of learned counsel for the parties at length and re-examining the record on file, we find that learned counsel for appellant has not been able to point out any piece of evidence which could persuade us to hold that the conclusion arrived at by the High Court is against the evidence brought on record. Learned High Court has given cogent and sound reasons for extending benefit of doubt to the respondents which are not open to legitimate exception and hardly warrant interference by this Court. Rahimullah Jan vs. Kashif and another (PLD 2008 SC 298), Ghulam Murtaza and another vs. Muhammad Akram and others (2007 SCMR 1549) and Sikandar Hayat vs. Muhammad Nawaz and others (PLJ 1995 SC 351).
It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. It was observed by this Court in Muhammad Mansha Kausar vs. Muhammad Asghar and others, (2003 SCMR 477) "that the law relating to re-appraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is doubled and multiplied after a finding of not guilty recorded by a competent Court of law. Such finding cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading/non-reading of evidence. .............. law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible."
It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime.
Insofar as the abscondence of respondents is concerned, it may be stated that mere absconsion is not conclusive proof of guilt of an accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of absconsion, therefore, depends on the facts of each case. The Courts have admitted it as a supporting evidence of the guilt of accused. The absconsion of the accused may be consistent with the guilt or innocence of the accused, which is to be decided keeping in view overall facts of the case.
On careful examination of the evidence, circumstances appearing in the case and in the light of the arguments of learned counsel for the parties, we find that PWs Muhammad Yaqoob (complainant) and Muhammad Fayyaz on account of their close relationship with the deceased are interested witnesses. They appear to be basically dishonest as they gave evidence with a motive other than of telling the truth, in that, they even suppressed the evidence which they were supposed to know in the ordinary course of events. It may be pertinently mentioned here that injuries on the person of respondent Manzoor Hussain have been suppressed by the prosecution for the reasons not far to seek. The incident does not appear to have taken place in the manner, as alleged. The prosecution case is pregnant with serious doubts and is full of confusions. The eye-witnesses have shown reckless disregard for the truth. In this view of the matter it cannot be said that the conclusions arrived at by learned High Court were such that no reasonable person would conclusively reach the same.
In view of what has gone above, it follows that the reasons given by learned High Court for extending benefit of doubt to the respondents are neither irrelevant nor extraneous to the record. Resultantly, finding no substance in the appeal, we dismiss the same and maintain the impugned judgment.
(M.S.A.) Appeal dismissed.
PLJ 2008 SC 1129
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
FAIZ AHMED--Appellant
versus
STATE--Respondent
Crl. A. No. 15 of 2005, decided on 6.6.2008.
(On appeal from the judgment dated 14.4.2003 of the Lahore High Court, Lahore passed in Crl. Appeal No. 773 of 1999 and M.R. No. 386/1999).
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Conviction and sentence recorded against accused by trial Court--Challenge to--Confirmed by High Court--Assailed--Appreciation of evidence--Specific role of firing--Motive--Benefit of doubt--Held: Report has been lodged with promptitude excluding all chances of deliberation and consultation--Appellant is one of the accused persons directly nominated in the report for the commission of the offence, specific role of firing, resulting in the murder has been attributed to him and two eye-witnesses of the spot claimed to have joined the complainant in the way have fully supported the prosecution story--Eye-witnesses are related to the deceased but mere relationship of the witnesses inter-se and with the deceased is not sufficient to term them as interested witnesses unless it is found that there was any previous enmity or ill-will between the parties and the witnesses had a motive to falsely implicate the appellant in a criminal case--Appellant is in death cell for the last about 14 years--Motive is alien to him and co-accused charged for firing, has been acquitted--Therefore, Supreme Court inclined to reduce his sentence from death to imprisonment for life, to meet the ends of justice--Appeal partly allowed. [P. 1133] A, B & C
Malik Saeed Hassan, Sr. ASC for Appellant.
Mr. Shabbir Lali, Addl. P.G. for Respondent.
Date of hearing: 29.5.2008
Judgment
Ijaz-ul-Hassan, J.--Appellant Faiz Ahmed son of Noor Muhammad aged about 25 years and his maternal uncle co-accused Muhammad Ashraf son of Mian Khan, aged about 52 years, both residents of village `Dingi' Par Nasiba, Hafizabad, were tried by learned Additional Sessions Judge, Hafizabad on the charge of having, on 21.12.1994 at about 1.45 p.m., in the precincts of Police Station Sukheke, committed murder of Mst. Noor Anisa, daughter of complainant Inayat Ullah, a young girl of 21/22 years of age. At the conclusion of trial, vide judgment dated 30.8.1999, appellant was convicted under Section 302 (b) PPC and awarded the penalty of death, whereas, co-accused Muhammad Ashraf was convicted under Section 302 (b) PPC and sentenced to suffer life imprisonment with benefit of Section 382-B Cr.P.C. Both the convicts were directed to pay Rs. 25000/- (each) as compensation under Section 544 (A) Cr.P.C. Half of the amount, on realization, was ordered to be paid to legal heirs of the deceased, or in default whereof to undergo further six months S.I each.
Feeling aggrieved, the convicts filed Criminal Appeal No. 773 of 1999. The learned Trial Judge also forwarded Murder Reference No. 386/1999 for confirmation of death sentence of appellant Faiz Ahmed. A learned Division Bench of the Lahore High Court, Lahore, vide its judgment dated 14.4.2003 dismissed appeal to the extent of Faiz Ahmed appellant and up held his conviction and sentence, whereas, appeal concerning Muhammad Ashraf co-accused, was accepted and he was acquitted of the charge. Hence instant appeal by appellant Faiz Ahmed with leave of this Court, granted on 25.1.2005.
Facts of the prosecution case as set out in F.I.R (Ex.PH) lodged by complainant Inayat Ullah
(since dead) shortly stated are, that on the fateful day i.e. 21.12.1994 at about 1.45 p.m. complainant and his daughter Mst. Noor Anisa were on the way to
Mandi Sukheke' for purchasing articles for Mst. Noor Anisa'sRukhsati'. In the way PWs Shafqat Ali and. Akhtar Ali also joined them. On reaching the road, accused Faiz Ahmed and Muhammad Ashraf armed with .12 bore guns alighted from a motorcar driven by Shaukat Ali. Faiz Ahmed fired hitting on the light side of
Mst. Noor Anisa's head. Muhammad Ashraf also fired, which hit at left flank of
Mst. Noor Anisa, who collapsed on the ground. Thereafter, Faiz Ahmed fired another shot at the right flank, culminating in the death of Mst. Noor Anisa.
Shafqat Ali and Akhtar Ali PWs were stated to have witnessed the occurrence.
The motive high-lighted in the F.I.R. was that about 13/14 years prior to the occurrence, Muhammad Ashraf had abducted Mst. Asmat Bibi daughter of the complainant and contracted marriage with her. The matter was not reported to the police due to family honour. It was disclosed that Muhammad Ashraf was interested in the hand of Mst. Noor Anisa for his nephew Hameed, but this proposal was not acceptable to the complainant. About 3/4 months prior to the incident `Nikah' of Mst. Noor Anisa was recited with one Nusrat. This caused annoyance to the accused.
After registration of the case Inspector Hamid Ali Khan (PW.12), the then S.H.O. Police Station Sukheke, Hafizabad, visited the spot and. prepared injury statement and inquest report of the deceased and dispatched the dead body to the mortuary for postmortem examination. He also prepared site-plan at the pointation of complainant and eye witnesses. He secured blood-stained-earth and recovered two empties of .12 bore from the spot and took the same into possession vide memos Ex. PA and Ex.PE respectively. On 16.1.1995, Faiz Ahmed accused was arrested and a .12 bore gun alongwith two cartages was recovered from him which were taken into possession vide memo (Ex.PG). After completion of investigation, in the manner described, above, challan was submitted in Court.
The prosecution in addition to the police officials and the formal witnesses, who remained associated with investigation of the case, examined 14 witnesses in all, including Shafqat Ali and Akhtar Ali PWs as eye-witnesses of the occurrence.
Dr. Shaukat Ali Wahla, (PW-5) Senior Medical Officer, Rural Health Centre, Pindi Bhattian, Hafizabad on 21.12.1994 conducted postmortem examination of the deceased and found the following:--
"1. Fire-arm graze wound 5 cm x 2 cm x bone deep on right temporal region, margins burrent, edges on the frontal side was inverted, and posterior side of wound was averted.
Fire-arm glancing wound « cm x « cm on right cheek.
Fire-arm wound 2 cm x 1 cm x 1 cm on bridge of nose.
Fire-arm wound of entry 3 cm x 3 cm x 10 cm on right side of abdomen 7 cm above to alliance crest, margins burnt, edges inverted.
Fire-arm wound of exit three in number 1 cm x 1 cm x 25 cm each on back of left side of chest over 10th, 11th, and 12th, ribs.
Swelling 2 cm x 2 cm culpable hard foreign body on the left flank.
Three wounds of exit each 1 cm x 1 cm x 26 cm on left flank. Edges were averted."
One pellet was recovered from Injury No. 6 and plastic cover of bullet, was recovered, under the surface of muscles of abdomen from Injury No. 4. In the opinion of doctor death occurred due to Injury No. 4, which was sufficient in the ordinary course of nature to cause death. All the injuries were anti-mortern in nature.
The appellant and co-accused in their statements recorded under Section 342 Cr.P.C. denied the prosecution allegations professed innocence and claimed to have been falsely charged on account of property dispute. The appellant also denied having been found in possession of gun or cartridges. None of them opted to record statement on oath as required under Section 340(2) Cr.P.C. in disproof of the charges. They declined to produce evidence in defence.
The trial culminated in the conviction and sentences of both the accused as mentioned and detailed above.
We have heard Malik Saeed Hassan, learned Advocate for the appellant, and Mr. Shabbir Lali, learned Additional Prosecutor General, representing the State and have also re-examined the material on record, with their assistance.
Learned counsel for the appellant, in support of the appeal contended that, there is nothing incriminating on the file to associate the appellant with the commission of crime, except the bare allegations in the FIR; that the two eye-witnesses not being independent witnesses of the occurrence, infirmities having been found in the prosecution case and doubt having crept in the prosecution version of the occurrence, the possibility of occurrence having gone un-witnessed and no independent corroboration being available in support of the ocular testimony, it could not be said that the prosecution had succeeded in proving the guilt of the appellant beyond any reasonable doubt. Concluding the arguments, learned counsel argued that on identical evidence co-accused Muhammad Ashraf had been acquitted by learned High Court, therefore, benefit of doubt should have been extended to the appellant.
On the contrary, learned Additional Prosecutor General, while supporting the impugned judgment maintained that overwhelming evidence was produced at the trial to connect the appeal with the crime and the appellant has not been able to show any reason for his false involvement in the case. He reiterated that the conviction and sentences awarded by trial Court were rightly upheld by High Court and as such the appeal merits outright dismissal.
The crime in question is alleged to have taken place on 21.12.1994 at about. 1.45 p.m. in the area of Dingi village Par Nasiba and the matter was reported to the police same day at 2.45 p.m. by complainant Inayat Ullah, at Police Station Sukheke, Hafizabad, distant 4 miles, from the site of occurrence. The report has been lodged with promptitude excluding all chances of deliberation and consultation. The appellant is one of the accused persons directly nominated in the report for the commission of the offence, specific role of firing, resulting in the murder of Mst. Noor Anisa, deceased, has been attributed to him and two eye-witnesses of the spot namely, Shafqat Ali and Akhtar Ali, claimed to have joined the complainant in the way, have fully supported the prosecution story.
It is true that the eye-witnesses are related to the deceased but mere relationship of the witnesses inter-se and with the deceased is not sufficient to term them as interested, witnesses unless it is found that there was any previous enmity or ill-will between the parties and the witnesses had a motive to falsely implicate the appellant in a Criminal case. In the present case, admittedly there was no previous enmity, ill-will or grudge between the appellant and the complainant party. Both the eye-witnesses remained consistent regarding time, place of occurrence and the manner in which, the incident had taken place. They were subjected to lengthy cross-examination but except for the minor discrepancies in their statements the defence had not been able to shatter their confidence sufficiently for discarding their evidence.
The argument of learned counsel for the appellant that on identical evidence co-accused Muhammad Ashraf had been acquitted by learned High Court, we have considered this argument, with utmost care and found from the record that co-accused was extended benefit of doubt and acquitted of the charge mainly for the reasons that to his extent, medical evidence was in conflict with the ocular account making his participation in the occurrence highly doubtful. At any event, case of the appellant is distinguishable and not at part with that of his co-accused.
Learned High Court has appreciated the entire evidence on record by making thread bare examination of each piece of evidence supported with reasons based on record. No piece of evidence incriminating in nature produced by the prosecution appears to have been misread, omitted from consideration or not appreciated in its true perspective.
However, having regard to facts and circumstances of the case, we find that the appellant is in death cell for the last about 14 years. The motive is alien to him. and co-accused charged for firing, has been acquitted. Therefore, we are inclined to reduce his sentence from death to imprisonment for life, to meet the ends of justice.
In view of the above, the appeal is partly allowed and conviction under Section 302 (b) PPC recorded against appellant is maintained. However, sentence of death awarded to appellant, is converted to imprisonment for life with benefit of Section 382-B Cr.P.C. The sentence of compensation under Section 544-A Cr.P.C. amounting to Rs. 25,000/- or in default to undergo six months S.I. shall remain intact.
Above are the detailed reasons of our short order dated 29.5.2008.
(M.S.A.) Order accordingly.
PLJ 2008 SC 1134
[Appellate Jurisdiction]
Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan & Mian Hamid Farooq, JJ.
Mir IKHLAQ AHMED and another--Appellants
versus
STATE--Respondent
Criminal Appeal No. 682 of 2006, decided on 6.2.2008.
(On appeal from the judgment 24.5.2003 passed by the High Court of Balochistan, Quetta in Murder Reference No. 2 of 2003).
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 10(11-A)--Constitution of Pakistan, 1973, Art. 9 and 10(1)--Conviction and sentence recorded in absentia of accused--Maintained by the High Court--Held: Art. 9 of the Constitution of Pakistan envisages that no person shall be deprived of life or liberty save in accordance with law--Art. 10(1) of the Constitution, inter alia, provides that no person who is arrested shall be denied the right to consult and be defended by a legal practitioner of his choice--Accused person shall not be denied the right to consult or defend by a legal practitioner of his own choice--Appellants were absconding at the relevant point of time, therefore, they, undoubtedly, were denied the right to defend themselves and deprived the right to consult or defend by legal practitioner--Trial of the appellants, in absentia, undertaken by the special judge Anti-Terrorism Court, was violative of Arts. 9 and 10(1) of the Constitution and Section 10(11-A) of the Anti-terrorism Act, 1997 thus, cannot be allowed to sustain furtherance, the appellants were not afforded any opportunity of hearing and thus they were condemned unheard which is contrary to the principal of natural justice--Case remanded.
[Pp. 1141 & 1142] A & B
1992 SCMR 602, rel.
Mr. Kamran Murtaza, ASC for Appellants.
Mr. Mehmood Raza Khan, Additional Advocate General Balochistan for Respondents.
Date of hearing: 6.2.2008.
Judgment
Mian Hamid Farooq, J.--"For the reasons to be recorded later, this appeal is allowed, the impugned judgment of the High Court is set aside and in consequence whereof, the conviction and sentence awarded to the appellants by the trial Court and maintained by the High Court, is also set aside. The case is remanded to the trial Court for trial of the appellants in accordance with law."
Following are the facts and detailed reasons for the above noted short order dated 6.2.2008, whereby, we allowed the appeal and remanded the case to the trial Court for trial of the appellants.
The instant appeal, instituted by Mir Ikhlaq Ahmed and Javed Ahmed both sons of Sardar Muhammad Ishaque (appellants), by the leave of Court, proceeds against the judgment dated 3.5.2005 (announced on 24.5.2005), whereby, the learned Division Bench of High Court of Balochistan, Quetta answered Murder Reference (M.R. No. 2 of 2003) in affirmative and upheld the judgment dated 3.2.2003, through which the learned Special Judge Anti Terrorism Court, Khuzdar acquitted Sardar Muhammad Ishaque from the charge, convicted the appellants and the other absconding accused namely Riaz Ahmed and Noor Din sons of Sardar Muhammad Ishaque and Munir Ahmed son of Ghulam Muhammad, in absentia, under Section 302(b) PPC and sentenced them to death; the perpetual warrants of their arrest were issued.
Sardar Muhammad Ishaque son of Jumma Khan (acquitted accused), Ikhlaq Ahmed and Javed Ahmed both sons of Sardar Muhammad Ishaque (appellants), Riaz Ahmed, Noor Din both sons of Sardar Muhammad Ishaque and Munir Ahmed son of Ghulam Muhammad (still absconding) were tried by the Special Judge Anti Terrorism Court, Khuzdar in case FIR No. 31 of 2002 for the offences under Sections 302/365-A/109/34 PPC registered with Levies Thana Baghbana District Khuzdar. Moulvi Khalil Ahmed (PW-6) on 7.12.2002 filed complaint, whereupon formal FIR was registered. The prosecution case as unfolded in the FIR is that on 7.12.2002, Moulvi Khalil Ahmed was informed that sons of Sardar Muhammad Ishaque, namely, Mir Ikhlaq, Javed, Riaz, Noor Din and one Munir Ahmed son of Ghulam Muhammad along with other persons at Gharawah Balai Ghar stopped Khair Jan, who was driving a vehicle and going to his Khair Kapar along with womenfolk; they asked Khair Jan to leave the womenfolk and tried to abduct him along with the vehicle, however, due to intervention of the passengers of the vehicle, they could not succeed, whereupon, Mir Ikhlaq directed his brother Javed to shoot Khair Jan and then Javed fired with Kalashnikov on Khair Jan, who died at the spot. Further allegations are that they all escaped from the place of occurrence on two motorcycles, reached a place at a short distance, where Sardar Muhammad Ishaque was waiting for them in a vehicle, all the accused persons boarded in the vehicle and went away leaving the motorcycles on the spot. On receiving information about the said occurrence, Haq Nawaz (PW-9) Naib Tehsildar/Investigating Officer registered FIR (Ex.P/9-A) and went to the place of occurrence. He prepared site-plan (Ex.P/9-B) and death report of deceased, secured blood-stained stones and recovered five empties from the place of occurrence through inventory memo
(Ex.P/7-A). On the request of relatives of the deceased, postmortem was not conducted and dead body was handed over to them without postmortem, vide Ex.P/9-D. The investigating officer recorded statements of the witnesses, completed the other formalities, arrested Sardar Ishaque (since acquitted) and submitted challan (Ex.P/9-F) before the Special Judge Anti Terrorism Court, Khuzdar. The learned Special Judge after receipt of the challan issued process for the absconding accused persons, except Sardar Ishaque who only faced trial, their warrants of arrest were issued and as they failed to appear, therefore, they were declared absconders and trial was processed against them in absentia. Charge was framed under Sections 302/365-A/109/34 PPC, Sardar Muhammad Ishaque (acquitted accused) denied the charge and claimed trial, however, as against the absconding accused it was held that the charge was presumed to have been denied by them.
Out of the ten witnesses, produced by the prosecution before the trial Court, five claimed to be eye-witnesses. Acquitted accused was examined under Section 342 Cr.P.C, wherein he denied the charges. He also got recorded his statement on oath under Section 340(2) Cr.P.C. and produced five witnesses in defence. On conclusion of trial, learned Special Judge Anti Terrorism Court Khuzdar, vide judgment dated 3.2.2003, acquitted the accused Sardar Muhammad Ishaque from the charge but convicted all the absconding accused, in absentia, including the appellants, under Section 302(b) PPC and awarded death sentences to all of them. The perpetual warrants of arrest of all the absconding accused were issued.
The appellants and three other persons were convicted and sentenced in absentia, therefore, they did not file any appeal against the said judgment, however, trial Court sent Murder Reference (M.R. No. 2 of 2003) to the High Court of Balochistan, Quetta for confirmation of death sentences awarded to the aforementioned persons. No appeal was filed either by the State or complainant against acquittal of Sardar Muhammad Ishaque. Learned Division Bench of the High Court after receipt of the reference made a publication for appearance of the absconding accused, including the appellants, but as none of them turned up, therefore, Abdullah Baloch, Advocate was appointed as their counsel at State expense. The High Court after hearing the learned Public Prosecutor and the defence counsel upheld the judgment dated 3.2.2003 passed by the learned Special Judge and answered the murder reference in affirmative, vide impugned judgment dated 24.5.2005. The appellants were, statedly, arrested on 26.4.2006 and then, they filed time barred petition (Cr.P.L.A. No. 12-Q of 2006) before this Court seeking leave to appeal against the judgment dated 24.5.2005 passed by the High Court of Balochistan. This Court, on 31.10.2006, granted leave to appeal without commenting upon the question of limitation. Although there is no express order condoning the delay in filing the petition yet as leave to appeal was granted to the appellants, therefore, the delay in filing the petition deemed to have impliedly been condoned.
It appears appropriate to reproduce the leave granting order dated 31.7.2006, which reads as follows:--
"Heard Mr. Naeem Akhtar, learned ASC on behalf of petitioner, scanned the entire record with his eminent assistance and perused the judgment of learned trial and appellate Courts with care and caution. We are inclined to grant leave, inter alia, on the following points:--
(i) Whether in the absence of proper service the petitioner could have been convicted in absentia?
(ii) Whether death penalty awarded to petitioner does commensurate with the gravity of alleged offence as only proverbial lalkara has been attributed to the petitioner?
(iii) Whether the principal of consistency has been violated in case of petitioner who has been awarded death sentence whereas the co-accused having assigned a similar role has been acquitted?
(iv) Whether the conviction could have been awarded on the basis of interested, partisan and contradictory evidence?
(v) Whether the evidence which has come on record has been appreciated in its true perspective, settled norms of justice and well-entrenched principles qua criminal administration of justice or otherwise?
The appeal be fixed at some early date".
Learned counsel for the appellants, while referring to Section 19(10)(b) of Anti Terrorism Act 1997 has submitted that the trial of the appellants was held in absentia and they were not afforded an opportunity to defend the trial, therefore, both the judgments, the sentences and conviction of the appellants are violative of Article 9 of the Constitution of the Islamic Republic of Pakistan. He has also submitted that the impugned judgments were passed in violation of Article 10(1) of the Constitution of the Islamic Republic of Pakistan, which gives a right to an innocent person to consult and defended by a legal practitioner of his choice. He has relied upon the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445). Conversely, the learned Additional Advocate General Balochistan although has supported the impugned judgments, yet could not effectively rebut the contention raised by the former.
We have heard the learned counsel for the appellants and Additional Advocate General Balochistan and perused the available material on record.
This Court in the case of Mehram Ali and others (supra), relied upon by the learned counsel for the appellants, has declared Section 19(10)(b) (since deleted) of the Anti-Terrorism Act, 1997 as violative of Article 10 of the Constitution of the Islamic Republic of Pakistan 1973 and having no legal effect. The said provision of law authorized a Special Court to try any accused in his absence, if it is satisfied that the behaviour of an accused is such as to impeding the course of justice and it could order for his removal from the Courts. It may be noted that pursuant to the dictum laid down in Mehram Ali's case Section 19(10)(b) was deleted from the Statute Book vide Ordinance No. XIII of 1999 dated 27.8.1999 and Ordinance No. IV of 1999 dated 27.4.1999. It appears appropriate to reproduce Section 19(10) of the Anti Terrorism Act, 1997, before its amendment and after amendment:--
Before amendment:
"(10) Any accused person may be tried in his absence if the Special Court, after such inquiry as it deems fit, is satisfied that--
(a) Such absence is deliberate and brought about with a view to impeding the course of justice; or
(b) the behaviour of the accused in Court has been such as to impede the course of justice and the Special Court has on that account ordered his removal from the Court:
Provided that, in a case referred to in clause (a), the accused person shall not be tried unless a proclamation has been published in respect of him in at least three national daily newspapers out of which one shall be in the Urdu language requiring him to appear at a specified place within seven days failing which action may also be taken against him under Section 88 of the Code:
Provided further that the Special Court shall proceed with the trial after taking the necessary steps to appoint an advocate to defend the accused person who is not before the Court.
Explanation.--An accused who is tried in his absence under sub-section (10) shall be deemed not to have admitted the commission of any offence for which he has been charged."
After amendment:
"(10) Any accused person may be tried in his absence if the anti-terrorism Court, after such inquiry as it deems fit, is satisfied that such absence is deliberate and brought about with a view to impeding the course of justice:
Provided that the accused person shall not be tried under this sub-section unless a proclamation has been published in respect of him in at least three national daily newspapers out of which one shall be in the Urdu language requiring him to appear at a specified place within seven days failing which action may also be taken against him under Section 88 of the Code:
Provided further that the Court shall proceed with the trial after taking the necessary steps to appoint an Advocate at the expense of the State to defend the accused person who is not before the Court.
Explanation.--An accused who is tried in his absence under this sub-section shall be deemed not to have admitted the commission of any offence for which he has been charged."
"(iii) Though most of the learned counsel for the petitioners assailed Section 19 as a whole, but we are of the view that only clause (b) of sub-section (10) of Section 19 is violative of the fundamental right of access to justice. The above clause (b) of sub-section (10) of Section 19 authorizes a Special Court to order the removal of an accused person from the Court if his behaviour is such as to impede the course of justice and then to proceed with the case in absentia. An accused person for his misbehaviour in Court can be convicted for contempt of Court and punished, but on no principle of law, he can be denied the right to be present and to defend himself in a criminal matter. This Court has already held in the case of Government of Balochistan v. Azizullah Memon (PLD 1993 SC 341) (supra) and Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) (supra) that the right of access to justice is a well recognized and inviolable right enshrined in Article 9 of the Constitution, which lays down that no person shall be deprived of life or liberty save in accordance with law. If an accused person is removed from the Court on account of his misbehaviour and in his absence the trial is concluded and he is sentenced to death, he will be deprived of his life without due course of law. Secondly, under clause (1) of Article 10 of the Constitution an accused person has the right to consult and be defended by a legal practitioner of his choice in case he is arrested and detained.
We, therefore, declare the above provision as violative of the above constitutional provision and having no legal effect."
Now coming to the present case. The appellants along with other persons were, admittedly, tried, in absentia, by the Special Judge, because they could not be arrested. They were convicted and sentenced in their absence, therefore, the question of their removal from Court, as visualized in the deleted Section 19(10)(b), does not arise. As noted above the said provision of law was deleted vide Ordinance No. XIII of 1999 dated 27.8.1999 and Ordinance No. IV of 1999 dated 27.4.1999. Thus, the said provision of law was not on the Statute Book when the judgment was passed against the appellants or even when the trial commenced. In view whereof, Section 19(10)(b) (since deleted) has no applicability in the present case, therefore, the reliance of the learned counsel on the said provision of law and on the case of Mehram Ali and others (ibid) is misconceived and misdirected.
In the case in hand, the trial of the appellants was conducted by the Special Judge and murder reference was answered in affirmative by the High Court in their absence. Now the question arises as to whether the trial against the appellants, in absentia, was validly and legally conducted. Article 9 of the Constitution of Islamic Republic of Pakistan envisages that no person shall be deprived of life or liberty save in accordance with law. Article 10(1) of the Constitution, inter alia, provides that no person who is arrested shall be denied the right to consult and be defended by a legal practitioner of his choice. Sub-section (11-A) to Section 10 of the Anti-Terrorism Act, 1997, which was inserted vide Ordinance No. XIII of 1999 dated 27.8.1999 and Ordinance No. IV of 1999 dated 27.4.1999, states that an accused person shall not be denied the right to consult or defend by a legal practitioner of his own choice. The afore-noted provision of law is in line with Article 10(1) of the Constitution and in fact reiterates the said article of the Constitution in letter and spirit. The appellants were absconding at the relevant point of time, therefore, they, undoubtedly, were denied the right to defend themselves and deprived the right to consult or defend by legal practitioner. The above question came up for determination before the Lahore High Court and the learned Division Bench of the said Court in the case reported as Zia Ullah Khan and others v. Government of Punjab and others (PLD 1989 Lahore 554) has held that the trial of an accused person in absentia is violative of Article 10 of the Constitution of Islamic Republic of Pakistan. It may be noted that the said judgment was assailed by the Government of Punjab in Civil Appeal No. 680/1989 and this Court in a case reported as Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (1992 SCMR 602) dismissed the appeal and upheld the judgment. Another Division Bench of the Lahore High Court in a case reported as Qari Abdul Hayee and another v. The State (2005 YLR 1865) while relying upon the aforesaid cases of Zia Ullah Khan and others and Government of Punjab through Secretary, Home Department (ibid) has also taken the similar view.
In view of the above, we feel that the trial of the appellants, in absentia, undertaken by the Special Judge Anti Terrorism Court, was violative of Articles 9 and 10(1) of the Constitution and Section 10 (11-A) of the Anti-Terrorism Act, 1997, thus, cannot be allowed to sustain. Furthermore, the appellants were not afforded any opportunity of hearing and thus they were condemned unheard which is contrary to the principle of natural justice. We are convinced that the judgments, convictions and sentences rendered and awarded by both the Courts, in the absence of the appellants, to their extent are not sustainable under the law and violative of the Constitution and law, which has necessitated the retrial of the case.
In view of the above discussion, we allow this appeal, set aside the impugned judgment and remand the case to the trial Court for decision afresh in accordance with law.
(M.S.A.) Case remanded.
PLJ 2008 SC 1142
[Appellate Jurisdiction]
Present: Mohammad Moosa K. Leghari, Sheikh Hakim Ali & Muhammad Farrukh Mahmud, JJ.
SHAFQAT MAHMOOD and others--Appellants
versus
MUHAMMAD YAQOOB and another--Respondents
Civil Appeals No. 216 and 217 of 2004, decided on 10.6.2008.
(On appeal from the judgment dated 15.12.2003, passed by the Lahore High Court, Rawalpindi Bench, in Civil Revision No. 1 of 2002).
Punjab Pre-emption Act, 1991 (IX of 1991)--
----Ss. 13 & 35(2)--Constitution of Pakistan, 1973, Art. 185(3)--Interregnum period--Application and scope of--Pre-emptor who had instituted the suit against sales made during the period from 1986 to 1990, when the statutory law of pre-emption had not taken its life, could not take the benefit of provision of Section 13 of the Act because this Section was to be applied to the sales made after the enforcement of statutory law of pre-emption and not to the cases of above noted period, therefore, the sending of notice to vendees was not of any benefit for the pre-emptors--If we presume that provision of Section 13 of Pre-emption Act, 1991 was applicable to these cases of sales as transacted during the interregnum period, then the provision of Section 13 were to be applied in toto and with the same manner which had provided sending of notices not later than two weeks from the performance of Talab-i-Muwasibat--S. 13 would be fully attracted to the present case, which had required the mentioning of date, time and place in the plaint, when Talab-i-Muwasibat was performed--Lack of these particulars suits not maintainable--Failing to comply with the Sub-section (2) of Section 35 of Punjab Pre-emption Act, 1991 which had required the pre-emptor to establish performance of Talab-i-Muwasibat in presence of two truthful witnesses in accordance with the Muslim Law of Pre-emption--Appeals accepted and decrees set aside. [P. 1147] A
Mr. S.M. Masud, ASC for Appellants (in both appeals).
Mr. Zafar Iqbal Chaudhry, ASC and Mr. M.S. Khattak, AOR for Respondents No. 1 & 2 (in both appeals).
Date of hearing: 10.6.2008.
Judgment
Sheikh Hakim Ali, J.--Both the above noted civil appeals are being disposed of through this single judgment as in both these civil appeals, parties are the same and the common questions of law and facts are also similar in nature.
Facts forming arguments of the present appeals are that on 18.05.1989, Shafqat Mahmood and Tariq Mahmood, the present appellants had purchased lands measuring 43 Kanals 12 Marlas, through Mutation No. 936 and on the even date in another piece of land measuring 151 Kanals 9 Marlas from a different vendor for consideration of Rs. 75,000/- through Mutation No.937, situated in Chak Essa, Tehsil and District, Jhelum. Both these sales were pre-empted by two different parties. Chaudhry Muhammad Razzaq filed suit for pre-emption on 24.4.1990 while Chaudhry Muhammad Din, the father of Respondents No. 1 & 2 instituted two suits of the pre-emptions on 5.05.1990 with regard to above noted sales. Chaudhry Muhammad Din, the rival pre-emptor expired during the pendency of suit and was succeeded by his sons, namely, Muhammad Yaqoob and Masood Ahmed pre-emptors-plaintiffs/respondents. All the suits were dismissed on 30.07.1990 holding that no law of pre-emption was in field at that time of sale, therefore, the suits could not proceed. Against that judgment and decree, respondents preferred appeals before the learned District Judge, Jhelum, which were accepted on 31.10.1992 and the cases were remanded to the learned trial Court, where again all these suits were dismissed by the learned Civil Judge on 22.07.1993. Once again pre-emptors filed appeals before the learned Additional District Judge, wherefrom the cases were remanded to frame the issue of limitation, as a preliminary issue, which was framed and decided by the learned Civil Judge against vendees on 2.05.1995. Revision filed against that finding upon issue of limitation, was dismissed by learned District Judge on 7.11.1995. Thereafter, learned Civil Judge, who was seized of all these suits framed consolidated issues on 12.06.1995, upon which both the parties tried their luck by production of evidence. Learned Civil Judge, Jhelum after appraisal of evidence, dismissed the suit of Chaudhry Muhammad Razzaq while suits of Muhammad Yaqoob and others, respondents were decreed on 23.3.2001. Against the judgment dated 31.3.2001, Shafqat Mahmood and others, the present vendees/appellants filed appeals before learned Additional District Judge, which were dismissed on 19.11.2001, by maintaining the judgment and decree of the learned Civil Judge. The civil revisions were filed by the present appellants before the learned Lahore High Court, Rawalpindi Bench that was also dismissed on 15.12.2003. Hence this appeal after grant of leave.
Learned counsel for the appellants submits that suit instituted by Chaudhry Muhammad Din, the predecessor-in-interest of respondents could not be decreed because the suit when was filed, there was no statutory law of pre-emption in existence. First Ordinance, which had enacted the pre-emption law in Punjab was enforced on 29.03.1990 with the nomenclature of Punjab Pre-emption Ordinance No.V of 1990. As the suits of respondents were dismissed, therefore, respondents could avail of the opportunity granted by Section 35 of the Punjab Pre-emption Ordinances as culminated into present statute by the name of Punjab Pre-emption Act, 1991, by filing an application under Section 35 of the Act for resuscitation of those pre-emption suits within 60 days from the date of dismissal of the suits, ¦which provision was not resorted to by the respondents. Further submits that respondents had failed to fulfill the requirements of Section 35 of the Punjab Pre-emption Act, 1991 providing for performance of Talab-i-ishhad in accordance with Muslim Law of Pre-emption, which was prevalent during the interregnum period. He has also objected to the validity of the impugned judgment on the ground that the date, time and place, was not mentioned in the plaint, therefore, both the suits were to be dismissed as these requirements were made applicable to the pending cases also. He has referred to Pir Muhammad Vs. Faqir Muhammad (PLD 2007 SC 302), to support his arguments.
Opposing the arguments, learned counsel for respondents submits that for performance of Talab-i-ishhad, pre-emptors had
sent notice to the vendees/defendants/appellants which was admitted
by Karam Dad, general attorney of vendees (DW-1) in his
statement, therefore, both the suits filed by Muhammad Din were rightly decreed.
We have considered the arguments of both the learned counsel and have perused the record. The learned Courts below have considered the transmission of registered notice to vendees as the compliance of Talab-i-ishhad but the most important fact has been ignored by all the learned Courts below. The notice was admittedly issued on 2.5.1990 under Section 13 of the Punjab Pre-emption Ordinance of 1990, which could be treated as compliance of Section 13 of the Punjab Pre-emption Ordinance of 1990 but not the compliance of fulfillment of requirement of Talab-i-ishhad as provided by sub-section (2) of Section 35 of the Punjab Pre-emption Act, 1991 as also provided by the preceding Ordinances, promulgated for bringing into existence the Statutory Law of Pre-emption, within the province of Punjab. To dilate upon this proposition, it shall be interesting to note that during the interregnum period, when the disputed sales were made, for the success of such pre-emption suits filed to pre-empt those sales, performance of Talab-i-ishhad in the presence of two truthful witnesses was to be achieved in accordance with the Muslim Law of Pre-emption and not through dispatch of notice to vendees, under Statutory Law of Pre-emption, which was not in existence at the time of sale. The provision of the sending registered notice to the vendees, had come into life much after the sales were made. Therefore, it was not the compliance of provision of sub-section (2) of Section 35 of the Punjab Preemption Act of 1991.
The wordings of sub-section (2) of Section 35 of the Punjab Pre-emption Act, 1991 is worth consideration in this regard which is reproduced as follows for its use:--
"Section 35: (1)
(2) Notwithstanding anything in Sections 13 and 30, in respect of the suits mentioned in sub-section (1), the period of limitation shall be one year and it shall be sufficient, if the pre-emptor establishes that he had made `Talb-i-Ishhad' in the presence of two truthful witnesses."
The intent of the above noted provision is explicit, calling upon the pre-emptor to establish Talab-i-ishhad, having been performed in the presence of two truthful witnesses and not through conveyance of registered notice. In other words, the reference was being made to the requirement of performance Talab-i-ishhad, in consonance with the rules of Islamic Law of Pre-emption, which was holding the field in those days. It is an admitted fact that sale transactions were entered into between the parties when the Muslim Personal Law of the parties was prevalent and Section 35 of the Punjab Pre-emption Act, 1991 or the preceding Ordinances had not taken birth. Accordingly, for those suits of pre-emption filed under Muslim Law of Pre-emption, the mode of performance of Talab-i-ishhad as envisaged by Muhammadan Law of pre-emption was to be accomplished. According to the evidence brought on the record and the judgments of the learned Courts below, it has not been held that respondents had performed Talab-i-ishhad in accordance with the rules of Muslim Law of Pre-emption.
The case can be seen from another angle also. The pre-emptor who had instituted the suit against sales made during the period from 1986 to 1990, when the Statutory Law of pre-emption had not taken its life, could not take the benefit of provision of Section 13 of the Punjab Pre-emption Act, 1991 because this Section was to be applied to the sales made after the enforcement of Statutory Law of Pre-emption and not to the cases of above noted period, therefore, the sending of notice to vendees was not of any benefit for the pre-emptors.
If we assume that provision of Section 13 of the Punjab Pre-emption Act was applicable to these cases of sales transacted during the interregnum period, than the provision of Section 13 were to be applied in toto and with the same manner which had provided sending of notices not later than two weeks from the performance of Talab-i-muwasibat. In such cases if the above provision of Section 13 is to be applied, than the judgment of this Court reported in Pir Muhammad Vs. Faqir Muhammad (PLD 2007 SC 302) would be fully attracted to the present case, which had required the mentioning of date, time and place in the plaint, when Talab-i-muwasibat was performed. As the suits had lacked from these particulars and details as envisaged above, therefore, suits were not maintainable and decrees could not be passed.
The result of the above discussion is that plaintiffs/pre-emptors/respondents had failed to comply with the provision of sub-section (2) of the Section 35 of the Punjab Pre-emption Act, 1991, which had required the pre-emptor to establish the performance of Talab-i-ishhad in the presence of two truthful witnesses in accordance with the Muslim Law of Pre-emption.
Accordingly, we allow these appeals and set aside the judgments and decrees of the learned trial Court as upheld by the learned Additional District Judge and the Lahore High Court, Rawalpindi Bench and dismiss both the suits of the pre-emptors/respondents, with no order as to costs.
(M.A.K.Z.) Appeals allowed.
PLJ 2008 SC 1148
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf &
Sheikh Hakim Ali, JJ.
MINISTRY OF DEFENCE through Secretary Govt. of Pakistan and others--Appellants
versus
Syed WAJDI RIZVI & others--Respondents
Civil Appeals No. 1470 of 1487 of 2004, decided on 10.7.2008.
(On appeal from the judgment dated 18.9.2003, passed by the Peshawar High Court, Abbottabad Bench, in R.F.As. No. 13 etc. of 1998).
Land Acquisition Act, 1894 (I of 1894)--
----Ss. 4 & 23--Constitution of Pakistan, 1973, Art. 185(3)--Appellate Jurisdiction--Compensation for the land acquired--Fixation--The land acquired was lying within the cantonment limits of Abbottabad Roads, Water, Gas, Electricity, School and Colleges were already in existence within the vinicity of acquired land--Jinnahabad colony and Habib Colony, which were popular colonies of the areas were also situated near the compulsory acquired land in question which had got a great potential of being used for offices and constructions of residences--Land acquired already being used by the Ministry of Defence after construction of offices and residences, etc. could not be argued that the land had no potential of being used for the above noted purposed--Section 23 of the Land Acquisition Act, 1894 is present on the statute Book to the reserve the land owners for that purpose, which has provided that while determining the compensation of the land acquired, its potential value, i.e. the land shall be used in future, has also to be kept in view--Moreover, the rule that the price of the land acquired has to be fixed, in accordance with this aim and rule that willing buyer is ready to pay and the willing purchaser is prepare to receive the price so fixed, for whole of the land has to be kept in view--Appeal dismissed. [P. 1151] A
Ms. Nahida Mehboob Elahi, DAG with Raja Abdul Gharoor, AOR, Advocate for Appellants. (in all cases).
Malik Manzoor Hussain, ASC with M.S.Khattak, AOR, Mr. M. Bilal, Sr.AS with Ejaz Muhammad Khan, AOR, Qazi Ghulam Rauf, ASC with Ch. Akhtar Ali, AOR, Malik Ittat Hussain, ASC with M.A.Zaidi, AOR for Respondents.
Date of hearing: 10.7.2008.
Judgment
Sheikh Hakim Ali, J.--All the above noted appeals filed under Section 54 of the Land Acquisition Act, 1894 are being disposed of through this single judgment as the common questions of law and facts are involved therein, and the appeals have originated from one Award No. 11, dated 26.05.1993; judgment of learned Referee Judge, Abbottabad, dated 10.11.2000 and that of learned Peshawar High Court, Abbottabad Bench delivered on 18.9.2003.
To acquire the land of private owners for the use of Ministry of Defence, for the expansion of PMA, Kakool, the Land Acquisition Collector/Deputy Commissioner, Abbottabad, issued a notification under Section 4 of the Land Acquisition Act, 1894 on 5.11.1990 for the compulsory acquisition of land of the present respondents of all the above mentioned appeals, which was measuring 165 Kanals 12 Marlas, situated in Revenue Estate, Nawanshehr, Shamali and 21 Kanals 11 Marlas in Revenue Estate, Kakul total land measuring 187 Kanals 3 Marlas. After issuance of notices under Sections 9 and 10 of the above Land Acquisition Act, 1894, ultimately the Collector delivered his Award No. 11 on 26.05.1993 by which he fixed the compensation in the following form:--
"S.No. Name of Village Kind of Land Total Area Cost of Land (Per Kanal) Total Amount."
Maira. 131-K, 05-M Rs.1,08,972/- Rs.1,42,97,126/40
Ghair Mazroha, 15-K, 03-M. Rs.6,054/06 Rs.91,719/00
Total:-- 165-K, 12-M Rs.1,68,36,174/90
15% Compulsory Acquisition Charges. Rs.25,25,426/10
15% Compulsory Acquisition Charges. Rs.4,354/18
Grant Total:-- Rs.1,93,94,983/03
(Rupees one Crore ninety three lacs ninety four thousand nine hundred and eighty three/03 paisa only)
Dissatisfied from the fixation of compensation for the
lands acquired, the owners/respondents filed references under Section 18 of the above mentioned Act, before, the learned Senior Civil Judge/Referee Judge, Abbottabad, through the prescribed procedure, who after grant of opportunity to both the parties and conduct of proceedings decided it on 22.11.1997 and enhanced the compensation, which is as under:
"The upshot of my above discussion on various issues especially on Issue No. 6, the objection petition is accepted and the land acquired is considered up-to 5 Kanal is commercial area and the price value of the same is fixed rupees five lacs per kanal, whereas the remaining area is considered to be fit for residential purpose and its price is fixed Rs.3,41,000/- per kanal along with 15% compulsory acquisition charges and 6% simple interest."
This judgment and decree announced on 22.11.1997 was further challenged by the respondents before the learned Peshawar High Court, Circuit Bench, Abbottabad through separate appeals, which were decided on 18.09.2003 by the learned Peshawar High Court, Abbottabad Bench. The impugned judgment was delivered in R.F.A. No.13 of 1998 with the title of Syed Abdul Wajid Rizvi, Advocate, Vs. Collector Land Acquisition, Abbottabad and two others. The learned Peshawar High Court, Abbottabad Bench, decided the appeals filed by the affectees/ owner and cross Objections No. 1 of 2001. The amount of compensation was further enhanced by the learned judges of the above mentioned learned High Court at Rs.7 lacs per kanal in respect of all the lands irrespective the kind of land, along with 15% compulsory acquisition charges and 6% simple interest, awarded from the date of possession till payment. This judgment of the learned Peshawar High Court, Abbottabad Bench has been assailed through the above mentioned appeals.
Learned DAG has submitted that enhancement of rate of compensation without classification was not in accordance with the law. The learned Peshawar High Court has not kept in view the average price of the land of the crucial period as described by Land Acquisition Act and Rules made there-under, while delivering the impugned judgment. Therefore, the judgment of the learned High Court may be set aside.
Conversely, the respondent's learned counsel have supported the impugned judgment by their arguments and after referring to the record, it has been stated that the entire land acquired can be classified into two categories. Either the land was commercial or it was consisting of land fit for the purpose of construction of offices or residences. They have further argued that the potential value of the land was kept in view while delivering the impugned judgment, therefore, the assailed judgment may be kept intact.
We have considered the arguments and have gone through the record with the assistance of learned counsel of the parties. We have found that the land acquired was lying within the cantonment limits of Abbottabad. Roads, water, gas, electricity, schools and colleges were already in existence within the vicinity of acquired land. Jinnah Abad Colony and Habib Colony, which were popular colonies of the areas were also situated near to the compulsory acquired land in question which had got a great potential of being used for offices and construction of residences. The conclusions drawn by the learned judges of the High Court cannot be considered to be without any basis. Even during the arguments, the fact that the land acquired, was already being used by the Ministry of Defence after construction of offices and residences, etc could not be argued that the land had no potential of being used for the above noted purposes. Section 23 of the Land Acquisition Act, 1894 is present on the Statute Book to the rescue the land owners for that purpose, which has provided that while determining the compensation of the land acquired, its potential value, i.e. the land shall be used in future, has also to be kept in view. Moreover the rule that the price of the land acquired has to be fixed in accordance with this aim and rule that willing buyer is ready to pay and the willing purchaser is prepared to receive the price so fixed, for whole of the land has to be kept in view. The entire land was rightly assessed at Rs.8,00,000/-(eight lacs) per kanal, because this price is based upon the one year average price of the period ranging from 26.05.1992 to 26.05.1993 and 4.11.1999 to 4.11.1990 vide Exp.PW-1/D-1 and Exp.PW-2/D-5 and the notification issued under Section 2(a) of the Finance Act, 1992 where under the land under the MEO was treated at the rates of Rs.8,00,000/- (eight lacs) per kanal and land for residential purpose was fixed at Rs.6,00,000/- (six lacs) per kanal. The notification issued under Section 4 in the year 1990 while award delivered on 26.05.1993 after a span of about three years, in which the prices of the land had increased alarmingly, the fixation of the price/compensation at Rs.7,00,000/- (seven lacs) per kanal by the learned judges of the Peshawar High Court cannot be considered to be illegal, so as to require the setting aside of the impugned judgment. We dismiss accordingly all the appeals by maintaining the impugned judgment with no order as to costs.
(M.A.K.Z.) Order accordingly.